Daily Herald
Fifteeen convicts remain on Illinois' death row
By Barbara Vitello | Daily Herald Staff
Published: 10/25/2009 12:01 AM

After a jury sentenced James Degorski to life in prison for the slayings of seven people at a Palatine Brown's Chicken & Pasta, a conflicted Ann Ehlenfeldt expressed the confusion many people felt.

"If murdering seven people in the horrible way he did is not enough for the death penalty, I don't know what is," said Ehlenfeldt, sister of Richard Ehlenfeldt, who owned the restaurant with his wife, Lynn.

Degorski and high school pal Juan Luna murdered the Ehlenfeldts and their employees Michael Castro, Guadalupe Maldonado, Thomas Mennes, Marcus Nellsen and Rico Solis on Jan. 8, 1993, out of a desire to "do something big."

A unanimous jury convicted Luna of the murders and found him eligible for the death penalty in 2007. A single vote spared his life.

Last month, a unanimous jury convicted Degorski of the murders and found him eligible for the death penalty as well. Two jurors voted to spare Degorski's life on Tuesday. Like Luna, he will serve natural life in prison without the possibility of parole.

Both verdicts left some wondering: If this crime doesn't warrant the ultimate punishment, what crime does? If these convicted men don't deserve death, who does? Moreover, what do the Brown's verdicts suggest about the viability of the death penalty in Illinois?

"I don't know that you can say it has outlived its usefulness entirely, not as long as it's the law of the state," says Mark Levitt, Degorski's lead defense counsel.

It's not as though Illinois jurors never impose the death penalty. A DuPage County jury sentenced Eric Hanson to death in 2008 for killing his parents, sister and her husband after they found out Hanson stole more than $80,000 from his parents in a credit card scheme.

However, Illinois juries don't impose the death penalty as frequently as they have in the past.

From the reinstatement of Illinois' death penalty in 1977 until 2000 when then-Gov. George Ryan issued a moratorium on executions, 12 to 20 Illinois defendants were sentenced to death each year, said Rob Warden, executive director of Northwestern University's Center on Wrongful Convictions. That number has dropped to fewer than four per year since 2000.

Warden attributes the decline in part to high-profile wrongful convictions, including those of Rolando Cruz and Alejandro Hernandez, who were sentenced to death for the 1983 murder of Naperville's Jeanine Nicarico. Brian Dugan pleaded guilty to the murder earlier this year. His sentencing hearing is currently underway in DuPage County.

In response, Ryan emptied death row in 2003, commuting the sentences of 167 condemned inmates to life in prison. Currently, 15 defendants reside on Illinois' death row.

Of the 305 people sentenced to death in Illinois following the reinstatement of capital punishment in 1977, 20 have been exonerated, resulting in an error rate of more than 6 percent, Warden said.

"There has been a great deal of publicity surrounding wrongful convictions in general," Warden said. "Here in Illinois we've had 70 documented wrongful convictions in all kinds of cases since 1989."

Those errors may well give jurors pause. But former Rolling Meadows prosecutor Marilyn Hite Ross says the establishment of the Capital Litigation Trial Bar in 2001 requiring that attorneys prosecuting or defending capital defendants be specially trained and adhere to strict standards, helps ensure that innocent defendants won't be convicted.

Those guidelines place Illinois at the forefront when it comes to litigating capital cases, said Hite Ross, deputy state's attorney for Winnebago County's criminal division and a constitutional law professor at Wisconsin's Concordia University.

Moreover, prosecutors do not take a cavalier attitude when it comes to the death penalty, Hite Ross said.

"It's not sought very often. That's a reflection on how carefully prosecutors across the state consider it before they file their intention to seek death," she said.

Opponents argue that no one deserves a death sentence and a Gallup Poll cited in the Death Penalty Information Center's 2008 year-end report suggests public support may be slowly eroding. Poll results showed that 65 percent of people surveyed supported the death penalty in 2008, down from 71 percent in 1999 and a high of 80 percent in 1994.

In addition, U.S. Department of Justice Bureau of Justice Statistics indicated that the 115 death sentences handed down nationwide in 2007 were the lowest number since the U.S. Supreme Court reinstated the death penalty in 1976.

Yet some crimes demand it, say supporters.

"There are certain cases that or so heinous and so shocking that the only appropriate penalty is the death penalty," says Scott Burns, executive director of the National District Attorneys Association.

And yet, "it's hard to look at the death penalty in a vacuum," said Levitt, Degorski's attorney.

Capital cases include an aggravation phase where prosecutors present evidence why they believe death is the appropriate punishment and the mitigation phase where the defense presents evidence on why they believe the jury should spare the defendant's life. Jurors weigh that evidence before making their decision.

"In the (Degorski) case that just finished, there was an awful lot of mitigation information that jurors certainly took into account when they deliberated," Levitt said.

In deciding on a life sentence rather than death, at least one juror cited testimony about childhood abuse Degorski allegedly suffered and his dysfunctional family life.

Then there's what Warden calls the disproportionate imposition of the death penalty in cases where the victim is white and the defendant is a minority. He compares the life sentence for Degorski, a Caucasian convicted of killing seven people, with the death sentence for Rodney Adkins, a black man convicted of killing an Oak Park woman during a 2003 burglary.

"The system is so inaccurate and so unfair that we shouldn't trust it to kill people," said Warden, who admits the inequities he cites typically don't resonate with the public.

Hite Ross believes the system treats people fairly.

"I don't think you can say it's an inequitable dispensation," she said. "Overall, I think there are safeguards in place to ensure it's a fair process for the defendant."

What's more, prosecutors consider several factors before seeking death, said Burns.

"There are the underlying facts of the case, this specific criminal defendant and his or her history," he said. "Always as prosecutors we take into account what the victims feel may be appropriate and we are always concerned about making sure they believe that justice has been served."