August 15, 1999
Web posted at: 7:05 a.m. EDT (1105 GMT)

In this story: Prisoner insists on DNA test After 18 years behind bars: Freedom Crucial evidence often destroyed RELATED STORIES, SITES

CHICAGO -- Wrongful convictions are shifting the national debate over the death penalty. The argument has changed from a focus on morality to the question of how often the innocent are condemned.

In the last dozen years in Illinois, 12 men have been executed, but 12 others once condemned to die have been exonerated -- three this year. Some were cleared with new trials. Some had their convictions overturned in appeals. Some used DNA tests to prove their innocence.

The statistic mirrors a national trend. Since 1973, 81 men and one woman sentenced to death have been freed, nearly half of them since 1990, according to Richard Dieter, director of the Death Penalty Information Center in Washington. He believes more investigations by lawyers and journalists and increased use of DNA testing are partly responsible.

In July, Cook County State's Attorney Richard Devine asked the state Supreme Court to delay the executions of three inmates who claim police coerced them into confessing.

In 1999, Dieter says, lawmakers in at least 10 states proposed imposing a moratorium on executions or abolishing them. "Illinois made temporarily halting the death penalty a legitimate issue," he says. "The momentum has picked up."

Twelve wrongful convictions do not mean Illinois, with 158 death row inmates, has a bigger problem than other states, says Larry Marshall, a Northwestern University law professor who has been involved in 10 of the cases. But, he says, they do mean "we're doing a better job of detecting them."

Even so, he says, the 12 could easily have gone to the death chamber. Their salvation depended on coincidence, good timing and good fortune.

Consider Gary Gauger, freed because his pleas for help happened to reach the right desk.

Or Darby Tillis and Perry Cobb, released because a stranger happened to read about their case in a legal newspaper.

Or Ronald Jones, saved from lethal injection because old DNA evidence, which often gets lost or destroyed, happened to be sitting in brown envelopes in a file drawer for eight years.

"You can call it luck," Marshall says. "You can call it the hand of God. You can call it fortuity, serendipity. "What it's not," he says, "is the system working."

The condemned man sat shackled in the prison visiting room, listening to his lawyers talk about a way out -- one way left to prove his innocence.

Ronald Jones, convicted of the rape and murder of a young mother, insisted he hadn't done it. Now, after four years on death row, an improved DNA test might finally clear him.

Dick Cunningham, one of his lawyers, cautioned there would be no turning back. "This is the whole ball game," he advised Jones. "If there's any chance you did this, it's going to prove it beyond a shadow of a doubt."

Jones was adamant. "I want the testing done," he said. "It's not me."

The facts were stacked against Ronald Jones. He was a homeless, alcoholic panhandler. His IQ was around 80. Worse, he had confessed to the 1985 murder of Debra Smith, though he later recanted, saying he made up a story so police would stop beating him.

In 1997, after more than two years of arguments, the Illinois Supreme Court granted permission for DNA testing. The DNA testing excluded Jones.

His life was spared, but his freedom proved elusive. A computer check found that years ago Jones, now 50, had walked away from a work release camp in Tennessee, where he had been serving five years for robbery.

Soon he was behind bars again, this time in Tennessee.

Cunningham's work goes on. He has nine more clients on death row.

In Illinois, a condemned man spends an average 13 years awaiting execution. That time helped save 12 men. Investigators unearthed new evidence. Witnesses changed their stories. DNA testing became more sophisticated.

There has been no DNA case in Illinois more shocking than the Ford Heights Four in which two men were sentenced to death and two others to virtual life in prison for a gang rape and double murder.

They spent up to 18 years behind bars before DNA tests exonerated them in 1996. At that time, three other men confessed to the crime. The Ford Heights Four recently won a $36 million settlement from the county.

None of this would have happened without David Protess, a Northwestern journalism professor, and some of his students, whose investigation led the state's chief witness to change his story.

In the wake of the case, Illinois passed a law giving death row inmates a right to DNA testing in cases where identity is an issue and test results could potentially prove innocence. Its sponsor was Ed Petka, a state senator and former prosecutor who put seven men on death row.

"It's an idea whose time has come," he says. "I can't see anyone who should be objecting."

But only New York and Illinois have such laws. In 33 states, new evidence can't be introduced in a criminal case more than six months after the final judgment in state court, says Barry Scheck, co-director of the Innocence Project at the Cardozo School of Law in New York.

DNA testing has exonerated 64 inmates in the United States and Canada, including nine who were on death row in this country, Scheck says. In cases the Innocence Project handled, more than two-thirds tested had results in their favor.

But in 70 percent of the cases in which inmates asked for help, Scheck says, evidence that would help determine innocence is claimed to be lost or destroyed, though sometimes it turns up later.

Even when there is evidence, the wrongly convicted need something else: a champion. That's been true in all the Illinois cases.

"These people are alive ... for the most part because they've been lucky enough to find somebody in their family or somebody in their community who's willing to fight for them," Marshall says.

The Associated Press contributed to this report.

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