Righting awful wrongs

Last week I related the story of Ron Williamson’s wrongful murder conviction in Oklahoma, before being exonerated by DNA. Williamson was the subject of John Grisham’s first nonfiction book, The Innocent Man. Despite being utterly innocent, Williamson missed lethal injection by a mere five days.

The automatic appeals and slow pace of capital cases help prevent wrongful executions. But wrongful convictions of lesser crimes occur at normal speed among the throng of criminal cases clogging the courts.

Most exoneration efforts are targeted at murder and rape cases and concentrated in a few populous states, so there are no accurate figures on the total number of wrongly convicted persons. Data can be extrapolated, however, from existing research–and the scope is frightening. Research into death-sentence exonerations indicates an innocence rate as high as 3 to 5 percent.

Incidents of being wrongly accused are bound to occur. The challenge for the justice system when that happens is to attempt to ensure, as much as possible, that the legal process exonerates the innocent instead of wrongly convicting them.

An American University study, funded by the National Institute of Justice, sought to analyze why some innocent defendants are convicted and others are acquitted. Researchers identified 260 cases from 1980-2012 in which an innocent defendant was convicted but later exonerated. Those cases were matched with 200 other cases in which an innocent defendant was either acquitted or charges were dropped.

What they learned was a small set of variables often came into play in either helping or hurting people who are wrongly accused. Several were negative factors in Williamson’s case.

Weakness of prosecution’s case. The case against Williamson was circumstantial and flimsy.

Untruthful informants. Two witnesses lied in placing Williamson at the crime scene; one was a jailhouse snitch, and the other was the real killer.

Forensic error. Testimony involving hair recovered at the scene was misleading if not outright deceitful.

Tunnel vision. Once police zeroed in on Williamson, they simply didn’t keep their eyes or minds open. In retrospect, the blinders on investigators seem unbelievable.

Inadequate defense. Despite significant evidence of mental instability, Williamson’s attorney failed to raise competency issues.

The identification of powerful factors provides a good framework for reforms that can help our justice system reduce the number of wrongly convicted. Law enforcement organizations such as the International Association of Chiefs of Police have publicly embraced recommendations to prevent erroneous charges.

Many local departments are implementing practices such as improved lineup procedures to remove bias, improved investigation protocols to prevent tunnel vision, and improved interview policies (like recording all interrogations) to better validate informant testimonies and confessions.

Law-and-order proponents, both liberal or conservative, commonly have deep compassion for innocent victims of violent crime. Those victims’ voices often go unheard; their suffering often slips off the radar amid polarized and politicized arguments over the causes, rates and solutions of crime.

But the wrongly convicted are also innocent victims, and their plight is perhaps the most obscured because of cultural lethargy regarding the presumption of innocence, which must be sacrosanct to protect the liberty of all.

In a 2013 survey sponsored by the Center for Prosecutor Integrity, an alarming 67 percent of respondents said the concept of “innocent until proven guilty” was being lost in our legal system. In a telling tidbit, the rate of concern was identical between Republicans and Democrats.

Unless you read a book like The Innocent Man, the notion of being wrongly accused, convicted and almost executed probably seems surreal to the point of impossibility in most people’s minds. Grisham chronicled the psychological trauma of going to prison for a crime you didn’t commit in highly evocative fashion.

Try to empathize with the shattered faith in American justice; the eternal disconnect between “official” and “truth;” the unrelenting paranoia stemming from an irreconcilable unreality. You know you are innocent, but the whole world condemns you as guilty.

Wrongly convicted victims endure a reality the rest of us cannot conceive. Tragically, their victimization continues once they’re exonerated, because legislative action hasn’t kept up when it comes to “making things right” for wrongly convicted victims.

They should receive compensation, but only 27 states offer any, though all ought to. Many times (as in Williamson’s case) police and prosecutors don’t even offer an apology.

They should never have to answer “yes” on employment form questions about arrests or convictions. There should be training programs to bring them up to speed with changes in society while they were wrongly imprisoned.

There should be treatment programs to help them heal the mental scars left from living in perilous prison environments that would traumatize any of us.

What we as a society can never really do is give back the life lost to exonerees. We cannot erase the unwarranted stigma, or banish the unjust prejudice, that may follow them forever. Knowing that, we should darn well bend over backwards trying.

It’s to our collective shame that here in Arkansas, we’re not—at least not yet.


On wrongful convictions

John Grisham’s books are among my favorites for summer reading. Some are better than others, of course. But in addition to having Northeast Arkansas roots, Grisham also has a lawyerly way with words and intrigue. When it’s good, his storytelling of attorneys with a cause is great.

Most of Grisham’s collection of novels occupy a shelf in my library; the newest addition is his first work of nonfiction.

It would be easy to say The Innocent Man is one part biography, one part social commentary, but it’s so much more than just two parts. What it does wonderfully and powerfully is let the reader ride shotgun in a small-town tale of lost potential, murder and injustice.

Ron Williamson of Ada, Okla., was a burnt-out baseball prodigy in the early 1980s who struggled with substance abuse and bouts of mental illness in the twilight of his short-lived athletic career.

His habits and lifestyle positioned him as a possible suspect when a young waitress named Debra Carter was savagely raped and strangled. Grisham masterfully chronicles the myriad developments and circumstances that led to Williamson’s erroneous conviction, death sentence and near-execution before eventually being exonerated by DNA analysis.

All told, Williamson lost a dozen years of his life and most of his sanity while languishing on Oklahoma’s death row.

Filled with eye-opening insights and ironies, The Innocent Man is a timely read even though it was written a decade ago. Arkansas’ capital punishment laws and process were national news in the not-too-distant past, and when driven by fanatics on either side, death penalty discussions devolve rapidly into hard-line hostility.

It’s easy to adopt the unbudging “give ’em an inch and they’ll take a mile” attitude when the other side is already demanding the mile with a closed fist and a grimace.

Dug-in attitudes recall the humorous old Irish poem about the faction fight over the birth of St. Patrick: “And who wouldn’t see right, sure they blackened his eye!”

Multifaceted subjects like capital punishment ought to warrant more compromising temperaments. No law-abiding citizen wants or supports wrongful convictions, and especially not wrongful executions. But it’s hard for most people to understand the complexity of circumstances that typically combine to produce an erroneous conviction.

For example, as many as 25 percent of DNA exonerations for homicide involved cases where there was a false confession.

Ask the average person to explain why anyone would ever falsely confess to a murder, and the response will probably be bewilderment. That’s largely because the average person has never been arrested and charged with a violent crime, and is thus unfamiliar with law enforcement in that adversarial context.

The one-sided perspective can promote an unquestioning faith in police, investigators and prosecutors.

As federal appellate judge Alex Kozinski wrote a few years back, “There are, we are convinced, no Edmond Dantèses and no Château d’Ifs in America today.”

But as human institutions, law enforcement and criminal court systems not only make mistakes but also are subject to malice and manipulation, and thus require checks and balances in the same anti-tyranny doses as other governmental arms.

You can’t read The Innocent Man without gleaning a greater understanding of how little power any unaided individual has once locked in the crosshairs of the justice system. Those with means to hire attorneys may have as much trouble imagining the truth being trampled beneath a wrongful accusation as they do understanding false confessions.

The fact that Ron Williamson had absolutely nothing to do with Debra Carter’s murder—he was at his mother’s house watching a movie that night—and yet still came within five days of being executed is chilling to contemplate.

Technology has shaped both criminality and investigation faster than legislative change can keep up. Capital crime statutes are not immune. But lawmaking is anything but a winner-take-all proposition.

The goal for a democratic society that still favors capital punishment is making sure the death penalty is reserved exclusively for and applied only to guilty murderers.

Conditions for the death penalty typically include aggravating circumstances based on the perpetrator’s actions. No matter how heinous a killing and how despicable the killer, if it doesn’t statutorily comport with a capital crime, there can be no death sentence.

Plus, the realities of jockeying charges, defenses and plea bargains often result in quirky and inconsistent capital convictions, i.e., one of two equally guilty killers testifies against the other in exchange for a lesser penalty.

Certain evidentiary elements also could become conditions for capital cases. A simple and presumably mutually agreeable requirement might be DNA validation or corroborating video before a jury can consider a death sentence.

Either of those would have disqualified death as a penalty in Ron Williamson’s case. Neither, however, would have addressed his wrongful conviction in the first place.

The National Registry of Exonerations lists only six cases in Arkansas, two of which were murders. But common sense tells us that with some 18,000 Arkansans in prison, the number of innocent people behind bars is much larger.

We can’t be OK with that, and I’ll explore and explain why in next week’s column.

A more believable story

The din against the death penalty reached an apex in media circles last week after the execution of Troy Davis in Georgia.

Ironically, the very same night Davis paid for his crimes, another inmate, in Texas, was executed with much less fanfare.

Lawrence Brewer was lethally injected for his part in the gruesome dragging death of James Byrd. No celebrities clamored for Brewer’s life, no vigils sought clemency, no online petitions pleaded for mercy—and no wonder. Brewer essentially spit in the eye of the law, refusing to admit to any regrets and calling his impending capital punishment “a little old sleeping medicine.”

Evidently, even the most stalwart death-penalty opponents were a little reluctant to speak up too loudly on behalf of a lowlife like Brewer.

Not that Davis was a model of citizenship, either.

In the days and months leading up to his execution, pictures of Davis showed a tidy, bespectacled figure, as if to subliminally suggest that a family man from suburbia had been plucked from his easy chair and tossed into prison.

But at the time of his crime in 1989, Davis’ life had already earned him a conviction of carrying an illegally concealed handgun and a street nickname of RAH, for “Rough as Hell.”

On the night of police officer Mark MacPhail’s murder, Davis had already been involved in another shooting (for which he was also convicted) and the pistol-whipping and beating of the homeless man to whose aid Officer MacPhail was coming.

Even on his deathbed, all Davis could muster was innocence by technicality.

“I’m not the one who personally killed your son, your father, your brother,” he reportedly told the MacPhail family in attendance.

His parsed phrasing sounds like a guilty defendant who’s spent too much time with lawyers—not the soulful lamentation of a wrongfully convicted man with nothing left to hide.

It all would have been much more believable if Davis had come clean about a few things. After all, as an eyewitness himself, he had a lot of information that might have helped his case. Or did he?

The good thing about a case with this much publicity is that it gets examined very closely. The bad thing about such scrutiny is that inconvenient and incriminating facts tend to rise to the surface.

I like the way the prosecuting attorney in Davis’ case, Spencer Lawton, put it recently when he said fuzzy thinking in the case is the result of a public-relations campaign, as opposed to disciplined thinking in court.

“We’ve won every time the thinking has been disciplined,” he said of the numerous judicial reviews in Davis’ case, stretching all the way to the U.S. Supreme Court.

There are two things to remember in cases like Davis’. The first is, guys like Davis don’t have celebrity friends. Those associations come from fund raising outfits such as Amnesty International, which means their support is about the cause, not Davis. They don’t need to know anything factually about his case, because they already know they oppose the death penalty.

The second thing is, where there’s hype, there’s hyperbole. The publicity campaign for Davis’ clemency needed only to manufacture the appearance of doubt, which can be accomplished using rumor, innuendo and exaggerated half-truths.

That’s why you hear repeated soundbites about “seven of nine witnesses” recanting testimony, when there were actually a total of 34 witnesses called against Davis. Nevertheless, the U.S. Supreme Court ordered an evidentiary hearing in district court to investigate the recantations.

Of those, U.S. District Judge William Moore noted that only one directly refuted trial testimony, and that was from a jailhouse snitch previously exposed as a perjurer at trial.

Davis never explained why, at that moment-of-truth hearing, he chose to not allow two of the recanting witnesses to testify in court.

Complaints about lack of DNA evidence conveniently fail to mention the fact that a pair of Davis’ shorts was recovered at his mother’s house, but the defense fought to have any evidence from them suppressed at trial, and won.

Davis offered to take a polygraph just before his execution. An innocent man might have allowed DNA testing on his shorts 20 years ago.

Here’s one damning point that Davis never addressed in public, yet could never escape in court.

Because of the darkness and distances that night, many eyewitnesses could only describe the participants by clothing.

There was remarkable consistency in testimony about MacPhail’s actions just prior to the shooting. One after another, witnesses described MacPhail chasing two fleeing men, one in a yellow shirt and one in a white shirt with dark shorts.

Their common view was that the yellow-shirted man stopped, and MacPhail ran past him after the white-shirted man, who then turned and fired at the officer.

Only one eyewitness remembered it differently. He was the man later identified as wearing a white shirt that night. His name was Troy Davis.

Our capital-punishment system needs reform. But critics of the death penalty need to find a better argument against it than this one.