“I think all of us here, if we were asked this fifteen years ago, we would have said conviction of an innocent person wasn’t a serious problem. That’s what I would have said. Technically, sure, it might happen—in a big city, maybe, where you had some sort of corruption. But I think all of us felt pretty comfortable with the job we were doing. That comfort level has changed. Not only here, but all over the country. Today we know, from DNA testing, that in some indefinable number of cases, we convict the innocent. So far, nationally, at least one hundred and sixteen of them. That we know of.”
Here Rosen rested for a moment, to watch his colleagues. “This is a nationwide phenomenon,” he repeated, “but North Carolina isn’t exempt. The most famous case here, probably, has been Ronald Cotton, which, I think you all know, touched a number of us here directly.” He gestured to three other men around the table: “Rob Johnson was then an assistant DA in Alamance County. Mike Gauldin was the investigating detective. Tye Hunter represented Ronald in one of his earlier appeals.”
Several lessons had stayed with him from that case, Rosen continued. One was that an innocent person could be convicted even when no official did anything wrong. Gauldin and Johnson were both professionals, good at their jobs, and had acted honestly. So had Jennifer Thompson, the victim, who’d felt convinced that Cotton was the man who’d raped her. Sure, Cotton himself had always claimed he was innocent—but so what? Many defendants claimed the same thing.
“Honestly, I’ve gotten a lot of pats on the back for my work on that case,” Rosen admitted. “But the real credit goes to Mike and Rob. Those two guys are what was unique about that case. We all know nobody likes to see an old case reopened, especially prosecutors or police. But Mike was completely willing to work with us.” And Rosen had never forgotten how Rob had answered, when he’d asked him to cooperate on DNA testing. “The state has no interest in keeping an innocent man in prison.” In retrospect, that was what struck Rosen most about that case, that everyone had stepped outside their usual roles. “That’s why Ronald is free right now. We tested DNA in conjunction with Rob, and Mike spent an afternoon with us at the Burlington station, going through old evidence, until we found the one envelope with test tubes.” When the results came back, neither man had thought once to argue. Instead, they’d driven straight to the prison, for the culprit DNA had implicated, who’d then confessed.
“If it weren’t for all that—if Mike hadn’t kept the rape kit evidence, if we hadn’t had DNA testing—Ronald would still be in prison right now, and he’d be there for the rest of his life. And we have to admit we don’t know how many more Ronald Cottons are out there, sitting in North Carolina prisons, in cases without evidence, or where the evidence was lost. Ronald isn’t even the only case we know about.”
Which brought Rosen to the second issue facing them today: whether the people in this room could, or should, do something about it. He motioned toward Newman and Coleman. “Several years ago, partly because of Cotton, partly in connection with a national trend, Duke and UNC joined to form an innocence project, where law and journalism students investigate innocence claims by inmates.” That work was coordinated by the Center on Actual Innocence, he explained, a nonprofit whose legal counsel was Chris Mumma—the woman in whose house they were sitting. “It is a slow, frustrating, laborious process. Those students sort through hundreds of letters, and everyone involved is doing this on a volunteer basis. We are not interested in technicalities. We don’t even look at procedural claims. We are looking for cases with a claim of actual innocence. That’s all.” Some of those cases the center lawyers assumed they would carry through themselves, while others they hoped would be brought to court by fellow attorneys, or else be directed to the governor for clemency consideration.
“I’ll be honest, though. This is not a problem to be handled by law students or a few volunteers. If we are truly looking to meet this, every part of the criminal justice system will need to be involved. I really mean all parts. The innocent are being convicted, and that isn’t a problem only for the defense bar. It’s a problem for everyone with a stake in the system. As the public comes to believe we convict innocent people, as recent polls show they are, the entire system is going to suffer. And for every innocent person convicted, some guilty person is still at large.”
He wasn’t asking anyone to abandon what he or she did in the courtroom, or on the streets, Rosen clarified. “We need police officers to find criminals, and solve crimes; we need prosecutors to bring charges; we need judges to instruct juries, and review cases. But we think it’s time to consider whether, collectively, we can do something about these wrongful convictions, and about correcting them, when they occur. Not if. We know they do occur.”
Certainly it was time for him to stop talking now, Rosen finished, smiling again. He thanked Lake for organizing the afternoon, and everyone else for attending. “I hope you’ll join in this discussion and that the discussion will be ongoing. I’m not here to suggest any particular solution. We’re only asking to look at the problem, and to consider whether we can make things better.”
As he spoke, Rosen had been watching for clues from around the table, any body language, especially from prosecutors or police, that might hint at what they were thinking. He’d made this argument before, but never to an audience whose politics were so varied, or whose every member had a career in the law. Everyone in the room had arrived with lessons from his own experience and, thus, with his own bias, Rosen knew—his own idea of how the law worked, or ought to. He could sense the danger in alienating them. He’d meant what he said about breaking down conventional roles, was willing to do this himself. One idea he’d had was for completely open discovery—an agreement by defense and prosecutors to share all evidence that either side uncovered in preparation for trial. The potential benefits of this were obvious. So were its pitfalls. That was the catch. For a defense attorney, who was interested in competitive advantage, open discovery posed a risk, Rosen knew. For more accurate outcomes, however, it posed none. For that reason he thought he could be open to it. Rosen didn’t know if the other side could be persuaded to think like this. He waited for some clue.
Then Don Stephens spoke up. One of the few Republicans in the room, Stephens had been a conservative superior court judge for more than two decades. Before that he’d headed what Rosen called the death squad, the division of the attorney general’s office that handled capital cases. In that role he and Rosen had clashed on opposite sides of Rosen’s first death-penalty case. “If we’re going to do this, we’ll need something that isn’t adversarial,” Stephens said.
Rosen perked up.
“Look, I’m a judge,” Stephens continued. “We see motions all the time—many, many, many of them.” This deluge of postconviction appeals was a problem for everyone, he added. A convicted felon, with nothing to lose, might file every motion he could get his hands on, and many of them did. The result was an ocean of claims, many of them without merit, impossible to differentiate from shore. The sheer labor of evaluating these fell to judges and DAs especially. “I can’t possibly read them all closely enough to determine which have merit, and which don’t.” Stephens swiveled toward Rosen. “If what we’re saying is that some of these are serious, then the fact is, I need help. We’ll need some nonadversarial context to hear these things. If there’s a serious claim, we can’t be invoking procedures and doctrine to keep from determining what the truth is.”
From across the room, Rosen looked to Tye Hunter, the friend who’d handled one of Ronald Cotton’s appeals and who now directed the state office of indigent defense. Hunter’s eyes had widened. Then Rosen looked to Coleman, who was staring back at him, astonished. The nonpartisan, supralegal truth. Rosen himself was stunned. Stephens had spoken nearly the same words Rosen had to his center colleagues, back at the Weathervane.
Theresa Newman felt her expectations rise suddenly. She’d never heard a judge speak the way Stephens just had. She knew that judges and prosecutors
both were vulnerable in a way she wasn’t personally, since professors like her didn’t need to be elected. Anyone whose livelihood depended on votes was vulnerable to misinterpretation, and partisan blitzes, she understood. She’d never considered that those on the other side of the issues might feel the system wasn’t working for them, either. Now, behind closed doors, those people spoke up. Lake and Stephens had given them permission.
Law enforcement, it turned out, didn’t like what DNA testing had done to recast the public’s view of its investigative work. On the surface, new technology ought to have buoyed that view, as DNA provided a more reliable form of evidence. Instead, the reverse had happened. Because DNA was available in only a portion of cases, suddenly the remainder had become vulnerable. Once the public knew what DNA testing was, it might mistrust arrests achieved without it. Worse, that mistrust might prove valid—of the exonerees that Rosen had mentioned, several had pleaded guilty, having been counseled that doing so would lighten their sentence. Even after a confession, or testimony by an eyewitness, now a person could still be innocent. Evidence that yesterday had stood as solid as granite today was disintegrating into fog.
Prosecutors had felt this shift as acutely as law enforcement, partly because they relied on the same evidence at trial, and partly because their job was also to find jurors who felt willing to convict. The more kinds of evidence that DNA testing undermined, the more skittish those jurors might grow. It was possible that DNA testing might accomplish the reverse of what one would expect—not increase convictions, but reduce them.
In addition to all that, sometimes things happened at trial that were manifestly unjust. As Rosen had said, this could happen even if no one did anything wrong. The resources allotted to each side might simply be uneven. Or a lawyer might know something he was prevented from sharing, since professionally he was obligated to win cases. Or a lawyer might simply be unqualified—even his opponent might recognize this, and regret it.
Another problem was existential, Lake pointed out. Most exonerations over the previous decade had come not from any court’s initiative but from media pressure. Munsey and Garner, for example, had been cleared only after investigative reporting by local newspapers. Only after prodding had the courts self-corrected. They ought to have done this sooner, before the press forced them, Lake knew. It was bad enough for the public to distrust its legal system. It was worse to think that it ought to.
The agreement Chris was hearing amazed her. She’d expected that the invitees would need persuading that the postconviction process didn’t work. Now she realized they knew it didn’t work, that the fact of it not working had for many of them become a part of their daily lives. Soon everyone was speaking at once, and she was forced to type rapidly to record minutes. By early afternoon she had recorded a list of every topic that anyone in the room had suggested for study.
Lower barriers to DNA testing / backlog
False accusations / false confessions
Defense attorney competency
Modify eyewitness identification process
Ban snitch testimony—at minimum, require corroborating evidence
Eliminate or suspend “junk science”—microscopic hair comparison, handwriting analysis, fiber techniques
Avoid tunnel vision; continuous investigation of suspects
Postconviction, nonadversarial process for innocence review
When conversation lulled after nearly three hours, Lake announced a proposal. He had in mind a special commission, including everyone in the room, that would meet every month or two to continue the discussion they’d begun today. Would others join him?
All fifteen around the table agreed. They liked this idea, they remarked. An unusual forum for an unusually important issue, and one that was more complicated than most people imagined—distinguishing the guilty from the actually innocent. That was what they should name it, someone suggested. The Actual Innocence Commission.
They agreed to meet again in February.
11
One of Those Cases
When he learned the court of appeals had denied him, he petitioned the state supreme court a third time, hoping it would reconsider now that his options were narrowing. Then he wrote again to Phillip Griffin, at Prisoner Legal Services, to share the outcome of his appeal: “Of course I expected this but I still know that my trial was not a fair one.” Could Griffin get him another?
But the reply he received three weeks later only confused him. “Our office is not able to handle direct appeals from convictions,” Griffin’s letter read. “Thus I cannot take over your case from Mr. de Torres. Please communicate directly with your appellate attorney.” Whatever logic this was, Willie couldn’t follow it, since Griffin had already expressed interest in his case, had asked specifically that Willie let him know the outcome of his appeal. De Torres had been his appeal attorney as well as his trial attorney, and de Torres could no longer help, so Willie couldn’t see what other lawyer Griffin was referring to. Who else would help him, if Griffin wouldn’t? He wrote again: “I would again like to respectfully request that you please consider accepting my case,” he repeated, and enclosed a copy of de Torres’s final correspondence. “As you see… he does in fact feel that I am not guilty of the offense of which I was charged, but for reasons I also don’t understand he’s unable to push my case to another level in the judicial system.”
When he received this second letter, Griffin wrote in turn to de Torres, asking for Willie’s trial transcript and the briefs from his appeal. “I am not sure whether we will be able to help him, but I will be happy to review the record.” De Torres replied within the week, with copies of every transcript and appellate brief and opinion he had. “I hope that there is something that can be done, as I strongly feel that this is one of those cases where justice was cheated and an innocent man wrongly convicted,” he confided. “In case that you can offer no assistance to Mr. Grimes, I would appreciate forwarding the materials to Mr. Grimes should he have need of them in the future with another source. If I can assist in any way please contact me.”
But neither of them mentioned this to Willie, who didn’t realize Griffin and de Torres had spoken at all, and so still didn’t know whether either lawyer could help him. Instead he felt bewildered and angry and sleepless. Several times a month he was incapacitated by migraines. He couldn’t shake a cold, which might have been the flu. Until now nurses had continually tossed him over-the-counter cold medications, but that winter they stopped. “Note—inmate has been taking entirely too much cold meds,” read an entry in his medical chart. “Advised to stop all meds. Throat lozenges only.” Since medication hadn’t seemed to help, anyway, they suggested he try drinking more liquids. Soon he was so miserable he filled out a form for psychological services, to ask for an appointment. Under “Why do you want to see a psychologist (be specific)?” he wrote that he was depressed, nauseous, tense, upset, and couldn’t sleep. Then he filled out a page-long questionnaire.
Information Questions: Yes No
1. Have you ever heard voices talking in your head when no one was around?
___
2. Is your imagination very active? ___
3. Do you dream while you are awake? ___
4. Do you have difficulty concentrating? ___
5. Are you confused at times? ___
6. Do you experience racing thoughts? ___
7. Does anyone talk about you? ___
8. Do you feel that others are out to get you? ___
9. Are you being watched? ___
10. Are you anxious or tense? ___
11. Do you have crying spells? ___
12. Do you feel excited or high without reason? ___
13. Have you ever attempted to harm yourself? ___
14. Do you have any special powers? ___
15. Subtract 7 from 100 92. Subtract 7 from 93 88.
16. a. How are an apple and an orange alike? Both are round.
b. How are a radio and newspaper alike? New
s.
17. What is today’s date? Month 1 Day 28 Year 90.
18. When were you born? 44.
19. Who is the President? Ragaun.
20. Who is the Vice-President? Bush.
21. Can you name the Governor of N.C.? No.
22. Where is the capital of N.C.? Charlotte.
23. How many miles is it from here to California? 2000.
24. If you were walking down the street and saw an addressed and stamped envelope on the sidewalk which had fallen out of someone’s pocket, what would you do? Open it see if any money is in it, and then through it away.
25. If you were in the back of a movie theatre, saw a fire break out, and were the only one to see it, what would you do? Get out.
26. How would you describe your:
BELOW AVERAGE AVERAGE ABOVE AVERAGE
Appetite ____ ____
Sleep ____ ____
Energy Level ____ ____
Sex Drive ____ ____
Willie Grimes
Inmate’s Signature
Soon after, he met with a staff psychologist named Buck Thomas. “Mr. Grimes maintains he is innocent of his charge,” Thomas recorded in his notes. “His incarceration despite his innocence has resulted in considerable distress.” Still, he saw no evidence Willie was a risk either to himself or others, and concluded Willie was simply “adjusting to his lengthy prison sentence.” He diagnosed an “adjustment disorder with mixed emotional features” and offered ongoing counseling, which Willie declined. Then he referred Willie to a consulting staff psychiatrist, who found Willie “polite and friendly,” with “no signs of overt psychosis,” though he agreed Willie did “appear to be somewhat depressed.” He prescribed an antidepressant called Sinequan, for Willie to take before bed.
Ghost of the Innocent Man Page 11
