Death Penalty On Trial

The Death Penalty on Trial: Crisis in American Justice, By Bill Kurtis

PublicAffairs 2004, Hardcover, 195 pages, $25

Reviewed by Heidi Boghosian

Muckrakers performed an invaluable civil service in the early 1900s by exposing corruption and enlightening the public. Although the muckraking movement eventually waned in popularity, current-day investigative reporting requires the same dogged determination to uncover injustices, usually of politicians, corporations, and government. Bill Kurtis—whose name is synonymous with investigative journalism—takes his truth-quest one step further in “The Death Penalty on Trial: Crisis in American Justice.” In a refreshing departure from traditional death penalty analysis, he digs into the U.S. capital justice system, muckraker style.

Mr. Kurtis was for years a staunch proponent of the death penalty. He received a law degree and was about to work for a litigation firm when the excitement of live reporting (literally, covering a tornado) sidetracked him into journalism. As a news reporter and anchor with CBS television for three decades and host of A&E’s “Cold Case Files” and “American Justice,” he found his legal education proved useful when covering such high-profile trials as Charles Manson and Richard Speck. Mr. Kurtis writes that he “applauded” these men’s death penalty sentences and was disappointed when both were overturned in the wake of Furman v. Georgia, 408 U.S. 238 (1972).

In this, his second book, Kurtis writes that when the 13th exoneration of an Illinois death row inmate was announced in 2003—what he calls a turning point in American justice—he was shaken into realizing that his own strongly-held beliefs about the death penalty were wrong. He writes:

There is only one thing that would overturn my desire to rid the world of such monsters and that is the fear of convicting and executing an innocent person.  When the thirteenth exoneration was announced from Illinois’ death row I was shaken...The Greek term is “peripeteia,” that moment when you realize that all you have believed is wrong.

If these death row verdicts were wrong, how reliable was the system?…I found lawyers and police friends avoiding the subject as if the legal establishment was pulling a blanket of silence over the matter. For young attorneys there was too much career risk in becoming a whistleblower. 

Kurtis lifts the blanket of silence cloaking the system’s reliability. He pays homage to Justice Thurgood Marshall’s claim in his Gregg v. Georgia dissent (428 US 153 (1976)), that if the American people knew the workings of the capital punishment system they would be against it. Rather than revisiting traditional arguments about deterrence, cost effectiveness and just deserts, Mr. Kurtis examines two capital cases so that readers can judge the system’s reliability. Disarming in approach, its fast-paced, gripping style seems more suited to thriller bestsellers than to the grim subject of state-sanctioned death. Because of this, and to its credit, the book should have wider appeal than the sometimes dry, academic (albeit important) writings on the subject. As Mr. Kurtis told Media Life Magazine in 2000: “Whenever you oversaturate a market, people get tired of it. A lot of the techniques that we were using early on, you keep seeing them and I find them now to be clichéd.We have to find new ways of telling a story."  

“The Death Penalty on Trial” offers a new way of presenting a much-written subject by bringing readers to the crime scene and into the courts.

Two accounts of men sentenced to death, and later exonerated, provide an existential glimpse of how a vulnerable justice system goes awry. Mr. Kurtis intentionally picked cases in which everything should have gone right: defense and prosecution attorneys, and judges, were well-known and competent, and law enforcement had sufficient evidence to support the prosecution. Nonetheless, several violations occurred in each case—prosecutorial failure to disclose exculpatory evidence; incompetent counsel; and inaccurate science admitted as forensic evidence. 

Even hard-boiled death penalty proponents should question the manner in which forensic evidence was used to sentence Ray Krone to death. After the stabbing of Kim Ancona, a cocktail waitress in Arizona, the community wanted resolution and police looked for fast leads. Mr. Kurtis notes that tunnel vision is perhaps the most common problem with criminal investigations; a single person becomes the focus and detectives do not look into all potential suspects. “The search was virtually shut down so investigators could concentrate on gathering evidence for trial. None stopped to ask, ‘Do we have the right man?’”

It took another trial to unearth the forensic mishaps. As it turned out, in trying to show that Ray Krone’s teeth imprint matched bite marks on Kim Ancona’s neck, investigators actually left an indentation by taking a teeth cast and pressing it into the dead body to show they matched. “When used later in trial or in the video, placing the dentist’s mold on top of the indentations would not be matching Ray’s teeth with the bite marks on Kim’s body; they would be matching their own indentations.” Additionally, no DNA evidence was introduced in the first trial; had it been it would have eliminated Ray Krone. Such errors would be farcical were the results not so tragic.

Lack of investigatory common sense also factored into sentencing Thomas Kimbell to death for the killings of Bonnie Dryfuse, her two children with Thomas “Jake” Dryfuse, and Thomas’s niece.  After the prosecution failed to make a case against Jake Dryfuse, focus shifted to neighbor Thomas Kimbell, “a knock-around drug user who was always in the sights of the police, mostly for petty misdemeanors….one of those members of the community who always seemed to be underfoot. If someone asked for the ‘usual suspects,’ he would come to mind.”

Because of a procedural error, the case was reversed and remanded for a new trial. Only then did a forensic pathologist ask why no one had admitted crime scene photographs of the husband’s hands bearing cuts and fresh blood under the nails. Further evidence revealed that the 120-pound Mr. Kimbell was a moderate hemophiliac, suggesting that he could not have assaulted Bonnie Dryfuse—who weighed 250 pounds—without sustaining any injuries.

Bill Kurtis has dedicated his life to uncovering secreted injustices. In “The Death Penalty on Trial” he praises the moral courage of Governor George Ryan—also a former proponent of capital punishment—for declaring a moratorium on Illinois executions. Here, Mr. Kurtis offers his own courageous act in crafting a persuasive book, significant for its potential to educate a wide audience. Had the lawyer Bill Kurtis argued this case in court, the verdict would likely be a resounding “guilty” for the entire capital punishment system.