December 20 

Decision behind death penalty could be political hot potato

By Diana Wallace Daily Herald Staff Writer

Marilyn Lemak's conviction was as much a political triumph for DuPage County State's Attorney Joseph Birkett as it was a courtroom victory, political analysts from both sides of the aisle agreed Wednesday.

 But they also said his ability to turn that into a ballot-box victory in next year's campaign for Illinois attorney general may hinge on whether Birkett, a Republican, continues to push for Lemak to die for her crimes.

 "Obviously, Birkett rolled the dice and won," said David Axelrod, a prominent Democratic consultant in Chicago. "(The conviction) burnished his image as a prosecutor.

 "My guess is he'll push hard for the death penalty because it's inherent in who he is," Axelrod said. "If he doesn't, to me it suggests he's made a calculation he wants to look reasonable and moderate, not unbridled and dogmatic."

 Birkett, one of Illinois' staunchest death-penalty advocates, said Wednesday he is standing by his long-stated intention to pursue capital punishment for Lemak.

 But he seemed to leave the door open a crack to a reconsideration, saying the matter still is under review and that he plans to consult with Lemak's defense attorneys.

 "If there is additional information, I'm willing to listen," he said. "There is no point you stop reviewing the case. This case is no different than any other capital case."

 The sentencing still could be months away, meaning the judge's decision - either death or life in prison - could come down just before the March 19 primary. Birkett is seeking the GOP nomination for attorney general against River Forest trial lawyer Robert Coleman.

 One consideration clearly will be the wishes of Lemak's ex-husband, David. At a press conference Wednesday, David Lemak refused to say whether he supports a death sentence for his ex-wife.

 "I don't know that I have an answer," he said. "I've certainly thought about it considerably. I would say, first of all, justice isn't served in this world."

 Doug Dobmeyer, a longtime activist on social issues in Illinois, said Birkett "would have a tough time going against the wishes of David Lemak if he comes out against the death penalty. (Birkett would) have no political cover."

 But even Dobmeyer, the former director of the Illinois Coalition Against the Death Penalty, said being pro-capital punishment is probably still "the most politically popular view" - despite Gov. George Ryan's moratorium on the death penalty and the public's decreasing support for it in opinion polls.

 But Republican consultant and activist Bill Atwood said there's still a risk of Birkett overplaying the issue.

 Though Atwood said the guilty verdict was "critical" for Birkett, winning the death penalty "is not something he can campaign on. I think he's playing with fire if he does.

 "This trial is not like Rudy Giuliani prosecuting the mob," Atwood said. "There's not going to be a bunch of high-fiving going on. This was a sad, tragic, terrible case."

 Axelrod agreed.

 "Birkett's liability - to the extent he has them - is that he'll be viewed as an extremist," he said.

 To that end, Birkett could be taking another political risk by pursuing the death penalty if the judge rules for life in prison.

 But Dobmeyer said any outcome in the Lemak sentencing is unlikely to undercut Birkett's reputation as a strong death-penalty supporter.

 But those who support the moratorium because innocent people have been sent to death row in Illinois may not oppose death in the Lemak case, pundits say, because there's no question of who committed the crime.

 As much as anything, they say, Birkett will be helped by all the news media attention he has received because of the trial.

 Jury Convicts Ill. Mother of Murder

By ANDREW BUCHANAN, 

 WHEATON, Ill.  - A mother who fed her three children drug-laced peanut butter then smothered them in their beds could face the death penalty now that a jury has convicted her of first-degree murder. Marilyn Lemak's lawyers were unsuccessful in convincing the jury that she was insane when she committed the 1999 slayings. Judge George Bakalis will sentence Lemak, 44, who is eligible for life in prison or a death sentence. After sitting through three weeks of testimony and arguments about the killings, David Lemak, the father of the children, said he was relieved by Wednesday's verdict. Surrounded by his parents and new wife, he held up a photo of his children - Thomas, 3, Emily, 6, and Nicholas, 7 - as he fought back tears. ``Certainly, one of my regrets is that I won't have a chance to see what kind of impact on the world they could have made,'' he said. 

Prosecutors said Lemak knew what she was doing when she killed the children, contending she wanted to punish her husband over their pending divorce and because he had started seeing another woman. After smothering the children, she slashed her wrists with a knife and stabbed a photograph of her estranged husband with his new girlfriend. The former surgical nurse pleaded innocent and her lawyers used an insanity defense, arguing that she was delusional and severely depressed. 

They said she felt David Lemak had abandoned the family and that she wanted to kill the children and herself so they could be reunited in a happier place. The jury, which deliberated for nine hours Tuesday and Wednesday, rejected two alternative verdicts - guilty but mentally ill and not guilty by reason of insanity. Lemak's lawyers failed to make their case, juror Giovanni Lombardo said. ``They couldn't prove that she was insane at the time of the murders, and that's pretty much what they were trying to do,'' he said. Juror Lataurus Collins told WFLD-TV in Chicago that, as a single mother, she could sympathize with Lemak's worry as she watched her family breaking up. ``I can understand the stress level, but never to a point to where I would want to kill my little one,'' Collins said. If found not guilty by reason of insanity Lemak would have been sent to a mental health institution.

 A judge could have deemed her sane at some point and ordered her release. DuPage County State's Attorney Joseph Birkett previously indicated he would seek the death penalty. He said Wednesday that the decision was still under review. A sentencing date has not been set. Lemak, looking gaunt and pale in her dark blue jail uniform, sat quietly looking down as the verdict was read. ``We're completely devastated,'' said Lemak's father, William Morrissey. ``We never expected this verdict.'' Defense attorney Jack Donahue said he was disappointed in the verdict and felt ``entrapped by the process regarding insanity that's very difficult to sustain in the state of Illinois.'' David Lemak praised the prosecution's handling of the case and spoke briefly about his former wife. ``I loved Lynn,'' he said. ``She made choices throughout the last few years of our marriage, and those choices took her to a path that leads to where she is now.''

 St. Clair Daily Herald December 23

Why prison life may be too harsh for fragile Lemak

By Stacy

Whether she receives the death penalty or life in prison, Marilyn Lemak's world will change dramatically after her spring sentencing.The Naperville mother soon will be leaving the accommodating confines of the DuPage County jail in Wheaton for the more Kafka-esque state corrections system.Gone will be her ability to dictate the menu, requesting fruit salad and oranges but no more chicken broth. Should she be spared execution, her days of self-imposed isolation also may come to a rapid end.Despite her careful handling in DuPage, she has deteriorated greatly since her incarceration three years ago. 

She weighed 163 pounds when she drugged and suffocated her children on March 4, 1999; now she barely tips the scales at 100 pounds.A regimen of anti-psychotic and psychotropic drugs retard the 44-year-old woman's gait and reflexes. She appears so frail, it's difficult to imagine her gnarled hands, the same ones she used to commit three inexplicable murders, protecting her from harm.Lemak's family and attorneys worry her noticeable atrophy inside the county jail only foreshadows the decline that will take place after she is sentenced.

 The very idea leaves them wondering: How will this woman survive prison?"It's going to be extremely difficult for her to hold up in state corrections," her attorney, Jack Donahue, said. "It's one of my gravest concerns."Corrections officials would not discuss Lemak's likely living conditions, saying her placement will not be determined until prison personnel can meet with her and make an assessment. Her sentence - which DuPage Circuit Judge George Bakalis will impose next year - also will be factored into the assignment."There is no cookie cutter created out there for any criminal who comes into the system," Illinois corrections spokesman Brian Fairchild said. Whether the judge imposes a life sentence or the death penalty, Lemak most likely will be remanded to Dwight Correctional Center. The women's facility near Kankakee, which contains both maximum- and minimum-security prisoners, also houses the state's female death row inmates. 

The prison is designed to hold 1,144 women, but exceeds the capacity with an average daily population of 1,189. Upon arrival, Lemak will undergo a battery of physical and mental examinations. The tests, as part of an overall risk assessment, will determine if she is suicidal or has any mental-health needs.Psychiatric treatment can range anywhere from medication to intensive daily therapy, Fairchild said. The state spends $10 million annually on psychiatric services for inmates, but Lemak's family does not believe it will be sufficient."She's still in need of serious psychiatric care," Donahue said. Some obstacles, however, will remain insurmountable. Prosecutors contend her current mental state is crippled not so much by depression, but by the horrific nightmare born of her own hands. A jury last week found Lemak guilty of drugging and suffocating her three children - 7-year-old Nicholas, 6-year-old Emily and 3-year-old Thomas - to punish her estranged husband for dating another woman. "She's got to live with the memory of what she did forever," DuPage County State's Attorney Joseph Birkett said after last week's guilty verdict.During the initial assessment period, inmates typically are not allowed to make phone calls or receive visitors. Such a restriction could prove difficult for Lemak, who leaves her DuPage cell at 7 p.m. almost every night to call her parents. If the judge decides Lemak should die by lethal injection, she will join four other Illinois women awaiting execution at Dwight.

 On death row, she would have her own cell and access to books. She could earn television and recreation privileges, depending on her behavior, Fairchild said. Visitation and phone use also can vary.If she receives a life sentence, Lemak most likely will be placed among the general population in Dwight's maximum-security section - another potentially problematic scenario for the convicted murderer. Save one day, Lemak has never lived among other inmates. DuPage deputies initially segregated Lemak from other female prisoners because she was on a 24-hour suicide watch. In August 1999, her psychiatrists recommended she be placed in the general population in an effort to give her the most contact and stimulation. 

The experiment lasted less than 24 hours. Lemak quickly became agitated among other prisoners and asked to be returned to her private room. For three years, she has eaten almost all her meals alone in her cell and rarely, if ever, speaks to other inmates.Attempts to commingle with people in a state penitentiary could prove equally arduous. Simply put, Lemak - who has a master's degree in surgical nursing and an above-average IQ - will have little in common with many of her prison mates.The majority of Illinois prisoners have less than a high school education. A quarter of the Dwight women tested below the sixth-grade level in math and reading in 1995. 

Roughly 85 percent of Illinois' female jail population are mothers, who may look harshly upon Lemak for suffocating her three children.Women prisoners aren't as violent as their male counterparts, preferring to psychologically abuse their enemies, said Patricia O'Brien, assistant social work professor at the University of Illinois-Chicago."There's a hierarchy for crimes, even among women," O'Brien said. "I imagine many in the general population will find it hard to relate to her for the crime she committed."Lemak's frailties - both physical and mental - will make her susceptible to bullying, experts said. Though prosecutors denied she was insane when she killed her children, they acknowledge her deterioration since being arrested. Such decay, they say, is common when defendants find themselves charged with serious crimes and have to face their families.

 Whatever the reason for her decline, it won't make Lemak's life inside Dwight any easier. "She may be at a higher risk simply because of who she is," says Barry Holman, director of research and public policy for the National Center on Institutions and Alternatives in Washington, D.C. "Having a mental illness will put her at an even higher risk."If Lemak feels threatened, she could request protective custody. Corrections officials, in turn, would keep her in the segregated area until investigators determine she is no longer in danger. Protective custody, however, is not like her current isolation. In the state system, inmates in protective custody typically live, eat and sleep among inmates in similar predicaments. Whether she joins the general population or requests protective custody, Lemak will spend most of her day in her cell. She will be able to make phone calls and receive occasional visitors, the frequency of which depends on good behavior.

 She also could earn television and radio privileges, but Lemak has not shown interest in either during her three-year incarceration. During her day-long stay in general population, Lemak watched no TV, according to jail officials. Instead, Lemak prefers to spend her time reading novels and napping. She has told others she likes her anti-psychotic medication because it allows her to sleep all day.Though her constant sleeping may have worked in a county jail for three years, experts say it won't sustain her through a lifetime in a state penitentiary. The best jail survivors are the ones who try to lead productive lives inside the prison, O'Brien said."It's really going to depend on her," O'Brien said. "If she gets life, she has to figure out how to do it, what to do with her time." Her family, however, equates a life sentence with death. They intend to appeal her convictions, in an attempt to spare their daughter from execution or a lifetime at Dwight."They're still going to fight," Donahue said. "They love their daughter and they don't want her