Sue Hartigan <[EMAIL PROTECTED]> writes:
CHRIS WALLACE In a moment, why one prosecutor believes
revenge justifies the death penalty.
(Commercial Break)
BILL KUNKLE He was a cold—blooded killer. He was a guy that
would put a gun in your face on the street and say give me
your money or
your life and mean it. Well, now here’s a guy who has just
been hooked
up to the death machine, on the gurney, ready to go and they
check his
heart rate and it’s gone down.
NINA TOTENBERG (VO) Bill Kunkle has prosecuted some of the
most vicious killers of our times, men whose gruesome crimes
terrified
and outraged the city of Chicago, men like John Wayne Gacy.
BILL KUNKLE John was a suburban contractor who was able to
kill
33 young men and boys, one by stabbing in the chest and 32 by
manual
or ligature strangulation.
NINA TOTENBERG (VO) When execution night finally came for
Gacy, Kunkle was there.
BILL KUNKLE A person that is prepared to go before a jury and
ask
them to kill someone ought to be prepared to watch it.
NINA TOTENBERG (interviewing) Do you think that the death
penalty is justified and proper because it’s a deterrent or
because it’s a
statement of society’s outrage?
BILL KUNKLE Certainly the latter. I think that there are some
horrible
murders, certainly the ones as codified by the current death
penalty
statutes, for which the only appropriate penalty is the
supreme
penalty—death.
ATTORNEY You are asking for a punishment in which you don’t
know
what happens.
BILL KUNKLE I know that they die. I know that they are removed
from the face of the earth and they are at least deterred from
committing
future crimes.
NINA TOTENBERG (VO) And Kunkle thinks revenge is a legitimate
justification for the death penalty.
BILL KUNKLE Revenge, nobody wanted to use the word revenge for
years. I mean, how can you suggest civilized folk would want
to take
revenge. What’s wrong with revenge? It’s that anger that makes
a
society. If you don’t care about the other persons, the
innocent victims
murdered, if you don’t listen to the bell tolling for someone
else, there is
no society.
NINA TOTENBERG Even if you lock them up and throw away the
key?
BILL KUNKLE Not good enough.
NINA TOTENBERG (VO) And sometimes juries agree, though when
it comes to casting a vote for death, jurors often hesitate.
BILL KUNKLE Sure, they may be very tough at the cocktail party
or
the breakfast table talking about damn, this Richard Speck
(ph) in the
paper, he ought to, they ought to fry him tomorrow and blah,
blah, blah.
Very different to say OK, Mrs Jones, Mr Jones, here’s a piece
of paper.
You sign this piece of paper, we’re going to take this guy out
and kill
him. Your decision. That’s a hard decision.
NINA TOTENBERG (on camera) That’s why the system provides for
so many appeals, to make sure that a mistake isn’t made. And
no one
knows better about mistakes that Bill Kunkle. He was recently
appointed
special prosecutor to investigate the wrongful murder
conviction of
Rolando Cruz, who spent 10 years on death row until evidence
surfaced
that police may have framed him.
BILL KUNKLE You have to recognize that it’s a human system,
that
sooner or later it’s going to fail. There are all kinds of
life and death
decisions made in our society, whether it’s who gets the organ
transplant,
who goes over the hill with the platoon and who stays back.
The kind of
attention that is paid to capital cases in the system is
infinitely greater than
the attention that’s paid to those other life and death
decisions that are
made all the time as a government and as a society.
NINA TOTENBERG (VO) But Kunkle concedes there’s not enough
attention, training or money for court appointed lawyers in
death cases.
(interviewing) The federal government used to spend about $20
million a
year on centers that provided a lot of the back—up assistance
for
defense lawyers in death penalty cases and that outraged
people a lot
because they thought why are my tax dollars going for that
kind of thing.
BILL KUNKLE You have to recognize when you say I’m for capital
punishment and I like having that statute in my state and I
want my
prosecutor and my judges to enforce it, you have to also be
willing to say
and I’m prepared to pay the bill for a constitutionally
appropriate defense
for that individual.
NINA TOTENBERG (VO) Unlike defense attorney Bryan Stevenson,
Kunkle is not convinced that race is the determining factor
when it comes
to who lives and who dies.
BILL KUNKLE It would be a lot better if there weren’t any
racists in
Alabama or anywhere else, but we can’t fix that. To me, the
answer
again is not there’s a problem with the death penalty or the
existence of
that penalty or the death penalty statutes as written. There’s
a problem
with prosecutors, judges or jurors in those states and the
criminal justice
system isn’t designed to solve those problems nor is it
designed to solve
the crime problem. It’s designed to do two things—find out who
did it
and punish them.
CHRIS WALLACE When we come back, the surprisingly candid and
conflicted view of the death penalty from a federal judge who
is afraid of
witnessing an execution.
(Commercial Break)
JUDGE ALEX KOZINSKI There clearly is something about death
cases that are different. They’re bigger. They are more
emotional. They
come at you sort of like freight trains. You’re sitting on the
track and you
kind of don’t see them coming and all of a sudden they’re on
top of you.
NINA TOTENBERG (VO) The first time the death train bore down
on Judge Alex Kozinski was in 1990. Kozinski was at a dinner
party.
While other guests were eating dessert, the judge was in the
kitchen on
the phone hearing arguments from prosecution and defense
lawyers. (on
camera) He voted for death. The US Supreme Court agreed. The
execution was on.
JUDGE ALEX KOZINSKI I woke up in the middle of the night. It
was about 1:30. And I thought he must be dead now. He can’t be
dead
because it’s still night. And I kept going over what had
happened, asking
myself, you know, had I done the right thing. It’s my job to
apply the
law, but it’s not the same as being there helping to push the
button. I’ve
had a few since then, maybe a dozen, maybe more, and it’s
never easy.
You are helping to take a human being’s life, sometimes a
horrible human
being, sometimes a human being you know really deserves to die
and yet
it takes a piece away from you to do that.
NINA TOTENBERG (VO) A conservative federal appeals court
judge appointed by President Reagan, Kozinski first came into
contact
with the death penalty as a young US Supreme Court law clerk.
JUDGE ALEX KOZINSKI I was sort of agnostic on whether it was a
good idea or a bad idea. And then I started reading those cert
petitions
and it was just horrible. The facts cried out. The victims
cried out from
the page. Those facts just cried out to me that these people
really didn’t
deserve to live.
NINA TOTENBERG (interviewing) Both your parents were Holocaust
survivors. You came to this country from Romania when you were
12.
Do you think that background at all has anything to do with
your feelings
about the death penalty or not?
JUDGE ALEX KOZINSKI You know, Nina, it’s just so hard to tell
what makes us tick. I grew up on stories about concentration
camps and
it’s sort of in my blood. So whenever I sort of ask myself a
philosophical
question about the death penalty, ultimately I ask myself if
you’re really
against it, would you let Eichmann live? And the answer is no,
I would
not let Eichmann live.
NINA TOTENBERG Have you ever been to an execution?
JUDGE ALEX KOZINSKI No.
NINA TOTENBERG Why not?
JUDGE ALEX KOZINSKI I’m afraid.
NINA TOTENBERG Afraid?
JUDGE ALEX KOZINSKI Afraid.
NINA TOTENBERG Of yourself?
JUDGE ALEX KOZINSKI I think so. I think so. I just repel at
the
thought of doing it and sometimes I think I ought to go. I
sometimes
wonder whether those of us who are involved in the process,
who sign
these papers that send people to their death, whether maybe
you ought
to go and watch.
NINA TOTENBERG How do you write these admittedly lawful
opinions that send people to die but you’re ...
JUDGE ALEX KOZINSKI Exactly.
NINA TOTENBERG—not really willing to go face it yourself?
JUDGE ALEX KOZINSKI Death is different, you know? Even those
of us who don’t think death is different legally, most of us
believe in our
heart that death is different in some sort of human sense.
It’s a thing we
all fear and there’s something about coming face to face with
it and sort
of playing God, having had a hand in it, that is very
unsettling.
NINA TOTENBERG (VO) In California, where Judge Kozinski sits,
the state supreme court spends about one—third of its time on
death
appeals.
JUDGE ALEX KOZINSKI A lot of cases, most cases in California,
and California is, I think, pretty typical, they haven’t
completed the direct
appeal because they can’t find lawyers to handle them. It’s a
state full of
lawyers but I wouldn’t think most of them have the ability to
handle a
death case. It’s not just goodwill. It’s not just having the
time. You have
to know what you’re doing. It’s sort of like saying we’ve got
lots of
doctors and, therefore, how come we don’t have no brain
surgeons.
NINA TOTENBERG (VO) As the pace of executions in America
steps up, so, too, does the condemnation from much of the rest
of the
civilized world.
AMNESTY INTERNATIONAL PROTESTER I think it’s very,
very important that death penalty should be canceled
completely out of
the American country.
NINA TOTENBERG (interviewing) What about the notion that we’re
the only, really the only western civilized country that has
the death
penalty anymore?
JUDGE ALEX KOZINSKI We have been consistent in applying the
death penalty in this country since the birth of the republic.
We’ve never
used it for politics. It’s always been directed at people who
we consider
to be really evil, people who really do nasty things to other
people. I
think there’s some idea in this country, and I have some
sympathy for
that, that’s sometimes if people are evil enough, if you let
them live
somehow you’re insulting the memory of the victims.
NINA TOTENBERG (VO) And what if the wrong person dies?
(interviewing) Do you think that we will inevitably execute
somebody
who’s innocent?
JUDGE ALEX KOZINSKI If you keep doing it often enough one day
you’re going to make a mistake and when you have a criminal
justice
system that involves the death penalty, every so often you
will have an
innocent person convicted and sentenced and executed.
NINA TOTENBERG Does that give you the heebie—jeebies?
JUDGE ALEX KOZINSKI You bet it does. You bet it does.
NINA TOTENBERG Every sitting Supreme Court justice now accepts
capital punishment as constitutional and last year the
justices said yes to
the execution of 74 people. Yet there are still justices
who’ve told me
they make this decision and they weep.
I’m Nina Totenberg for Nightline in Washington.
--
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