Saturday, November 28, 2015

Daily Herald calls on Alvarez to explain delay in Laquan case

The following editorial was published by the Chicago Daily Herald on November 28, 2015.

Let us put this succinctly: Overnight -- or more pointedly, over the course of 13 months -- Cook County State's Attorney Anita Alvarez has lost virtually all credibility, and the onus is on her not only to restore it but to explain why she should not be expected to resign.

Her resignation is what the National Bar Association called for on Wednesday after the city of Chicago finally released the now-infamous video showing a white police officer, identified by authorities as Jason Van Dyke, gunning down black teenager Laquan McDonald in October 2014.

Alvarez's office filed murder charges against Van Dyke on Tuesday, and a few hours later the city released the video it had sought to suppress.

"It's unacceptable that it took over a year to file these charges against officer Van Dyke," said Benjamin Crump, president of the bar association of predominantly African-American lawyers, judges and educators. "Not only did it take a year to file these charges, but Van Dyke was able to continue in the capacity of a police officer during this delayed investigation."

We concur with Crump's observations, as they were reported by Mashable. The long delay in prosecuting this case is one of the more inexplicable aspects of a tragic police shooting that in itself defies explanation.

The reality is, every aspect of this case is troubling. Earlier this year, the city -- with the blessings of Mayor Rahm Emanuel and the city council -- reached a $5 million settlement with Laquan's family.

That settlement came without a lawsuit, despite the fact that Laquan was a ward of the state, and with an agreement to seal the dash-cam videos from public release.

But the most stunning aspect of that settlement is this: Even while the city was paying out $5 million, no one was filing charges against the officer who was identified as pulling the trigger without any apparent cause or justification.

Nothing adds up in this bizarre, cynical and unconscionable collaboration of injustice.

Emanuel and Police Superintendent Garry McCarthy also share culpability here, to be sure, but Alvarez is the chief criminal justice authority in the county, and we have expected so much better from her. We were the first major newspaper to endorse her when she ran for state's attorney for the first time in 2008. We enthusiastically endorsed her for re-election again in 2012.

But in this case, she disappoints. She disappoints not just us, but the public she has vowed to serve. Her explanation for the delay in prosecution has so far been circumspect. She has attributed it to collaborations with federal authorities.

"While I understand there may be questions or frustrations about the length of time of the investigation," Alvarez said in a prepared statement on Wednesday, "I want to assure citizens that my office took the necessary time that was required to conduct a thorough and comprehensive investigation and to gather all possible evidence in order to ensure that we have built the strongest case possible so that justice can be served for Laquan and his family."

We, the citizens, are not assured. Her words so far ring hollow.

Should she choose to remain on the ballot, Alvarez will be up for election again next year. One of her challengers, former prosecutor Kim Foxx, put it this way in an interview with Slate:

"This was what we would consider to be a slam dunk. It's not a matter of whodunit. You know who did it. You had a videotape and a vantage point that clearly shows where Laquan was in relation to the officer. You had eyewitnesses, both civilian and police. You had the autopsy report, which was available within days. So this wasn't difficult."

We, the citizens, say this: What Foxx says makes much more sense than what Alvarez has so far said.

Alvarez owes all of us a detailed explanation for the 13 months it took to bring charges. If not, she owes us her departure.

Monday, November 23, 2015

Does innocence matter?

The following commentary by Joel Freedman was published by the Canandaigua, NY Daily Messenger on November 14, 2015.

    Brentnol Britton wrote to me while serving a nine-year sentence on allegations he hurled a pot of boiling water at his former girlfriend, striking her in her face. In all likelihood, Britton was wrongly convicted. After he arrived in prison in 2004, the alleged victim’s own family revealed she told them she scalded herself on her own arm and hand and injured her own lip with a metal spoon to frame Britton and try to get possession of their home.

    The woman reportedly told others she suspected Britton was unfaithful to her. Britton, after passing a privately administered polygraph examination, passed another polygraph test arranged by the Queens County District Attorney’s Office. The District Attorney’s Office offered to help Britton get out of prison, but only if he would plead guilty in exchange for a time-already-served prison sentence. A Nov. 23, 2005, New York Post story about this case was captioned “In hot water — scald ‘fake’ jailed beau.” After Britton refused this “deal,” the DA’s Office fought successfully to keep Britton in prison.

    While DNA testing can uncover stone-cold proof of innocence — since 1989 there have been several hundred post-conviction DNA exonerations in the U.S. — most wrongful convictions aren’t DNA cases. And when there is biological evidence available for DNA testing, prosecutors often fight hard to conceal or prevent disclosure of potentially exculpatory evidence.

    U.S. Sen. Ted Cruz, R- Texas, a presidential aspirant, believes in the death penalty while also believing that “critical to supporting the death penalty is ensuring that we vigorously protect the innocent.” But actual innocence doesn’t matter to some prosecutors.

    Case in point, the following exchange occurred when a Missouri death row inmate attempted to present newly discovered exculpatory evidence: “Are you suggesting even if we find Mr. Amrineis actually innocent, he should be executed?” said the Missouri Supreme Court judge. “That’s correct, your honor,” said the assistant state attorney general.

    I have corresponded with Fred Weichel for 33 years. In 1981, Weichel was sentenced to life imprisonment without possibility of parole after being wrongly convicted of a murder in Braintree, Massachusetts. Space won’t allow me to discuss Weichel’s case in detail, so please read my article, “Fred Weichel asks: whatever happened to truth and justice?” Justicia, July-August 2006, accessible online. In recent years, the Braintree police chief wrote to the Norfolk county district attorney saying that, after reviewing Weichel’s case, he believes the eyewitness identification of Weichel was unreliable and that he has serious doubts that Weichel is guilty. Michael Ricciuti and other attorneys with the Boston law firm K & L Gates, assisted by the New England Innocence Project, are fighting to get Weichel his long-overdue freedom.

    It is also true that some probably guilty defendants are acquitted or succeed in having their indictments dismissed. I believe Monroe County Judge James Piampiano erred when he made a decision that prevents any further homicide-related charges from being brought against Charlie Tan in connection with the shooting of his father, Liang Tan. Piampiano should have allowed another trial for Tan because there really is sufficient evidence to allow a new jury to try to reach a unanimous verdict.

    While the problem of wrongful convictions is certainly not the only problem in our criminal justice system, let’s always keep in mind what Justice Learned Hand wrote 100 years ago: “Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.”

    For the wrongly convicted, it is a continuing nightmare.

Saturday, October 17, 2015

Opinion: No one should be in prison based on debunked science

The following editorial by Joshua Tepfer was published by the Chicago Sun-Times on October 14, 2015.

In 2009, the National Academy of Sciences questioned the reliability of many “scientific” tests routinely used in criminal investigations and prosecutions. In its 300-page report, the academy said many of the tests, such as hair microscopy or bite mark analysis, had not “been exposed to stringent scientific scrutiny” and that “faulty forensic science” has “contributed to the wrongful conviction of innocent persons.”

Illinois needs to re-examine all cases in which possibly innocent individuals remain incarcerated on the basis of debunked science.

The academy’s report, which followed four years of study by a blue-ribbon committee, spurred some jurisdictions and law enforcement agencies elsewhere across the country into action.

The U.S. Justice Department and Federal Bureau of Investigation, for example, have admitted that examiners gave flawed testimony regarding hair comparison analysis in almost all trials over a two-decade period before 2000, and a review of thousands of long-ago closed criminal trials was launched.In some cases, the review has led to exonerations, such as that of Santae Tribble, from DNA testing of the hairs previously “matched” to the convicted defendant. Evidentiary hearings are starting to be held in other cases, including for George Perrot in Massachusetts, where the hairs or DNA testing are not available. In some instances, as in the Charlotte, N.C., case of Timothy Scott Bridges, prosecutors are foregoing evidentiary hearings altogether and agreeing to new trials where the flawed hair testimony was introduced.

Here in Illinois, however, very little has happened. At least publicly, there has been no widespread examination, audit, or response to the federal government’s groundbreaking report that exposed systemic flaws in the “science” used in our courtrooms.

There is, however, absolutely no question that faulty science has been used in Illinois cases. Take, for example, Bennie Starks, who was wrongfully convicted in Lake County on the basis of bite mark testimony that a federal judge recently called nothing more than “‘experts’ peddling junk science to credulous judges and jurors.” And individual Illinois State Police forensic analysts have, in the past, been criticized for providing misleading testimony that has led to wrongful convictions. Indeed, the National Registry of Exonerations identifies 30 Illinois cases where “false or misleading forensic evidence” contributed to the wrongful conviction.

Instead of dealing with these problems on a case-by-case basis, criminal justice leaders in Illinois need to put a system in place that will allow a wholesale re-examination of cases where individuals remain incarcerated on the basis of debunked science. One option is to establish a commission, similar to what Texas has done, that investigates individual complaints, issues reports, and makes legislative recommendations. Illinois has established these types of commissions in response to other criminal justice errors or scandals, including  the Torture Inquiry and Relief Commission, which was tasked with examining the claims of systemic physical abuse and torture by Chicago police. A similar model might be effective in investigating past forensic errors.

Illinois has on its books a dormant commission — the Illinois Laboratory Advisory Committee —  that could be used to address this very problem. The commission has not met in over six years, but it could be revived.

This is a problem in the criminal justice system that was identified many years ago yet never addressed. Those of us working in the Illinois criminal justice system need to come together to begin to address it.

Joshua Tepfer is an attorney with the Exoneration Project and a Lecturer-in-Law at the University of Chicago Law School.

Monday, September 14, 2015

Richard Glossip case: We can't be cavalier about death penalty

The following opinion by Christy Sheppard was published on September 12, 2015 by The Oklahoman.

National attention is focused on the pending execution of Richard Glossip, and on his potential innocence. As a murder victim's family member, it has always bothered me that the victim and family seem to be a side note. Barry Van Treese, the victim in Glossip's case, was a victim of an awful crime. My heart, and that of my family, aches for his family.

And while I cannot speak for how his family feels, I certainly have every blessing to speak for mine.

My cousin was Debbie Carter, who in 1982 was raped and murdered. Five years later, Dennis Fritz and Ron Williamson were convicted of the crime. Williamson received the death penalty. We had every reason to believe in the convictions. Over the years we suffered through numerous appeals and repeated findings of guilt.

Then my family was delivered a bombshell of information: DNA testing proved that Williamson and Fritz had been wrongfully convicted. We were shocked. Debbie's justice was being ripped away.  

We eventually learned that Debbie's case was plagued with unreliable evidence. So what does wrongful conviction feel like from the perspective of the victim or victim's family? At first it looks like disbelief, and justice denied. We later  felt a burden of guilt and shame for being led to support the near executions of innocent men.

I know very little about Glossip's case, or if he is truly guilty or innocent. Gov. Mary Fallin stated Glossip “had over 6,000 days to present new evidence,” and her spokesman said that, “To say that Glossip has had his day in court is an understatement.”  In Debbie's case, too, years of trials, retrials and appeals had happened — but the guilty verdict still proved incorrect.

Looking at the evidence, there's no doubt Glossip might be innocent. But it's almost impossible to totally prove. Van Treese and his family deserve justice, but justice won't be served if Glossip is put to death and we find out too late that he is innocent of this crime.

I'm a native Oklahoman. I have had a family member who was brutally murdered, and I grew up believing the death penalty was fair and just. I still struggle with my desire for justice and what I know about wrongful convictions.

Regardless of how you feel about the death penalty, unless we're absolutely sure of Glossip's guilt, it actually threatens justice — and peace of mind — to make the leap to execute him.  

We can't be cavalier when it comes to the subject of putting someone to death, and turn a blind eye to information that may make a difference.

Sheppard lives in Ada. Glossip is scheduled to be executed Wednesday for his role in the 1997 killing of Van Treese, an Oklahoma City motel owner.

Thursday, August 13, 2015

When Innocence Is No Defense

The following op-ed by Julie Seamn was published by the New York Times on August 12, 2015.

ATLANTA — SUPPOSE someone has been convicted of a serious crime, but new evidence emerges proving his innocence. Does he have a constitutional right to be freed?

The answer might seem obvious, but it is far from clear that the Constitution protects an innocent person against incarceration, or even execution, if his original trial was otherwise free of defects. Despite growing awareness about the problems of unreliable witness identification, questionable forensic evidence and inadequate legal representation of indigent defendants, the Supreme Court has repeatedly declined to decide this basic question — even though some 115 prisoners have been exonerated from death row since 1989.

Now the fate of a 41-year-old man in Georgia raises the question anew.

In 2001, a young woman came home from church in Thunderbolt, Ga., to find a stranger burgling her apartment. When she walked in on him, he blindfolded her, tied her up and threatened to kill her. He then sexually assaulted her while wearing a pair of blue and white batting gloves.

Around this time, two acquaintances, Sandeep Bharadia and Sterling Flint, were involved in a dispute: Mr. Bharadia had reported his car stolen, accusing Mr. Flint. While investigating Mr. Bharadia’s complaint, the police in Savannah visited the home of Mr. Flint’s girlfriend.

There they found a computer and jewelry belonging to the young woman from Thunderbolt, as well as a knife and crowbar. The distinctive batting gloves were with this stash. The girlfriend told the police that Mr. Flint had left the items at her house, telling her they were his.

When the police questioned Mr. Flint, he said that he had gotten the items from Mr. Bharadia and was holding them for him. At trial, he testified that he had never worn the gloves. The two men were charged as co-defendants in the crimes against the young woman; Mr. Flint struck a deal with prosecutors, receiving a sentence of 24 months, and testified against Mr. Bharadia.

Mr. Bharadia has always maintained his innocence. There was no physical evidence that tied him to the crime. He claimed that he was 250 miles away in Atlanta when the crime was being committed. At trial, the only evidence besides Mr. Flint’s testimony was the victim’s identification of Mr. Bharadia. (Witness identification is persuasive to juries, but misidentification has been a significant factor in a majority of convictions later overturned by DNA evidence.)

The police and prosecutors did not test the stolen items for DNA, and any evidence aside from the gloves has apparently been lost or destroyed by the state. For reasons unknown, Mr. Bharadia’s trial attorney did not request DNA testing.

At the end of the 2003 trial, the jury returned a guilty verdict, and Mr. Bharadia was sentenced to life without parole.

His appellate counsel later made a motion for a new trial and asked to have the gloves tested for DNA evidence. The court allowed this, and the results showed that there was female DNA on the outside of the gloves and male DNA — but not Mr. Bharadia’s — on the inside.

His appellate counsel later made a motion for a new trial and asked to have the gloves tested for DNA evidence. The court allowed this, and the results showed that there was female DNA on the outside of the gloves and male DNA — but not Mr. Bharadia’s — on the inside.

The court declined to order DNA testing of Mr. Flint, and no new trial went ahead. But several years later, the Georgia Innocence Project took on Mr. Bharadia’s case, and his new attorneys filed a motion that the DNA results be run through the national Codis DNA database. Finally, in 2012, there was a hit: The male DNA belonged to Mr. Flint.

The Georgia Supreme Court ultimately ruled that nothing prevented Mr. Bharadia’s original attorney from requesting DNA testing of the gloves before the trial. (I filed an amicus brief in this case.) Mr. Bharadia’s motion for a retrial was therefore denied — even though the trial court recognized that this evidence “would probably produce a different verdict.”

Of course, the DNA match does not establish Mr. Bharadia’s innocence beyond all doubt. But he continues to serve a life sentence for a crime that the court acknowledges he probably didn’t commit.

What is most troubling about the Georgia Supreme Court’s decision is that the issue of innocence becomes irrelevant if there has been a failure of due diligence. In effect, the ruling elevates finality over justice to the point that an innocent person can be imprisoned, even executed, because of errors made by his lawyer. Absent a constitutional safety net, an innocent person convicted after a procedurally adequate trial is out of luck.

Faulty convictions happen for many reasons: because juries are composed of human beings, who are fallible; because witnesses feel certain but can be mistaken; and because defense lawyers, particularly those representing indigent defendants, are notoriously overworked and underpaid. The issue is what courts should do in the face of strong evidence that the wrong person has been punished.

Mr. Bharadia now has a habeas corpus petition pending that seeks his release from unlawful imprisonment. If denied by Georgia courts, his case would present an excellent vehicle for the United States Supreme Court to decide, once and for all, that incarceration or execution of an innocent person is constitutionally impermissible.

Julie Seaman is an associate professor of law at Emory University.

Sunday, August 09, 2015

Innocence, not finality, reason Rish should be freed

The following opinion by Steven Becker and Margaret Byrne was published on August 8, 2015 by the Daily Journal.

In last week's opinion piece about the petition for a new trial filed by us on behalf of Nancy Rish, Joseph Yurgine laments that "despite the need for finality of judgments ... murder cases never end" as long as the incarcerated, convicted defendant still is alive.

Let us be clear from the outset: the brutal and senseless nature of the crime committed by Danny Edwards against Stephen Small and his family cannot be overstated. The lifetime of suffering experienced by Mr. Small's loved ones is beyond comprehension. Everyone who supports Nancy Rish's bid for a new trial has profound sympathy for the Small family, as does Nancy Rish.

Yet, Mr. Yurgine's high esteem for the "finality of judgments" may not have been seen as such a worthy goal for the many hundreds of innocent people across the country who were wrongfully convicted and spent countless decades of their lives wasting away in prisons for crimes they did not commit.

More than 1,600 people have been exonerated, and the cases continue to pile up. The right of an innocent person to challenge her incarceration when new evidence becomes available necessarily takes precedence over our desire for procedural finality because, as the Illinois Supreme Court has emphasized, the imprisonment of the innocent is "so conscience shocking" as to trigger the protections of our Illinois Constitution.

Now, after more than a quarter of a century of silence and years of unsuccessful appeals, Danny Edwards, who lured Stephen Small from his home and buried him in a wooden box for the purpose of extracting ransom, has just recently provided two affidavits stating he acted alone in the crime, never told Nancy Rish about his plans, and, in fact, repeatedly lied to Nancy in an effort to actively conceal his plot from her.

This is compelling new evidence of innocence from the actual perpetrator of the crime that merits a full evidentiary hearing, where Edwards can be examined in open court by lawyers for both the defense and the prosecution.

Expanding upon his theme of finality, Mr. Yurgine further remarks that "[a]fter a person has had his day in court and has been fairly tried, there is always a proper reluctance to give the person a second trial."

The critical phrase here, however, is "has been fairly tried." In this regard, the more that Nancy Rish's case has been scrutinized throughout the years, the more it has become apparent to independent observers that she did not receive a fair trial. To borrow an old phrase, "Truth is the daughter of time."

In 1993, the Pulitzer prize-winning investigative journalist William Gaines writing for the Chicago Tribune found that "prosecutors eager for a conviction [in Nancy Rish's case] took full advantage of the emotional atmosphere surrounding the crime. They wove facts, half-truths, sketchy witness accounts and sheer conjecture into a compelling but deeply flawed portrait of Rish as a ruthless 'gold digger.' They ignored contradictory evidence ... and glossed over important distinctions in the law."

There was no physical evidence whatsoever linking Nancy Rish to the crime, and the state's case was entirely circumstantial. She always has maintained her innocence. Furthermore, in a recent editorial, the Chicago Sun-Times notes that "questions about the extent of Rish's participation in the crime have been swirling" ever since Gaines' investigative articles.

In addition, the Sun-Times editorial correctly opines that there would be no harm in allowing Edwards to testify based on the lingering doubts about the evidence against Nancy Rish.

Moreover, Nancy Rish's trial is unique in the annals of Illinois jurisprudence. As a result of Stephen Small's stature in the community, both the state's attorney's office and the public defender's office recused themselves from the case because of connections to the Small family.

Nancy was tried in the emotionally charged aftermath of the brutal and senseless killing of Mr. Small, followed by Danny Edwards' high-profile trial, conviction and sentence of death. At the very least, there was overreach by the prosecution.

At Nancy's trial, the prosecutor told the jury, without any evidentiary basis, that Nancy made the initial phone call to lure Mr. Small away from his home. The same prosecutor had previously alleged in Danny Edwards' trial that it was Edwards who made the call. This damning accusation, alone, could have tipped the scales against Nancy. Edwards now has admitted, in an affidavit, that he made the first call to the Small home and all of the subsequent ransom calls, as well as that Nancy was unaware he had kidnapped Mr. Small, let alone that he was making ransom calls.

Edwards is seriously ill with coronary disease. We have twice asked the court to take Edwards' deposition so that his testimony can be obtained and preserved, a request to which the office of the Illinois Attorney General has twice objected. If Edwards should die without his testimony under oath preserved for a future hearing, Nancy Rish could lose the ability to seek a new trial based upon what Edwards says.

We live in a state that has seen more than 150 exonerations of people who were wrongfully convicted, most of murder, and, as of 2013, Illinois had the highest per capita rate of exonerations of any state in the entire United States. We have taken on Nancy Rish's case pro bono because we believe in her innocence.

Based upon our conversations with Mr. Edwards and other witnesses, and our review of the trial record, appeals and the independent investigations conducted since the 1990s by the Chicago Tribune and, most recently, by an award-winning local historian and author, we are convinced that Nancy Rish's trial was fundamentally flawed. If the information we now have in our possession had been presented to the jury, Nancy would never have been convicted of knowingly aiding Danny Edwards.

Simply stated, Nancy Rish should not be allowed to die in prison for a crime she did not commit. Why should she not fight for her freedom for these 28 years, and for as long as she lives? We do know that for as long as we practice law, we will work for her release.

Finality is important, but only after justice is first done.

Steven W. Becker and Margaret Byrne
Chicago, Illinois
Attorneys for Nancy Rish

Hurry Up and Wait for Justice: The Struggles of Innocent Prisoners

The following article by Lorenzo Johnson was published on July 28, 2015 by the Huffington Post.  Mr. Johnson served 16 and a half years of a life-without-parole sentence after being wrongfully convicted.

When people hear about wrongfully convicted prisoners, they often ask why these individuals end up spending so much time in prison before they are exonerated. For the wrongfully convicted, the judicial system has failed twice - once in winning the wrongful conviction, but also in intentionally delaying exoneration for as long as possible.

Innocent prisoners suffer from delayed justice in different ways. For some of us, justice has proved so elusive due to stall tactics and prosecutors who do not want the truth to come out. Some of us have DNA claims that would immediately exonerate us if the tests were actually carried out, but the prosecutors argue against it for years. Take Jeffrey Deskovic's nightmare, for example. Mr. Deskovic spent sixteen years in prison for a murder he had nothing to do with. For years, the prosecutor and judges in his case denied him the right to take a DNA test. When he did get to take the test, it exonerated him.

Derrick Hamilton spent twenty-one years in prison for a crime he never committed. Mr. Hamilton had an alibi and was not even in the state when the crime occurred. His cries of innocence fell on deaf ears, and for over two decades he fought to clear his name. A detective in his case came under investigation for dirty tactics in obtaining his arrests, which helped Mr. Hamilton, whose case went on to have a landmark ruling in the New York courts. It took twenty-one years.

Eugene Gilyard spent almost two decades in prison for a crime of which he was innocent. False, circumstantial evidence got him a natural life sentence. The true killer came forth and confessed, yet this was not good enough for the prosecutor, who fought against Mr. Gilyard's innocence all the way up to the actual beginning of his new trial. At the last minute, the prosecutor dropped the case.

A lot of times, the evidence that can show our innocence resides in parts of our case discovery that were not turned over to our trial attorneys. At this very moment, I'm a victim of these tactics. Once again, innocence is being overlooked, and stalled justice is in full effect, instead of my prosecutor admitting that my rights were violated by his office. This has led to me being in prison for twenty years for a crime I never committed. My prosecutor's argument against my innocence claim is that I filed my appeal too late. This is what is taking place in our judicial system. This is the same prosecutor who met with my attorneys and promised to do a "good faith" investigation. After he filed almost two years of uncontested continuances, instead of addressing my innocence, he simply said my appeal was filed too late.

I could go on for days with examples of how justice is constantly being delayed for innocent prisoners. Sometimes our own attorneys agree to these prosecutors' motions for continuances, in the hope that when the allotted time expires, the prosecutors will do what's right. That rarely occurs, and most times, the prosecutors use this time to come up with a sound strategy to combat our innocence. Sick, right?

When they are finally free, some exonerees do get compensated financially for decades of being held in a cage for crimes they never committed. But some states don't even offer any type of re-entry or financial assistance to exonerees upon their release. That's pretty much like opening a prison and releasing an innocent prisoner after years, saying: "Go get your life together by any means you can."

A couple years ago, I watched a T.V. talk show that featured exoneree Michael Morton. Mr. Morton spoke on how the judicial system failed him by withholding evidence of his innocence. What really caught my attention was how the host said that, since Mr. Morton was being compensated, his life should be all right now. Mr. Morton answered this by saying: "I'll tell you what, I want you to go to prison for the amount of time I've done, for a crime you didn't commit, then when you come home - I'm going to give you a check." The host quickly turned down that proposal. The moral here is that there's no price tag on a human being freedom.

Through all of the stalling and delay tactics that innocent prisoners face, we continue to fight to prove our innocence. When the judicial system that is supposed to protect us continues to fail us and our families, and when we have evidence to clear us of these crimes that goes ignored, it's extremely hard to keep our sanity. When will this all stop? Until it does, we'll continue to hurry up and wait for justice.

Lorenzo Johnson served 16 and a half years of a life-without-parole sentence, from 1995 to 2012, when the Third Circuit Federal Court of Appeals ruled there was legally insufficient evidence for his conviction. He remained free for four months, after which the US Supreme Court unanimously reinstated the conviction and ordered Lorenzo back to prison to resume the sentence. With the help of Michael Wiseman, Esq., The Pennsylvania Innocence Project, The Jeffrey Deskovic Foundation for Justice, The Campaign to Free Lorenzo Johnson, and others, he is continuing to fight for his freedom. Email him or sign his petition and learn more at:

Sunday, July 26, 2015

The staggering number of wrongful convictions in America

The following opinion by Samuel R. Gross was published on July 24, 2015 by the Washington Post.  Samuel R. Gross, a law professor at the University of Michigan, is the editor of the National Registry of Exonerations.

I edit the National Registry of Exonerations, which compiles stories and data about people who were convicted of crimes in the United States and later exonerated. The cases are fascinating and important, but they wear on me: So many of them are stories of destruction and defeat.

Consider, for example, Rafael Suarez . In 1997 in Tucson, Suarez was convicted of a vicious felony assault for which another man had already pleaded guilty. Suarez’s lawyer interviewed the woman who called 911 to report the incident as well as a second eyewitness. Both said that Suarez did not attack the victim and, in fact, had attempted to stop the assault. A third witness told the lawyer that he heard the victim say that he would lie in court to get Suarez convicted. None of these witnesses were called to testify at trial. Suarez was convicted and sentenced to five years.

After these facts came to light in 2000, Suarez was released. He had lost his house and his job, and his plan to become a paralegal had been derailed. His wife had divorced him, and he had lost parental rights to their three children, including one born while he was locked up. Suarez sued his former lawyer, who by then had been disbarred. He got a $1 million judgment, but the lawyer had no assets and filed for bankruptcy. Barring a miracle, Suarez will never see a penny of that judgment.

The most depressing thing about Suarez’s case is how comparatively lucky he was. He was exonerated, against all odds, because his otherwise irresponsible lawyer had actually talked to the critical witnesses and recorded those interviews despite failing later to call them at trial.

Suarez served three years in prison for a crime he didn’t commit. The average time served for the 1,625 exonerated individuals in the registry is more than nine years. Last year, three innocent murder defendants in Cleveland were exonerated 39 years after they were convicted — they spent their entire adult lives in prison — and even they were lucky: We know without doubt that the vast majority of innocent defendants who are convicted of crimes are never identified and cleared.

The registry receives four or five letters a week from prisoners who claim to be innocent. They’re heartbreaking. Most of the writers are probably guilty, but some undoubtedly are not. We tell them that we can’t help; we are a research project only, we don’t represent clients or investigate claims of innocence. Fair enough, I guess, but some innocent prisoners who have been exonerated wrote hundreds of these letters before anybody took notice. How many innocent defendants have I ignored?

Innocence projects do handle these cases, or at least some of them. They receive many times more letters than we do. I’ve spoken with lawyers who do this work, and who have successfully exonerated dozens of defendants. Most of them have clients who remain in prison despite powerful evidence of their innocence that no court will consider. And they all know that there are countless innocent defendants hidden in the piles of pleas for help that they will never have time to investigate.

How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.

Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.

The problem may be worst at the low end of the spectrum, in misdemeanor courts where almost everybody pleads guilty. For example, in July 2014 Wassillie Gregory was charged with “harassment” of a police officer in Bethel, Alaska. The officer wrote in his report that Gregory was “clearly intoxicated” and that “I kindly tried to assist Gregory into my cruiser for protective custody when he pulled away and clawed at me with his hand.”

The next step in the case would normally be the last: Gregory pleaded guilty, without the benefit of a defense lawyer. But Gregory was exonerated a year later after a surveillance video surfaced showing the officer handcuffing him and then repeatedly slamming him onto the pavement.

Why then did they plead guilty? As best we can tell, most were held in jail because they couldn’t make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation or weeks to months in jail. If they refused, they’d wait in jail for months, if not a year or more, before they got to trial, and risk additional years in prison if they were convicted. That’s a high price to pay for a chance to prove one’s innocence.

Police officers are supposed to be suspicious and proactive, to stop, question and arrest people who might have committed crimes, or who might be about to do so. Most officers are honest, and, I am sure, they are usually right. But “most” and “usually right” are not good enough for criminal convictions. Courts — judges, prosecutors, defense attorneys, sometime juries — are supposed to decide criminal cases. Instead, most misdemeanor courts outsource deciding guilt or innocence to the police. It’s cheaper, but you get what you pay for.

We can do better, of course — for misdemeanors, for death penalty cases and for everything in between — if we’re willing to foot the bill. It’ll cost money to achieve the quality of justice we claim to provide: to do more careful investigations, to take fewer quick guilty pleas and conduct more trials, and to make sure those trials are well done. But first we have to recognize that what we do now is not good enough.