Gary Gauger's voice was flat when he called 911 to report finding his father in a pool of blood. Police arrived at the Illinois farmhouse Gauger shared with his parents and discovered that his mother was dead, too. The 40-year-old son, a quirky ex-hippie organic farmer, became a murder suspect. After all, someone had slashed Ruth and Morrie Gauger's throats just 30 feet from where Gary slept. There were no signs of a struggle or robbery. But what most bothered the cops was the son's reaction: He quietly tended to his tomato plants as they investigated. Eventually, Gauger was sentenced to die by lethal injection–until it became clear police had the wrong guy. His case is not unusual.
After years of debate, most Americans now believe the death penalty is an appropriate punishment for the most repulsive murders. But that support is rooted in an underlying assumption: that the right person is being executed. The most recent list by an antideath-penalty group shows that Gary Gauger is one of 74 men exonerated and freed from death row over the past 25 years–a figure so stark it's causing even some supporters of capital punishment to rethink whether the death penalty can work fairly. Among them is Gerald Kogan, who recently stepped down as chief justice of Florida's Supreme Court. "If one innocent person is executed along the way, then we can no longer justify capital punishment," he says.
Mistaken convictions. For every 7 executions–486 since 1976–1 other prisoner on death row has been found innocent. And there's concern even more mistaken convictions will follow as record numbers of inmates fill death rows, pressure builds for speedy executions, and fewer attorneys defend prisoners facing execution. Next week, Gauger and scores of others mistakenly condemned will gather at Northwestern University School of Law in Chicago for the National Conference on Wrongful Convictions & the Death Penalty. They are "the flesh and blood mistakes of the death penalty," says Richard Dieter of the Death Penalty Information Center.
Timeout sought. Executions have been rare since the death penalty was reinstated in 1976. But the pace is picking up. There are now 3,517 prisoners on death row in the 38 capital-punishment states–an all-time high and a tripling since 1982. The 74 executions in 1997–the most since 1955–represented a 60 percent spike from the year before. Citing bad lawyering and mistaken convictions, the American Bar Association last year called for a death-penalty moratorium. This month, Illinois legislators will vote on such a ban. That state, more than any other, is grappling with the problem: It has exonerated almost as many men (nine) on death row as it has executed (11).
It's tempting to view the reprieved as proof that the legal system eventually corrects its mistakes. But only one of the nine men released in Illinois got out through normal appeals. Most have outsiders to thank. Northwestern University journalism professor David Protess and four of his students followed leads missed by police and defense attorneys to tie four other men to the rape and murders that put four innocent men in prison. "Without them, I'd be in the graveyard," says Dennis Williams, who spent 16 years on death row. "The system didn't do anything."
Most damning of the current system would be proof that a guiltless person has been executed. Credible, but not clear-cut, claims of innocence have been raised in a handful of executions since 1976. Leonel Herrera died by lethal injection in Texas in 1993 even though another man confessed to the murder. The U.S. Supreme Court ruled that, with his court appeals exhausted, an extraordinary amount of proof was required to stop his execution. Governors, the court noted, can still grant clemency in such cases. But what was once common is now so politically risky that only about one death row inmate a year wins such freedom.
How wrongful convictions happen: Gary Gauger's calm gave a cop a hunch. But it was Gauger's trusting nature that gave police a murder tale that day in 1993. Gauger says that during 18 hours of nonstop interrogation, detectives insisted they had a "stack of evidence" against him. They didn't–but it never occurred to the laid-back farmer that his accusers might be lying. Instead, he worried he might have blacked out the way he sometimes did in the days when he drank heavily. So Gauger went along with police suggestions that, to jog his memory, he hypothetically describe the murders. After viewing photos of his mother's slit throat, Gauger explained how he could have walked into her rug shop next to the house ("she knows and trusts me"), pulled her hair, slashed her throat and then done the same to his dad as he worked in his nearby antique-motorcycle shop. To police, this was a chilling confession. Even Gauger, by this point suicidal, believed he must have committed the crimes.
False confessions. Though police failed to turn up any physical evidence during a 10-day search of the farm, prosecutors depicted Gauger as an oddball who could have turned on his mother and father. He was a pot-smoking ex-alcoholic who once lived on a commune and brought his organic farming ways back to Richmond, Ill. The judge rolled his eyes during Gauger's testimony and, when defense attorneys objected, simply turned his back on Gauger. The jury took just three hours to reach a guilty verdict. "Nutty as a fruitcake," the jury foreman declared afterward.
A study by Profs. Hugo Bedau of Tufts University and Michael Radelet of the University of Florida found three factors common among wrongful capital convictions. One third involve perjured testimony, often from jailhouse snitches claiming to have heard a defendant's prison confession. (At Gauger's trial, a fellow inmate made a dubious claim to hearing Gauger confess. The man, contacted in jail by U.S. News, offered to tell a very different story if the magazine would pay for an interview.) One of every 7 cases, Bedau and Radelet found, involves faulty eyewitness identifications, and a seventh involve false confessions, like Gauger's.
False confessions occur with greater frequency than recognized even by law-enforcement professionals, argues Richard Leo of the University of California–Irvine. About a quarter, he estimates, involve people with mild mental retardation, who often try to hide limitations by guessing "right" answers to police questions. Children are vulnerable, too. Chicago police in September dropped murder charges against two boys, 7 and 8 years old, who confessed to killing 11-year-old Ryan Harris with a rock to steal her bicycle. After a crime laboratory found semen on the dead girl's clothes, police began looking for an older suspect. An educated innocent person, likely to trust police, may be especially prone to police trickery–which courts allow as often necessary to crack savvy criminals. "My parents had just been murdered and these were the good guys," Gauger says. "I know it sounds naive now, but when they told me they wouldn't lie to me, I believed them."
The falsely convicted is almost always an outsider–often from a minority group. In Illinois, six of the nine dismissed from death row were black or Hispanic men accused of murder, rape, or both of white victims. But the No. 1 reason people are falsely convicted is poor legal representation. Many states cap fees for court-appointed attorneys, which makes it tough for indigents to get competent lawyers. And it's been harder for inmates to find lawyers to handle appeals since Congress in 1996 stopped funding legal-aid centers in 20 states.
How wrongful convictions get discovered: Gary Gauger has a simple answer to how he won his freedom: "I got lucky." Of all the 74 released from death row, Gauger's stay was one of the briefest–just eight months. Shortly after his conviction, FBI agents listening in on a wiretap overheard members of a motorcycle gang discussing the murder of Ruth and Morrie Gauger. Last year, two members of the Outlaws Motorcycle Club, Randall "Madman" Miller and James "Preacher" Schneider, were indicted for the Gauger killings. But a federal judge last month ruled the wiretaps were unauthorized and dismissed all the charges. The U.S. Attorney says he is seeking to reinstate them.
Even when another person confesses, the legal system can be slow to respond. Rolando Cruz and Alejandro Hernandez spent 10 years each on death row in Illinois for the rape and murder of 10-year-old Jeanine Nicarico. Shortly after their convictions, police arrested a repeat sex offender and murderer named Brian Dugan who confessed to the crime, providing minute details unknown to the public. Prosecutors still insisted Cruz and Hernandez were the killers–even after DNA testing linked Dugan to the crime. At Cruz's third trial, a police officer admitted that he'd lied when he testified Cruz had confessed in a "vision" about the girl's murder. The judge then declared Cruz not guilty. In January, seven police officers and prosecutors go on trial charged with conspiracy to conceal and fabricate evidence against Cruz and Hernandez.
Discarded evidence. DNA profiling, perhaps more than any other development, has exposed the fallibility of the legal system. In the last decade, 56 wrongfully convicted people have won release because of DNA testing, 10 of them from death row. Attorneys Barry Scheck and Peter Neufeld, with the help of their students at New York's Cardozo School of Law, have freed 35 of those. But their Innocence Project has been hobbled by the fact that, in 70 percent of the cases they pursued police had already discarded semen, hair, or other evidence needed for testing.
Gauger had one other thing going for him that is key to overturning bogus convictions: outside advocates. Most important was his twin sister, Ginger, who convinced Northwestern Law School Prof. Lawrence Marshall (who also defended Cruz and organized next week's conference) to help her brother a week before the deadline for the final state appeal. In September 1994, Gauger's death sentence was reduced to life in prison. Two years later, he was freed. Marshall visited Gauger in prison with the surprise news. "That's good," he said with a smile and his customary calm.
How to prevent wrongful convictions: It's a fall afternoon and starlings are fluttering through the colorful maples that frame the Gauger farmhouse. Gary Gauger loads a dusty pickup with pumpkins, squash, and other vegetables. Inside, Ginger has taken up her mother's business of selling Asian kilims and American Indian pottery. A friend runs the vintage-motorcycle business, still called Morrie's Place, in an adjoining garage. For Gary Gauger, life seems normal again. Customers at his vegetable stand sort through bushels of squash. A hand-lettered sign advises: "Self Service: please place money in black box . . . thanks."
But there is pain, too, for his lost parents and for his 3½ lost years. And it's that part of his story Gauger will share at the upcoming conference in the hope of sparing others such pain. Other conferees at the Northwestern event are expected to endorse a moratorium on executions at least until safeguards are in place such as increased legal aid, certification of capital-trial attorneys, limits on use of jail-house snitches, access to post-conviction DNA testing, and the recording of all police interrogations. There will also be appeals for accreditation of forensic experts: The first Cruz trial turned on a bloody footprint identified by an expert who was later discredited when she claimed she could tell a person's class and race by shoe imprints.
Gauger says the worst part about being wrongfully convicted is knowing that the guilty person is free. The victim Gauger most thinks about is 7-year-old Melissa Ackerman. The little girl was grabbed from her bicycle, sodomized, and left in an irrigation ditch, her body so unrecognizable that she could be identified only by dental records. She was killed by Brian Dugan, while Rolando Cruz and Alejandro Hernandez sat behind bars–falsely convicted of another child's murder committed by Dugan.
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