Tuesday, November 25, 2014

Close Your Eyes and Pretend Really Hard

Scott Greenfield makes a point, with some regularity, that we shouldn't be in the business of making people stupider.

H.L. Mencken said that "Nobody ever went broke underestimating the intelligence of the American public.

It's not actually P.T. Barnum who said, "There's a sucker born every minute."

And then there's Paul Cassell.  Former federal judge, law professor, scold, and holder of one of the soapboxes at the Volokh Conspiracy.  For several days now, he's been offering a string of misleading claims about the grand jury process and transparency and how when (he always said if, but he meant when) the grand jury did not indict Darren Wilson for the killing of Michael Brown it would be because they did their job properly and concluded that he wasn't actually guilty.  Greenfield's taken him to task for his lies misrepresentation. (Here, for instance.)  So have I (here).  So, I'm sure, have others, but I've been busy and fallen down some on my reading.

Now, of course, we know that the grand jury did what we knew it would do.  No, they said, we're not going to indict Wilson.  And Cassell is back to assure us that they did their job properly and that there's absolutely nothing out of the ordinary that went on.  Specifically, he says this:
A day before the grand jury’s decision was announced, Michael Brown’s family attorney raised the objection that the grand jury process was unfair because it was deviation from the normal process. “When you think about it, if this prosecutor is saying we’re just going to be fair, we’re not going to recommend any charges, that’s different from anything he’s done in his past 28 years with grand juries,” attorney Benjamin Crump argued. It turns out that at least part of this claim is untrue: McCulloch presented to the grand jury the full range of charges, from first degree murder to involuntary manslaughter. The only difference from normal process was, apparently, that the prosecutor did not make any particular recommendation — leaving the issue up to the grand jurors. But it is hard to understand how this had any ultimate bearing on the outcome. Of course, if McCulloch’s recommendation was against filing charges, then he would never have gone to the grand jury in a normal case. And if his recommendation was filing charges, then in the normal course a grand jury (or judge) would have had to review the evidence and would have been thrown out the indictment at the point.
Cassell makes the following points.

  1. Benjamin Crump says that the prosecutor's behavior in this case was unusual because he didn't recommend any charges.
  2. That's not true. 
  3. The only thing unusual is that the prosecutor didn't recommend any charges.

Now, I'm not a former federal judge or a law professor.  But I do know the old theory that if you says something loud enough and long enough people will believe it.  Like the White Queen who managed six impossible things before breakfast.

And then, of course, there's the kicker.  That in the normal case where the prosecutor recommends an indictment to the grand jury that indictment will be dismissed.

Greenfield, Mencken, not-Barnum.  Ah, but Paul Cassell. 

Monday, November 24, 2014

Angel Cordero - Coming Home

It's all supposed to be hunky dory.  

You're 25 years old.  Convicted, sentenced to prison for attempted murder, a crime you insist you didn't commit.  Spend 13 years locked up.  Then get released.  Now you're 38.  Not exonerated.  Not apologized to.  Just released.  Have a nice life.  And stay out of trouble 'cause you're still on paper and if you don't play by the rules we'll yank you back.

It's all good now.  Oh, sure, someone will have to teach you what a smart phone is - and how to text. But hey, you go back home and have a beer.  Hug the wife you married while in prison.  Life is good.

Of course, it's not that easy.  Not even with a supportive family that understands, that knows, you were railroaded.  Not even then.

Meet Angel Cordero.


Coming Home is the story of his return after 13 years, back to the streets of Brooklyn, back to his family.  And back to his daughter.

Sarah was 3 when Angel was sent away.  She's 16 when he gets out.  He's missed her life.  And she knows it.  More, she resents it.  
Who are you? Leave me alone  I don't need you.  I don't want you.
But 
You're all I thought about.  You're what kept me going.  13 years it was just to get back to you.  I love you!
She goes to Florida.  He breaks parole to go see her there and give her the birthday present he bought for her.

And all the time he's trying to adjust.  He meets Dario Rodriguez, the man who basically framed him. Who confessed - though of course confession by the actual bad guy commonly isn't enough.  As it wasn't here.  

Their meeting is surprisingly gentle, not confrontational.  Two no-longer-young men, sad, tired. Victim and victimizer.  Regrets certainly, but little rancor.  Angel understands.  So, sadly, does Dario.

Coming Home is a documentary.  Angel Cordero's story is real.  It's warm and joyous.

And it's heartbreaking.  

It won Best Irish Feature Documentary and Amnesty International's Best Human Rights Feature Documentary at the Galway Film Fleadh last year and played last week at DOC NYC, the New York Documentary Film Festival.  It's not likely to be playing at your neighborhood multiplex, but if you get a chance, it's worth your time.

http://www.welcomehomepictures.com/

---------------
My thanks to the promoters for sending me a screener.

It's Not Like Knowing Would Matter

The thing that's different about Scott Panetti isn't that he's on death row even though he won his case in the U.S. Supreme Court.   The court didn't say he should be freed, after all.  It didn't even say they couldn't kill him.  Just that they had to reconsider.

Nor is the thing that's different about Scott Panetti that he's on death row even though he's batshit crazy.  Panetti, after all, is on death row in Texas where that's no impediment.  After all, they keep Andre Thomas there, in a mental unit, and insist that they plan to kill him for the murder of his family, which they figure he understands well enough since he acknowledges that he did kill them even though he thinks they're still alive and the real reason they want to kill him is his superiority.  And there is that thing about Thomas having plucked out his eyes - eaten one and thrown away the other - but hey, drugs and alcohol and faking and all that.

Panetti, after all, is just schizophrenic, subpoenaed the late President Kennedy and the later (or perhaps eternal depending on your point of view and belief system) Jesus Christ to testify at his trial and knows that they claim they intend to kill him for murdering his in-laws but thinks it's really because of that “spiritual warfare” between “the demons and the forces of the darkness and God and the angels and the forces of light” as one expert quoted by the supreme Court put it.  But malingering.

Nor is the thing that's different about Scott Panetti that his time's coming soon.  Everyone on the row gets dates, after all.  Sometimes they're just dates and everyone knows they won't count.  Other times, they're real, dates when the killing is likely.  December 3 is the scheduled date for Panetti's murder. It's absolutely real, though of course it may yet be stayed.

No, the thing that's different about Scott Panetti is that nobody bothered to pass word on to him that December 3 was the date he was to be tied down and stuck with needles and given a dose of what some compounding pharmacy will manufacture and claim is pentobarbital.  Nor did anyone bother to tell his lawyers.  

Who had to read about it in the fucking newspaper.

From an editorial in the Times.
Mr. Panetti has not had a mental-health evaluation since 2007. In a motionhastily filed this month, his volunteer lawyers requested that his execution be stayed, that a lawyer be appointed for him, and that he receive funding for a new mental-health assessment, saying his functioning has only gotten worse. For instance, he now claims that a prison dentist implanted a transmitter in his tooth.
The lawyers would have made this motion weeks earlier, immediately after a Texas judge set Mr. Panetti’s execution date. But since no one — not the judge, not the district attorney, not the attorney general — notified them (or even Mr. Panetti himself), they had no idea their client was scheduled to be killed until they read about it in a newspaper. State officials explained that the law did not require them to provide notification.
If they don't have to pass on the word, why would they?  It'd just give them a chance to make timely arguments.

As the tourist board used to say of Texas, it's "a whole other country."

Sigh.

Law of Rule.

A little Phil Ochs:




Friday, November 21, 2014

Print the Legend

Those of you of a certain age know that Davy Crockett was the last defender at the Alamo to be killed, swinging his empty rifle (ol' Betsy) like a baseball bat at the hoards of Santa Ana's men who've overrun the mission-turned-fort.  

Or so Walt Disney told us.  There is in fact some reason to believe not only that the detail is not true but that David (his preferred way of referencing himself) Crockett was actually captured by Santa Ana's troops and then executed.  What's the truth?  Does it matter?

Hold those questions for a moment while you consider the blog of Judge Richard Kopf, "Hercules and the Umpire."  Judge Kopf speaks his mind, which makes his blog interesting.  It also, sometimes, generates controversy.  After all, he speaks his mind.  And some folks think he ought not have one. 

Or at least keep the fact that he has one a secret.  I a post this morning, he addressed the subject directly.
If a federal trial judge writes bluntly in extrajudicial articles, does the judge expose too much of himself or herself such that the judge risks recusal and harms the federal judiciary by punching holes in the myth of complete but insular objectivity.
He quotes Alison Frankel from her blog at Reuters.com (I'm deleting her internal links).
I also believe there’s a cost to outside-the-courtroom commentary by judges. I still cling to the admittedly starry-eyed hope that judges aren’t just ordinary folk – that they’re wiser or fairer or at least better at rising above their inevitable biases than the rest of us. I know, there’s plenty of evidence to the contrary. But if I didn’t believe in the legal system I’d have wasted an awful lot of time writing about it. And believing in the system means believing, albeit with exceptions, in the impartiality of the judges who preside over cases. When judges give the public a reason to doubt their impartiality, whether it’s through their acceptance of campaign funding or their intemperate comments, faith in the system erodes.
Ms. Frankel calls herself a reporter in the first sentence of that blog post, and in the bioblurb that accompanies it we're offered supporting evidence.  
A founding editor of the Litigation Daily, she has covered big-ticket litigation for more than 20 years. Frankel’s work has appeared in The New York Times, Newsday, The American Lawyer and several other national publications. 
Which is pretty good.  Especially for someone who doesn't actually favor knowing what's true.  The emperor must have his new clothes.  How dare the child reveal the truth!  

Her jumping off point is an article written by Mark Bennett (federal judge Mark Bennett, not Houston criminal defense/first-amendment lawyer Mark Bennett) which mentions that the good work of trial lawyers has resulted, among other things, in “hundreds of thousands of lives have been spared from tobacco-related deaths and billions have been saved in health care costs.” And which, along with other comments in the article, led Phillip Morris to try to convince him to recuse himself from a case because he'd demonstrated his bias. (He declined.)

Frankel concedes that the law doesn't require Bennett's recusal.  But she'd like it better if the issue had never been able to be raised.
Would the system be better served, however, if judges didn’t say things that might cast doubt on their impartiality? I think it would.
After all, the point is to maintain illusion, to keep the secret, for judges to pretend to have no thoughts, no ideas, no beliefs.  To preserve the pretense of Olympian disinterest in the affairs of humans.  Majestic objectivity.

That's all nonsense, of course.  What we can hope from judges is that they will set their perceptions and perspectives aside and decide cases based on the law and the evidence.  We cannot expect, and really should not want, judicial automatons.  The question is whether we want the lie or the truth?

Which brings us to most famous line from The Man Who Shot Liberty Valence.
When the legend becomes fact, print the legend.
Because what Jack Nicholson said is true for Alison Frankel.
You can't handle the truth.
The thing is, we aren't in Oz anymore.  And really, we never were.  Hiding one's head in the sand really doesn't change anything.

On Just Whose Ox Gets Gored

Give Paul Cassell credit.  He said one thing that's right.
The evidence should determine the outcome in this case — not threats of violence.
Beyond that, it's all hooey.

The issue is Darren Wilson in Ferguson and whether he'll be indicted for murder.  (Spoiler alert: Nope.)  And it's Cassell's latest screed on the subject.

Here's how it works in the hypothetical Darren Wilson grand jury. If the prosecutor wanted to charge Wilson with murder, he would send in one, maybe two witnesses.  The grand jurors would hear three pieces of evidence:
  1. Michael Brown was unarmed.
  2. Darren Wilson shot Michael Brown.
  3. Michael Brown died from the gunshots.
The prosecutor would explain to the grand jurors that the elements of murder were satisfied.  The grand jury would then charge Darren Wilson with murder.  It would be done in an hour.  Any defense?  That's what trials are for.

Here's how it works in the hypothetical actual grand jury.  The prosecutor spends weeks bringing in witnesses who explain that 
Sure Michael Brown was unarmed but you have to understand the circumstances from Darren Wilson's point of view and here are the things that would constitute his defense and remember that he was a cop just trying to do the best he possibly could and Michael Brown was a street punk who probably deserved it and who's going to keep you safe at night if the cops are afraid to anything to protect themselves and you lest they be charged with murder and really the son of a bitch deserved it and anyhow really cops don't get convicted so why bother.
Now, says the prosecutor, here are the elements of murder which I suppose if you folks went out on a limb you might find but remember all that evidence of innocence and the defense that Wilson would present and you know that he won't be convicted anyhow and why tarnish a good man's reputation but if you feel that he's guilty beyond a reasonable doubt I suppose maybe, but really, we don't think we can prove it.

Here's Cassell explaining the glorious things that would will happen if when the grand jury returns without an indictment.
If no charges are filed, the country would have an opportunity for an important civics lesson on the presumption of innocence, the need to avoid a rush to judgment, and possibly (depending on the evidence) the fact that a police officer did not use excessive force but was simply defending himself in the course of trying apprehend a violent robber — i.e., Brown.
None of that, none of it, is what grand juries do in the ordinary case.  Grand juries hear a summary of evidence of guilt and return indictments.  They determine not whether there's a defense, not whether the presumption of innocence has been overcome.  They determine whether summary of evidence of guilt is sufficient to say, gee, this guy oughta be tried.

The rest, that's all for trials.  It's from the trial, where the evidence of guilt is presented to a jury of 12 in a courtroom operating under the rules of evidence, where the evidence is challenged by cross-examination, where the defense gets to put on its witnesses (who the prosecutor can cross-examine), it's from there that the public can learn those important civics lessons.

Cassell knows that, of course.  And he's perfectly happy with the grand jury hearing a summary of evidence and then indicting in the ordinary case where it's Michael Brown being charged with involuntary manslaughter for causing his own death by stealing the bullets that were being flung at him by an officer's gun.  But Darren Wilson?

Law of Rule.

Tuesday, November 18, 2014

An Adversary System without Adversaries

Some background:
Ohio law says that the Ohio Supreme Court must review every death sentence on direct appeal.  A rule of the Ohio Supreme Court, a rule crafted by the Ohio Supreme Court, says that no brief can be filed after the date it is due.  Another rule prohibits asking permission to file a brief late.  Yet another rule says that if a party doesn't file a brief, it cannot participate in oral argument.  There is no rule prohibiting asking to waive that rule.  (Confused yet?  Welcome to the Buckeye State's Supreme Court where they refuse to file documents unless that don't comport with the rules and where they don't give you additional time to fix screw ups.)

A true story:
The prosecutor in one of my death penalty cases blew the deadline.  A clerk at the court, who wasn't paying sufficient attention, filed his brief anyway.  A week or so later, the court, on its own, struck the brief from the record.  When they scheduled oral argument, the prosecutor wasn't invited.  After all, he hadn't filed a brief.  He asked to participate anyway.  They said no.

And so, I had a death penalty case in the Ohio Supreme Court where the state did not present a written or oral argument.  I was unopposed.  I had the brief.  I'd made the arguments in writing.  I had 30 minutes to address the court, answer their questions, be thoughtful and eloquent and persuasive.

AND LOSE THE FUCKING CASE.*

Another true story:
M.P. was stopped by the highway patrol for a traffic offense.  The cops charged him with that, but also with a couple of misdemeanor drug offenses.  After he pled guilty to the traffic offense, the prosecutor dismissed the drug offenses.  So P. asked to have the drug charges expunged. After all, they weren't important enough to pursue.

The trial court said 
Sure. Expunge 'em.
The prosecutor appealed.  
The charges may not have been important enough to pursue, but by god P. needs to have them on his permanent record so that they can screw up his life.  
The court of appeals told the prosecutor to pound sand.  It agreed with the trial judge.  
Expunge.! 
Life is good.  P. paid his lawyer and left Ohio.  And the prosecutor said 
This cannot be.  We have to fuck with this guy and make sure he can't get on with life.
So he asked the Ohio Supreme Court to hear an appeal.

P?  He was living in another state.  Didn't know the case had been appealed.  Had no real interest in it, anyhow.  And his lawyer?  He'd been paid.  he was done.  The supremes agreed to hear the state's appeal.  Only the state briefed it.  Only the state argued.

ONLY THE STATE WON.

Yet another true story:
After the Supreme Court (US this time) decided Miranda v. Arizona (You have the right to remain silent, etc.), they enacted a statute attempting to overrule it.  For a couple of decades, nobody paid any attention to that statute.  Then a guy named Dickerson robbed a bank.  He confessed to the FBI, but they didn't give him Miranda warnings.  The court threw out his confession.  The court of appeals reversed citing that statute.  Dickerson asked the berobed ones in Washington to hear the case.  They agreed, but they had a problem.  The government wasn't willing to defend the statute.  Dickerson said the statute was worthless.  The government didn't disagree.  

And so the Supremes appointed Paul Cassell (who never met a defendant he didn't hate or a victim he didn't think should be able to be a second prosecutor - and get paid by the defendant for her trouble) to argue that the statute was constitutional and did, in fact, overrule Miranda.  
Because no party to the underlying litigation argued in favor of § 3501's constitutionality in this Court, we invited Professor Paul Cassell to assist our deliberations by arguing in support of the judgment below.
As it happens, Dickerson won (Dickerson v. United States).  3501 returned to the dustbin where it had been languishing.
* * * * *

The distinctions here matter.  

The U.S. Supreme Court, for all its faults, knows that because it resolves only real cases, it needs to hear arguments from both sides.  If the party on one side isn't interested in participating, it will appoint someone to argue that position.  

The Ohio Supreme Court, like the one in Washington, is supposed to hear and resolve only real cases. Unlike the one in Washington, the Ohio Supreme Court doesn't think it's necessary to hear from both sides.  One side doesn't show up?  Lack of interest? Lack of money?  Lack of a good calendar?  Hey, they don't care.  A real case or controversy where there's only one party?  Welcome to Ohio.
* * * * *

And so we come to the case of Jalal T. Sleibi.  

He's a lawyer and he screwed up.  The Board of Commissioners on Grievances and Discipline recommended that his license to practice law be yanked for two years but that he should be on probation for the second of those years.  Sleibi thought that was a reasonable sanctio. The local bar association thought it wasn't enough.  Take his license away indefinitely, they said.

Before they made their argument to the Ohio Supreme Court, they took by agreement with Sleibi's lawyers, the one single, allowed extension of time they could get, an additional 20 days to file. Sleibi's lawyer  miscounted.  He thought he had 20 days to file a response.  Proud of himself, and in violation of most legal practice, he filed early, sent his response by UPS overnight on the 16th day, so that it arrived before 10 a.m. on the 17th.  Three days early.

Ooops.  He actually had 15 days to respond, not 20.  He was late by something like 36 hours.  His response, naturally, was rejected.  Can't file it when it comes in late, after all.

But there's no rule that says he can't ask to participate in oral argument.  Which he did.
Typically, parties failing to file merit briefs are deemed to waive oral argurnent. See S.Ct.Prac.R. 13.04(B)(2). However, there is no rule saying that this Honorable Court may not waive the foregoing rule as there is with seeking extensions of time after the expiration of the prescribed time. In consideration of the general interests of fairness and equity to Respondent Jalal Sleibi as it relates to his license to practice law and ability to support his family, and who personally is not at fault for the untimely submission of his Answer and Brief to Relator's Objections, Respondent's counsel respectfully requests that this Honorable Court extend to Mr. Sleibi the reasonable courtesy, exception and accommodation to permit his counsel to appear at the oral argument (yet to be scheduled) in the instant matter to argue his position in advocating the acceptance of the Board's Amended Findings and to reject the extreme recommended sanction of Relator.
This motion is not made for purposes of delay, harassment or to burden Relator or this Honorable Court, and the granting of the instant motion will not cause any prejudice to any party. This position rests not only on the facts as set forth herein, but also on the proposition that given the nature of these proceedings with exclusive jurisdiction before this Honorable Court, Mr. Sleibi deserves to be afforded the opportunity to be heard and to have this matter decided upon the merits. Again, and while the substance of these proceedings, from an equitable perspective, would all-but-dictate some manner of an opportunity to be heard, counsel, for this same reason, requests that this Honorable Court allow an exception to S.Ct.Prac. R. 13.04(B)(2) and based upon principles of fairness and equity, permit counsel to argue Mr. Sleibi's position relative to those posited in Relator's Brief.
Which seems, when you think about it, pretty fair.  Just give us a chance to be heard.  Which is, after all, about the minimum of due process.

Unless, of course, you happen to be in the Ohio Supreme Court.





------------------
*In a later proceeding, we got the guy's death sentence reversed.  His sentence has been reformed. He'll come before the parole board in October 2038, just before he turns 82.  Of course, there's no reason to think he'll get parole, should he happen to live that long.  But it's a theoretical possibility.

Tuesday, November 11, 2014

Of course. But on the Other Hand, Not.

A lot of people, smart people, savvy people, devoted a lot of time and energy to proving that Roger Keith Coleman was factually innocent, that he didn't actually rape and murder his sister-in-law Wanda McCoy.  They tried to prove it before he was killed by the Commonwealth of Virginia, strapped into the electric chair.  

The case was, frankly, compelling.  And Coleman himself, with his last words, seemed to seal it.
An innocent man is going to be murdered tonight.  When my innocence is proven, I hope America will realize the injustice of the death penalty as all other civilized countries have.
Abolitionists were looking for the incontestably factually innocent guy.  Coleman seemed like a good bet.  There was, even after the execution, testable DNA.  If it wasn't his, and surely it wasn't.  There was litigation.  The press wanted the testing done.  Abolitionists wanted it done.  Virginia didn't want it done.  
My god, it might prove we killed the wrong guy.  Can't let that happen. 
The longer and harder Virginia fought, the more determined Coleman's advocates became.  Until, finally, eventually, Virginia caved.  The DNA was tested.

Turns out Coleman did it.  And he snookered a lot of people.

Which gets me to a point I've made before:  Innocence is tricky.

For one thing, it's damned hard to prove.  Which is why there's still no case of the incontestably, factually innocent person who's been executed.  Lots of candidates, of course.
  • Cameron Todd Willingham, executed for the arson murder of his kids in what almost certainly wasn't arson but was an accidental fire in which they died tragically but not homicidally. 
  • Carlos DeLuna, executed for killing Wanda Jean Vargas Lopez, a murder almost certainly committed by Carlos Hernandez.
  • Ruben Cantu, executed for killing Pedro Gomez during a robbery at which he probably wasn't present.
And that's just a couple from Texas.  There are more from Texas.  And more from your state if your state has done any significant amount of killing.  But you'll note that those cases all have qualifiers before the innocence.  Almost certainly innocent.  Probably wasn't there.  

The identification sucks. The cops lied.  The evidence was planted.  The glove didn't fit.   But none of that proves factual innocence.  It just means that there's no reliable evidence of guilt - or maybe even of a crime in Willingham's case.  Sure, we know the math.  If enough folks are executed, sooner or later there'll be a factually innocent one put to death.  And probably it's already happened a bunch of times.  But . . . .

So, I'm wary.   Yet I tell the stories because they're powerful.  And because there's a fundamental truth in them.  We don't know what the fuck we're doing.

And yet that wariness.  It's dangerous to proclaim innocence and then discover you've been talking about Roger Coleman.  Or, say Timothy Hennis who was sentenced to die for the rape and murder of Kathryn Eastburn and the murders of her two young daughters, then retried and found not guilty by a jury and then later convicted of the original killing. 

That danger, though, requires the ability to own up.

Those who were gulled by Coleman have to admit.  Ditto Hennis.  Which brings me, at last, to Anthony Porter and, especially, Alstory Simon.  

Porter was convicted and sentenced to death for the 1982 murders of Marilyn Green and Jerry Hillard.  He remained on death row until 1999 when the Medill Innocence Project, part of the journalism program at Northwestern University turned up compelling evidence that he was factually innocent.  That evidence consisted largely of Alstory Simon's confession.  

Porter was freed, Simon entered a guilty plea and was sentenced to 37 years.  Of which he served 15. He was freed a week and a half ago when State's Attorney Anita Alvarez concluded that his confession was coerced by lies and trickery and even an actor hired to pretend to have been a witness. And he was represented at his plea by a lawyer hired (or so it is suggested) in order to secure his prompt conviction.  Simon was, Alvarez concluded, probably shouldn't have been convicted.  Framed, so the reporting suggests, by the Innocence Project (not the students, the project's director and investigator) in order to secure Porter's release.  

You can, and should, read Jim Stingl's column about what they did to Simon in the Milwaukee Journal-Sentinel.  And then you should read Scott Greenfield.  And you should be outraged at what was done to Simon in the effort to free Porter.  

Kent Scheidegger, of course, sees this as "the exemplar of [the abolition] movement's bottomless dishonesty."  Because an example always proves the point and can with perfect fairness be universalized.  And because no prosecutor and no government agency every lied and cheated and coerced and did double dealing.  Which is why we can be assured that no innocent person has ever actually ended up convicted of a crime - except of course Simon who was convicted only on evidence trumped up by our side.

There's a couple of points to make here.

First, we don't know the truth about who killed Marilyn Green and Jerry Hillard.  Could Porter have done it?  It's possible.  Could Simon have?  Yeah, could be.  We don't know.  Porter was convicted though there are plenty of hinky things about the case.  He's right-handed.  There's reason to think the shooter was left-handed.  His lawyer slept through at least parts of his trial.  He has an IQ of 51 suggesting that he likely wasn't able to offer much help to his snoozing attorney.  

And, oh yeah, there were a bunch of other suspects the cops didn't bother to investigate.  Including a guy named Alstory Simon.  Who might, after all, have killed those kids.  Because a coerced confession isn't necessarily false.  And it's not like the Medill folks just picked him out of a phone book.  His name was out there from the beginning.  And there's a substantial body of evidence - however improperly obtained - that suggests he's guilty.  But maybe not.

Second, there's pretty compelling evidence that David Protess (who ran the Medill Innocence Project and now runs the Chicago Innocence Project) and his investigator Paul Ciolino pushed the boundries of investigation beyond where they can fairly go and that the prosecution of Simon and exoneration of Porter are both, after a fashion, tainted.

Third, and maybe this is the key point, the proper question now isn't who killed Marilyn Green and Jerry Hillard.  Put all the epistemological and metaphysical issues aside.  Maybe it was Porter.  Maybe it was Simon.  Maybe it was someone else.  It's beyond legal proof now.  Put competent lawyers and a reasonably fair judge on the case and it's hard to imagine a jury finding anyone guilty beyond a reasonable doubt.  {Nancy Grace, of course, would know - and maybe Scheidegger - but they begin with certainty which makes their verdict worthless.)

The proper question, the only one this sordid story leaves for us, is about Portiss and Ciolino.  Did they work to gull an innocent man into confessing so that they could tout Porter's case to the sky (and ultimately have it be a significant part of the motivation behind George Ryan emptying Illinois' death row.  Or did they just go overboard in the effort to prove what they truly believed (rightly or wrongly):  Alstory Simon rather than Anthony Porter killed those teenagers.

Police, we know, have on occasion doctored the evidence.  They did it to Odell Barnes.  There's reason to think they did it to O.J.  Not to take people they thought were innocent and get them convicted.  But to make a weak case stronger or to make a case out of one where it never existed. Because, dammit, they know who the bad guys are and their just helping the evidence along.  (It's the same reason they make shit up at suppression hearings.)  It's inexcusable, but it's understandable.

It's overzealousness.  Greenfield blames what Portess did on passion.  So passionate was he about wanting to free Porter that he railroaded Simon.  I don't think that's exactly right.  The problem wasn't passion - just as it's not with the cops most of the time. The problem was certainty.  He was just so damn sure of what happened that the mechanics of honest proof gave way.

As it does with the cops.

And the prosecutors.

And the judges.

And Kent Scheidegger, by the way.

The correct answer to nearly every legal question is, as nearly every lawyer knows, "It depends."  The great lawyer Irving Younger, in the first issue of the Georgetown Journal of Legal Ethics made the point.
The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, "I beseech you, in the bowels of Christ, think it possible that you may be mistaken." Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers "correct." Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.

And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised.
The danger, as Younger doesn't quite say, is in over reliance on that "conventional certitude."  That's when the nightmare begins and they frame the innocent guy.  Or the guilty one.