Monday, February 15, 2016

The greatest injustice

Editorial published by the Toledo Blade on February 14, 2016.

Ohio state prisons probably hold hundreds of innocent people. Most of them will never get justice.

Nothing so violates the sanctity of the law as condemning the innocent. In the few cases where such travesties are exposed, the state should acknowledge and learn from its errors, and act quickly to redress them.

That’s not how it goes in Ohio, which has erected onerous legal hurdles to compensating the wrongfully convicted. State lawmakers should remove these excessive and oppressive barriers to justice and allow the wrongfully convicted to take their cases directly to Ohio’s Court of Claims.

To its credit, Ohio is one of 30 states that compensate wrongfully convicted prisoners, who can claim damages of roughly $50,000 for each year in prison. (Texas pays $80,000 a year.) The Court of Claims calculates the amount of judgments, based on time served, lost wages, and legal fees.

Convictions and exonerations

But before those with wrongful convictions may file with the Court of Claims, they must file suit in local courts to affirm that they were wrongfully imprisoned. If prosecutors object, getting such an order is difficult, if not impossible.

In some cases, people with rightful claims might never file with a local court. In others,  procedure eclipses justice. The National Registry of Exonerations, run by the University of Michigan Law School, lists 63 wrongful convictions in Ohio since 1989. During that period, the Ohio Court of Claims awarded only 40 judgments, ranging from $11,069 to $2.5 million.

The state has, in effect, legitimized the noxious notion that people who have been wrongly declared guilty, and suffered the consequences, must also prove their innocence to get redress.

Case of Danny Brown

Toledo’s Danny Brown, now 60, is a case in point. His wrongful conviction and nearly 20 years in prison should entitle him to more than $1 million from Ohio’s Court of Claims. But nearly 15 years after his release, he still has not received compensation or a local court order affirming his wrongful imprisonment.

In 1982, a Lucas County jury convicted Mr. Brown, who was represented by a court-appointed attorney, of the brutal murder of Bobbie Russell. In December, 1981, she was hit in the head, raped, and fatally strangled with an extension cord in her east-side Toledo home. Ms. Russell’s son, Jeffrey, then 6, the sole eyewitness, identified Mr. Brown as the man who entered his mother’s home the night she was raped and murdered.

In 2001, prosecutors dismissed the charges against Mr. Brown, after a DNA test identified semen from the crime scene as Sherman Preston’s. Preston, now 64 and serving a life sentence at Marion Correctional Institution, has been in prison since March, 2000, for another, strikingly similar 1983 murder. He declined to talk to The Blade’s editorial page last week.

Mr. Brown also took a lie detector test and passed. In 2002, he filed suit in Lucas County Common Pleas Court, asking the court to affirm that he had been wrongfully imprisoned. He lost his suit, after the Lucas County Prosecutor’s Office maintained, based largely on Jeffrey Russell’s unchanging testimony, that Mr. Brown remained a suspect. In 2006, Ohio’s 6th District Court of Appeals upheld the suit’s dismissal in a 2-1 ruling.

Lucas County Prosecutor Julia Bates, who took office in 1996,  told The Blade’s editorial page that she has no immediate plans to retry Mr. Brown. She now has a reasonable doubt about his guilt. But she also believes that Preston and Mr. Brown could have both participated in Ms. Russell's murder. Mr. Brown said he doesn't know Preston.

“There are a lot of unanswered questions,” Ms. Bates said this month. “If he didn’t do it, I’m sorry.”

That’s little consolation to Mr. Brown, who is sick, broke, and living in a Toledo homeless shelter, as the column on the next page by The Blade’s deputy editorial page editor, Jeff Gerritt, shows. Mr. Brown can’t prove he didn’t kill Ms. Russell, but neither could anyone who doesn’t have an airtight alibi for the night of Dec. 5, 1981.

Mr. Brown’s attorney, Patrick Quinn of Columbus, has filed another suit on Mr. Brown’s behalf in Lucas County Common Pleas Court. Justice now rests with Judge Gene Zmuda, who has yet to rule on the latest suit.

“I just want my name cleared,” Mr. Brown told The Blade’s editorial page last week.

Learning from mistakes

Wrongful convictions violate the most sacred tenets of the U.S. criminal-justice and legal system, including the presumption of innocence and a standard of guilt beyond a reasonable doubt. Those protections against tyranny underscore that punishing the innocent is more egregious than not punishing the guilty.

Since 1989, DNA technology has exonerated at least 337 people in this country. But DNA evidence — blood, semen, saliva — is available in only a scintilla of criminal cases.

Not all wrongful convictions are clear-cut DNA cases. Dedicated advocacy groups such as the Ohio Innocence Project at the University of Cincinnati have reversed convictions by discovering other compelling new evidence of perjury, false accusations, police misconduct, faulty eyewitness identification, unreliable informants, or a woefully inadequate defense.

The National Registry of Exonerations lists 1,738 wrongful convictions since 1989. Sadly, many innocent  men and women will never make that list. Extrapolating from error rates in DNA cases, researchers estimate that between 1 and 5 percent of all U.S prisoners are innocent of the crime they were convicted of.

An error rate of 1 or 2 percent makes an excellent score on a high school history exam — but it’s horrifying for a criminal justice system that sends people to prison and even to their death. A 2 percent error rate would mean nearly 50,000 U.S. prisoners, including 1,000 in Ohio, are innocent.

The office of Ohio’s attorney general, or an independent commission of the General Assembly, should examine and dissect every wrongful conviction in the state and determine what went wrong. The registry should also prescribe changes to prevent similar mistakes, such as requiring police to videotape all interrogations and improving the state’s public defense system.

Reducing wrongful convictions would have economic benefits as well as costs: Incarcerating an innocent person costs states between $25,000 and $40,000 a year.

But wrongful convictions are far more than economic liabilities or collateral damage in the war on crime. Raising the profile of wrongful convictions, learning from their mistakes, and compensating their victims in an expeditious manner are moral imperatives to redress the state’s greatest injustice.

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