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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What a Wrongful Conviction Lawyer Thinks About After a Kindergarten Dance

About a month ago I went to my first Daddy-Daughter Dance. My daughter is six and in kindergarten. For where I am in my life, this dance was considered a big night out. My daughter is still at a point where dancing and hanging out with her Dad is fun and maybe even cool. I am very cognizant that my days are numbered. But we danced, ate pizza, and sang along with the music. (By the way, is it just me, or is the current state of pop music actually kind of awesome? Probably just me.) Anyway, I had a fantastic time.

Let me tell you a little bit about my daughter. She is truly the kindest, most thoughtful person I know. She genuinely cares about other people, and their feelings. Even when she gets mad at her brother, you can see she immediately regrets and feels awful about any name she calls him (even though he couldn’t care less). She also is a rule follower. I think the rule following and the kindness go together. She doesn’t want to rock the boat because she doesn’t want to upset anyone.

Back to the dance. While my daughter is well-liked by everyone in her class, she is part of a group of four girls that are close friends. Her teacher calls them the Core Four. The Core Four were all at the dance with their Dads, and they spent all of their time together. And as I watched the Core Four, I could see clear signs of the group dynamic at play. The Core Four has a clear leader that is not my daughter. Almost exclusively, it was the leader who would make decisions on where they would dance, or when they would go eat pizza, or have their photos taken. The other three followed her lead.

Now, sometimes the leader would have a more controversial idea. It might have been crawling to the floor as part of a dance move, or asking one of the Dads some sort of silly question. And I’d watch my daughter when something like this would happen. She’d kind of give me a quick glance and a half-smile, like she was checking to see if I fundamentally disapproved, while almost simultaneously following suit. But the quick glance really was just a millisecond, and her clear instinct was to just follow her leader.                                                                                              

I keep thinking about this dynamic as questions of juvenile crime and punishment continue to be grappled with both in the criminal justice world and in the public consciousness. In the March edition of the great criminal defense periodical The Champion, an issue which is entirely devoted to juvenile justice (you must be a member to see more than a summary of the articles, and, full disclosure, I have an article in the issue), my friend Maureen Pacheco writes: “These are historic times in the development of law pertaining to juveniles. . . . Advocates are pushing the courts and legislatures to recognize that young people are capable of change and society should never give up on them.” As part of its Retro Report series, The New York Times put together a tremendous 10-minute documentary revisiting “The ‘Superpredator’ Scare,” an early 1990s mythology that forecasted a wave of immoral, ruthless juveniles committing heinous crimes, a prediction that led to many of our current get-tough-on-crime policies and sentencing many young people to a lifetime of imprisonment. Another friend, John Maki, recently and compellingly argued that It’s Time to Abolish Automatic Transfer of juveniles to adult court.

So, what does a kindergarten dance and my daughter dancing on the floor with her friends or asking a silly question have to do with juvenile justice? Maybe nothing, but maybe something. As I witnessed with my own eyes these kindergarten group dynamics and some very, very innocuous peer pressure, the juvenile justice reform movement resonated with me in a way it never had. If my six-year-old daughter could be so easily talked into dancing on the floor when she was uncertain if Daddy would think it was okay, is it that ridiculous to think she could be talked into something slightly worse, something a little riskier, or something maybe even criminal when she is 11? Or 13? Or 15? Don’t the peer pressures get even worse? Aren’t the self-doubt and lack of confidence at an all-time high in adolescence and early teens? Could even my sweet daughter, who hates to rock the boat, find herself in such a situation?

While I’ve always believed in the progressive juvenile justice reforms many of my colleagues at the Children and Family Justice Center fight for on a daily basis, I feel like I’m beginning to understand it in a new way. So when I first read, for example, about the felony arrest of a 13-year-old boy for throwing a snowball at a police officer, I thought it was incredibly stupid. But when I read a follow-up report about the case after the Daddy-Daughter Dance, the true and utter ridiculousness of the charges became that much more clear to me. How many young people wouldn’t respond to fifteen peers daring them to throw a snowball at a car, even a police car? A few years from now, it very well could be my daughter on the receiving end of that dare. I imagine even someone with her genuine kindness – who doesn’t want to hurt anyone – could easily be so persuaded.

And thinking about these issues with a more traditional wrongful conviction lens, I have the same thoughts. While I have studied and written repeatedly about how suggestible youth are and how susceptible they are to false confession during police questioning (see, for example, my article in The Champion), I am starting to get more clarity about how truly easy it would be for a police officer to persuade a young person to sign on with a false narrative. I have one case where my teenage client (teenager1) is serving life in prison because teenager2 was persuaded by police to tell a story: Eight months after teenager2 initially admitted his own involvement in throwing rocks at a car that subsequently led to teenager3 discharging a gun, teenager2 told a supplemental story that this time included teenager1 (my client) encouraging the group to go for it and throw those rocks. During this supplemental story, my client wasn’t even there – the encouragement was an hour earlier.

It has really hit me of late how absolutely simple it would be to persuade teenager2 to tell that false story – how could he ever think that doing so would land my client in prison for life? And even if I’m wrong – and I don’t think I am – and my client (teenager1) did really tell that group to throw those rocks, the true absurdity that this singular act by an adolescent boy is even criminal, let alone could land him in prison for life, has struck me in a new way since that fateful Daddy-Daughter Dance.

                                        

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There’s Something About the Women (Women’s Project Conference March 2014)

We did it. When we launched the Center on Wrongful Convictions Women’s Project in November 2012, we set ourselves a goal of bringing together exonerated women, academics, and legal professionals for a future Women’s Project conference at the CWC. Our goal was realized on March 7, 2014, when 10 wrongfully convicted women (the most ever in one place at one time) and a large supportive audience gathered for an event evenly split between panel presentations open to the public and sessions for exonerees only.

To quote my favorite Holly Near song (which dates me, but who cares?): “There’s something about the women, all those beautiful women, there’s something about the women in my life.”

I reconnected with old friends and met wonderful new ones. We addressed serious matters but also made time for fun. From the shy to the self-assured, from the veteran speaker to the first-time panelist, from the small-town resident to the city dweller . . . each wrongfully convicted woman was a unique treasure, and I loved spending time with every one of these incredible survivors. Even better was watching how they bonded with each other—they are part of an exclusive club that no one wants to join and that no one but they can truly comprehend. Time and time again I heard them express how affirming it was to relate and heal together as women.

Moving forward, the Women’s Project will build on our developing connections with potential researchers and policy makers, and the women exonerees have plans of their own to stay in contact with each other and assist future members of their sisterhood upon release from prison. Looking back, we have an exquisite photo album that will continue to inspire and remind us of why we do what we do.

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Wrongful Convictions and Extreme Sentencing of Juveniles

Yesterday was a big day for those in the juvenile justice world – a world I count myself a member. In People v. Davis, the Illinois Supreme Court unanimously held that the 80 or so Illinois prisoners that are serving mandatorily imposed life without parole sentences for crimes they committed when they were under 18 will get new sentencing hearings. The case arose after the U.S. Supreme Court, in 2012, held in Miller v. Alabama that such sentences were unconstitutional. After that decision, the technical legal question became whether the Miller ruling would apply only to future cases (i.e., telling courts don’t do this again), or to only those who were already serving the sentence. Today, the Illinois Supreme Court said it applies to both.

Let’s stop there. You may be asking: Why is this being posted on a wrongful convictions blog? At least where I sit, there are lots of reasons, but let me hit on one. (Perhaps more blog posts to come on others…)

It should be no secret to anyone reading this how extraordinarily difficult it is for innocence lawyers to actually overturn a conviction. It is an uphill climb, and a very, very steep one at that. Finding any old documents, physical evidence, or witnesses is hard enough. Finding these things or people that include powerful exculpatory evidence for your client is that much harder. Finding those witnesses who are courageous enough to come forward and give sworn affidavits detailing the exculpatory evidence can be even more difficult. And convincing prosecutors, courts, and others that your evidence demonstrates innocence may be the hardest part of all. There is a very real presumption against do-overs in the criminal justice system. You need extraordinarily powerful evidence to convince people that the jury, the trial and appellate judges, the prosecutors, and everyone else got it wrong for X many years.

With that backdrop, I can’t begin to tell you many of my cases have been stymied somewhere along that process. You read about the successes, but what you don’t hear about are the individuals that my colleagues and I firmly believe are innocent, but can’t find or garner adequate evidence to either convince a court, or, in some cases, to even raise a claim. And I can tell you that there are individuals amongst the 80 or so Illinois inmates that Davis affects that fall into that category.

Yesterday’s decision means hope for the likely innocent people who may never be “proven” innocent. Yesterday’s decision allows them to reopen their cases even without evidence of innocence. Judges will now be forced to take a close and true look at who these people are. And these people are poets, religious leaders, and scholars. They are kind, warm, funny, and inspirational. They are fathers, brothers, husbands, sons, and friends who are loved dearly. Because of today’s ruling, as attorneys, we now get to go to court to demonstrate these individual’s humanity. If not a shot to get a court to acknowledge an injustice, it is a shot to prove why our beloved clients don’t deserve to spend the entirety of their lives behind prison walls. 

One last thing: I would be remiss if I did not say that those who are not factually innocent fit the description above and more. I find it so heartening that at least my innocent clients seem to unanimously support outlawing these types of mandatory, extreme sentences on juveniles. I think it is, at least in part, because my clients lived with these people in prison, and they could watch and see how people change, grow, mature, learn, and better themselves. I can only imagine how powerful it must be watching this firsthand – really seeing how each person is, was, and becomes so much more than there very worst act, and that an individual should not be discarded and forgotten about as a human being based on a single act committed as young man or woman. 

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