Rest in peace, Billy Wayne Cope (the clients we lose)

It is rough to lose the case of a client you believe is innocent. It is even rougher to lose that client to an untimely death before the innocence case has been resolved.

This has happened to me multiple times in my career. The first time, I was still a young assistant appellate defender. After the Illinois Supreme Court accepted the appeal of my client Christopher Knott, a man I continue to believe was erroneously convicted of armed robbery, he passed away in prison. Recently I reconnected with Christopher’s brother Dolby Knott, a prison ministry director, and was gratified to learn that Christopher is remembered annually with an award named in his honor.

The same fate awaited Anthony McKinney, who spent 35 years in prison until he died alone in his prison cell at the age of 53. Anthony had been granted an evidentiary hearing on his innocence claim, but as is true of too many post-conviction cases, the litigation dragged on for years—too long, as it turned out. His family was devastated by his death and then again by the denial of a posthumous pardon. To this day I wonder whether I missed any opportunities to speed up the process so that Anthony could have lived to see it through. Fortunately, I have beautiful memories of working with Anthony. Though mentally ill, he delighted in remembering how he watched his idol Muhammad Ali beat Leon Spinks for the world heavyweight championship on September 15, 1978—which was also Anthony’s alibi for the murder of which he was wrongfully convicted.

My colleague Steve Drizin worked with me on Anthony’s case. Last week Steve shared the tragic news that his long-time client Billy Wayne Cope had joined the ranks of the innocent who did not make it out of prison. Here is what Steve had to say:

People sometimes ask me — which is the worst miscarriage of justice you have been a part of? Without hesitation — and I’ve seen more injustice as a lawyer in my lifetime than anyone should have to see — I say: “Nothing compares to what the State of South Carolina — York County prosecutors, a trial court judge, a jury, and a bevy of appellate court judges and state Supreme Court judges — did to my client Billy Wayne Cope.”
Billy Wayne Cope died today at the age of 53. His legal team, which has more than tripled in size since James Morton, Michael Smith and Phil Baity represented him at trial, released the following statement:
“In the years we represented Billy, he was unfailingly polite, optimistic, and full of faith, and he maintained these qualities in the long years that followed his conviction. Our inability to save him from this fate is one of the deepest disappointments of our lives and careers.
Billy’s death marks a sad end to a horrible miscarriage of justice. Billy confessed to a dreadful crime he did not commit. When DNA later proved the actual killer was a career burglar and serial rapist named James Sanders, who had just been released from prison in North Carolina, law enforcement should have faced up to the truth and admitted they obtained a false confession from the grieving and psychologically vulnerable father of a murdered child. Instead, the prosecution concocted a fantastic new theory that Billy must have cooperated with Sanders – a man he never met – in raping and murdering his own daughter in his own home. The State, then, succeeded in convicting both, the real killer and Billy, of a crime only one person actually committed. Billy Cope lost everything –the last 15 years of his life, his family, and now any chance that this legal atrocity will ever be set right. This is a dark day for justice in South Carolina.”
I’ve been fortunate in my line of work to experience the great joy of walking innocent clients out of prison and back into the arms of their loved ones. In fact, less than 24 hours before learning of Billy’s death, I was on Cloud 9 after learning that the Cook County State’s Attorney’s Office had agreed to drop charges against my client (and three other Chicago teens who falsely confessed to a double murder in 1995). If you do this work long enough, you learn a sobering lesson. The wins are wonderful. You never forget them. But it’s the losses, especially the cases of Unrequited Innocence, that will haunt you until your dying days. RIP BWC.
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My last-minute criminal justice gift list

The best way to get what you want is to ask for it. Here is my short criminal justice wish list (I don’t want to be greedy), just in time for the December holidays but also valid through 2017:

Exoneree compensation: This is addressed to Illinois Governor Bruce Rauner, House Speaker Michael Madigan, and Senate President John Cullerton. We have a compensation law in Illinois, but for the last year and a half, you all have been unable to agree on a budget—meaning wrongful incarceration awards have not been paid. Stop your bickering long enough to compensate the wrongly convicted! (For more on the human costs, see this Chicago Tribune article.)

Conviction Integrity Unit: This one is for newly elected Cook County State’s Attorney Kim Foxx. You have pledged to upgrade your office’s conviction integrity unit. I believe you; I think this wish will be granted. To make your job easier, here is the Quattrone Center’s paper on best practices for conviction review units. The essential recommendations are at the very beginning. Use it is a blueprint.

Jury instruction on eyewitness testimony: Illinois Pattern Jury Instruction (Criminal) 3.15, which outlines how jurors should consider identification testimony, is badly outdated. For heaven’s sake, it is based on a 40-year-old opinion predating our current understanding of factors affecting eyewitness reliability. The Committee on Jury Instructions in Criminal Cases should take a lesson from New Jersey or another enlightened state and give jurors better tools to evaluate eyewitness testimony.

Open file discovery: Individual State’s Attorneys, you can adopt this as your office’s policy. Illinois Supreme Court Rules Committee, you should incorporate this into the discovery rules. What exactly does open file discovery mean? Only that prosecutors turn over their entire investigative file to the defense, except sensitive information withheld with court approval. Better prepared defense attorneys mean fewer wrongful convictions. If Texas can adopt open file discovery, so can everyone else.

Address racial bias: This last one is for everyone, including me. Conscious, implicit, systemic . . . however we categorize it, racial bias is the most pressing challenge facing our criminal justice system. There is no easy fix, but we cannot begin to solve the problem unless we are willing to name it and admit it exists—and too many actors in the system still refuse to concede the role racism plays in determining who is prosecuted, convicted, and over-sentenced. To put it another way, in the immortal words of SNL’s Kenan Thompson: “Take it one step at a time. Identify the problem. FIX IT!”

Let’s meet up again, same time, next year, and see how much of my wish list was fulfilled. Happy holidays!

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My Podcast Interviews about Eyewitness Identification Experts and Causes of Wrongful Convictions

I love a good podcast. I started with This American Life and took off from there. Podcasts allow me to multitask in a way television and the internet do not; I can listen hands-free while walking my dog, driving, or cooking dinner. I was thus tickled and honored to be interviewed earlier this year for two wonderful podcast series.

The first was Undisclosed, which began by following Adnan Syed’s case and branched out into other innocence-related topics. Here is my wide-ranging conversation with one of the hosts, Colin Miller, about common causes of wrongful convictions:

The second was IllinoisCaseLaw.com, a lively resource created by defense attorney Samuel Partida, Jr. He and I talked about expert testimony on eyewitness identification in light of a recent key Illinois Supreme Court decision:

Criminal Nuggets: Podcast on Eyewitness Identification Litigation

If you listen to the above and are hungry for more, check out these additional podcasts relating to criminal law and wrongful convictions:

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Shame: Illinois Stopgap Budget is Unacceptable to Exonerees

Yet again, Illinois Governor Rauner and lawmakers in Springfield have proven themselves unable to perform the most basic function of running a state: passing a budget. Illinois has not had a real budget for over a year, and with the passage on June 30 of a “stopgap” (read: bare bones) appropriation bill, our elected officials have given themselves permission to continue this train wreck for another six months.

How have exonerees fared during the budget standoff? They have received zilch. Illinois is one of 30 states (plus the federal government and D.C.) with a compensation statute on the books. It is not overly generous – it caps awards at around $200,000 regardless of length of incarceration – but exonerees who are declared innocent rightfully anticipate and depend upon these funds. Functionally, however, Illinois currently has NO compensation law, because for over a year, the “stopgap” appropriation bills have not included funds for exonerees who have already been certified innocent and have received monetary awards from the Illinois Court of Claims.

Who are these people? They include my client Christopher Coleman, who spent 19 years in prison for a home invasion he did not commit. They include Daniel Andersen, who served more than 27 years in prison and then had to register as a sex offender before his exoneration of a murder he did not commit. Coleman and other exonerees are profiled in this Chicago Tribune article from last fall, describing the harm exonerees were suffering due to the budget impasse. Amazingly, nothing has changed since then other than that the list is longer and they are another year in debt.

Regardless of whether their wrongful convictions resulted from malice or negligence, these individuals were gravely harmed by the government and deserve redress. Had they been lottery winners, they would have received their winnings by now, as lottery payoffs have been funded even during the budget crisis. It is simply unacceptable that Illinois is still refusing to honor its obligations to persons who spent decades in prison for crimes they did not commit.

Governor Rauner, Illinois legislators – where is your conscience?

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Mother’s Day – what do you say?

rose-31411_960_720What do you say on Mother’s Day to a woman whose child has died, either by accident or at the hand of another?

What do you say on Mother’s Day to a woman wrongfully convicted of her own child’s murder?

What do you say on Mother’s Day to a woman behind bars who can’t be with her children?

What do you say on Mother’s Day to a woman incarcerated for years despite her innocence, who can no longer bear children after she is freed?

What do you say on Mother’s Day to a woman whose innocent son or daughter is languishing in prison?

I confess I don’t know what to say. My own life has been incredibly fortunate. Of the many wonderful things I have been lucky enough to experience, being a mother surely tops the list. I simply cannot imagine having that opportunity stolen from me.

All I can think of to say is, “Happy Mother’s Day.” To all the mothers separated from their children for reasons beyond their control, I still say to you, “Happy Mother’s Day.” My heart goes out to you and your children (living, no longer living, or never born), and may you find peace.

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