Free at
Last
Reflections from Death Row
By Bruce Braun, `85
Bruce Braun `85 is presently a litigation associate with Winston & Strawn in Chicago. He formerly served as a law clerk to the Honorable Joel M. Flaum of the United States Court of Appeals for the Seventh Circuit, and Chief Justice William H. Rehnquist of the United States Supreme Court. Braun's article originally appeared in the Winter 1996 edition of Litigation, Vol. 22, No. 2. Reprinted by permission of the American Bar Association
It was my third day as an attorney with Chicago legal giant Winston & Strawn when I received a plain white envelope inviting me to an "informal" lunch of litigation attorneys. When I ascended the final steps to the 47th and top floor of the building, I saw the white marble of the room in stark contrast to the mahogany walls and gray, overcast sky glimpsed through the two-tiered windows. A cold and penetrating chill ran down my spine.
The buffet line already stretched beyond the conference room entrance. I took my place, content on remaining out of sight and thus out of mind to my new colleagues. With little in the way to pass the time, I began listening to the conversation of the two attorneys in front of me. At first it seemed that they were discussing a criminal case. As I listened more closely, however, it became evident that they were not simply discussing a criminal case; they were deeply involved in the intricacies of a death penalty case.
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That was how I joined the defense team representing Illinois death row inmate James P. Free, Jr.. During the next five years and until his recent execution by the State of Illinois, I developed a close relationship with this convicted and condemned murderer and rapist. The experience is forever ingrained on my soul, as together we experienced the relief of the overturning of his death sentence by the federal courts, only to face the despair of impending death when the decision granting him habeas corpus relief did not stand up on appeal.
Free was convicted and sentenced to death for the 1978 attempted rape of two women and the murder of one of them. Twenty-three years old at the time of the crime, Free was a middle-class, high school educated, white male from the far outskirts of Chicago. Following high school and several stints working on a construction crew, he joined the Army and was stationed in Washington State. In April of 1978, he was given a two-week leave to visit his family before he was to be shipped for a tour of the DMZ in South Korea. It was an assignment that Free looked forward to. But he would never embark to Korea.
Rape and Murder
While home in Dubuque, Iowa, during his leave, Free traveled with his mother to Glen Ellyn, Illinois, the town where Free was born and raised. Late at night, Free returned to a building that he was familiar with from his days as a construction laborer. Wearing a crudely prepared mask, he entered the building and descended to the basement, where he found two women working in an all-night key punch shop. Dressed with the cloth mask over his face and armed with a hunting knife and a .357 magnum, Free ordered the women to lie on their stomachs and informed them that he intended to rape them. When the younger of the two women began to cry, the older begged Free to "take her" first, rather than the younger woman, who was a college student at the time. Free complied and bound the younger woman with the twine he had brought with him.
Free then directed the older woman to the adjoining room where she disrobed. Hearing noise from the other room, Free left the naked woman to check on the younger victim, whom he found had begun to untie herself. As he re-tied the woman, he heard the older woman attempt to escape.
Free ran down the fleeing woman and shot her one time in the back, killing her instantly. Free then returned to the younger woman and shot her once in the chest from point blank range. She survived.
Free was arrested the next day at his parents' home in Iowa. As the first capital murder trial in DuPage County, Illinois, since the State had reenacted the death penalty following the Supreme Court's 1973 decision in Furman v. Georgia, 408 U.S. 238 (1972), Free's trial was subject to what at the time was unprecedented media scrutiny. His defense-that he had no recollection of the events of that night because he had ingested both alcohol and PCP-was rejected by the jury, which found him guilty and voted unanimously to sentence Free to death by lethal injection.
Free's conviction and sentence were upheld on direct appeal. Over the next five years he unsuccessfully sought state post-conviction relief in the Illinois courts. Having exhausted his state court options, Free turned his sights to federal habeas corpus.
By 1989, the United States Supreme Court had already embarked on its campaign of streamlining the process of federal habeas corpus review, both by limiting the number of petitions a defendant was entitled to file (one), and narrowing the types of claims that a defendant could advance in federal court (claims not based on new rules of constitutional law).
Thus facing his one and last bite at the apple, Free attempted to secure first-rate legal representation. He did so by writing a letter to Kimball Anderson, a partner at Winston & Strawn, who recently had gained substantial acclaim for successfully convincing the United States Supreme Court to grant federal habeas corpus relief to a Michigan inmate. Anderson agreed to represent Free and began reviewing Free's file for traces of constitutional red flags.
It was a conversation between Anderson and an associate that I had rudely interrupted in the buffet line. The Supreme Court decision that we argued about spelled the death knell for one of Free's promising federal constitutional claims. The federal district court addressing Free's petition, however, had just granted him an evidentiary hearing on the validity, reliability, and impact of an empirical study of jury comprehension of Illinois's capital sentencing jury instructions.
Free claimed that this novel empirical evidence demonstrated that his capital sentencing jury received constitutionally inadequate guidance on its consideration of aggravating and mitigating evidence when it sentenced him to death. Anderson asked me to join the defense team, and with the promise of gaining trial experience and my imagination piqued over the possibility of representing a death row inmate, I agreed.
Meeting My Client
It was barely a few weeks before I had my first conversations with Free. As would be expected, condemned prisoners are not given free rein of a prison's telephone facilities. Because I needed to speak with him to discuss several issues surrounding the evidentiary hearing, I called the high-security prison in Pontiac, Illinois, and, as instructed, asked for the Condemned Unit. The gruff and businesslike voice of a female corrections officer came on the line. After I identified myself as Free's lawyer, she methodically asked for the name and corrections number of the condemned prisoner to whom I wished to speak.
A few hours later I picked up the receiver of my office phone to hear an operator ask whether I would accept the charges for a collect call from the Pontiac Correctional Institution. My skin immediately grew clammy as I agreed to take the call. My curiosity was greeted by a soft, high-pitched voice. I recognized the near-southern twang to it.
I felt paralyzed as the voice greeted me with the words, "Hi, this is Jim. It is a pleasure talking to you, and I appreciate you helping me out on my case." Trying to sound as formal and businesslike as possible, I informed him that, as a brand new litigation associate with an extensive knowledge of constitutional law, I eagerly awaited the opportunity to aid in his quest for relief from the death sentence. A little confused by my formality, he responded by saying, "Well, whatever, I appreciate any help you can give to Kimball."
Over time, our conversations grew longer and more personal. I learned that Free had found religion (of the Southern Baptist variety) and he felt true and deep remorse for his victims. He rarely spoke of his crimes unless it was relevant to a particular aspect of his case. Nonetheless, he appeared to have accepted his fate of spending the rest of his natural life behind bars. He had not, however, accepted the part of his sentence that dictated that his natural life would end at the hands of the State.
The federal court evidentiary hearing pitted us against a team of assistant states attorneys trained for work in the trenches of state criminal trial courts, but not prepared for the issues posed by our empirical evidence. We presented the world's leading experts on the issues of jury comprehension, jury decision making, statistics, and linguistics, who testified convincingly and unanimously that our study was valid and reliable and demonstrated that the capital jury instructions in Free's defense were incomprehensible.
From the outset, it was apparent that our opponents were in over their heads. Their cross-examinations of our witnesses consisted of little more than loud denunciations of the witnesses' personal views of the death penalty. The prosecutors lacked the expert assistance to help them grasp the difficult and complex technical issues implicated by the empirical evidence.
The State's case was no more impressive than its ability to deconstruct ours. It consisted entirely of a journalism professor who had an expertise in presidential polling techniques. Although he knew a great deal about Truman's triumph over Dewey, the expert was forced to concede that he knew next to nothing about juries or jury instructions. Ultimately Anderson forced the State to concede in its written filings that the expert was not an expert on any issues relating to juries.
Granting the Habeas Writ
Based primarily on the qualifications of our experts, the Magistrate Judge issued a lengthy opinion in which he found the empirical evidence to be valid and reliable. He concluded that Free's capital sentencing instructions were incomprehensible and thus unconstitutional, and he recommended that the district court grant Free the "great writ" of habeas corpus. Months later Judge Marvin Aspen, a well-respected federal district court judge, adopted the Magistrate Judge's recommendation and granted the writ.
Anderson and I agreed that I would handle the Seventh Circuit argument, and he would argue the case before the Supreme Court if the case went that far. Prior to argument, the panel of judges hearing the habeas appeal of serial killer John Wayne Gacy asked for additional briefing by the parties in that case on whether that panel should "overrule" the district court decision in our case. When Gacy's lawyer suggested that it would be better practice for the court to resolve those issues in Free's appeal and permit Gacy to present claims based on Free's district court decision in a subsequent habeas petition, Judge Easterbrook declared: "There will be no further habeas petitions for this defendant. This will be this defendant's final habeas petition."
The fear that the Gacy panel would engage in such obvious judicial activism and decide the issues presented in our appeal led us to file an amicus brief urging the Gacy panel not to address the merits of either our empirical study or Judge Aspen's decision in our case. Nonetheless, although the panel found the instructions so incomprehensible as to be "polysyllabic mystification," the Gacy panel threw judicial restraint to the wind and found our study to be flawed and Judge Aspen's decision erroneous.
Thus, we entered oral argument in a unique and precarious position. We not only had to defend the merits of Judge Aspen's decision, we also had to convince our panel that it was not constrained by the Gacy panel's holdings. At oral argument, Chief Judge Posner began with the observation that he had read the instructions and that, to him, the instructions were perfectly clear. I attempted to explain the meaning and importance of the empirical data to the contrary. I also tried to explain to him that Free perhaps would have been lucky to have had a sentencing jury composed of Seventh Circuit judges and University of Chicago law faculty members, but that instead he had a jury of DuPage county commoners. Chief Judge Posner was not moved by this line of argument and the court agreed with the Gacy panel and overturned the district court's decision.
Following the Seventh Circuit's decision, I began to prepare for the inevitable denial of our petition for certiorari to the U.S. Supreme Court by preparing Free's petition for executive clemency to the Governor of Illinois. As part of that process, I decided to meet the client face-to-face to discuss the nature and content of what would be his final plea for life. It was the middle of July, and I enlisted the aid of one of the firm's many summer associates to make the trip down state with me. We headed down Highway 55 early on a Wednesday afternoon. It was a moment that I had long awaited with uneasy anticipation and much hesitation. Up to that point, I had been able to avoid a personal stake in the case. Although Free and I were friendly on the phone, the fact that we had never seen each other created a barrier.
We froze when Free explained his life plans: Another inmate had recently had his sentence reduced from life without parole to forty years of incarceration, and then to time served. Free expected us eventually to have his sentence commuted not just to life, but to time served. We left shaken, questioning whether we wanted to be involved in liberating Free. Although we were his lawyers, and thus compelled to represent him to the fullest extent of the law, neither of us wanted to see him out on the streets any time soon.
After the Illinois Supreme Court set an execution date of March 22, 1995, I began to receive a stream of phone calls from individuals interested in helping Free in any way possible, ranging from Amnesty International's London Office to North Carolina Clergy.
Learning the Jailhouse Crowd
As one member of the defense team later commented, the clemency hearing bore a close resemblance to the television show, Family Feud. After we paraded Free's mother, three sisters, two nephews, and a brother-in-law before the ten-person Prisoner Review Board, the State presented the testimony of the victim who survived Free's attack, as well as the deceased victim's husband and only sister.
Free's family talked about what a good, peace-loving child he had been, how out of character the attack was, and how much he meant to them. They also presented oil paintings and other works of art Free had created during his stay on death row. In essence, they pleaded for his life, arguing that his life had value and that executing him would have a grave impact on the family.
Not surprisingly, the State's witnesses told an entirely different story. The surviving victim described in detail the crime and the horror she endured as Free murdered her co-worker and then turned his gun on her. She asked the Prisoner Review Board to provide her with the closure she so desperately needed to put the events of that night behind her forever. The deceased victim's husband discussed his hatred for Free and described the life he had been forced to live raising two young daughters without a mother. He too begged the Board to put an end to Free's life.
For everyone there, the most poignant and gripping moment of the hearing was the playing of Free's taped statement to the Board. Since he had no right to attend the hearing, we made arrangements with prison officials the week before to tape a statement, and to further bring him to life before the Board, we also enlarged a photograph of Free standing in his cell next to one of his oil paintings. Following our opening statement, we played the tape while the photograph stood on an easel in the Board's full view.
Free's high-pitched staccato voice made time stand still. The Board members stared blankly into space as he began begging for his life. One member fought off her tears. The surviving victim buried her head in her lap and did not look up until after Free's voice had dissipated.
Free began by accepting responsibility for his actions and expressing his remorse for his acts and the pain and suffering he caused the victims and their families. He told the Board that he would do anything to take back his actions, but he knew that was an impossibility. He then discussed the pain and anguish that he caused his own family and the dramatic effects his death would have on them. He described his life in prison where, in his words, "your every action and movement is controlled, watched, supervised, what to eat, where to go, what to wear. Prison is a very violent place. There are many things in prison that you do not hear about in the TV news, going on a daily basis...it is a constant reminder that you are being punished. Your incarceration and the reason you are here. You are here to be punished. And that is never forgotten."
After discussing his religious reawakening, he pleaded for his life:
I want people to know that my life has worth. Just because I am caged here does not mean I am like an animal. I know I could never change what I did. You will never know how sorry I am for the pain I caused [the victims and their families]. ...But by taking my life, I don't think they would find that peace, the peace that they are seeking to find will come from within them, not by eliminating me and taking me away from those who care about me.
We later learned of the Governor's clemency decision not through a letter or phone call from the Governor or his office, but instead when he called a press conference two days later to announce he had rejected Free's plea for executive clemency. Free and his family learned of the Governor's decision from the six o'clock news that night. A week later, we finally received a letter informing us of the decision.
Six days remained following the Governor's announcement. We mobilized our forces toward preparing our final round of federal court filings, desperately combing the record for a viable claim. We soon discovered that the United Sates Supreme Court recently had granted an eleventh-hour stay of execution to a Texas death row inmate who claimed that executing him after a 15-year wait would constitute cruel and unusual punishment. We quickly filed for a stay of execution on the same grounds, but the district court denied our claims, and on the evening of the execution, the United States Court of Appeals for the Seventh Circuit affirmed.
Five hours before the execution, we completed our filings. We filed by facsimile a petition for a stay in the United States Supreme Court. At 8:30 p.m., three-and-one-half hours before Free's scheduled execution, we received word that the Supreme Court had denied our motion for a stay of execution.
Although Justice John Paul Stevens, as our Circuit Justice, could have granted a stay of execution on his own, he referred the matter to the entire Court, which had voted to deny our request for a stay. Ironically, Justice Stevens dissented from the decision, noting that he would have granted a stay.
When Free called at 9 p.m., we informed him of the Supreme Court's decision. We told him that, in our opinion, we were out of judicial options, and that his fate was now in higher hands. He understood and agreed. When we began to get choked up by the emotions, he told us to "stay strong," that he knew that this day was inevitable, and that he was ready to accept his fate.
Our final conversation occurred at 11:40 p.m., less than an hour before he was injected with a mixture of three chemicals and put to death. At the end, he was an inspiration. While the defense team was trying to sort through an array of emotions, he never lost his dignity or strength. He told us that he had accepted his fate and wanted to get it over with, and thanked us for our hard work and dedication. I told him that I was proud to have been his attorney and that we had fought a good fight but had come up short. I promised to pray for his soul and wished him godspeed. We then connected Free with his fiancee's hotel room and let Free talk to his family one last time. As we stepped out of the room, we could hear the sounds of tears. When his family hung up, we said our final good-byes, but not before Free agreed to waive any attorney-client privilege and permit us to write freely about the case so as to help others who undoubtedly would be forced to follow in his unfortunate footsteps.
At 12:30 a.m. on March 22, 1995, the State of Illinois finally executed James Free by lethal injection for the crimes he had committed in 1978. Free joined John Wayne Gacy as the only persons executed involuntarily by the State of Illinois since the 1960's. One hour later, the State of Illinois added Hernando Williams to that list. Illinois thus joined Texas and Arkansas as the only states that have executed more than one person on a single night.
The day following the execution was much more difficult than I had expected. Although I tried never to lose sight of the fact that Free was a convicted murderer and rapist, I knew him as a mild-mannered, even-tempered, kind, and extremely appreciative client. In many ways, a phone conference with him was more pleasant than conferences with any number of the firm's paying clients. Moreover, he never questioned his bill (we took the case pro bono). He always had an upbeat and positive outlook and maintained an unfailing confidence in the talents and devotion of his attorneys. The confidence he displayed made me enjoy being his lawyer.
Today, I wonder whether Free's execution has brought the surviving victim and the deceased victim's family the closure they pleaded for at Free's clemency hearing. Although it must have fulfilled their desire for vengeance, I doubt that it made their loss any more palatable. (A week later, I received a hateful, unsigned letter that I suspect came from the deceased victim's husband. The letter derided me for representing Free and portraying him to the clemency board as a human being rather than the animal the writer believed him to be.)
What is clear is that the execution created a whole new set of victims. Free's family and fiancee face a life without their son, brother, uncle, and betrothed. As his lawyer, the same feelings of helplessness and loss that I had experienced a few weeks earlier with the passing of my father returned, although with less intensity.
During my clerkship with the Chief Justice, each week I received a list of executions scheduled to be carried out around the country. The law clerks labeled this the "death list." During that year, dozens of individuals were executed by various states. When an execution was carried out, the list would be updated to include a line through the particular inmate's name. Where a court had stayed the execution, that line would be dotted. As a law clerk, the names on the list took on no individual significance. I knew nothing of the particular individual involved, whether he had attempted to rehabilitate himself in prison as Free had, or whether he felt remorse for his victims. Although I paid close attention to these cases, normally my only responsibility was to keep the Chief Justice apprised of the executions scheduled for a particular week and to ensure that he was prepared to vote in the likely event that the defendant sought an eleventh-hour stay of execution.
No longer can I enjoy the luxury of insulating myself from the emotional and legal issues presented in death penalty litigation. I now understand fully that each case involves not only a convicted murderer, but also an individual who may have substantial worth general and to the society of prison in particular. I know now that executions do not occur in a vacuum; that executions, like murders, create victims and create new wounds, while rarely healing old ones. More than 160 individuals remain on Illinois' death row. Already, the Illinois Supreme Court has scheduled the next set of executions.
I return to my work for the firm's more traditional clients convinced of two things: truth is often stranger than fiction, and there will be much needless pain and suffering in Illinois before the state even makes a dent in the number of individuals it has condemned to die. I am left struggling with whether these executions will make our society a better place in which to live.