Saturday, April 13, 2013
The following opinion was published by Lawyers.com on April 10, 2013.
As a regular observer of our criminal justice system, there are few things more maddening than to watch a prosecutor or other law enforcement officials simply refuse to say, “We got it wrong.” Despite overwhelming evidence of innocence, some police officers and district attorneys remain steadfast in having convictions stand or, at best, will cut deals to release defendants only if they plead no contest (often called an Alford plea), while maintaining their innocence. Yes, most district attorneys are elected officials and apologizing is anathema to pols, but DAs simply can’t behave like other politicians. Their power is too absolute, and the stakes too high.
So it was beyond heartening to see an announcement last week from the National Registry of Exonerations, a joint project of the University of Michigan and Northwestern University Law Schools, that in 2012 police and prosecutors assisted with exonerations at “record high levels,” and that, for the first time, law enforcement initiated or cooperated in more than half of those cases.
This is a truly transformative period as we transition from a time where DNA testing was not (at least widely) available, to one where it regularly — even routinely — assists in convictions, forces plea deals, and can also help clear those falsely accused. Since 1989, 63 percent of sexual assault exonerations, for example, have included DNA evidence.
The report found that of the 63 known exonerations in 2012, law enforcement initiated or cooperated in 34 (54 percent). The previous high for assistance from the authorities, according to the report, was in 2008 (39 percent), and since 1989, officials have assisted, on average, in about 30 percent of those cases where defendants have been cleared.
That is not to ignore the reality that many defendants falsely maintain their innocence, thereby muddying the waters for the truly innocent. Nor in every one of the exoneration cases were the authorities unambiguously dead wrong. But in the overwhelming majority, as a result of everything from sloppy police work and overeager prosecutors, to inaccurate eyewitness testimony, false confessions and even guilty pleas, they just blew it.
Professor Samuel Gross, editor of the Registry, believes the numbers could reflect changes in state laws that allow for post-conviction DNA testing, as well as the increasing number of district attorneys’ offices that now have units devoted to ensuring the integrity of convictions.
Still a Long Way to Go
While the news is promising and comforting, there is a dark legal cloud that remains. The study also found that official cooperation was least likely where it is needed most, in cases with the most severe sentences — capital murder and mass child sex abuse cases — and far more likely in more minor robbery and drug cases.
In particular, those who support the death penalty should take note. The death penalty will become a relic of a bygone age if prosecutors keep “winning” death sentences for those proven innocent, and maybe even worse, then refuse to cooperate in ensuring that justice is served. What is basically a massive legal editing system is, and will remain, focused on death penalty cases, leading to greater scrutiny after trial. So it should come as no surprise that death sentences produce exonerations at nine times the rate of all homicide convictions. We just can’t get the death penalty wrong, and states around the country have abolished or suspended it for this very reason.
So kudos to law enforcement for mustering the courage to admit their mistakes and to attempt to remedy them, but we still have a ways to go.
Wednesday, April 10, 2013
On April 4, 2013, Robert E. O’Neill announced that this summer he is leaving his post as U.S. Attorney for the Middle District of Florida to become a managing director with Freeh Group International Solutions, LLC, a global risk management firm founded by former FBI Director and former U.S. District Judge Louis J. Freeh. O’Neill was apparently hired by Freeh Group CEO James R. Bucknam, who has known O'Neill since the mid 1980s when both worked at the Manhattan District Attorney's office. A Tampa Bay Times article quotes Bucknam as observing that, among other qualities, O’Neill has “a keen sense of ethics.” A Tampa Bay Tribune article quotes Bucknam as noting that O’Neill is “extremely ethical.”
O’Neill’s ethics, and his reputation for ethics, would naturally be important to the Freeh Group. The firm, whose specialties include business ethics and compliance, as well as investigations and due diligence, and which was retained by Penn State’s Board of Trustee’s to investigate the University’s leadership’s handling of evidence of child abuse by former football coach Jerry Sandusky, lists integrity and credibility as the first two of the attributes it brings to a client.
O’Neill is the subject of more than a dozen articles I posted here between 2010 and 2011 as well as the Robert E. O’Neill profile page on jpscanlan.com and a large group of related materials I make accessible by means of the Prosecutorial Misconduct page of the same site. The articles, links to which are collected here, and the materials on the website discuss prosecutorial abuses committed by O’Neill as lead trial counsel in U.S. v. Dean, a case in which both the district court and court of appeals severely criticized O’Neill’s conduct. The articles and other materials also address the fact that O’Neill made a false statement on an application for the U.S. Attorney position that he submitted to the Florida Federal Judicial Nominating Commission. Most of these materials have been brought to the attention of the Department of Justice, the Senate Judiciary Committee, the Tampa Bay press, and judges in the Middle District of Florida by letters that that are available here.
My descriptions of O’Neill’s conduct are well documented and generally provide links to underlying materials. I suggest that the essential correctness of those descriptions is difficult to dispute. But one thing that no one could possibly dispute is that O’Neill made a false statement on his U.S. Attorney application. In an apparent effort to minimize the matter, O’Neill stated that a District of Columbia Bar Counsel investigation of his conduct in the Dean case was initiated by the convicted defendant. In fact, the investigation was initiated by Bar Counsel itself after reading a court of appeals opinion “deplor[ing]” the conduct of O’Neill and his colleagues. In making the false statement on the application or at other points in the vetting/confirmation process for the U.S. Attorney position, O’Neill almost certainly violated 18 U.S.C. § 1001, a violation for which the limitations period will not expire before June 2014. See the February 19, 2011 Truth in Justice item titled “Robert E. O’Neill and 18 U.S.C. § 1001.”
Among many remarkable aspects of O’Neill behavior as a prosecutor discussed in the referenced materials is O’Neill’s penchant for calling people liars, sometimes (perhaps much of the time) while believing or knowing with absolute certainty that they did not lie. See the September 26, 2010 Truth in Justice item titled “The Honorable Robert E. O’Neill Regrets That He Is Unable to Answer Questions from the Audience” and the June 29, 2011 Truth in Justice item titled “Robert E. O’Neill’s Tricks of the Trade – One (The False or Misleading Testimony of Supervisory Special Agent Alvin R. Cain, Jr.)”
The latter item concerns an instance in the Dean case where O’Neill pressured a government agent into giving false or misleading testimony in order that O’Neill could then lead the jury falsely to believe that the defendant lied about a call to the agent. O’Neill then provocatively relied on the agent’s supposed contradiction of the defendant to generally undermine her credibility. That item is lengthy, but, I suggest, worth the time of persons interested in O’Neill’s character or prosecutorial abuse generally, whether or not they conclude that O’Neill and others should have served time in prison either for the underlying conduct or subsequent efforts to cover it up.
The former item discusses the following strident remarks O’Neill made in an effort to undermine a witness in U.S. v. Spellissy: “A liar is a liar. And whether someone is lying to save their soul or their hide, they are still lying. And once you are a liar, you cannot trust that person.” Given the undisputable fact that O’Neill lied on his U.S. Attorney application, these remarks may one day make him a subject of considerable derision among an informed public.
One must assume that O’Neill is aware of these materials, among other reasons, because I have on more than one occasion called them to his attention, including in a July 5, 2010 letter advising him of his obligation to advise the President and those involved in the confirmation process that he had lied on the U.S. Attorney application. And certainly he is aware of the criticism of his conduct by two courts, including that which lead to the DC Bar Counsel investigation.
So, given the premium the Freeh Group places on integrity and credibility, one must wonder what O’Neill told the firm about the existence of so much readily available material calling his integrity into question, as well as about the merit of those materials. Even if there were no merit to anything I (or the courts) have written about O’Neill, a person in O’Neill’s position would have an obligation to advise a potential employer of the widespread dissemination of materials that could cause the employer embarrassment or undermine its reputation. Indeed, even if the materials did not exist, O’Neill would seem to have an obligation to advise the potential employer of the two courts’ criticism of his conduct in the Dean case. For that matter, O’Neill would also have the obligation to advise a potential employer that he had lied on the U.S. Attorney application and that, assuming he violated 18 U.S.C. § 1001 by doing so, he would remain vulnerable to prosecution for some time.
But raising any of these matters would be problematic for O’Neill given the absence of plausible explanations, especially when the potential employer specializes in investigations and due diligence. And advancing an unfounded defense would be deemed deliberate deception of the employer. So, too, however, would be failure to mention things the employer would want to know.
Yet, if O’Neill did advise the Freeh Group of the existence of these things, it is difficult to know how it could have offered O’Neill a position as a managing director. Regardless of what O’Neill might proffer about the credibility of the materials, once aware of their existence, the firm could not responsibly fail to determine whether any serious allegations were well founded. I suggest, however, that it would be difficult for a careful investigation to disagree other than in minor respect with my interpretation of multiple abuses committed by O’Neill in the Dean case, including the heinous and very likely criminal conduct that is the subject of the June 29, 2011 Truth in Justice item. But even if there were not the least merit to my interpretation of O’Neill’s conduct in the Dean case, and not the least basis for the two courts’ criticisms of O’Neill’s conduct in the case, it would remain undisputable that he lied on the U.S. Attorney application. How then could the Free Group offer to hire O’Neill, leave aside publicly laud his ethics?
One possible answer, and one consistent with his behavior in seeking the U.S. Attorney position (as detailed in Addendum 7 to O'Neill’s profile), is that O’Neill did not tell the Freeh Group anything about the web site materials or Truth in Justice items or anything else raising question about his integrity to which he did not have the solidest rebuttal. A person with the tortuous ethics described in the O’Neill profile might even maintain, as prosecutors sometimes do in discovery, that he did not have to tell the potential employer things that were already in the public record (indeed widely available on the Internet). It is a defense that, ironically, would even apply to the false statement on the application. Few employers, however, would be pleased with a candidate’s taking such a position.
Assuming O’Neill failed to advise the Freeh Group of the many widely disseminated materials calling his integrity into question, such failure would raise like questions about his integrity irrespective of the validity of those materials. It would also provide the Freeh Group a basis for withdrawing its offer quite apart from a need to do so to maintain its credibility.
But if O’Neill did not tell the Freeh Group about these matters, one must still wonder how the Freeh Group could offer O’Neill a managing director position without doing the things that typically would bring such matters to its attention. Possibly the firm relied on Bucknam’s long acquaintance with O’Neill (and possibly Freeh’s as well). The firm may also have assumed that the recent vetting of O’Neill by the Department of Justice and Senate Judiciary Committee afforded it some confidence that O’Neill would withstand its own inquiry into his background. Unfortunately, the dubiousness of Department of Justice and Senate Judiciary Committee implied or explicit representations as to the trustworthiness of presidential appointees – as reflected in the above-mentioned September 26, 2010 Truth in Justice item and an October 3, 2010 Truth in Justice item titled “Whom Can We Trust?” – is not as widely known as it ought to be. One must doubt, however, that the Freeh Group would encourage a client to hire a person for an important position without at least doing an Internet search of the person. Yet one cannot do a simple Internet search on O’Neill without being confronted with many of the materials described above.
In any case, the Freeh Group is now aware of these materials and, and so long as it wishes to represent itself to its clients as a firm of integrity and credibility, and to impliedly or expressly represent that O’Neill has these attributes as well, it faces obligations akin to some of those faced by the leadership of Penn State that were the subject of the Freeh Group investigation. One key difference, of course, is that the subject of the obligation is already widely publicized and the firm must face the prospect that a client may one day ask it to explicitly address whether there is merit to issues I or the courts have raised about O’Neill’s integrity, including the simple matter of whether he in fact lied on the U.S. Attorney application. The firm will have several months to consider these issues before O’Neill joins it to head a Miami office that is apparently intended to provide a base for the firm’s growing Latin American practice.
Addendum - The FBI Award to Independent Counsel David M. Barrett
Louis J. Freeh is mentioned in a March 8, 2011 Truth in Justice item titled “The Remarkable Careers of Sometimes Prosecutor David M. Barrett,” an item that also mentions O’Neill in its body and two addendums and that raises issues about the processes of putatively competent governmental entities charged with ensuring the integrity of public officials that are similar to those raised by the appointment of O’Neill to the U.S. Attorney position. The main subject of the item is former Independent Counsel David M. Barrett, whose investigation of HUD Secretary Henry Cisneros for a false statement during the appointment process ran from 1995 to 2006 and expended $22,750,000 and would be described by one former Department of Justice official as “one of the most embarrassingly incompetent and wasteful episodes in the history of American law enforcement.” At some point Barrett received the highest award bestowed on a civilian by the FBI, the Thomas Jefferson Award, with an inscription signed by FBI Director Freeh that read: “To David Barrett with respect and gratitude for your service to the nation, perseverance, and dedication to your duty from your colleagues at the Federal Bureau of Investigation.” The web page for Barrett’s firm stated that Barrett received the award after completion of his Independent Counsel investigation. Inasmuch as Freeh left the FBI in June 2001, however, the award could have been made no more than six years into Barrett’s investigation.
Sunday, February 17, 2013
In a Georgetown courtroom last week, a Texas judge took the witness stand on his own behalf during a special court of inquiry -- a rare event in this state -- to determine whether he committed prosecutorial misconduct 25 years ago as Williamson County's district attorney.
The court of inquiry will decide whether he should be prosecuted.
Monday morning, a 58-year-old father of two entered a Corsicana courtroom in shackles but left that day a free man after DNA testing proved he had been wrongly convicted of murdering a woman in 1981, a crime for which he spent almost 30 years behind bars.
At the time he was convicted and given a 99-year-sentence, his son and daughter were 7 and 4 respectively.
The two cases continue to shine a spotlight on this state's tragic record of sending innocent people to prison, and they highlight another problem that has received too little attention over the years: prosecutorial misconduct, whether unintentional or deliberate.
State District Judge Ken Anderson, who sits on the bench in Georgetown, was district attorney of Williamson County in 1987 and prosecuted Michael Morton, accused of fatally beating his wife, Christine.
Morton was convicted.
In October 2011, Morton, after serving 25 years of a life sentence, was freed when DNA testing proved that he was not the murderer.
The new testing implicated another man, who has been arrested.
Last fall, the State Bar of Texas found that Anderson had withheld evidence in Morton's case and had specifically disobeyed the trial judge's order to turn over all documents favorable to the defense.
Anderson at the time said the state had no such evidence, a statement the State Bar said "was false."
Included among the five specific pieces of evidence that the prosecution withheld was a transcript of statements by Morton's mother-in-law that indicated that the couple's 3-year-old son had witnessed his mother's beating, that the boy had said his father was not home at the time and that he said the perpetrator was "a monster."
Also withheld, the State Bar said, was a statement from a neighbor who had seen something suspicious: a man parking a van outside the Morton's home and going into a wooded area.
State District Judge Louis Sturns of Fort Worth is presiding over the court of inquiry. His decision is still weeks away.
During proceedings last week, Anderson, 60, took no personal responsibility, but he told Morton "the system obviously screwed up," according to The Associated Press.
Anderson said he ran a competent, professional office and his "worst nightmare" was knowing that an innocent man had been convicted.
If his experience is a "nightmare," what would you call that of the innocent man who had his freedom and his children taken away from him?
There is a growing fraternity of exonerated people in Texas who collectively have spent hundreds of years in prison.
In Dallas County alone, more than 30 people have been freed as a result of DNA testing.
The most recent exoneration came Monday in Corsicana. Randolph Arledge had been convicted of stabbing Carolyn Armstrong to death.
His guilty verdict was based partly on faulty eye-witness testimony -- a common flaw in such cases -- and statements by two robbery suspects who claimed Arledge told them he had stabbed someone.
The two robbery suspects had received favorable treatment in their cases in exchange for their testimony, according the "Memorandum in Support of Application for a Writ of Habeas Corpus."
Then there's the case of Larry Ray Swearingen, which I wrote about last month. Swearingen, who many people think is innocent, was scheduled to be executed for the 1998 murder of Melissa Trotter, a 19-year-old Montgomery College student. A district judge stayed that execution on Jan. 30.
Wrongful convictions will be a lasting scar on the Texas criminal justice system, which has to be the concern of more people than those involved in the Innocence Project.
But in order to address it fully, we also must examine carefully the issue of prosecutorial misconduct.
Bob Ray Sanders' column appears Sundays and Wednesdays.
Friday, February 08, 2013
An innocent Texas man was convicted of rape and robbery and served 30 years in prison before his conviction was overturned. The state paid him $2.4 million in compensation, plus $13,000 per month.
Five years later, this time in Wisconsin, another innocent man was convicted of homicide. He served 23 years in prison before he was exonerated by DNA tests. But a Wisconsin claims board awarded him just $25,000, the maximum allowed under state law.
The compensation gap highlights the disparity between how different states help the wrongfully convicted get a fresh start. Texas, Tennessee and Florida offer million-dollar payouts, while others limit payouts to a mere $25,000 or less. And others offer no compensation at all. Activists who fight for the wrongfully convicted, as well as the innocent people who have received payouts, say it's time for lawmakers across the nation to acknowledge their obligations to innocent convicts by awarding them enough money to help them regain their lost lives.
Robert Lee Stinson was 21 when he was convicted in the 1984 slaying of a Milwaukee woman whose nearly naked body was found bloody and beaten in an alley near her home. He was arrested the next day because police said he couldn't adequately explain his whereabouts at the time of the crime.
At trial, a forensic dentist inexplicably determined that Stinson's bite matched those on the victim. The testimony ignored the fact that Stinson was missing a tooth where the bite marks indicated a tooth should have been, and he had an intact one where the perpetrator didn't.
Stinson served 23 years of a life sentence before his conviction was overturned. He asked the state claims board for $115,000, or $5,000 for every year behind bars. Wisconsin law allows for a maximum of $5,000 per year up to $25,000, although the board can ask the Legislature for more.
The board awarded the full $25,000 and recommended that state lawmakers give him the other $90,000.
"That's not nearly enough to compensate me for spending 23 years in prison," Stinson, 48, said at the time. "But it will really help me purchase a vehicle and pay for tuition."
A Democratic lawmaker proposed a measure last year to give him the extra money, but it went nowhere in the Legislature's budget committee.
Other Wisconsin cases also have raised eyebrows. In one case, another Milwaukee man wrongfully convicted of homicide before being cleared by DNA testing also got $25,000 for his six years in prison.
While $25,000 might not sound like much, 23 states don't even offer that. They have no statutes regarding compensating the wrongly convicted, according to an analysis by the National Conference of State Legislatures.
In those cases, exonerated people can petition for individual relief, but they shouldn't expect much, said Stephen Saloom, the policy director for the New York-based Innocence Project. Saloom said he would like to see every state match the federal policy: up to $50,000 for each year of incarceration, plus another $50,000 for each year on death row.
Sunday, February 03, 2013
THOUSANDS of people plead guilty to crimes every year in the United States because they know that the odds of a jury’s believing their word over a police officer’s are slim to none. As a juror, whom are you likely to believe: the alleged criminal in an orange jumpsuit or two well-groomed police officers in uniforms who just swore to God they’re telling the truth, the whole truth and nothing but? As one of my colleagues recently put it, “Everyone knows you have to be crazy to accuse the police of lying.”
That may sound harsh, but numerous law enforcement officials have put the matter more bluntly. Peter Keane, a former San Francisco Police commissioner, wrote an article in The San Francisco Chronicle decrying a police culture that treats lying as the norm: “Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.”
The New York City Police Department is not exempt from this critique. In 2011, hundreds of drug cases were dismissed after several police officers were accused of mishandling evidence. That year, Justice Gustin L. Reichbach of the State Supreme Court in Brooklyn condemned a widespread culture of lying and corruption in the department’s drug enforcement units. “I thought I was not naïve,” he said when announcing a guilty verdict involving a police detective who had planted crack cocaine on a pair of suspects. “But even this court was shocked, not only by the seeming pervasive scope of misconduct but even more distressingly by the seeming casualness by which such conduct is employed.”
Remarkably, New York City officers have been found to engage in patterns of deceit in cases involving charges as minor as trespass. In September it was reported that the Bronx district attorney’s office was so alarmed by police lying that it decided to stop prosecuting people who were stopped and arrested for trespassing at public housing projects, unless prosecutors first interviewed the arresting officer to ensure the arrest was actually warranted. Jeannette Rucker, the chief of arraignments for the Bronx district attorney, explained in a letter that it had become apparent that the police were arresting people even when there was convincing evidence that they were innocent. To justify the arrests, Ms. Rucker claimed, police officers provided false written statements, and in depositions, the arresting officers gave false testimony.
Mr. Keane, in his Chronicle article, offered two major reasons the police lie so much. First, because they can. Police officers “know that in a swearing match between a drug defendant and a police officer, the judge always rules in favor of the officer.” At worst, the case will be dismissed, but the officer is free to continue business as usual. Second, criminal defendants are typically poor and uneducated, often belong to a racial minority, and often have a criminal record. “Police know that no one cares about these people,” Mr. Keane explained.
All true, but there is more to the story than that.
Police departments have been rewarded in recent years for the sheer numbers of stops, searches and arrests. In the war on drugs, federal grant programs like the Edward Byrne Memorial Justice Assistance Grant Program have encouraged state and local law enforcement agencies to boost drug arrests in order to compete for millions of dollars in funding. Agencies receive cash rewards for arresting high numbers of people for drug offenses, no matter how minor the offenses or how weak the evidence. Law enforcement has increasingly become a numbers game. And as it has, police officers’ tendency to regard procedural rules as optional and to lie and distort the facts has grown as well. Numerous scandals involving police officers lying or planting drugs — in Tulia, Tex. and Oakland, Calif., for example — have been linked to federally funded drug task forces eager to keep the cash rolling in.
THE pressure to boost arrest numbers is not limited to drug law enforcement. Even where no clear financial incentives exist, the “get tough” movement has warped police culture to such a degree that police chiefs and individual officers feel pressured to meet stop-and-frisk or arrest quotas in order to prove their “productivity.”
For the record, the New York City police commissioner, Raymond W. Kelly, denies that his department has arrest quotas. Such denials are mandatory, given that quotas are illegal under state law. But as the Urban Justice Center’s Police Reform Organizing Project has documented, numerous officers have contradicted Mr. Kelly. In 2010, a New York City police officer named Adil Polanco told a local ABC News reporter that “our primary job is not to help anybody, our primary job is not to assist anybody, our primary job is to get those numbers and come back with them.” He continued: “At the end of the night you have to come back with something. You have to write somebody, you have to arrest somebody, even if the crime is not committed, the number’s there. So our choice is to come up with the number.”
Exposing police lying is difficult largely because it is rare for the police to admit their own lies or to acknowledge the lies of other officers. This reluctance derives partly from the code of silence that governs police practice and from the ways in which the system of mass incarceration is structured to reward dishonesty. But it’s also because police officers are human.
Research shows that ordinary human beings lie a lot — multiple times a day — even when there’s no clear benefit to lying. Generally, humans lie about relatively minor things like “I lost your phone number; that’s why I didn’t call” or “No, really, you don’t look fat.” But humans can also be persuaded to lie about far more important matters, especially if the lie will enhance or protect their reputation or standing in a group.
The natural tendency to lie makes quota systems and financial incentives that reward the police for the sheer numbers of people stopped, frisked or arrested especially dangerous. One lie can destroy a life, resulting in the loss of employment, a prison term and relegation to permanent second-class status. The fact that our legal system has become so tolerant of police lying indicates how corrupted our criminal justice system has become by declarations of war, “get tough” mantras, and a seemingly insatiable appetite for locking up and locking out the poorest and darkest among us.
And, no, I’m not crazy for thinking so.
Michelle Alexander is the author of “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”
Friday, February 01, 2013
If it could happen to Michael Morton, it could happen to anyone.
He was sentenced to life in prison and served nearly 25 years before he managed to prove he didn’t do it. Relative to the millions serving time in U.S. prisons, the number of people exonerated for crimes they did not commit is small. But it continues to grow. Most troubling is that this relatively small number of exonerations points to a potentially huge unseen number of people who have been wrongfully convicted.
False convictions occur for a number of reasons: Victims identify the wrong person; prosecutors withhold exculpatory evidence from the accused; false or misleading forensic evidence points to the wrong person; defendants receive inadequate legal representation; witnesses perjure themselves.
In May, the National Registry of Exonerations, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, released its first report analyzing 873 exonerations between January 1989 and February 2012. (Since then, the number of identified exonerations in the registry has grown to 1,050, and more are added almost daily.)
In the 873 cases that were studied, the registry found the most common reasons for wrongful conviction were perjuryor false accusation (51 percent), mistaken witness identification (43 percent) and official misconduct (42 percent).
Ninety-three percent of those exonerated were men, 50 percent were black, 38 percent were white and 11 percent were Hispanic. DNA evidence helped clear 37 percent of them.
In total they spent more than 10,000 years in prison for crimes they did not commit.
While stark and sobering in and of themselves, the statistics don’t begin to describe the human tragedy of wrongful convictions.
Michael Morton was about as “Average Joe” as you can get. He and his wife Christine owned a house in a suburban subdivision in northwest Austin. He worked as the toiletries and housewares manager at a Safeway; she worked as a manager at Allstate; together they cared for their only son, Eric.
On the morning of Aug. 13, 1986, the day after his 32nd birthday, Morton woke before dawn and left for work. When he returned that afternoon, his house was wrapped in crime scene tape, Eric was with a neighbor, Christine lay dead on their water bed, and the sheriff of Williamson County already was convinced that Morton beat his wife to death in a rage because she would not have sex with him.
A jury found him guilty and sentenced him to life. He was released on Oct. 4, 2011, only after a protracted battle by the Innocence Project and Houston attorney John Raley to have a bloody bandana found near the crime scene tested for DNA.
Christine’s DNA was found on the bandana; Michael’s was not. But there was the DNA of another man, a felon named Mark Alan Norwood. A search of the FBI’s DNA database linked Norwood to another, similar murder in Austin of Debra Baker in January 1988.
Norwood is about to go to trial, and a special court of inquiry is investigating whether Ken Anderson, the Williamson County district attorney who prosecuted Morton and who is now a state district judge, committed a crime by withholding evidence from Morton’s attorneys.
Like many exonerated convicts, Morton displays no bitterness or anger at what happened to him. Instead he has set about repairing the relationship with his son and is working with state lawmakers to make sure that what happened to him does not happen to anyone else.
And then, he says, he’ll buy a place “out West,” and listen to the solitude.
The ripples of tragedy spread in widening, concentric circles from the center of a wrongful conviction.
The stories of each of the 20 men and women in these pages, are, like DNA, uniquely their own. But the one thing they have in common is that their lives and the lives of their families, the jurors who convicted them, the judges who presided over their conviction, and the witnesses or victims who got it wrong, were irrevocably altered.
Michele Mallin was a 24-year-old student at Texas Tech in Lubbock in March 1985 when she was abducted at knifepoint by a black man wearing a yellow shirt and sandals and raped in a field outside of town.
Police showed her six pictures to see if she could identify her attacker — five photos in black and white of men in profile, and one color Polaroid of Timothy Cole, a black, 26-year-old Army veteran and business student. “That’s him,” she said.
She was wrong. Cole was convicted and sentenced to 25 years in prison, where he died in 1999 unaware that another man had confessed to Mallin’s rape and that his confessions had been ignored. Posthumous DNA testing by the Innocence project cleared Cole, and he was granted a full pardon on March 1, 2010.
Mallin now devotes her time to writing and raising awareness about mistaken witness identification.
Cole’s case prompted the state to enact legislation in his name to increase the wrongful imprisonment compensation to $80,000 for each year of confinement. It was a big step; Texas is one of only 27 states that has such a law. To date, Texas has paid 87 exonerees a total of more than $58 million.
But to be eligible for compensation, a person must be officially found innocent.
Some, like George Rodriguez, who was wrongfully convicted of the sexual assault of a child, instead decided to sue the City of Houston over the botched forensic evidence that helped convict him. The city fought back and seven years after his exoneration, during which time he had to borrow money from his attorneys to buy a couch, he finally settled the case for $3.1 million.
Others, like Joyce Ann Brown of Dallas, haven’t received a dime. Brown, wrongfully convicted of the robbery and murder of a fur store owner, served nine years of a life sentence before being freed.
Compensation, however, does little to repair the damage done by sending an innocent person to jail.
James Curtis Giles was sentenced to 30 years for the gang rape of a pregnant 18-year-old woman in Dallas in 1983. He was paroled 10 years later and placed on probation for 20 years, during which he had to register as a sex offender. In 2007, post-conviction DNA testing cleared him.
Giles received nearly $1.2 million in compensation from the state, but it did little to help him heal from the trauma of 10 years in prison and 14 as a pariah on the outside.
“A billion dollars can’t bring those 120 months back that I’ve been in prison,” said Giles after his exoneration. “Every day I got up knowing I had to register as a sex offender once a year, knowing that a sex offender was the scum of the earth. They watch you, look at you, even if you didn’t do it.”
Sunday, January 20, 2013
Breakthroughs take time in criminal justice reform, and they get messy, but they are no less impressive when they happen.