Interview with Scott Turow: Facts and Fiction

Before Grisham, before Law & Order, before the legal profession achieved pop culture ubiquity, there was Scott Turow. In 1977, at age 28, he published One L, the candid diary of his first year at Harvard Law School, which has become required reading for anyone pursuing a JD. Ten years later his novel Presumed Innocent blew the legal thriller genre wide open; the book sold 4.7 million copies and the movie grossed $221 million. In his new book Ultimate Punishment, Turow returns to nonfiction with a reflection on his own struggle with and reconsideration of capital punishment. He has lately emerged as a leading voice on the subject: Not only has he defended death row inmates but in 2000, when Illinois Governor George Ryan imposed a moratorium on the death penalty, Turow was asked to serve on the commission charged with assessing the state's policy on capital punishment. Here, he talks to Jungle Law about emotional juries, religious politicians, and why people love to read about lawyers.

Jungle Law: How did you become so closely associated with the issue of capital punishment?

Scott Turow: By accident, really. In 1991, after having worked on several pro bono defense cases, I was asked to represent Alejandro Hernandez, who, along with a codefendant, Rolando Cruz, had been convicted and sentenced to death in 1985 for the murder of Jeanine Nicarico. It turned out that another man who was apprehended for a similar crime several months later was in fact Nicarico's killer. That case exposed me to the many failings of the capital system.

JL: In writing Ultimate Punishment, did you try to come to grips with your beliefs about the death penalty, or to inform other people's feelings?
ST: I regard it as a memoir as well as an essay. I set out to put down how one person who has lived with the issue in a number of different contexts has come to understand it. I've just really been divided about it. And most approaches to the subject have started with an end in mind — it's good, or it's bad. I thought there was room to tell a personal tale that doesn't assume an obvious answer.

JL: In the book, you discuss ways in which the capital system is arbitrary. How significant is the effect of the emotional atmosphere of these cases — especially on juries?
ST: That to me is probably the most significant thing, because it's the thing that I was blindest to when I started doing capital work. I could have told you it was much easier to convict somebody of dealing 20 pounds of heroin than it was of stealing one treasury check, but I'd never extended that to the capital system. And it turns out that there's an inherent paradox in capital punishment: If it's applied the right way, it's applied only to the most aggravated, heinous, frightening, horrifying, revolting crimes — and those are the crimes that most challenge juries, judges, prosecutors, and even defense lawyers to react dispassionately.

JL: What distinguishes a typical murder from a capital offense today?
ST: There is no truly consistent answer, even when you try, as the U.S. Justice Department has, to standardize the decision making. The Ashcroft administration has decided that the only way to be evenhanded about it is to expand eligibility. The result, earlier this year, was that in 15 of the 16 cases where they'd asked for the death penalty, they hadn't gotten it. I understand the impulse to try to be rational about it, but you can't be. They're succumbing to the fallacies of the system. And then there are people like Justice John Paul Stevens, who still nominally believes in the death penalty but who has gotten to the point of saying that the systems he wants found constitutional, like the Georgia system, really should be much, much more restrictive.

JL: You believe it took courage for Governor Ryan to pardon the four inmates on death row and commute the sentences of the remaining 164.
ST: I think the one undiscussed element with George Ryan has been his religious beliefs, which, the people who are closest to him have always indicated to me, are very significant. I do know he spent a lot of time with his minister before making these decisions. And he refuses to wear his religion on his sleeve; he doesn't like to discuss it with the press.

JL: What about people who do wear religion on their sleeve, like George W. Bush?
ST: Well, that's characteristic of the religious right, which generally tends to identify with the eye-for-an-eye part of the Christian vision as opposed to the turn-the-other-cheek part. That's often true among Orthodox Jews as well. I'm not criticizing anybody's religious beliefs; religion has to be part of the picture. One of the goals I had in approaching this problem and writing about it was to get beyond everybody's personal morality and deal with it functionally, and ask, "Can we really do that? Does that work?" Even accepting the validity of the moral argument for executing John Wayne Gacy or Timothy McVeigh, can you construct a system that reaches that case without also executing the innocent and the undeserving?

JL: You write, "The legal process will never fully heal us… a sense of meaning and connection must come from outside the law." do we idealize the legal process?
ST: Let's face it: The legal process idealizes itself. It pretends that the rules it divines are obvious and absolute. A judge rules as if it is the one choice that could be made, and the law then demands absolute adherence, even if, in fact, the situation is murky — morally or at a policy level. So, the law does speak in ideals; it functions as an ideal. It's not surprising that people expect it to be an ideal. I think the popularity of books like mine has to do with the increasing sophistication of Americans about the law, and a recognition that it speaks a language of idealism and functions in a world of sometimes brutal realism.

JL: What about One L? Did you imagine it would have the impact it did?
ST: I had absolutely no idea. I remain stunned even today that people continue to read the book. But despite many changes in legal education, it does get to the anxieties that people who are attracted to the law tend to bring with them to that process.

JL: you're passionate about the law, but also about love, failure, temptation, and redemption. are most lawyers drawn to the law by similar passions?
ST: The law has long been the haven of the liberal arts major who can't decide what she or he wants to do, and that's why there are so many lawyers who look up 10 or 15 years later and say, "I'm unhappy. Why the hell am I doing this?" Personally, I'm very committed to the missions of the law, to the questions that it wrestles with, and that has made me happy as a lawyer. But if you don't feel a connection with those questions, you have got to wonder about that. I don't think you're going to be happy as a lawyer in the long run.

JL: Your last novel, Reversible Errors, deals with the death penalty, too. Describe the experience of writing death-penalty fiction versus nonfiction.
ST: Reversible Errors was a real companion piece to my work on the commission. I started when the commission was formed, and finished as we reached our conclusions. So to a great extent I was working through things at another level, and I didn't realize it. As I write in the new book, in the part about writing Reversible Errors, there was an ultimate issue — about what do we get out of the law when we apply capital punishment, and what do we actually want — that the commission study was just not addressing. I came to accept the fact that Reversible Errors, like every other book I've written, is about the law's limitations. And no matter how severely we punish, that isn't going to make us whole.

JL: You were writing legal thrillers before the likes of John Grisham.
ST: Not that long [before].

JL: What or who was your inspiration?
ST: I came from a fairly serious literary background. I had been a writing fellow at Stanford, and what drew me into this were long debates I had gotten into with other writers about what the function of literature was, and whether literature ought to aspire to the popular or the rarified. And I believed that there was great merit in having a broad audience while not sacrificing literary values.

JL: You've served as a u.s. district attorney and as a private defense attorney. Which do you prefer?
ST: I loved my years as a prosecutor. I think it's an unrivaled job for a young lawyer, because in some ways you are the client. There obviously should be supervision, but the vision of right and wrong that you're enforcing has got to be your own. On the other hand, as the years have gone on, I do value the role of the defense lawyer. I think that the personal function of saying, "Have mercy; understand that life isn't as simple as the rules want to make it seem," is close to the way I feel on an ongoing basis. I'm comfortable in that role, and I'm not sure that now, as an older person, I could be as happy as a prosecutor.

JL: How is the profession different today from when you entered it more than 20 years ago?
ST: I have a structuralist view of human systems, and I think we're currently living within the structure of the marketplace. The acceptance of it in the legal profession has been overwhelming and not necessarily good for the life of lawyers. Also, the administrations of the Warren Court are farther behind us now, and there's an enhanced conservatism that's come to criminal law; a lot of rights I regarded as rights when I was a prosecutor are no longer rights.

JL: What's the alternative to living within the structure of the marketplace?
ST: To have values of a different kind. There are other types of values systems that can prevail. Many lawyers live by other values: They work for charitable organizations or have government jobs; they don't put money ahead of everything. To those of us who grew up in the '60s, the idea was that there were certain things that are good and you tried to do them. Perhaps that was naive, but not necessarily.

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