Thursday, March 15, 2018

Five Fucking Years

Five years. 


         FIVE YEARS.


OK, it's really 4 years 9 months and 29 days. 

But that's a quibble.

That's how far into the future they've planned the killing.  Talk about premeditation.  Talk about prior calculation and design (which, under our statute turns garden variety murder into aggravated murder).

It's Antonio Sanchez Franklin, convicted of the brutal murders of Ophelia, Ivory, and Anthony Franklin (his grandmother, grandfather, and uncle).  The crimes were, the jury and the courts agreed, committed with (here's that phrase again) "prior calculation and design."

Here's how the Ohio Supreme Court explained it,
     This court has never set forth a bright-line test for discerning the presence or absence of prior calculation and design but instead undertakes a unique analysis of the facts of each case. . . . . In the instant matter, the facts demonstrate prior calculation and design.

     Obviously, appellant knew his victims very well, since they were close relatives with whom appellant resided. His relationship with each was clearly strained. The evidence indicates that despite the wishes of Ophelia and Ivory Franklin, appellant created friction by refusing to get a job or attend school. In fact, approximately two weeks prior to the murders, his grandparents gave him thirty days to find another place to live, a prospect that caused appellant to act in a hostile manner toward his family.
     Moreover, appellant was at odds with Anthony Franklin. While he was being questioned by Dayton police in Nashville, appellant, in reference to Anthony, exclaimed, “Son of a bitch raped me, that’s why I killed ’em all. * * * He raped me when I was fourteen, and the old man knew about it, but that was his son, so he didn’t do anything about it.” Appellant also revealed that Anthony had accused him of being gay.

     There is also evidence to support the view that the accused gave thought and preparation to choosing the murder weapon and the murder site. He used various weapons on the three victims. He shot Ophelia and struck her repeatedly with a blunt instrument, and beat Ivory and Anthony with blunt instruments as well. Unsatisfied, appellant proceeded to intentionally set a fire. These events occurred in a place where appellant knew that all three individuals could be found at once.

     Finally, it does not appear that the murders were instantaneous events, but instead were carried out over a period of time.
All of which is, if it's all true,* pretty compelling evidence of prior calculation and design.

As, of course, is a plan - hell, it's an order - to commit a murder, purposely causing the death of another as the statute says, in 4 years, 9 months, and 29 days.  Especially when you've even planned the particulars of how the killing is to be done.

I'd be remiss here if I left the impression that there are no other killings on the horizon here in the Buckeye State.  In the nearly 5 years before Franklin's special day Ohio has 27 others lined up.  Each neatly and precisely scheduled.

Next up is William Montgomery from Toledo, just under a month from now, on April 11.  But that's only the latest date.  September 28, 2012, the good folks at the Ohio Supreme Court ordered his murder for August 6, 2014, a mere 23 months and some days in the future.  But well, Ohio's had serious trouble killin folks.  The Governor rescheduled his murder for February 11, 2015, then or September 17, 2015, then . . . . Damn, this is long.  Here's a list:

  • August 6, 2014
  • February 11, 2015
  • September 17, 2015
  • August 15, 2016
  • June 13, 2017
  • October 18, 2017
  • January 3, 2018
  • April 11, 2018

Given all that, maybe the most you can say is
Which is probably for the best given that there's a fair chance Montgomery didn't actually kill Debra Ogle and Cynthia Tincher 32 years ago.  But you know, that's maybe just one of those things.  I mean there was a trial.  And the county prosecutor is quite sure he's guilty, so really, who's gonna kick up a fuss?

Anyway, after Montgomery, there's Robert Van Hook in July and then Cleveland Jackson and then Warren Henness and then . . . . And more than 20 others until Quisi Bryan On October 16, 2022.  

And now Antonio Franklin.  In just short of 5 fucking years.

His date set this morning (yesterday morning, actually, since it's a bit after midnight now) by the Justices of the Supreme Court of Ohio.  Their latest planned aggravated murder.

"Depend upon it, sir," Dr. Johnson said, 
when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.

Five years, though, that's maybe a little different.

On the other hand, don't hold your breath.  I'm not a betting man, but it's even money that whatever may be happening at 10 in the morning on January 12, 2023, it won't be the murder of Antonio Sanchez Franklin by the State of Ohio.  There's just too much that can happen in five years.  Including, just maybe, the end of our cycle of vengeance.  

The maybe innocent William Montgomery next month?  That's a different story.
* * *
Here's today's order.
1998-2061. State v. Franklin.Montgomery C.P. No. 97CR1139. On motion to set execution date. Motion granted. Antonio Sanchez Franklin’s sentence shall be carried into execution by the warden of the Southern Ohio Correctional Facility, or in his absence, by the deputy warden on Thursday, January 12, 2023, in accordance with the statutes so provided.
*I have no inside knowledge.  I never represented Franklin, haven't read the transcript of his trial, haven't discussed the case with any of his lawyers.  All I've done is read some court opinions.

Wednesday, February 7, 2018

Pardon me?

"Can my sins be pardoned?"
That's the sort of question I suppose nearly all of us ask ourselves, or ought to, from time to time.  Obviously so for those who believe in an authority, a deity say, who rewards and punishes according to some measure of worthiness.  Or a loved one.  

Less obviously for those of us who don't, but of course there's the question of whether we pardon ourselves.  

Of course, there's also the matter of sins.  But that can be an elastic term.  Put aside Eve and the fruit of the tree of knowledge.   Sins needn't be mortal.  An everyday transgression of the social compact will do.  A little untoward envy.  A sharp word undeserved. (And how often is one really deserved?)  Just being shitty 'cause you're in a lousy mood.  

I'm a criminal defense lawyer.  I traffic in the venal things folks do to each other.  

Some are nearly beyond understanding.   Think Stalin or Hitler or Pol Pot.  Or on a smaller scale the mother who dangled her two-year-old boy out the second story window by an ankle.  Then dropped him.  

Others, well, there was the guy who robbed the carry out and the burglar who stole the costume jewelry and the fella who broke into the house to steal some what he could find but fell asleep on the bed and woke up surrounded by cops with guns pointed at various parts of his body.

And pretty much everything in between.

But the question of pardon.  Which is where I began and where I kinda want to go.

You know, if you've spent any significant time reading this blog, that I'm the atheist who believes deeply in mercy and grace.  And that they're about the giver, not the person receiving.  And how the virtue comes not from being generous to the deserving.  That's easy, after all.  It's about giving regardless of merit.

And it's about forgiveness.  Which is the pardon thing again.

And that question, "Can my sins be pardoned?"

Any of us may ask.  perhaps all of us should.  But the question I quoted (note not just the indent but the quotation marks to provide a clue) came from someone very specific.  With a very specific answer.  
They probably won't be.
Her name, she of the perhaps unpardonable sin, is Kim Hyun-hui, and just over 30 years ago she murdered 115 people.  

She was, as Chico Harlan puts it in the Washington Post, "groomed to be a warrior in North Korea’s army of international spies." And that was her task.  Blow up a South Korean airliner with all the passengers aboard.  Though she didn't much see it as murder. She didn't think of the people.  What she saw was a "technical operation."  A task to perform.  

Which she did.  KAL flight 858.  Killing 115.  She was captured.  Tried to kill herself, biting down on a cyanide-tipped cigarette as she was trained and ordered to do.  But it didn't take.  
When she awoke, her left hand was cuffed to a hospital bed, an oxygen tube in her nose. Men in combat fatigues stood around her, machine guns cocked.
Through weeks of interrogation, she remained strong.  Then, Harlan writes, she was given a suit, put in a car, and driven around Seoul.
Kim saw a city that looked nothing like the miserable enemy outpost North Korea had described. She saw families smiling. She saw cars everywhere. She saw crowded shopping malls. She saw street vendors selling food. She saw the Olympic Village.
And she started to think that her mission, her whole purpose, had been a sham.
“Founded upon lies,” she said.
Blowing up the plane was supposed to disrupt the 1988 Olympics in Seoul.  Instead, Kim watched then on TV.  And she cooperated with the authorities.  And she was sentenced to be killed.  For blowing up a plane with 115 innocent people on board.
Can my sins be pardoned?
A year after the death sentence, there was an answer.

South Korean President Roh Tae-woo pardoned her, saying that she had been a mere tool manipulated by the real perpetrators, North Korea’s ruling Kim family.
But of course that isn't the pardon she asks about.

She no longer resembles the spy who was given eight years of physical and ideological training. She is 56 years old. She lives on the outskirts of South Korea’s third-largest city. She wears glasses and keeps her hair short. She no longer practices taekwondo. She no longer has an interest in knife combat or code-cracking.
Rather, she lives quietly, in a suburb.  With her husband (one of her interrogators) and their two teenagers.

Here's a question.  Is this woman, Kim Hyun-hui, taken from a plane, arrested, wearing a mask designed to prevent her from biting off her tongue, this spy 

Is she this woman, Kim Hyun-hui, 56, suburban housewife, mother of two?

Only one of them, I think, would wonder, as nearly all of us do, or ought to, from time to time.

Can my sins be pardoned?  
And I'm quite sure only one of them would offer as answer
They probably won't be.

Friday, December 15, 2017

Because It Went So Well Here

So they decided - narrowly, but astounding given the place and the choice - that they'd rather not send the guy who yearns for the time of slavery, who thinks the amendments striking down slavery and allowing blacks and women to vote, who thinks homosexuality should be a crime, and who doesn't believe that his state is bound by the decisions of the U.S. Supreme Court on the Constitution, the guy who maybe, probably, spent his thirties trolling for14 and 15 year old girls . . .

They decided they'd rather send to the Senate a guy who favors abortion on demand and prosecuted members of the Klan.

Alabama, it seems, is showing a bit of envy.  It's like it wants to be, at least a little, like the rest of the country.

But why pick Ohio?

You'll remember how last month we here in the Buckeye State decided that a 69 year old guy who gets around on a walker, wears a colostomy bag on the outside, suffers from COPD and cancer - a guy who has maybe 6 months to live - should be executed rather than left to die on his own in prison, where he'd been for some 20 years.

You'll remember that Alva Campbell had veins that couldn't be accessed by needles, but they'd try anyway, 'cause he was sentenced to be killed and that meant he couldn't be allowed to just die. 

And you'll remember that they tried for about 30 minutes to kill him - and then gave up.  Making him the second person in the country, after Romell Broom, to survive the attempt at lethal injection.  Both in Ohio, incompetence capital of the nation.

And so, after beating back Roy Moore (who's demonstrably not anti-semitic, says his wife, because "one of our attorneys is a Jew") and sending Doug Jones to Washington . . . .
Doyle Lee Hamm

They're getting set to kill Doyle Lee Hamm in February.

 Of course, killing folks is nothing new for Alabama.  They've executed three folks this year.  They've got 191 or so on death row. 

But let's just focus on Hamm, on death row for robbing and killing Patrick Cunningham.  Here's the short version, from Jennifer Gonnerman in the New Yorker last year.
Growing up, Hamm flunked first grade, drank beer and whiskey mixed together, graduated to sniffing glue several times a day, quit school in the ninth grade, ingested Valium and Percocet and quaaludes, watched his six older brothers all go to jail, and eventually acquired his own extensive rap sheet, including arrests for burglary, assault, and grand larceny. He married and had one daughter. (The marriage lasted six months; his wife cited “habitual drunkenness” as one of the grounds for divorce.) In January of 1987, Hamm went on a crime spree that included a shooting in Mississippi and ended when he and two accomplices were arrested following the murder of a motel clerk in Alabama. About three hundred and fifty dollars were missing from the register and the clerk was found on the floor, shot once in the temple. Hamm confessed to the murder, and, at thirty years old, was condemned to death by way of Alabama’s electric chair, which was painted yellow and known by the nickname Yellow Mama.
Got that? 

Carol Robinson at has more.  He's 60.  Been on death row for 30 years now.  They call him Pops.  And, oh yeah he's been fighting cranial and lymphatic cancer for several years now.  It's terminal. 

Oh, and his veins are no good.  Mark Heath, an anesthesiologist on the faculty at Columbia University, examined Hamm a couple of months ago. 
"There are no accessible veins on [Hamm's] left upper extremity (arm/hand) or either of his lower extremities (legs/feet)," Heath found. Use of one "potentially accessible" vein on Hamm's right hand "would have a high chance of rupturing the vein and being unsuccessful," he added in a written statement Harcourt filed with the court.
The inability of corrections personnel to inject the drugs properly could "cause Mr. Hamm to become paralyzed and consciously suffocate" and would be "an agonizing death," said Heath, whose research has documented problems in the administration of lethal injections nationwide.
All of which makes Doyle Hamm look an awful lot like Alva Campbell.  Who we in Ohio tried to kill last month because it was important not that he die soon but that he be killed.

As I say Alabama has its eye on being not just a southern backwater.  It wants, apparently, to be Ohio.

Monday, December 4, 2017

These Are the Saddest of Possible Words

From Alexander Pope's An Essay on Man:
Cease then, nor Order imperfection name:
Our proper bliss depends on what we blame.
Know thy own point: this kind, this due degree
Of blindness, weakness, Heav'n bestows on thee.
Submit.–In this, or any other sphere,
Secure to be as blest as thou canst bear:
Safe in the hand of one disposing Pow'r,
Or in the natal, or the mortal hour.
All Nature is but art, unknown to thee;
All chance, direction, which thou canst not see;
All discord, harmony not understood;
All partial evil, universal good:
And, spite of pride, in erring reason's spite,
One truth is clear, Whatever is, is right.
Lyndon Johnson:
I'm the only President you've got.
Richard Nixon:

Donald Trump's lawyer John Dowd:
The "President cannot obstruct justice"
"Baseball's Sad Lexicon," by Franklin Pierce Adams:
These are the saddest of possible words:
     “Tinker to Evers to Chance.”
Trio of bear cubs, and fleeter than birds,
     Tinker and Evers and Chance.
Ruthlessly pricking our gonfalon bubble,
     Making a Giant hit into a double—
Words that are heavy with nothing but trouble:
     “Tinker to Evers to Chance.”

Sunday, November 26, 2017

plus ça change, plus c'est la même chose

Return with us now to the thrilling days of yesteryear when (OK, if you're old enough to know how the rest goes and yearn for it, you'll be disappointed) . . . when blawggers talked to each other on their blawgs.

Over at Simple Justice this morning, Scott Greenfield wrote about honor.
You told the truth because telling the truth was the right thing to do. You kept your promises because it was the honorable thing to do.
We were honorable people.
Now, not so much.
There is no country for the honorable anymore. From the top down, and the bottom up, lies, deceit manipulation, distortion are all acceptable means of achieving goals, and goals are more important than how you attain them. We can fight over whether a goal is worthy or correct, but an honorable person will not lie to win the battle, will not use fallacious arguments to see if he can get an easy win, will not distort the facts to achieve victory.
I started to write a comment, but it was getting out of hand, turning into the sort of linguistic perambulation I'm inclined to over here, wandering about in a haze of seemingly-parenthetical distraction in the hope that I'll actually end up with a point that draws together the threads.  (And you wonder how many posts I've a abandoned over the years?  Or, more likely, you don't.)

Anyway, here's the thing.  I think Scott's wrong.  Sort of.

I want to be clear here.  Scott's not denying that there are honorable people today.  Folks who do the right thing, who speak and act with integrity because it's the right thing to do even when it hurts.  Folks who will not lie, will not cheat, will not . . . .  Fuck it, here's Raymond Chandler.
But down these mean streets a man must go who is not himself mean, who is neither tarnished nor afraid. He is the hero; he is everything. He must be a complete man and a common man and yet an unusual man. He must be, to use a rather weathered phrase, a man of honor—by instinct, by inevitability, without thought of it, and certainly without saying it. He must be the best man in his world and a good enough man for any world.
Chandler's was a fictional detective, his fictional detective in particular.  But the description so far as I've quoted it here (and of Chandler's detective it goes on) is apt.

As I say, Scott doesn't deny that there are honorable people.  His claim is that we no longer view honor as a goal, no longer embarce the ideal.  Now it's the game, the score, the win.  Lie, cheat, do what you can to get there.  (What the public has always accused lawyers of, by the way, though lawyers have always asserted that they're better than that.)  

Where he's wrong, I think, is to think it was different once.  He's wrong to think that we used to honor honor in some way more than the breach (Once more unto the breach, dear friends) but no longer do.

It's probably true that actually honorable people are and have always been rare.  But the idea of honor, the ideal of it, that's something else.  Shakespeare's Anthony knew the strength of the ideal when he offered his ironic and iconic lines.
For Brutus is an honorable man;
So are they all, all honorable men.
But so, albeit less eloquently, does Donald Trump when he accuses CNN or the NY Times or Washington Post or whoever, of
It's a fake, of course.  Every bit as fake and as calculated, if less knowing, than Anthony's remarks about Brutus.  But the claim's the same.  And if he can sell it . . . .

There's no shortage of shadenfeude these days.  It comes from the right and the left, from those we, er, honor and those we despise.  But it's all there because we like the idea of integrity - we just don't much act in conformity.  And we're willing (though perhaps topic right now, and it's not clear how far) to forgive blatant hypocrisy and accept outright lies. 

But forgiveness isn't conceptual approval.  Though perhaps between 24 hour news cycles and social media and especially hatred and certainty of our own righteousness in cause (if not in manner) we're more open about our willingness to tolerate the dishonest.


Wednesday, November 15, 2017

On Victims and Killers and Survivors. On Life and Death. On Forgiveness. - UPDATE

Lexington, Kentucky.  April.  2015.  An apartment complex.  Salahuddin Jitmoud delivering a pizza. 

Well, not exactly.  Exactly, Jitmoud was delivering his life (so the cops and courts said) to 3 men who were looking to rob pizza delivery guys.  He was 22-years old.

I don't know who actually killed Jitmoud.  Apparently the actual killer hasn't been indicted.  But Alexander Relford, according to the prosecutor (via Marwa Ettagouri at the Washington Post), "set up the robbery, he provided the knife, he tampered with evidence."  And there's the fuck-you factor.
[H]e is the one who ate the pizza afterward.
Relford got 31 years.  

  • Complicity in murder.
  • Complicity in robbery.
  • Attempted tampering with evidence.

He'll be out when he's 55.

In the criminal courts, that's little more than business as usual.  

What's not is what Abdul-Munim Sombat Jitmoud did.  He's the father of Salahuddin Jitmoud.  The kid who was murdered for his pocket change and a pizza.  He's the one who gives the lie to pretty much everything the haters want you to hear.

A Brief Digression

The case involved a shooting.  There were two victims - one intended, one an innocent bystander.  (Shit happens when bullets fly.)    

Wait, did I say there were two victims?  Only sort of.  Oh, the defendant was separately charged for each shooting.  And there's no question they were both shot (one in the leg, the other in the hand).  But the accidental victim of the gunshot?  She couldn't identify anyone as a shooter.  All she knew, all she could tell the cops was that the guy who shot her wore a red hoodie.

But the defendant didn't have a red hoodie. 

The detective said, testified under oath, that she wouldn't cooperate.  All she'd tell us about the shooter, the detective said, is that he wore a red hoodie.  And since she wouldn't cooperate, the detective said, she wasn't an "actual victim."  

Really.  That was the testimony.

End Digression

You hear that Muslims are terrorists.  The President tells you that thousands cheered in the streets in New Jersey as they watched the World Trade Center collapse.  They say it's all about hate.

Talk to Abdul-Munim Sombat Jitmoud.  Whose son was killed for a few bucks and a pizza.  Ask him.  Or just note his words, from the witness stand, at the sentencing of Alexander Relford who was at the least complicit in the murder of his son.  
Forgiveness is the greatest gift of charity in Islam. . . . I don't blame you, I blame the Devil, who misguided you to do such a horrible crime.  
There are things you rarely see in court.  
Teary-eyed after the father's gesture, Fayette County Circuit Judge Kimberly Bunnell called for a break in the hearing.
And then, after court resumed, after Relford apologized, after that.
Then the father and the convict hugged, Relford wiping his face with tissues as Jitmoud wrapped his arms around the 24-year-old.
In a couple of hours, the good people of the State of Ohio will be putting Alva Campbell to death.  It's pretty clear it won't go well. The nurses who examined his arms for the execution team said his veins can't support the needles. He'll be struggling his way to the death house with his walker.  I assume he'll still be wearing his colostomy bag.   They're giving him a special pillow so he won't have trouble breathing while they kill him.  (Yes, you read that right.) 

His will be the 56th state-sponsored murder in Ohio since we got back in the killin' business in 1999.  We've got folks lined up and set to go until well into 2022.

As I said, Relford will get out when he's 55


Execution failed.  They couldn't find a vein.  They're going to try again, another time, if they can manage to keep him alive until then.  It'll get easier, of course, 69-year-old, terminally-ill men routinely have their veins get bigger and sturdier over time.

I can't help but note that Ohio is now the only state to have failed even once to complete an execution since the bungled electrocution of Willie Francis in 1946.  And we've now failed twice.

Sunday, November 12, 2017

What? You Thought the System Got It Right?

Danny Brown did not kill Bobbie Russell.  

That's settled in the minds of just about everyone except her son, whose memory of his mother's murder is false, and the Lucas County Prosecutor who agreed to cut Danny loose after he spent 19 years in prison and dismiss the case against him but who still believes him guilty and would love to charge him and convict him again.

Despite the DNA that pretty conclusively indicates that Bobbie Russell was killed (and, not incidentally, raped) by Sherman Preston.  Alone.

Cameron Todd Willingham didn't set the fire that killed his kids.  Which Rick Perry basically knew when he signed off of Willingham's execution.  

Joe D'Ambrosio did not kill Anthony Klann, though he did spend 22 years on death row before he was exonerated.  And the state?  Well, you know the story.

And Ricky Jackson.  We'll get  back to him.

There are, of course, others.  The list of the wrongfully convicted isn't just a list of folks who didn't kill.  There are the ones who didn't rape, who didn't rob, who didn't burglarize, who didn't bear false witness or pray to graven images or . . . .  (OK, maybe the graven images thing.)

If you've been paying attention, you know that's true.  (As you do if you've been reading this blog, I should add in a self-glorifying moment.)  The question, of course, is how it happens.  And the corollary is what can be done about it.

Enter Mark Godsey, Daniel P. and Judith L. Carmichael Professor of Law and Director, Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project at the University of Cincinnati College of Law.  And now author of Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions.

Mark was at one time, as the subtitle says, a prosecutor.  Not just any old kind.  He was one of that special breed, an Assistant United States Attorney in New York.  That's big stuff, and he was, as he tells us, quite full of himself and the honor and glory and nobility of his job.  Rooting out bad guys and locking 'em up.

He tells us about how he'd brainstorm with his fellow-AUSA's to as they'd cook up cockamamie theories to explain away evidence (say, coerced confessions) that was wholly inconsistent with the guilt of those they so righteously prosecuted.

He tells us that he, well, he didn't exactly cheat.  But he didn't go out of his way to challenge the potential bullshit that was presented to him.  And he didn't notice - didn't let himself notice, really, that a whole lot of what they did in building cases and selling juries on them was grounded in a set of convictions about infallibility that bore no relationship to demonstrable fact.

This isn't exactly news, though it was to Mark until he found himself coerced into running the Kentucky Innocence Project for a year.  And oops.  

The first chapter of his book is called "Eye Opener," and it's where he describes that epiphany.

As for the rest, he takes on the usual suspects.

  • Confirmation bias
  • Faulty memory
  • Coerced confessions
  • Inaccurate eyewitness identification
  • Bullshit forensics
  • Tunnel Vision

All this, he explains, leads to factually innocent folk getting convicted of crime despite the best efforts of everyone to do the right thing.

The academics have shown this, of course.  They've done the studies that demonstrate how false memories can be created, that eyewitness identification isn't particularly reliable, that nobody - not cops, not prosecutors, and certainly not judges or jurors - is particularly good at figuring out when someone is telling the truth or when someone is lying. 

And then there's the explanation.  That's the confirmation bias and the tunnel vision.  It's the group-think of police and prosecutors.  It's built into the human condition.  There's science for that, too.

And the studies, the science, all of it, is backed (often fronted) with stories of exonerations fought, exonerations won, and exonerations still pending resolution.  Here's a case, he says.  Look how the ID was bad!  Look at how the cops coerced the confession!  Look at how they implanted a memory or just got the witness to correct the memory to comport with the evidence! 

It's storytelling not because a story proves the point but because it illustrates the point.  And amid the tens of stories he tells, there's particular focus on a few.  

Most frequently, it's the case of Steve Avery from Making a Murderer.  It makes sense.  Many readers will know the story already.  And it serves to illustrate many of his points.  Clarence Elkins and Dean Gillespie get special treatment too because, well, Mark and the Ohio Innocence Project freed them.  

None of this is particularly new.  Along with untold numbers of books and articles addressing individual horror stories of the innocent convicted and sometimes (but not always) exonerated, academics and others have been churning out books on this with regularity.  In the last few years alone there've been Daniel Medwed's Prosecution Complex: America's Race to Convict and Its Impact on the Innocent, Jim and Nancy Petro's False Justice: Eight Myths That Convict the Innocent, David Harris's Failed Evidence: Why Law Enforcement Resists Science.  And those are just a few I've reviewed here.

The perspectives vary.  They don't all tell the same stories.  But they all make the same points.  The system is flawed.  And while it can't be perfected, there are things that can be done to improve it.  Not surprisingly, they all recommend essentially the same things.

  • Videotape confessions
  • Abandon the Reid technique of interrogation
  • Sequential, double-blind administered lineups with immediate declaration of degree of certainty
  • Remove crime labs from the control of police and prosecutors

All much easier said than done.  Because - and here's the point of Mark's anecdotes - the participants in the system simply don't recognize that there's a problem. 

See, and here's the weakness - of Mark's book and, frankly, the others.  They are, all of them, too trusting.  Oh, sure, there are a few of those so-called "bad apples."  But really, police and prosecutors and judges all really do want to the right thing.  If you could just make them see . . . .

Which is much of why Blind Injustice begins and ends with Ricky Jackson, another of Mark's clients at the Ohio Innocence Project.

Jackson's story is powerful.  In 1975, he, Wiley Bridgeman, and Kwame Ajamu were convicted of murder in Cleveland.  Sent to death row.  Convicted based on a lie.  A 12-year-old kid coerced by the cops into fingering the three of them.  Freed after 39 years when the kid recanted.  
Because the cops got the kid to lie.

What's striking, though, is not the lie.  Not the wrongful conviction.  Not even the eventual exoneration.  See, they had the hearing.  The kid, now in his 40s, testified about how he was coerced.  How he lied.  How the lie ruined his life.  And how, finally, he came to tell the truth.  When all the testimony was over, they all broke for lunch.  Closing arguments, the judge said, after we eat.
     When we returned to the courtroom at the predetermined time, the prosecutors and the judge were nowhere to be seen.  After thrty more minutes passed, there was still no sign of the prosecutors or the judge.  We sad in the courtroom and waited, confused and exceedingly nervous.
     After about forty-five minutes of waiting, the courtroom doors swung open and Mary and her team of prosecutors entered the courtroom.  With them was the elected prosecutor -- the head of the office.  They entered the courtroom at the same time that the judge entered through his private door behind the bench, as if their entrances had been orchestrated.  The prosecutors walked straight up to the bench and said something to the effect of "We agree that Ricky Jackson is innocent and that a terrible injustice has occurred in this case.  We are dismissing all the charges and agreeing that he may be set free."
     In all my years of doing postconviction innocence work, I have never been so shocked.
OK, as Mark says, that doesn't happen.  Prosecutors typically fight exonerations tooth and nail.  But, the very oddity of what happened in Ricky Jackson's case - put up against all the stories of prosecutors who never concede - gives the lie to the assurance that prosecutors and cops and judges are all acting with good faith something like 99% of the time.

Oh, I'm not saying that they set out to frame people, to convict those they know are factually innocent.  It happens, but the frequency of that is I imagine vanishingly small.  Rather, they blind themselves and then they cheat - and they know damn well that they're blinding themselves and cheating - because that's how they make squishy cases better and good cases great. 

There's a reason we have the word testilying for what cops routinely do on the witness stand.  And the larger truth (one Mark mentions almost in passing) is that we let them get away with it.  Police aren't punished even on the rare occasions they're caught cheating.  Partly that's because they have qualified immunity.  Partly it's because they have powerful unions.  Prosecutors don't suffer for their misconduct.  Partly that's because they have absolute immunity.*  And because the legal disciplinary folks give them a pass.  Why?  Mostly it's because we - the rest of us- just don't care.  They're catching bad guys, after all.

Remember, the theory of our system is innocent unless proved guilty.  If we mean it, we have to take seriously the idea that the proof should be reliable.

Blind Injustice is worth the read.  Give a copy to your favorite prosecutor.  And maybe to your neighbor.

*Mark says that they, like cops, have qualified immunity.  He knows better.

My thanks to Mark and the University of California Press for providing me with a copy for this review.