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.

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