Trials in Error

Originally a strong supporter of the death penalty, Bill Kurtis, the front man on A&E's Investigative Reports, Cold Case Files, and American Justice, has recently become an outspoken opponent of the practice. Kurtis, whose new book is titled The Death Penalty on Trial: Crisis in American Justice, talks with journalist Sasha Abramsky about serial killers, justice, and why he can't watch CBS's CSI: Crime Scene Investigation.

Explain to me where you were, intellectually, on the death penalty when you really started looking at the issue in detail.

I believed in it, being a lawyer and trained in the system; but that meant I was really on the edge, as most people are. I just assumed it worked, that the guilty were punished and the innocent went free. When I began looking into it and seeing the shocking numbers [of wrongfully convicted individuals] coming out, I changed. Not overnight. We started doing a two-hour special, “Death Penalty on Trial,” and I came upon two things. One was a quote by [Supreme Court Justice] Thurgood Marshall, in which he said, “If people knew what went on in death penalty trials, they'd be against it.” And the second was James Liebman's study. [Professor Liebman, of Columbia University, headed a study looking at the number of death penalty cases identified as having serious flaws over the decades.]

Why did you support the death penalty originally?

I covered pretty high-profile trials for CBS News, and they were bloody, gory. I covered Richard Speck and how he killed eight nurses -- the blood was so thick, the cops had to put a two-by-four down to walk across it without slipping. And I covered Charles Manson. And then the Soledad Brothers. You can go on and on, one more grisly than the others. That put me in the prosecutor's mood. I liked the prosecutors. I was part of the system. In hindsight, the prosecutor was always prepared: He had the team of lawyers, very credible policemen as witnesses, and they were very rarely overruled at trial. The defense lawyer was usually outclassed and outgunned. Now I understand it all; the system's out of whack, and all the advantages are on the prosecution side.

In your book, you talk about a sense of revelation, described by the ancient Greeks as “peripeteia.” Can you explain what that means?

It's a Greek term. I heard it some place. I said, “My God, that's it.” That moment when you realize all you believe in is wrong. This was such a basic belief -- my faith in the system -- it was almost revolutionary for me. It had an emotional impact.

And what exactly was your realization regarding your awakened opposition to the death penalty?

I realized I had a new argument, that I was on a new path. All the death penalty arguments usually end up with the moral take: “It's not right.” Until the 13 cases [former Illinois Governor George] Ryan looked at, nobody had said, “The system doesn't work.” Sometimes you just laugh out loud at the inadequacies of the defense lawyers [in these death penalty cases]. Some were taking cocaine at the table; others read out only eight sentences [on behalf of their clients] during the sentencing stage of the trial. It was so out of balance, I said, “My God, I've got a new story.” I'd not seen it before.

How did you choose the two cases to profile in your book?

I wanted two trials where everything should have gone right -- easy trials where no mistakes should have been made -- and yet they were wrong. I started with the verdict and worked my way back.

What did you feel like when you were investigating these cases?

Like taking the layers off an onion. The deeper you go, the more you realize how much trouble the system's in. It's shocking. It's that sinking, deep feeling you get when you realize, “My God, it's much bigger than I thought.”

And these cases were symptomatic of a bigger problem?

The Ray Krone case [the first case Kurtis wrote about] has three of the classic mistakes. Ruth Bader Ginsburg says hardly a death penalty case comes to the Supreme Court that doesn't have the issue of ineffective counsel in it. The adversarial system is out of whack. The prosecutor is always better than the defense. They don't have special training for death penalty cases, and they're not paid enough to be able to pay attention to the case. In Ray Krone's case, the defense got $5,000 in expenses -- not for the trial but for the whole year. [One of the prosecution's critical pieces of evidence was a bite mark on the murder victim that supposedly matched Krone's teeth.] When it comes to getting a bite-mark expert, he got his family dentist. The state paid its expert witness $50,000. So it's just out of balance. It's like a boxing match, and you're fighting in a different class. In the Kimbol case [the second case in Kurtis's book], the defense attorney was a courtly gentleman who'd spent 17 years as an elementary school teacher and then went to night classes to become a lawyer. It was his first homicide trial. The prosecutor had 80 homicide cases under his belt.

How does writing a book on the death penalty fit into your long TV career? Is it a coda or a new direction?

It's a new direction and a coda, too. I haven't written on a hard issue like this before. It's an advocate's position. For most of my career, I tried to follow Walter Kronkite down the middle. But on the other hand, Ed Murrow even said if you investigate a story, it's unfair at the end not to come to a conclusion and tell people. I see myself as an information-bearer, a messenger. I kinda feel I'm out on the stump, because I get emotional and passionate about it. I've come down on one side, because to me the facts are clear.

What does the word “justice” mean to you?

It means truth, and truth is very close to my heart. It means a balanced, fair outcome to a dispute. There's a winner and a loser every time you go into a case -- and justice is holding up a mirror to an event, but the mirror can't be tainted or clouded. You have to have a fair playing field, good lawyers, a good judge. If we really applied the system, it works. But human beings work within the system, and there's a temptation by prosecutors to not show evidence that might suggest a person is innocent.

What does the criminal justice system do best, and what does it do worst?

It does best in finding suspects and its investigations and then presenting a trial that has the appearance of justice. The whole thing isn't just a sham. It's a peaceful resolution to our disputes, and we need that. Just its presence is a deterrent and holds our society together -- and we need that. The “peripeteia” is realizing that all that -- the institution and the image -- is wrong; and it doesn't work all the time; and it's more luck than science. What the worst? Well, let's see, it's almost the same thing. “Worst” is an extreme position. If you back off that a little bit, investigations are often done with tunnel vision. They don't look at suspects beyond the person they've focused on. Defense attorneys don't spend enough time, and prosecutors don't allow their thinking to be open enough that this guy may be innocent. The system doesn't examine itself well enough. And that's exactly what it has to do right now.

In your mind, what was the low point for American justice in recent years?

Definitely the mistakes made in these exoneration cases. They can't get any lower than that -- apart from actually killing people. We're putting innocent people in jail, taking away 10 to 20 years of their lives. That's a low point.

What's your greatest fear?

Having to face the death penalty as an innocent man standing there. I'd hate to actually enter the system where you are charged with a crime, fingerprinted, incarcerated, put on bail, go to a preliminary hearing. It's all out of your control. I'd hate also to do time on death row.

What's your greatest hope?

That the legal profession takes a hard look at the criminal justice system.

After working as a reporter for decades, do you ever think that reality is stranger than fiction?

I definitely do. Not only because of these cases, but also because of Cold Case Files. I can't watch CSI on TV, knowing it's fictional, because reality is so much worse -- or exciting. Do you think you could get away on TV with having a person cut a fetus out of a pregnant woman? So, yes. Reality is much more interesting.

Sasha Abramsky is is the author of Hard Times Blues (St. Martin's Press, 2002) and an upcoming book on voting rights (The New Press in 2006).

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