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: