Reflections on a (fictional) exoneration

Last night I went to see “At the Center,” a new play by Andrew Gallant and Tim Touhy that is lovingly based on the work of the Center on Wrongful Convictions. As an aside, it was a bit surreal to observe someone else’s conception of the CWC’s work played out before me onstage.

Oddly, the scene that most stayed with me was the press conference after the exoneration. The CWC attorney spoke from a podium and made the usual remarks about it being both a happy and a tragic day and about the need for systemic reforms. Smiling law students and the exoneree’s sister stood on either side. I could imagine cameras snapping and reporters scribbling in the audience. I have been through a few of these moments myself.

The person I couldn’t stop watching was the exoneree—or rather, the actor who played him. The portrayal was spot on. His half-smiling (only half!) expression included apprehension, self-consciousness, and deep loss. The body language was so powerful that I can’t even remember his words.

Behind lies pain. Ahead lies uncertainty. The fleeting moment between, in the spotlight of exoneration, contains elements of both, plus joy and a host of other emotions that vary from person to person. The moment does matter. It presents an opportunity to capture hearts, and capturing hearts drives change. It also validates the exoneree’s innocence and the injustice he or she has endured, which is tremendously affirming. But it is just a moment, and by no means the end of the story or even its most important chapter. That reminder is my takeaway from “At the Center.”

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Lineup reform on the horizon in Illinois?

Having worked on numerous wrongful conviction cases caused by misidentifications, I am quite interested in lineup reform efforts, especially in Illinois. Mistaken eyewitness identifications are at or near the top of the list of causes of wrongful convictions. Yet many identification “mistakes” are avoidable.

It doesn’t take a rocket scientist—or even a social scientist—to figure out that if the police officer running a lineup doesn’t know who the suspect is, the officer can’t make improper suggestions to the witness (either accidentally or on purpose) about who to identify. Nonetheless, “blind administration” of lineups is still the exception rather than the rule.

That could soon change, at least in Illinois.

House Bill 802, sponsored by two former prosecutors (State Representative Scott Drury and State Senator Kwame Raoul), sailed through the General Assembly and is awaiting Governor Quinn’s signature. If the Governor does nothing, the bill will become law on August 25, 2014. House Bill 802 contains several provisions designed to increase the accuracy of identifications. One key requirement is that lineups be run by “independent administrators” when possible, and when not possible, that police use a method whereby the officer running the lineup cannot see which photographs or individuals the witness is viewing until after the lineup is over. This will help prevent suggestiveness from creeping into the procedure.

Another critical feature of the legislation is that physical and photo lineups are to be videotaped—again, where practical. Thus, we can expect to see a dramatic reduction of “he said-she said” disputes (usually between officers and defendants) over what actually happened during the lineup. Did the officer tap her finger on the photo of the suspect, or didn’t she? If the procedure is videotaped, the answer will no longer be in doubt. This should benefit law enforcement by reducing the number of claims of misconduct against police officers—just like videotaping police interrogations has lowered the number of claims of coerced confessions.

Assuming Illinois House Bill 802 becomes law, I am hoping that it is the first in a series of improvements to identification procedures that will make crime investigation more accurate and fair to all. An added bonus is that it will allow my colleague Josh Tepfer to check off #4 of his 2014 Criminal Justice Resolutions.

Update: The bill was signed into law on August 22, 2014, as Public Act 98-1014, effective January 1, 2015. It will be worthwhile to follow its implementation.

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Exonerees and mean friends

One of my favorite radio shows, “This American Life,” re-broadcast an episode called “The Allure of the Mean Friend.” It included the story of a man whose father sent him a bill for $2 million, which purportedly represented the cost of his childhood.

This put me in mind of a singular event that happened many years ago to a Center on Wrongful Convictions client: After he received state compensation for his wrongful incarceration, family members presented him with a bill for expenses they had incurred while he was in prison, such as collect telephone calls and commissary money they had provided to him.

Thankfully, this was an aberration—though of course relatives and friends of the wrongfully convicted do suffer extreme financial and emotional loss. More often, it is the government that is the “mean friend.” For instance, it is not a singular event for a state to demand payment from an exoneree for failing to support his or her children while in prison. Think about it: The government yanks an innocent person away from parental duties and pleasures, then sends a bill for public funds expended on the children while the parent was behind bars. Can you imagine?

Last year, the state of Washington enacted a new compensation law that addresses “mean friends.” Besides offering $50,000 for each year of wrongful imprisonment (generally accepted as the minimum acceptable sum), the statute reimburses for child support debt as well as court costs associated with the wrongful conviction. The new law also prohibits the state from deducting prison costs, such as food and clothing, from the financial award—thereby preventing the ultimate “mean friend” grab.

While the Washington statute is by no means perfect, these provisions should be standard in state compensation laws. Nothing can repay an innocent person for decades wasted in prison, but at least we can refrain from piling on debt that would not exist in the first place except for the wrongful conviction.

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A long road of litigation

On Jun 16, 2013 (Father’s Day), I posted the following to my facebook account:

Kids and wife had to leave town (miss them terribly) so I had a different type of Father’s Day. Spent it at the office drafting a motion for my client, father of two girls who love him dearly but who only know him through prison walls. Taken 20 years ago, coerced to confess, and in prison ever since. Thinking of you today my friend and praying we get u home for a Father’s Day soon.

Within three months, my team and I did file the motion. The motion wasn’t asking the court to let my client out of prison, or even for a new trial. The motion actually was a request to allow my client to re-open a case – in essence, it was a motion asking the court to allow us to ask the Court for a new trial. A variety of procedural legal hurdles required us to take that step. I was well aware that even if we won this first motion, we would have a long road ahead of us to actually win the case and exonerate our client.

Today is July 28, 2014. We are nearing a year since we filed our request to the Court to allow us to ask for a new trial. We still don’t have an answer. My client has already spent another Father’s Day in prison and, realistically, even if we do win the case, he is probably going to spend the next and probably even the next in prison before that ever happens.

And nothing about this situation is unusual. I’m not criticizing how anyone within this individual case has handled the situation. The motion we filed was extensive – it took us a lot of time to investigate the facts, research the law, and prepare the written pleadings. I’m sure it took a lot of time for the prosecutor, and now the Judge, to review what we filed. So, I’m really not at all surprised as to where we stand 13+ months after I wrote that facebook post. From my experience, almost all cases within an extremely overburdened criminal justice system take a lot of time.  

That said, I think there is a tendency for delays to be exacerbated in the post conviction context. Judges, prosecutors, and defense attorneys that I respect have all expressed to me (off-the-record) that post-conviction litigation is the bane of their existence. All of us like checking things off our to-do list – when something that you long ago checked off yours resurfaces, it is annoying. There is a strong inclination to push it to the backburner. I know stories of strong, and ultimately successful post-conviction innocence claims taking a decade, if not more, merely to litigate in the lower court.

I think the players in our criminal justice system have to fight through this inclination and begin to prioritize these post-conviction innocence cases, or at least put them on par with their current, pre-conviction docket. The conviction of innocent men and women is a national crisis. 1,404 identified cases since 1989 according to the National Registry of Exonerations. And in 2012, the last time the Registry examined issued a report on the specific question and when there were only 873 exonerations identified, all but 7% were in murder, rape, or other violent crime cases. Think about that for a second – even assuming only 90% of the 1,404 cases now-identified were for serious crimes, that means 1,263 have been convicted wrongfully of the most serious offenses and likely given long prison sentences. That is a scary figure to me.

When legitimate claims of wrongful conviction are presented to courts, we need to try and get them resolved. In the case I reference above, we put forth substantial evidence proving the State’s key witness lied, newly known medical documents demonstrating that our client may have been physically incapable of committing the crime, and a detailed, powerful, under oath confession from the individual we believe is the true perpetrator. Isn’t it in everyone’s interest to figure out rather quickly whether our evidence is credible and viable?

I’m hopeful that the tide may be turning. I’m heartened by the continued proliferation of wrongful conviction projects, including prosecutor-initiated conviction integrity units. I’m especially heartened to read stories like this: Dallas prosecutor Craig Watkins reviewing and re-investigating old convictions without even a particularized request and his calls for other prosecutor offices to do the same.

Let’s hope the power brokers in the criminal justice system listen to this call to action from Prosecutor Watkins. Speaking from experience, beyond their importance, the cases are very interesting (legally and factually), and when contested, they are fun to litigate. Time to put them on the frontburner!

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Royal Albert china, wrongful convictions, and Mother’s Day

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The mothers you meet doing innocence work.

I was on a team that represented Julie, a young divorced mother imprisoned for murdering her 10-year-old son Joel. At her retrial we proved that someone else committed the monstrous act; Julie was not only acquitted but was found factually innocent.

Julie is one of two children of Jim and Jane, a pastor and his wife. Joel was their only grandson, and during Joel’s short life, his mother and grandparents showered him with love. Joel’s murder devastated all of them, and they were not prepared for the ensuing unfounded accusations against Julie.

Jane and Jim rose to the occasion, as devoted parents tend to do. They tried to protect Julie from the police; they testified at her trial; they unwaveringly supported her throughout the legal proceedings and her incarceration. Jane amassed a file of case-related documents that any detective or investigator would envy.

During the years I represented Julie, Jane was a constant presence in my life as well. She urged the Center on Wrongful Convictions to take Julie’s case. After we did, she constantly provided information and encouragement. She sent inspirational notes. She and her friends offered up much-needed hospitality when we were working on site, far from our Chicago home base. She hugged us frequently.

But Jane was also the fierce mama bear. She kept close tabs on the legal team and made sure we were properly representing her daughter. She called us out when we were not responsive. She fund-raised and galvanized public support for her daughter’s cause. No mother’s love could have been stronger than Jane’s constant efforts to prove Julie’s innocence.

After Julie’s acquittal, I was incredibly touched when Jane sent me a Royal Albert Old Country Roses English tea set, knowing how much I love my tea. I have few possessions as beautiful as this, or as dear to me. Over the years, on the anniversary of the acquittal, Jane and Jim have often sent additions to my set, over my protestations that it’s all too much.

I love this family – not because of the gifts, but because of their goodness and their love and loyalty to one another. I ache for their tragedy, which I can never truly comprehend. What I do know, though, is that I am incredibly fortunate to have met them through my work and to now have a lifelong connection to them.

On Mother’s Day, Julie will mourn the son who was taken from her. Jane and Julie will celebrate their special bond. And I will make tea for myself and serve it in Royal Albert china.

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