Appeals from Death Row and the case of Cornelius Lewis

On July 5, guards escorted convicted murderer Cornelius Lewis off Menard Prison's Condemned Unit, or Death Row. This was not unusual. Lewis had left his Death Row cell thousands of times over the nine years and two weeks he had lived in it: to meet with his lawyer or other visitors; to exercise (up to an hour every day); to take part in indoor recreation or do research in the law library (up to three hours every day); or to attend the oral arguments in one of the appeals he was making to try and save his life. His July 5 excursion was different, however, because from it he would not return.

After five failed appeals Lewis had won one. In January 1987, a federal judge had vacated his sentence and ordered him sentenced again, which he was last June. The Illinois Department of Corrections will now not inject him with lethal drugs but rather imprison and feed him for the rest of his life.

Lewis is not some poor innocent who was, unfairly, nearly killed. When he robbed and murdered a Decatur bank guard two weeks before Christmas 1978, he was on parole from a 20-year bank robbery sentence. He has shown no remorse for the killing, about which an accomplice testified Lewis had said, "The guard went for his gun. I had to burn him." Though he claimed to have been in Iowa at the time of the crime, every court that has considered his case has said his guilt is as sure as the sunrise. If we are going to impose death for the commission of certain murders, Cornelius Lewis is as good a candidate for it as most other murderers, and a better one than many who get it; nonetheless, get it he won't.

The cause of the change in Lewis's fate is nothing as riveting as a lawyer's trial incandescence or the surprise recanting of a star witness's testimony. His case turns on quieter quirks — a banal clerical error made and caught at fortuitous times; a bad first and a solid, serious second court-appointed attorney. Cornelius Lewis is, quite literally, lucky to be alive. His case shows how caprice can affect the law, and therefore also why an extensive appeals process is necessary if the state is going to be killing killers.

In 1972, the U.S. Supreme Court handed down a ruling that effectively struck as unconstitutional most death penalty statutes then in effect. It based its decision on the ground that capriciousness played too large a role in determining who lived and who died. Each state's composition of its own list of crimes for which execution is permitted passed constitutional muster, the court said. The laws' flaw was the lack of guidelines to help juries differentiate among the disparate situations that make up the crimes on the lists.

According (at least statewide) similar treatment to similar criminals committing similar crimes is an important tenet in our system of law, perhaps a requisite for justice. The jury's unfettered freedom to be merciful or merciless was (sort of literally) a loose cannon, the court said, which must be aimed and fettered by other canons, by laws. Specifically: the death penalty lottery that excessive discretion creates violates the U.S. Constitution's Eighth Amendment ban on cruel and unusual punishment.

States immediately began amending their statutes to address the capriciousness problem; the court first upheld one of the new laws in 1976. Thirty-seven states now have the death penalty. Here is how Illinois' works:

• It is available only in certain cases of murder.
• If the prosecutor decides to request it, he or she must give reasons it should be imposed in this case: The defendant must be sentenced as an individual.
• The penalty may be imposed only if the sentence-giver (the judge, a new jury or the trial jury) finds present at least one aggravating factor from a legislated list.
• The sentence-giver must also consider any mitigating evidence the defense presents from the case or the defendant's life; this is evidence that attenuates the murder's severity and provides hard reasons for mercy.
• If the sentence-giver (unanimously, if it is a jury) finds a proper aggravating factor present and insufficient mitigating evidence to overcome it, then death is mandatory; otherwise, it is forbidden.

After the jury had convicted Lewis, his prosecutor, Macon County State's Atty. Patrick Walsh, asked that death be imposed. He presented a common form of aggravating evidence: the defendant's prior criminal record. The jury had not had this information when it was deciding Lewis's guilt because commission of crimes past is rarely allowed as evidence of current culpability. During sentencing, however, the criminal history is allowed to show how the convicted defendant's commission of the crime is worse than its commission by someone else. Lewis's record would be an evil backdrop to his "burning" bank guard Donald Bivens and cause for his death.

Walsh told the jury that Lewis had four prior convictions, all felonies, of increasing severity. This was incorrect. Lewis had three prior convictions, two felonies and a misdemeanor. Walsh did not know that the information was wrong when he gave it to the jury; neither, for that matter, did Lewis's court-appointed attorney, Decatur lawyer Kenneth Kinser — nor did Lewis himself. The information had come from an FBI rap sheet. Walsh had asked Kinser if it was correct; Kinser had asked Lewis and Lewis had said yes.

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Kinser chose to offer no mitigating evidence, though he did argue against the death penalty on moral, humanitarian grounds — for example, by quoting the Bible: "Vengeance is mine, says the Lord."

Illinois law requires the jury to impose a requested death penalty if there is sufficient aggravating evidence and insufficient mitigating evidence to overcome it. Lewis's jurors found sufficient aggravating evidence and insufficient mitigating evidence to overcome it. It took them an hour.

Illinois convicts sentenced to die get at least eight appeals, some of which the courts must hear and decide, others of which they may summarily reject. When they hear them, it is rarely to reexamine evidence: Appeals exist to ensure that procedural and constitutional commands were faithfully followed, not to reconsider each side's case.

Lewis lost before the Illinois Supreme Court in 1981. In 1982, the U.S. Supreme Court refused to consider his appeal. He lost before another state circuit court in 1983 and before the state supreme court again in 1984; the next year, the U.S. Supreme Court again refused to hear his case.

Of all the arguments made by Lewis's court-appointed appellate attorney, Champaign lawyer J. Steven Beckett, most strenuously pressed was the one that, at trial, Lewis had been denied effective assistance of counsel. This is a common appellate argument for Death Row inmates to make. Prosecutors disdainfully characterize the argument as a second trial, in which the allegedly victimized murderer prosecutes the trial lawyer — the alleged perpetrator.

The legal basis for the argument is the U.S. Supreme Court's holding that the Constitution's guarantee of legal assistance necessarily implies a guarantee of effective assistance. There is, however, a practical problem with guaranteeing constitutional competence: measuring performance to determine whether some minimums were met. Trials are like snowflakes, and constantly second-guessing every move of every one would be unfeasible. Lawyers thus get great leeway; and the ineffective assistance argument is thus a hard one to win.

To triumph, the convict must convince an appellate judge to make two extreme findings: First, that the alleged ineffectiveness was so bad it caused a breakdown of the adversarial process; and second, that a specific occurrence resulting from the lawyer's deficiencies probably affected either the verdict or the sentence imposed.

Beckett proffered several examples he argued constituted constitutional ineffectiveness, examples, he argued, of Kinser's inexcusable laxity or unjustifiably stupid strategy. All were rejected until Lewis's sixth appeal, before U.S. District Judge Harold Baker in the Central District of Illinois, begun in early 1986 and finished the following year.

Shortly before going before Baker, Beckett had discovered a new example to proffer: Lewis's jury's receipt of an erroneous criminal history. Although there is no right to a perfectly factual trial (to help ensure accuracy, you get a lawyer ethically charged with defending you zealously), Beckett knew the mistake could be constitutionally crucial.

Others knew too. Two years earlier, the lawyers arguing for the state against Lewis had discovered the error and had decided not to say anything to anyone.

Walsh's FBI rap sheet on Lewis said Lewis had been convicted of attempted assault with a knife in 1965 and assault with a tire iron in 1966, both in New York; second degree robbery in California in 1966; and bank robbery in Minnesota in 1969. All four were felonies. Because a rap sheet is not legal evidence of prior crimes, Walsh had tried to get certified copies of conviction from the appropriate authorities before the sentencing phase of Lewis's trial. He had obtained the certificates for the second two crimes but had been unable to obtain the two from New York. That failure, however, was rendered irrelevant by Kinser's decision not to contest the information after Lewis confirmed its veracity. (Kinser later said that Lewis's verification made stipulating to the rap sheet's history better than challenging it and letting jurors get embossed documents attesting to Lewis's violent nature when they were deciding whether to have him killed.)

During the 1983 appeal before the second state circuit court, Assistant Atty. Gen. Neal Goodfriend and Assistant Macon County State's Atty. Jeff Justice wanted to know whether the New York assault had been with a tire iron or a firearm. The trial transcript said Walsh had told the jury it was the former, but Goodfriend and Justice thought Walsh had in fact said it was the latter and that the court stenographer had erred. Though Walsh had been unable to penetrate the thicket of New York's criminal justice bureaucracy, Justice and Goodfriend had a friend there who got them what they wanted.

Except it wasn't what they wanted. It turned out that Lewis had been charged with two felonies (one of which involved a tire iron), but that the charges had been bargained down: New York had convicted Lewis, upon his plea of guilty, to a single misdemeanor.

The two men's decision to maintain secrecy about their discovery led Goodfriend, with Justice's acquiescence, to lie to the Illinois Supreme Court in 1985, when the criminal history was raised obliquely in his brief and during oral argument. Goodfriend repeatedly mentioned the "four" felonies or the "four" convictions and never set the record straight. Goodfriend won't discuss the incident; Justice defends it on two grounds. First, he argues, the rule requiring the state to turn over any evidence that would aid the defendant applies only at trial, not on appeal; and second, he cites the ethical canon commanding attorney zealousness.

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On January 8, 1987, Baker declared part of Kinser's performance ineffective. He mentioned a number of reasons, prominently citing Kinser's failure to make Walsh prove the sentencing information: A properly zealous lawyer would investigate such important evidence more thoroughly than by simply querying the client. He also held that the jurors may well have considered two felonies very differently than they did four in deciding Lewis's fate.

Because Baker could find a concrete result of Kinser's ineffectiveness only at the sentencing and not at the guilt phase of the trial, he upheld the verdict but threw out the sentence and ordered Lewis sentenced again. The state appealed.

On November 4, 1987, Baker's decision was upheld by a federal appellate court, which excoriated the secrecy and lie of Goodfriend and Justice. The court requested the Illinois Attorney's Registration and Disciplinary Commission to investigate the two men's actions; the commission will not now comment on its probe.

In May, Beckett offered two weeks of evidence to a new jury. He first argued that Lewis was not the trigger-man, and then he presented testimony about Lewis's hard prior life and exemplary prison record. The jury found sufficient mitigating evidence to overcome the state's aggravating evidence and preclude imposition of death.

On June 27, nine years and five days after Lewis was first condemned to die, a state judge sentenced him to life in prison without chance of parole. A week later, Lewis left Death Row for good.

Had Beckett, a white, upper-middle-class lawyer, not taken his defense of Lewis, a condemned, poor black murderer, as seriously as he did, and had he not found the correct criminal history, Lewis might now well have been dead.

Without a factual error on which to hang a finding of ineffectiveness, Baker might have upheld the sentence, just as he did the guilty verdict; and the federal court might then have upheld that. Lewis's last chance would have lain with the U.S. Supreme Court's resolution of three questions, all of which, at the time of the court's consideration, would have been repeatedly rejected by a slew of lower courts: Was Kinser ineffective? Was Kinser's failure to offer mitigating evidence ineffective by definition under Illinois' death penalty law, which mandates that jurors impose death if there is insufficient mitigating evidence to preclude it? And is the Illinois statute itself unconstitutional?

Had the U.S. Supreme Court either once again refused to hear the case or taken and upheld it, Lewis would have then been executed while representatives of the state knew that his prosecutor had given his jury false evidence. This is true, deplorable, and alone sufficient reason for a thorough appeals process. But it should in fairness be noted that the questions about justice raised by Lewis's case cut both ways:

• Which was more correct — the "wrong" information the first jury got or the "correct" information given the second?

That is, how was it that Lewis came to verify his commission of two New York felonies when in fact he'd been convicted of one New York misdemeanor? Was it unfamiliarity with technicalities such as judgment? Or was he, after all these years, responding inadvertently to the slightly different (and improper) question: What crimes have you been caught at? Was his first jury's information accurate in the real, though not the legal, world, and was his second jury's information a legal fiction?

• Furthermore: The capricious presentation to the first jury of the "error" not only nearly got Lewis killed, it served to save his life as well. That is, it was as important to Lewis that the error was made as that it got caught.

Had Walsh obtained the New York certificate and presented the proper three-conviction history to the jurors, it is easily conceivable that they would have sentenced Lewis to death nonetheless, still finding sufficient aggravating and insufficient mitigating evidence. The jury would then have heard no error, and Baker's grounds for calling Kinser ineffective and vacating Lewis's sentence would have been removed. Even if Kinser had done nothing differently, a little more zealousness by Walsh (or just better luck) could have deprived Lewis of what turned out to be crucial in getting a shot at a second sentencing, before a new jury, with a better attorney.

In 1972, when it struck death penalty statutes for their capriciousness,the U.S. Supreme Court was referring to the capriciousness that results when juries' discretion is only lightly circumscribed. That problem has been solved with the use of aggravating and mitigating evidence.

The capriciousness in Lewis's case is different. His may even be more tenacious, less amenable to control by due process and trial precautions, born of a randomness ineradicable from any human method of justice. This capriciousness we can address through only the much maligned death penalty appeals process.

The exhaustive and complex process often looks like little more than lawyers' picayunish parrying — attorneys trading technicalities in time-consuming mind games. That appearance, however, should never be eliminated. The decision to take a life must be made no way other than slowly, publicly, openly and extremely deliberately, bound by strict rules applying equally to pauper and prince. If the dwindling century teaches us anything, it is precisely that. The next time you hear someone complain about how long it takes to kill condemned men, wonder what it would be like to live under a government that was routinely killing a man a week, or even one a month — a morally dangerous efficiency. It is impossible to ensure that clerical errors never get made or that prosecutors never lie; so vigorous yet meticulous appeals are needed to wring out some potentially lethal randomness from a justice system whose treatment of people is significantly affected by wealth and the roulette of free counsel. If we Illinoisans are going to choose to execute some murderers, then guaranteeing those chosen extensive review is the only way to resist the easy slide toward killing some murderers as casually or arbitrarily as some murderers kill.□

Harvey Berkman covers state government for the Lee Enterprises news bureau in Springfield. He has a law degree from the University of Illinois and a public affairs reporting degree from Sangamon State University.

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