Sunday, June 28: The A.D.D. Detective
DARK JUSTICE
by Leigh Lundin
This week, the Supreme Court reached a mind-boggling decision, an opinion more indicative of, say Iran, than a democratic people, a judgment that should offend conservatives and liberals alike. Led by Chief Justice John Roberts, the Supreme Court held convicted prisoners do not have the right to DNA testing, even if they are willing to pay for it themselves.
In some circles, this is seen as a slap-down of the Innocence Project, which has exonerated upwards of 250 prisoners, many of whom were on death row. At a minimum, the ruling adds a pinion in the machinery of capital punishment, a view court procedure and ‘finality’ is more important than actual justice.
It was no surprise that capital case enthusiasts Alito, Thomas, and Scalia voted en bloc, as they tend to rule for government and against individual civil liberties. In dismissing the evidence, one of the justices wrote that forensic science has "serious deficiencies".
My real disappointment is Justice Roberts, whom I had hopes for. He made a curious statement in regards to this decision, that such a court challenge "poses to our criminal justice systems and our traditional notions of finality better left to elected officials than federal judges."
Forgive him, but maybe he was getting his nails done at the time. I thought the criminal justice system was exactly the purview of the courts and not politicians, and for sound reasons, too. This raises another question: If a convicted person proves innocent, the implication is someone else is guilty. To my thinking, justice fails on two counts.
In 1993, William Osborne was tried in Alaska for the rape and assault of a prostitute. Before trial, he asked his attorney to test DNA evidence. According to Robert Morgentheau of the New York Daily News, his attorney either refused or did not follow through. Osborne petitioned the prosecutor’s office for a conclusive DNA test, but they refused, more interested in convictions than justice.
In the sixteen years since his trial, DNA matching has radically improved. The Innocence Project offered to pay for DNA testing and an appeals court sided with Osborne. No less than Former FBI Director William S. Sessions sought to have the evidence revealed, arguing the Justice Department should step in and demand testing since the department’s very name implies ‘justice’. He wrote "Why should our criminal justice system be afraid?"
However, the State of Alaska appealed to the Supreme Court, which sided with the prosecutor’s office: Once a defendant is tried, a prosecutor is under no obligation to turn over DNA evidence. Alaska state law allows convicts to challenge a conviction in cases with compelling new evidence, but with the refusal of prosecutors, there was no new evidence to put forth.
It is possible Osborne is guilty. Minimal testing in 1993 showed the perpetrator to be of African origin, and apparently conviction of being black is good enough in Alaska. But wouldn’t it be better to know for certain?
Roberts expressed a fear DNA testing risks "unnecessarily overthrowing the established system of criminal justice." Law professor Kevin Jon Heller ironically concurred: "It might lead to a reasonably accurate one."
I’ve mentioned my family is an eclectic and ecumenical admixture of Protestants, Catholics, and Jews. My father’s side was Quaker and the Friends have one simple Biblical rule: You don’t kill anyone. Anyone at all. For any reason. That includes capital punishment.
In 1988, Florida’s Death Penalty Governor, Bob Martinez, was in election trouble. Execution is popular here and he’d entered office signing death warrants so rapidly they clearly weren’t being read. Before he went on to fail as the nation’s first drug czar and fail as an executive in a security company, he failed as our state leader. Although he outspent his political oppenent by a 20-to-1 margin, it appeared unlikely Martinez would win reelection. His solution? Step up executions.
One case was that of Willie Jasper Darden, Jr, convicted of murder, although witnesses who were precluded from testifying placed him in a different part of town where his truck broke down in front of a police station. Darden was the only black man in the courtroom, a man the prosecutor said was "an animal who should be on a leash", a man who should have "his face blown off with a shotgun". Eyewitnesses never saw a lineup, but were asked to identify Darden at trial– the only negro present.
To my growing concern and eventual horror, I watched as Darden came ever closer to execution. Popes and presidents asked the governor for clemency. It was election time; Martinez refused and on 15 March 1988, the State of Florida executed yet another in a long series, this one likely innocent.
For the past dozen years, those on death row face a harsher reality, the federal Antiterrorism and Effective Death Penalty Act, the AEDPA. This Newt Gingrich legislation limits the federal court’s ability to determine whether a state court correctly interpreted the Constitution, cutting off avenues of appeal.
In 1991, the State of Georgia convicted a former coach in the Savannah Police Athletic League, a man signed up for the Marines, of the 1989 murder of Mark Allen MacPhail, a Savannah police officer working as a security guard.
Since his trial, two of the jurors submitted petition affidavits for a new trial. Seven of the original witnesses have recanted their testimony. Of the two remaining, Sylvester Redd Coles was considered the chief suspect. He was quoted moments before the shooting screaming to a homeless man "You don’t know me. Don’t walk away from me. I’ll shoot you." Officer MacPhail responded to the homeless man’s pleas for help and was killed for his efforts.
Once again, popes, presidents, judges, Georgia congressman Bob Barr, and former FBI director William Sessions have called for a new trial. However, unless the Supreme Court greatly surprises us, the odds of a writ of habeas corpus aren’t high.
We write about crime and usually our stories focus on detection, indictment, and conviction. We seldom write about what happens after trial, which can be criminal.
Excellent piece Leigh. Reading this brought to mind a story I like: PD James’ “The Part-Time Job”. I won’t give anything away about the story, but if you know it, you’ll know what I mean.
Years spent as a reporter covering both the criminal and civil courts in two states convinced me that justice plays little if any role in our judicial system. Far too many prosecutors have only one interest: convictions. Far too often the police are interested only in an arrest rather than an investigation.
At times the results are shocking. More often they slip by the public unnoticed. After a conviction some jurors contend the defendant has to be guilty because he was arrested by the polioe. In other cases the jurors sense they are being manipulated and deliever a verdict of not guilty.
I once rode an elevator to the courtrooms with a leading defense attorney. Several members of a family joined us and one, “Let’s hope for justice.”
The attorney turned to them, shaking his head. “Don’t hope for justice, pray for mercy.”
Those words are something I will remember if ever headed for trial. When the oath is administered “the whole truth” should be followed by “if the lawyers don’t demand a yes or no answer.”
With the finality of execution, how can process trump human life? This is the primary reason my position on the death penalty has modified over the years. While I still cannot say I oppose it in every case, I oppose the seriously-flawed way it is administered. If we as a society elect to take that final step, how can we not exhaust every scientific possibility to ensure the guilt of the convicted?
Your outstanding article reminded of a news story I read once in which a prosecutor said no innocent person had ever been executed in her state. I wondered at the time how she knew that since no studies had been done to determine if an executed prisoner was innocent.
Louis, a former president said the same thing about Texas, that no innocent man had ever been executed. As Larry points out, we should exhaust every effort. What is evident to a schoolchild, seems to elude the Supreme Court, that if there’s a slight chance a man is innocent, he should be given the chance to prove it.
I’m concerned at least one of the justices seemed to dismiss scientific evidence, at least when it plays an exculpatory rôle. While I agree that science shouldn’t be worshipped, it should be respected.
The idea of “innocent until proven guilty” is an intellectual concept that has to be inculcated in people and valued in society. If it isn’t, then the old gut response of “guilty until proven innocent” will get the upper hand every time. IMLTHO, right now, we, as a nation, are in an irrational and vengeful mindset–and led, until recently, by peawits fearful of their own shadows.
Today, I read that after 4 of their death row prisoners were exonerated by DNA evidence with the help of the Innocence Project and other support, New Mexico’s legislature this year abolishes the death penalty.
It is a basic tenet of social morality that it is better to free ten guilty criminals than to imprison (or execute) one innocent citizen, but the issues of evidence and capital punishment are separate. I agree that any person, regardless of the penalty assigned by the justice system, should have the right to present evidence that might exonerate him.
But that has no bearing on whether the state should have the right to execute the guilty. The argument that capital punishment is wrong on its face has nothing to do with whether the prisoner is guilty or innocent. It has to do with whether capital punishment is right or wrong.
This reminds me of the argument that torture can be justified if it produces actionable intelligence. The reason torture is wrong has nothing to do with its “results”. It has to do with what it is.
Personally, I believe that the state does have the right to forfeit the lives of its enemies, and that the state can be justified in exercising it.
Here in Kansas we are “saving money” by ending programs that train prison inmates for jobs in the outside world. Having known a couple of guys who turned their lives around after serving time, I don’t believe it’s going to be cost-effective. And it just makes me mad.
It is ironic our Alaskan citizen Ted Stevens avoided prosecution because prosecutors failed to provide relatively minor evidence to the defense (a letter that quoted a different amount of bribery) while Alaskan citizen William Osborne spends time in prison because the prosecution withholds major evidence from the defense. It’s all who you are.