by Kyle Swenson
The publication set off tempers at the highest level of government. President Ronald Reagan’s Department of Justice was overseeing a War on Drugs and an explosion in incarceration. Realizing Bedau and Radelet’s work questioned the very integrity of the whole criminal justice system, U.S. Attorney General Edwin Meese III tasked two Justice Department attorneys with penning an attack on the study. Published the next year in the same journal, the DOJ response blasted Bedau and Radelet’s methods and bias. The academics responded with their own attack, calling the DOJ’s reaction “an effort to protect the myth of systemic infallibility.”7
DNA was what sprung wrongful conviction out of partisan gridlock. The irony is that this game changer for criminal defense never would have entered American courtrooms if it hadn’t originally been devised as a tool for prosecutors. Beginning in the mid-1980s, the government started tying defendants to crime scenes by matching blood samples (cases such as the motorcycle gang murders Cleveland attorney Terry Gilbert worked on). The earliest form of forensic DNA was a rough, approximate science called DQ-alpha. The testing, however, was limited, focusing only on eight genetic markers that could place a suspect in the general genetic neighborhood. The early 1990s saw the development of restriction fragment length polymorphism (RFSP) lab work; highly effective at singling out the owner of genetic material, the testing required large amounts of undamaged material—rare in a criminal setting. By the late 1990s, however, scientists broke ground on testing that sewed up these holes; short tandem repeat (STR) was both accurate and only required minimal DNA—a few cells—for testing. STR’s appearance on the stage directly fed into the creation of national DNA databases, where genetic material from crime scenes could be collected and compared to track repeat offenders.
Like Gilbert, Scheck and Neufeld came to the law energized by the social activism of the 1960s. Both men worked as public defenders for indigent clients in New York, bolstering their experience with defendants caught up in the new machinery of an aggressive punitive legal system. “When I was a public defender, 1976 to 1977, I handled cases of people who had been sort of pressured or coerced into pleading guilty to crimes they didn’t commit, and I reopened their cases,” Neufeld told Norris. “So I was very much aware of wrongful convictions in that sense years before [Scheck and I] ever did anything.”
In early cases like the Ohio Hell’s Angels trial and later the O.J. Simpson case, Scheck and Neufeld targeted the sloppy application of DNA forensics. But both men early on recognized the powerful potential of the new science. DNA could provide bulletproof, scientifically stamped evidence of innocence. As Scheck testified before Congress in 1991, the technique could be “an amazing tool to revisit old cases where people had been dragged out of the courtroom screaming, ‘I’m innocent! I’m innocent! I’m innocent!’”8
In 1992 Scheck and Neufeld launched an organization geared to using the new science to free wrongfully convicted prisoners. Named the Innocence Project, the organization was a clinic run out of Cardozo School of Law at Yeshiva University. Any outfit working on behalf of the wrongfully convicted faces logistical uphills: little funding, poor clients, more cases for review than available eyeballs. Scheck and Neufeld met those problems by grounding their assault on the justice system in an educational setting. Students handled the legal grunt work and drafted motions; staff attorneys supervised the progress and represented clients in the actual courtroom. DNA was the cornerstone of the work, and the Innocence Project tended toward rape, murder, and sexual assault cases where physical evidence was in abundance.
The group achieved headline-snatching success. By the 2010s, the Innocence Project had secured the release of more than three hundred wrongfully convicted prisoners. Scheck and Neufeld’s largest impact, however, was inspiring similar clinics at other law schools. Within a decade there were innocence projects operating as campus clinics in every state. By placing wrongful conviction in the spotlight, the movement has sparked a significant change within the legal community, with advocates going as far as calling Scheck and Neufeld’s revolution a “new civil rights movement” and the “most dramatic development in the criminal justice world since the Warren Court’s due process revolution of the 1960s.”9
Yet the law itself—so poorly designed to address postconviction pleas of innocence to begin with—has dragged behind the steady flow of exonerations. By the early years of the new century, most states had passed legislation granting convicted felons access to DNA evidence for retroactive testing. But red tape still straitjackets the process: some states, such as Florida, demand a “preliminary showing of innocence” before testing gets the green light; others bar access to prisoners who pleaded guilty.
Even when the testing does go forward, both courts and prosecutors have often been stubbornly resistant to the results. Darryl Hunt was convicted in 1984 of a North Carolina murder. In 1994, DNA testing proved a sample found on the victim did not match Hunt; his appeals, however, were rejected—the court ruled the findings didn’t conclusively prove his innocence. Hunt wasn’t exonerated until 2005, when a DNA database matched the evidence from the crime scene to another culprit.10 Similarly, Chicagoan Ronald Jones went down for a 1985 rape-murder; in 1997 testing cleared him of the crime, and the Illinois Supreme Court ordered a new trial. But prosecutors let Jones languish in prison for two more years—two years after he was scientifically cleared—before deciding not to retry.11
The courts’ reluctance to acknowledge wrongful convictions hasn’t stopped exonerations. Despite regular news about exonerees winning freedom, there has not been a fuller conversation or call for reforms. There are two possible reasons why. On a large scale, there is a very distinct difference between the way experts and academics talk about wrongful conviction and mainstream media accounts. In the former, wrongful conviction is a symptom of a greater sickness woven through the entire criminal justice system, a network of depredations and historical injustices rotting every working piece. Media versions, on the other hand, almost always frame wrongful convictions as stand-alone travesties, the wronged man suffering through hellish circumstances, random bad shit visited upon a poor-luck sucker. A larger context is almost always missing.
Partly the systemic issues are muted in the myriad factors involved in each individual wrongful conviction, often down to the very genetics. But DNA testing is arguably also preventing a larger outcry. When Scheck and Neufeld started the first Innocence Project, they consciously decided to only tackle DNA cases. Their vision was larger than case-by-case exonerations. The pair instead hoped to fundamentally change public policy. That mission required the kind of irrefutable evidence of innocence only DNA can provide, facts detractors could not refute. Each DNA exoneration also provided “a learning moment for the criminal justice system,” Scheck told Norris.12 After innocence is established, attorneys and researches can reverse-engineer each wrongful conviction, decoding what exactly went wrong in each scenario. Concrete policy suggestions—such as recording interrogations, changing eyewitness identification policies, freeing up access to DNA testing—are born out of such research.
But the emphasis on DNA partially overshadowed cases without forensics. And much of the state law written in the wake of exonerations requires a high burden of proof, such as the unimpeachable “actual innocence” only DNA can provide. Under this statute test, for the law to acknowledge that a prisoner has been wrongfully convicted, DNA is often necessary—sometimes DNA evidence and additional proof of innocence. The law has also severely squeezed the federal court’s power. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA); the legislation clamped down on federal habeas review with time limits and other procedural restrictions while also forcing federal courts to respect original trial verdicts. So as the law currently sits, and as cases like Troy Davis’s illustrate, without scientific backing, it is extremely hard to prove you didn’t do it.
And Rickey Jackson didn’t have any DNA evidence.
* * *
The near rape shook him, but not in the usual way—that’s what shook him. Something so traumatic would terrify a normal person. Rickey responded on autopilot, his emotions stuffed so far away, he wasn’t even sure if he could feel anything anymore. It was scary. He’d spent his whole adult life in prison, operating like a machine. Survival exacted a price. He was running out of time to be a normal person again.
A lifeline finally came. In September 2006, Rickey opened a letter from the Ohio Innocence Project (OIP). The newly formed organization expressed interest in his case and outlined the conditions for its involvement. First and foremost: you had to be completely innocent. No problem there, Rickey thought.
Ohio’s own branch was opened in 2003 at the University of Cincinnati’s school of law; Mark Godsey, a former New York City federal prosecutor, took the helm of the nascent outfit modeled on Scheck and Neufeld’s clinic. Within three years, OIP had already freed three Ohio men from incarnation. Gary Reece was a Cleveland man who was released from prison after twenty-five years following an OIP investigation that turned up a history of fabrication and mental illness on the part of the victim. Chris Bennett, an Akron man serving a sentence for causing a deadly traffic accident, was freed after the organization proved he wasn’t responsible for the crash.13
The group’s most dramatic early success, however, was Clarence Elkins. An Akron-area father of two, Elkins was convicted in 1998 of raping and murdering his mother-in-law and raping his six-year-old niece. Elkins was charged based on the identification of the young victim. The girl wavered before the trial, but was pressured into testifying against Elkins by the prosecutor, Maureen O’Connor (who later would be appointed as the chief justice of the Ohio Supreme Court). Elkins was convicted and received two life sentences for the crimes. But Elkins and his wife continued to investigate after his sentencing, eventually focusing on a convicted rapist named Earl Mann. Coincidentally, the suspect was then serving a prison sentence in Mansfield Correctional—the same prison holding Elkins. The wrongfully convicted inmate surreptitiously picked up cigarette butts belonging to Mann and turned them over to OIP. DNA testing matched the swabs to the ’98 murder. The prosecutor, however, still refused to release Elkins. The office only caved after Ohio Attorney General Jim Petro intervened in the case and publicly pressed for Elkins’s freedom. Elkins was released in 2005. Mann pleaded guilty to the murder and rapes.
For OIP, publicized success meant more cases to investigate. For Rickey, unfortunately, that translated into more waiting. Hope eventually curdled into frustration. The students assigned to his file were Rickey’s main points of contact with OIP. But it seemed that once he’d get the students up to speed, they would move on and his file would end up in the hands of another set of students—and the new ones would be asking the exact same questions. He got pissed and stopped writing the group back.
At OIP, Rickey’s case passed through a number of staff attorneys—usually falling to the bottom of the stack as more pressing cases with better evidence nudged to the top of the pile. But in February 2010, a new attorney joined the organization, inheriting Rickey’s file along with hundreds of others. Carrie Wood was a graduate of the University of Cincinnati law school who later worked as a public defender in the Bronx. Returning to her alma mater, she brought a big-city rigor to the work waiting for her at OIP.14 Since the organization had taken on the case, numerous law students had worked the file, nosing down a number of possible avenues. Could the money orders be traced? Was the acid cup found at the crime scene still available for DNA testing? Was the victim’s briefcase ever located?
The student Wood was supervising on Rickey’s case was coming to the work from the other side of the courtroom. Scott Crowley had been a criminal justice major as an undergrad. He’d originally wanted to be a police officer, but eventually shifted his ambition to the prosecutor’s office.15 He interned with the Cincinnati state’s attorney, an experience that gave him a unique insight when he started working with OIP as a law student in 2008. Crowley went in with no hard opinions on Rickey’s case. But two aspects of the conviction stood out. First, the entire case was based on Ed. There was no other evidence save the boy’s testimony. Crowley found a phone number for the witness and made a call. Ed hung up.
The second intriguing part of the case for Crowley was Kwame. Almost immediately he began fielding phone calls from Rickey’s codefendant. “Kwame was relentless about the case,” Crowley told me later. “That stood out because he was done, he was out. But he wouldn’t let this go. That made sense—if they were innocent.”
Despite the lack of evidence, Crowley told his supervisor that OIP should keep the case open. Rickey was just a name on a file to Wood; yet she also realized there was something more here. “For a capital murder case, there are teenage romance novels that have more paperwork,” she would later tell me. As Wood was talking with students about the case, one of the fellows told her he truly believed Rickey was innocent. But—no new evidence. The case had languished with the organization for so long, Wood considered closing out the file—essentially telling Rickey there was nothing OIP could do. “But in my mind, if a prosecutor had come up to me and said I think that guy is probably innocent, as a public defender, I’m not going to take his word. I want to know that I’ve left no stone unturned,” Wood explained later. “If we’re going to send a closing letter, I don’t want to have the nagging feeling that there’s something else I should have looked at.”
Wood kept Rickey’s file active, passing the work along to another set of students, hoping for a break.
* * *
I never met Rickey while I was working on the article about his case. Through six months of reporting and writing, I submitted requests with the state corrections department for the opportunity to interview both Wiley and Rickey. All the petitions were shot down. If I was ever given an official reason, it wasn’t meaningful enough to remember.
What I knew then about Rickey, I picked up from the few letters we swapped. The man who reached up out of the neatly typed pages—brushed here and there with pencil marks correcting small typos—was warm, articulate, serious, and friendly; he never forgot to ask me how I was doing, what was new with my life. These pleasantries, I came to see, were far from empty politesse, but important—vital, even—points of human exchange for a man well into his third decade of incarceration.
He was a full-on science fiction nerd, from Star Trek to the weighty philosophical novels of Robert Heinlein. He worked in the greenhouse at prison, a job where he was mostly left alone with his plants. It was quiet there, and he didn’t get hassled by other prisoners or guards. Could even catch a quick rule-breaking cigarette out among the growing plant life, turn the big garden fans on to blow the smoke out. The COs never noticed or, if they did, didn’t care. Rickey Jackson wasn’t giving them a hard time. He was fifty-four years old.
Not long after the publication of my article on the case, I got a letter from Rickey asking me to send a copy of the Cleveland Scene story to him at Grafton. He hadn’t seen it yet. “My apologies for the long delay in correspondence,” he wrote. “Kwame has, however, kept me abreast of your activities.” Closing out the letter, he again asked about my well-being. “How has life been treating you of late?” he wrote. “Me personally, what can I say? Just trying to stay positive and keep hope alive, which isn’t always an easy thing to do under these circumstances. But continue to hope I must, because I can’t even begin to contemplate the alternative.”
We lost contact soon after and eventually I moved out of state. I never learned his reaction to the story. But the piece actually had more of an impact than I could have then realized. Seeing his name in print, reading the details of his case, wa
tching the story, his story, crawl out of the intervening decades of silence—it shocked him like a bolt of energy. So much so, he threw off the self-imposed omertà he’d clamped over his own story. For the first time Rickey started professing his innocence inside, showing off the Scene article to cellmates and coworkers, even handing the newsprint over to friendly COs. Equal doses of pride and hope blitzed him. Pride at what he’d endured. Hope that he finally could be heading home.
Rickey’s excitement was woven with a practical element. He knew most of the folks from the old neighborhood were still living back in the city. The Scene story would make the gossip. Ed Vernon knew the story had been published. It would be hard to hide from that newsprint.
“For the most part, Edward had suppressed it to the point where he could live with it,” Rickey would later tell me. “But when that story popped? Uh-oh. The closet is getting too full for all those skeletons.”
11
HYPERTENSION
Cleveland, Ohio, 2012
There were usually tears. That was the point of the all-nighters, where men prayed and reflected from dusk to dawn in the church’s sanctuary as Christian songs and gospel murmured gently from the speakers. It was one-on-one time with the Lord, spiritual traffic between sinner and savior uncongested by daily demands. Pastor Anthony Singleton knew many of the brothers in the room had dark patches in their history. Pastor had them himself. Here, the world wasn’t around to distract you from who you really were. So you expected to see red, swollen eyes among the men at Emmanuel Christian’s shut-ins.
But this was different. Tonight, the usual sniffles were overpowered by something much louder. The cries scraping the sanctuary’s pitched roof were pained, ear-busting. Pastor Singleton noticed that all that noise was coming out of Brother Ed. Something’s wrong, the preacher reasoned.1
