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.