My colleagues are today starting the third trial in the Juan Rivera case, and I have been monitoring the media coverage with great interest. In a WBEZ story aired this morning, a couple of statements attributed to prosecutors in Lake County (Illinois) raised my hackles.
By way of very brief introduction, Lake County is continuing to prosecute Juan Rivera for the rape and murder of an 11-year-old child in 1992 even though DNA evidence has excluded him as the source of the semen found in her body. According to WBEZ: “Prosecutors say they have effective arguments to explain the DNA evidence but they're not about to show their hand.”
The suggestion that prosecutors are attempting to keep their theory of the case secret from the defense is disturbing. A trial is intended to be a truth-seeking process; hiding evidence or theories from the other side frustrates that goal. Critical testimony or evidence might be susceptible to contradiction or impeachment, but if it is sprung on the opposing party for the first time at trial, there may be no opportunity to rebut it. The losers, of course, are the jury and anyone with an interest in a reliable verdict—including the public.
Indeed, the difference in that regard between civil cases and the average Illinois criminal case is striking. There is a broad right to pretrial discovery in civil cases and witnesses are subject to deposition before testifying at trial. In contrast, prosecution witnesses in criminal cases are generally not required to speak with defense attorneys before trial and frequently refuse to do so—including police officers, who are public servants with job responsibilities that include testifying. (Capital cases are an exception; discovery depositions may be requested for “good cause.”) In other words, the parties have more rights when money is at stake than they do when person's very freedom is on the line.
In one well-known wrongful conviction case, that of Robert Wilson, the victim now says that the prosecutor advised her not to talk to the defense attorney before trial. Had she done so, she might have learned about an alternative suspect whom law enforcement officials were ignoring but who greatly resembled the description of the offender (which Mr. Wilson did not). A decade later, when the victim finally learned about this suspect, she recanted her identification of Mr. Wilson and the prosecutors dismissed the charges against him. Perhaps Mr. Wilson would not have lost those years of his life to prison had his lawyer been able to talk to the victim before trial.
The WBEZ story about the Rivera case also reports that the elected State’s Attorney of Lake County refused to be interviewed on tape because Rivera’s attorneys are “like rabid dogs who might try to twist his public statements.” This prosecutor's unprofessional accusation that defense attorneys do their job by “twisting” the facts (which, happily, is not a universal opinion) may be a convenient justification for litigation by stealth—but it only moves us farther from the arriving at the truth.
UPDATE: As noted in one of the comments below, Juan Rivera was reconvicted in May 2009 at the conclusion of his third trial. In June 2009 he was resentenced to life imprisonment. His legal team remains convinced of his innocence and is appealing the conviction.
I have written previously about the need to hold prosecutors accountable for misconduct in pursuing convictions. Prosecutors play a unique and powerful role in criminal justice: they often direct police investigations, they determine when and how to charge crimes, and they decide what information generated by law enforcement will be turned over to the defense prior to trial. Jurors commonly view prosecutors as altruistic and objective defenders of victims' rights and the common good, in contrast to "hired gun" defense attorneys. Therefore, an unscrupulous or overzealous prosecutor has an unparalleled opportunity to distort the criminal justice process.
Please don't misunderstand -- I am not out to get prosecutors. In fact, I have tremendous respect for the office and I admire a great many prosecutors whom I know professionally and personally. But as in any other profession, a few bad apples can taint the entire barrel.
When prosecutorial misconduct is serious enough to require overturning a conviction, consequences are in order. Prosecutors are largely immune from lawsuits based on their actions in prosecuting a case, so we must look elsewhere for disincentives. Many years ago, when the Chicago Tribune still supported in-depth investigative reporting on criminal justice, the paper ran a series that pointed out how prosecutors who commit misonduct are rarely identified by name in appellate court decisions: Chicago Tribune series: Trial and Error
Therefore, when these same prosecutors run for judge or other higher office, the public is unaware of this important information. For instance, when the Illinois Supreme Court reversed the conviction of Center on Wrongful Convictions client Alan Beaman last year because the prosecutor suppressed exculpatory information, the Court did not name the prosecutor, James Souk, who is now an elected judge in McLean County: Illinois Supreme Court decision in Alan Beaman case
Compare this to a recent decision by the Seventh Circuit Court of Appeals, blasting a federal prosecutor - by name - for her false and misleading statements at trial: Chicago Tribune article: federal judge scolds prosecutor Such judicial criticism might serve as a powerful deterrent against prosecutorial overreaching -- even for non-elected federal prosecutors.
A Texas legislator has suggested going so far as to criminalize prosecutorial failure to disclose exculpatory information to the defense. While this proposed bill may be extreme, it is a reaction to a large number of Texas wrongful convictions recently uncovered through DNA testing, some of which involved prosecutorial misbehavior: Fort Worth Star-Telegram article
Certainly some form of sanction for flagrant misconduct is appropriate: to educate young prosecutors, to dissuade the veterans from crossing the line, to inform the public, and to preserve the good name of the majority of prosecutors who uphold their oath of office with integrity and honor.
What does a mother do when a son is sent to death row for a double homicide he didn't commit? One can only imagine the personal anguish Bobbie Steidl felt for 17 years while her son Randy fought for his life and his freedom. But what she did was attend each and every one of Randy's court appearances and provide him the inner strength that enabled him to survive those dark times.
Bobbie was there, of course, when Randy walked into the sunshine and away from Danville Correctional Center on May 28, 2004. Bobbie lived to see Randy make a life for himself on the outside, maintain employment, purchase a home, and become a national spokesperson against the death penalty. By the end of Bobbie's life, Randy had moved close enough to his mom to be able to stop and check on her every day. He was finally in a position to care for her, just as she had cared for him all those years of his wrongful incarceration.
Bobbie was a tiny woman, but her heart was huge and her love was boundless. Next to any list of exonerees should be a companion list of those family members and friends behind the scenes who push lawyers, investigate facts, raise funds, and lend critical moral support to wrongfully convicted prisoners awaiting vindication.
Barbara "Bobbie" Steidl belongs at the top of that list. She passed away on February 23, 2009, at the age of 79. She will be greatly missed by all who knew her and especially by her sons Randy and Rory Steidl.
(Randy Steidl and his mom on the day of Randy's release from prison)
Timothy Cole, separated from family, friends, and decent medical treatment for his asthma, lapsed into unconsciousness in his Texas prison cell and died on December 2, 1999. He had served 14 years of a life sentence for a rape he always maintained he did not commit.
Earlier this month, Cole was officially exonerated after DNA testing proved him innocent. It is unutterably sad that Cole, a college student with a promising future at the time of his arrest, did not live to see his complete vindication, especially after he turned down an offer of parole if he would just admit his guilt.
What is particularly disturbing about this wrongful conviction is that the actual perpetrator, Jerry Johnson, confessed to the crime as far back as 1995, four years before Cole's death. Johnson wrote to the court and asked for assistance in confessing to the crime. He also wrote to the district attorney who had prosecuted Cole. Johnson was ignored. Only after he penned a letter in 2007 to Cole, whom he did not know had died, did someone take Johnson seriously. Cole's family received the letter and started the process that exonerated Cole -- and conclusively fingered Johnson.
Even as far back as Cole's trial, though, there were red flags that called into question Cole's guilt. These included:
It is therefore not surprising that Johnson, who was a chain smoker and who was jailed for similar crimes in the same geographic area, should turn out to be the true rapist.
I would hope that the judge and prosecutor who received Johnson's confessions gave them serious consideration and had good reasons for not replying or initiating DNA testing on their own. I fear, however, that Johnson's letters were either filed or trashed without a second thought. In all likelihood, systemic reluctance to admit error resulted in Timothy Cole never again breathing free, and indeed never again breathing at all.
When false murder charges against a man who spent 13 years in prison are finally dropped, it is hard to know how to feel. There is a measure of joy that the ordeal is over, but also great sadness at the years wasted and the damage inflicted -- and anger that it ever had to happen. A week after Alan Beaman's exoneration on January 29, 2009, anger is uppermost in my mind as I reflect on the case.
First I must disclose that I am not an unbiased observer. I have been representing Alan for six years. (My colleague Jeff Urdangen has logged a dozen years in this fight for justice.) During this time I have pored over all aspects of the case, and I have become very well acquainted with my impressive client Alan and his equally remarkable family. My conclusion from this study is that Alan is absolutely innocent of the 1993 murder of his ex-girlfriend in Normal, Illinois, for the simple reason that he was 140 miles away in his Rockford home when it happened.
One of our mantras at the Center on Wrongful Convictions is that we cannot correct all miscarriages of justice one by one, so we must use individual cases to shed light on flaws in the criminal justice system that lead to erroneous convictions. Each exoneration presents a "teachable moment." What lessons can we learn from the Alan Beaman case? Why is it that despite no evidence of guilt other than supposition and innuendo, and indeed clear evidence of his innocence, Alan was indicted and convicted? Why did his conviction stand for 13 years until the Illinois Supreme Court ordered a new trial in May 2008, labeling the case aginst Alan "tenuous" and wholly circumstantial?
In a word, the answer is "Prosecutor." The prosecutor holds a uniquely powerful position in the criminal justice process that rivals even that of the judge. Alan Beaman's prosecutor, James Souk, involved himself early in the homicide investigation and eventually took it over. When information surfaced during the investigation that supported Alan's alibi, the police were directed to try to refute it rather than shift their focus to more likely suspects. (This phenomenon of tailoring an investigation around a premature conclusion is called "tunnel vision.") Faced with a high profile murder of a college student in a college town, they indicted Alan rather than leave the crime unsolved. At trial, the prosecutor hid evidence that supported Alan's innocence and misled the jury about the strength of the State's case. Thus, the jury that decided Alan's guilt or innocence did not have access to all of the relevant evidence, including information about other potential suspects. That angers me.
What is the appropriate response to a case like this? We need to pay attention to the people in whom we invest the awesome powers of the prosecutor. Candidates for prosecutor should be well screened, and when elected prosecutors (or their staff) abuse their power, they should be voted out of office. Similarly, when a court of review finds that a prosecutor has committed an ethical or constitutional violation, there should be consequences and sanctions. Finally, the public must express its outrage when prosecutors cross the line. In the case of Alan Beaman, it may be that public support for his cause contributed to the dismissal of the wrongful charges against him.
To read more about Alan's case, try these links:
(Photo by Steve Smedley/The Pantagraph)
Many folks react with frustration upon hearing that a criminal has been released on a “technicality,” such as an illegal search or lack of a speedy trial. I find it much more infuriating, however, when innocent convicts cannot have their new evidence heard due to tortured legal reasoning (an even more insidious form of “technicality”).
For instance, the Illinois Post-Conviction Hearing Act permits a prisoner to challenge his conviction based on new evidence of actual innocence. But exactly what is “new evidence”?
Let’s take an example. John Q. Unfortunate is charged with an armed robbery that was actually committed by Larry, Curly, and Moe. John knows who the actual robbers were, but not surprisingly, they refuse to testify on his behalf. Larry flees the jurisdiction, Curly lies and says he wasn’t involved, and Moe takes the Fifth. John is convicted based on a mistaken identification and is sentenced to a long prison term.
Years later, however, Larry, Curly, and Moe have a change of heart and sign sworn affidavits admitting their own participation and exonerating John. Is this new evidence? Logically, one would assume so because their accounts weren’t heard at the original trial.
But logic does not always drive the law. Read what one Illinois appellate court panel recently wrote on the subject:
“[E]vidence is not newly discovered when it presents facts already known to a defendant at or prior to trial, though the source of these facts may have been unknown, unavailable or uncooperative.”
In other words, because our John Q. Unfortunate knew before trial who the real offenders were, the recent confessions of Larry, Curly, and Moe cannot be offered as new evidence. On the other hand, had John not learned their identities until after trial, he could now present the affidavits as “newly discovered” evidence and possibly win his freedom. Talk about a “technicality”!
No conceivable societal interest is furthered by the refusal to consider new proof of innocence. The aforementioned appellate court ruling is either blatantly incorrect (my view), or else the Illinois Post-Conviction Hearing Act should be amended so that new evidence of innocence may be offered at any time (also my view). Let us hope that our legislators will be brave enough to take this step without fear of being labeled soft on crime. Remember, for every innocent person locked up for a crime she did not commit, there is at least one unpunished criminal still at large.
Approximately half of the states, and the federal government, have laws on the books providing for compensation for persons who have been wrongfully convicted and imprisoned. What is a year of wrongful imprisonment worth? Those statutes that attempt to put a dollar amount on stolen freedom value it quite differently. For instance, Florida's new legislation allows for up to $2 million in compensation for wrongful incarceration (although the law is extremely restrictive as to who qualifies). New Hampshire, on the other hand, caps the amount at $20,000, no matter how many years of imprisonment were involved. Other jurisdictions come out somewhere in between.
How do we measure up in Illinois? Our compensation law was recently improved in many respects, and the amounts were slightly increased, but our cap is just $199,150. That means that if Anthony McKinney (a Center on Wrongful Convictions client who has been locked up for 30 years and who recently petitioned for release based on actual innocence) were exonerated today, he would receive $6,638.33 for each year he spent behind bars as an innocent man. You be the judge of whether that is adequate or fair.