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MISCARRIAGES OF JUSTICE:
A ROADMAP FOR CHANGE
To prevent wrongful convictions,
education is key
By Julius (Jay) Wachtel.
Those unforgettable remarks were made by Caddo Parish (LA) Assistant
District Attorney Hugo Holland during an on-camera interview about
his office’s conviction of Calvin Willis, who was cleared in 2003 by
DNA after serving twenty-two years in prison for a rape that he
didn’t commit. Willis was one of eight wrongfully convicted persons
featured in the groundbreaking documentary
After Innocence, winner of
the Special Jury Prize at the 2005 Sundance Film Festival.
Holland’s point of view is all too
common. Although some cops and prosecutors are deeply remorseful
for locking up the innocent, many others seem unfazed, often
asserting that despite incontrovertible forensic evidence to the
contrary the exonerated may still be guilty. Here’s what Asst. D.A.
Holland
told the Baton Rouge Advocate shortly following Willis’s
release: “I'm still not convinced Calvin Willis didn't do it.
Calvin Willis is not innocent, he's just not guilty. I just don't
know who did it.”
What’s missing in this picture?
Nothing in D.A. Holland’s comments suggested that he saw in his role
any greater purpose than convicting whomever the police deposit at
his door. “Beating” the defense seems to be many prosecutors’ main
goal. Here’s the
last paragraph from the National District Attorney’s Association
website profile of Clatsop County (OR) District Attorney Joshua
Marquis:
Josh Marquis beat famed defense
attorney Gerry Spence in a 1985 juvenile
proceeding, winning the equivalent of a manslaughter conviction
of a 16-year-old
accused of shooting a neighbor to death in a property dispute.
Although the Oregon
Court of Appeals reversed the conviction four years later,
Marquis has a book that
Spence sent him, with the inscription: “To my friend Josh
Marquis, who beat me fair
and square.”
That inscription seems quite
undeserved. The book that Marquis refers to, “Smoking Gun,” Gerry
Spence’s impassioned account of the boy’s defense, reports that the
Oregon appellate court threw out the conviction because the D.A.
failed to prove the boy’s guilt to the required standard: beyond a
reasonable doubt. (Marquis seems to take pleasure in advocating
against the wrongfully convicted. For example, see his
opinion piece, criticized in an earlier
post.)
Some prosecutors and police view
the process as a zero-sum game that only one side can win. But
Calvin Willis’s exoneration was a victory for everyone, as it not
only freed a wrongly convicted man but alerted the authorities that
a dangerous criminal was still loose. Unfortunately, Asst. D.A.
Holland didn’t agree. “There ain't no place to go with this case,”
he said. “It's impossible to try a second person when one person has
been convicted.” That of course is simply untrue, yet the mindset it
demonstrates is chilling.
Calvin
Willis’s conviction was based on three things: he lived in the
neighborhood and had been inside the home in the past; his blood
type (O, the most common) matched semen found on the victim’s
clothes; and the victim identified his photograph.
Yet there was plenty of exculpatory
evidence. Willis’s wife testified that he was home. A pair of boxer
shorts with a waistband ten inches too large was recovered at the
scene. The victim, a young girl, described her assailant as having
a beard, while Willis had always been clean shaven. She also
couldn’t identify him in court. And on and on. All this
notwithstanding, Willis would still be locked up if it wasn’t for
the fact that the
Innocence Project took up his case and proved that the matching
DNA on the fingernail scrapings and the boxer shorts wasn’t his.
Last week
we made these recommendations:
- Prosecutors and police must perceive
their roles more broadly, in terms of securing justice rather than
only making arrests and gaining convictions.
- They must change how they actually do
their work.
- Finally, they need to acknowledge
that serious errors will happen. Knowing that, they must implement
strategies to identify and correct mistaken arrests and wrongful
convictions after the fact.
Had these precepts been followed
Willis would have never been arrested, let alone charged and
convicted. In their rush to judgment the police applied poor
investigative practices, and when their problem-riddled case landed
on the D.A.’s lap a prosecutor capitalized on the State’s vastly
superior resources to make it stick. Once the innocent man was
finally released, instead of apologizing the D.A.’s office
demonstrated anew the lack of reflection and capacity for
self-criticism that helped the miscarriage of justice happen in the
first place.
What’s to be done?
- A vigorous re-education campaign at
all venues, from police departments to law schools emphasizing
that police and prosecutors are first and foremost guarantors of
justice. Poor policing doesn’t just devastate the wrongly
accused: it’s dangerous for everyone, as for each mistaken arrest
and wrongful conviction a perpetrator goes free. That’s why care
and precision in law enforcement are much more than good ideas --
they’re moral imperatives.
- Coursework and instruction in the
causes and prevention of miscarriages of justice should be
incorporated into academy, college and university curricula and
peace officer and lawyer licensing requirements. It’s important
to go beyond alerting students and practitioners to poor
investigative and forensic practices. As “The
Ten Deadly Sins” suggests, failing to understand and properly
deal with workplace routines and pressures can lead even the
best-trained and equipped officers and prosecutors to take
dangerous shortcuts.
- Finally, police and prosecutors must
support vigorous quality control. Knowing that mistakes will
happen, arrests and convictions must be monitored by independent
teams of investigators and prosecutors who are beholden to no
one. (A
pioneering approach is underway in Dallas County.)
No cop or prosecutor starts out
their career intending to do the wrong thing. Indeed, the very
thought of arresting or convicting the innocent is repulsive, an
outright contradiction of the principles that law enforcement
professionals so eagerly swear to uphold. How to recapture that
spirit is the most urgent to-do for American criminal justice in the
21st. century.
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UPDATES
01/17/10 Lifetime Network premieres “The Wronged Man,” a TV
movie about Calvin Willis
05/17/09
Prosecutors routinely obstruct post-conviction DNA testing
12/15/08 Prosecutor presses ahead despite DNA findings
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