Putting death penalty on trial

By Dave Orrick

How many of Illinois' murders could be death penalty cases?

No one knows.

Defense attorney Stephen Richards, who is representing mass murder suspect Juan Luna, wants an answer. And he wants it before his client goes to trial because he believes it could show that the whole system is unconstitutional.

In what he described in court Tuesday as "a search for the truth," Richards is asking for thousands of records from every state's attorney in Illinois - 102 in all - for every first-degree murder charge brought since 1998.

He wants to study those cases to see if cases that have been eligible for the death penalty in Illinois are limited to the most severe crimes, as demanded by the U.S. Supreme Court.

Prosecutors representing numerous counties, including Cook, responded to Richards' move as an inappropriate use of court resources and will take far too much time and effort.

But Judge Vincent Gaughan, who heard both sides Tuesday, made it clear that time alone is not a good enough reason to reject Richards' request.

Gaughan will decide next month whether prosecutors will have to turn over the information.

If Richards gets his wish, Luna's defense team will undertake what might be the largest study of the death penalty in Illinois.

Luna and co-defendant James Degorski are accused of killing seven people in 1993 at the Brown's Chicken & Pasta restaurant in Palatine.

Every aspect of the Brown's case, including Degorski's defense, is being paid for by Cook County and state funds.

No trial date has been set.

It's unclear whether the death penalty study, which Richards said could take a year, would slow the case. The case can progress while the study is under way, and even if Richards eventually succeeds in striking down the death penalty, both Brown's suspects still can be tried for the slayings.

In 1972, the U.S. Supreme Court struck down executions across the country as "arbitrary and capricious." In response, states such as Illinois narrowed the types of crimes for which someone could be killed. But over time, the cases made eligible for the death penalty have increased to the point that critics say the state has returned to the arbitrariness that existed prior to 1972.

Alan Spellberg, a lawyer for the Cook County state's attorney's office opposing Richards, told Gaughan that Richards' study wouldn't compare apples to apples because "the death penalty is far more limited now than it was a year ago."

He was referring to recent changes in Illinois law intended to address flaws in the state's death penalty system.

Penalty: Lawyer's study could take as long as year