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!