Because Innocence Isn't Enough

I've got to assume that it's coincidence that I read Gideon's eloquent and agonized take on the presumption of guilt from yesterday pretty much back to back with this morning's article by Jennifer Feehan in the Toledo Blade on Danny Brown.

First, the short version of Gideon's post. (You should read the whole thing.)

The presumption of innocence, a bedrock principle of criminal justice systems the world over for generations, is really not that ambiguous or in doubt. . . .

It’s a catchy phrase: “innocent until proven guilty”. It nicely ties in the other core principles: the burden of proof is on the State; the defendant has a Constitutional right not to testify; each and every element must be proven beyond a reasonable doubt. . . .

It’s all a lie. A big, bold-faced, wool over your eyes lie.

The presumption of innocence is dead, at least in practice. The real presumption, if you must, is that of guilt. Despite the Constitutional and historical directives to the contrary, the defendant “enjoys” a presumption of guilt from the moment of the institution of criminal proceedings.

Every criminal defense lawyer knows he's right. Although most won't admit it publicly, everyone in the system knows he's right.

Once a person's charged (really, once the person is a serious suspect), the person is presumed guilty. You need to start with that to understand. But then you need another piece. Because even when we win, the person is presumed guilty.* The taint remains.

It doesn't matter how we win (or it it's "we" or what's generally thought of as a win). The presumption of guilt remains.

• Charges never brought.
• Charges dismissed by the prosecutor.
• Found not guilty at trial.
• Conviction vacated.
• Exonerated by DNA.
• Something else.

Doesn't matter. In the words of Marvelous Mark Slackmeyer, speaking of Nixon's Attorney General John Mitchell, "GUILTY, GUILTY, GUILTY!!"

One could jump in pretty much anywhere for an example.

• The parents of JonBenet Ramsey?
• Kobe Bryant?
• OJ?
• Ken Lay?
• The latest not guilty in your local paper or on Fox News?

Does Nancy Grace let it go?

None of them is ever fully cleared of the taint of guilt - from the mere presumption. Where there's smoke . . . . Besides, they had slick lawyers or a technicality or lousy prosecutors or witnesses who lied for them or they paid someone off or the jury fucked up. (Who ever reads the retractions in the newspaper, after all?)

And there's Danny Brown.

Back in 1981, Bobbie Russell was brutally raped and murdered. It was a horrible crime, the details of which don't much matter here. Bobbie's son, Jeffery, then 6, saw some of what happened. He testified at trial, believed then, and believes now, that Danny Brown killed his mother. He's wrong. He was wrong then, and he's wrong now.

In 2000, we had the DNA tested. It wasn't Danny's. We asked the judge to grant Danny a new trial. The state wasn't convinced. Anyone can fake DNA, or something. They wanted a polygraph. Danny passed. The state conceded that our motion was meritorious and that Danny's conviction should be vacated. After 19 years in prison, Danny was released, and it was a great day. Then the state dismissed the charges. Why try him again just to get an acquittal. They knew that no jury would convict Danny in the face of two crucial facts: The DNA wasn't his. The DNA was Sherman Preston's.

Did I mention Sherman Preston? Around the time Bobbie Russell was killed back in 1981, there were a lot of brutal killings in Toledo. Sherman Preston was convicted of one of them, a murder similar in many respects to the murder of Bobbie Russell. He's now serving a life sentence. Ironically, although there was other evidence, charges weren't brought against Preston for years - until DNA evidence was tested and made successful prosecution possible.

Once again, the DNA from the Bobbie Russell murder confirms that the killer was Sherman Preston. It wasn't Danny Brown.

But the state won't concede the point. Danny killed her, they say. All day, every day, rain or shine, Danny walks around the county courthouse with a sign proclaiming his innocence, talking to people, arguing the injustice of the system, asking the state to concede the point. But it won't. Jennifer Feehan sets it out.

The sign Brown carries states the facts of his case as he sees them: "13 witnesses. No physical evidence. Lie detector test. DNA. What does it take??"

Mrs. Bates said it certainly takes more. She said she cannot discard the "crucial" testimony provided by the lone witness to the murder - the victim's then-6-year-old son, Jeffrey. The youngster said then and continues to maintain it was Danny Brown who killed his mother. "[Investigator] Tom Ross went out to see him in the last year," Mrs. Bates said. "He's a grown-up now. He has a memory he's never going to forget." Asked if she thinks Brown killed Ms. Russell, Mrs. Bates said yes. "I do," she said. "I don't think little kids lie." Still, Mrs. Bates said, she cannot put her belief before a jury without evidence and testimony that would prove it beyond a reasonable doubt. Much of the evidence linking Brown to the crime is circumstantial - he'd had a casual relationship with Ms. Russell, he'd been to her Birmingham Terrace apartment on several occasions, he could have known where she kept the key.

Got that? Here's the evidence against Danny.

• He knew Russell.
• He'd been to her apartment.
• He might have known where she kept a key.

Any idea how many people might qualify as suspects based on that? I just had a plumber at my home this morning. He knows me. He's been to my home. He might know where there's a key. For his sake, nothing bad better ever happen to me.

But, of course, there's also Jeffery. Back in 1982, during the trial, he testified to things he could not, physically, have seen. But he could, probably did, at least briefly, see the killer. He said it was Danny. Apparently he still thinks so. And Julie believes him because, once again,

I don't think little kids lie.

We can start with that. Kids lie all the time. The mythic story about George Washington and the cherry tree ("I cannot tell a lie") is taught to children both as evidence of how Washington was better than everyone else and to make his honestly exemplum on which children ought to model themselves. The story would be nonsense if kids didn't lie. What she really means is that she doesn't believe kids lie when they say that someone else did something bad.

All accusations from children, therefore, are true. Anyone not convicted is simply evidence that the system doesn't work. It's nonsense. Dangerous nonsense. Again, kids lie. But more, like adults, but even more so they're mistaken.

There's a presumption in Ohio evidence law that anyone over the age of 10 is competent to testify. Children under 1o? Nope. When the question of competence is raised, they may only testify if the court determines that the child knows the difference between lying and telling the truth, understands the obligation to tell the truth, and is capable of accurately receiving impressions so as to be able to know what's true from what's false.

Frankly, satisfying that test to the satisfaction of a judge (and then maybe an appellate court) in Ohio is frighteningly simple. And hearsay from kids doesn't even require that the test be satisfied. But this is about Jeffery, and I'm not claiming he lied. I'm not saying he wasn't capable of telling true from false or even that he wasn't capable of relating what he saw.

Not incompetent, not dishonest, not lying, not depraved. He was just wrong. He made a mistake. It happens to everyone. (See that person on the street you think is your old high school classmate? Ooops. Gee, I'm sorry. I thought you were someone else.)

Don't believe me? Ask Jennifer Thompson-Cannino and Ronald Cotton. They've been there, done that. The difference is that Thompson-Cannino acknowledged - first to herself, then to the world, then to Cotton - that she was wrong. Jeffery hasn't taken that first step. Maybe someday. Maybe not. It's a hell of a tough thing to admit, even to yourself, that you made a mistake about who you saw kill your mother. It's tough to admit that you sent an innocent man to prison for 19 years.

And the mistake, the false impression? It burns into your mind. We all believe, all of us, things about our pasts that are not so. Some half formed memory becomes something else and becomes that of which we are certain.

Friday night, June 11, 1965. I was at Shea Stadium. Mets-Dodgers game. Warren Spahn was pitching for the Mets, Don Drysdale for the Dodgers. Dodgers won 2-1. Both Dodgers runs were on homers by Drysdale. The Mets run was on a homer by Spahn. Incredible. Etched in my memory. I'll never forget it. Except, of course, it didn't happen that way.

Oh, I was at the game, and it was one hell of a game. A real pitching duel between Spahn and Drysdale. And Drysdale did win it with a home run in the 8th. But the Dodgers other run was on a homer by John Roseboro in the 5th. The Mets run, also in the 5th, came when Joe Christopher singled in Johnny Lewis. Spahn went 0 for 3. Helluva game, like I said. As Casey used to say, you could look it up. (I did. I'll save you the trouble. Here's the link.) Close enough to my memory so you can see how the story got better over time. Until . . . . Like I said, I'm mistaken. I know I'm wrong about just how the game unfolded. But I remember it as three homers - two by Drysdale and one by Spahn. It's not a lie to say I remember it that way. And if I hadn't looked it up, I wouldn't know I was wrong.

Anyhow, here's the thing. Danny Brown is innocent. The DNA says it wasn't him, it was Sherman Preston. The polygraph says it wasn't him. The eyewitness made a mistake. It's that simple.

But Danny lives with this cloud over his head because he was charged with a murder. The media's covered the case and explained his innocence. The prosecutor dismissed the charges. But the prosecutor believes he's guilty. The prosecutor won't say that they won't bring charges against him again. In fact, they want to. And it's not a small number of the public who believe the prosecutor. Kids don't lie. If he weren't guilty, he wouldn't be a suspect. Innocence isn't enough.

And so there's that cloud over his head. And he can't just get on with his life. And it's, well, we toss about words like "tragedy" a bit too readily. But it's a really awful thing.

There's unfortunately not all that much about Danny's case that's unusual.

Brown has stacks of newspaper clippings about defendants who were wrongfully convicted. He doesn't think people realize the extent of the problem.
"This is a crazy one, 'DNA clears inmate who dies of cancer.' He died in jail for a crime he didn't commit," Brown said, shaking his head. "This is another one. This is what I'm saying, 'DNA collars one man, frees another after 20 years,' and that's my situation, but it's not freeing me."
He frequently brings up the case of the Duke University lacrosse players who were falsely accused of sexually assaulting a stripper in 2006. Not only were the charges dropped against the young men, but the prosecutor was disbarred for misconduct in the case.
When the charges were dropped, one of the accused players, Reade Seligmann, said the experience had opened his eyes "to a world of injustice I never knew existed. If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can't imagine what they'd do to people who do not have the resources to defend themselves."
Brown said that's the category into which he falls.

That's not exactly right. Danny wasn't really railroaded. But there he is. Day after day.

Because you know, innocence, even when it's proved, doesn't overcome the taint of the presumption, the continuing presumption, of guilt.

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*I'm not even beginning to address, here, the cases of those where the evidence dissolves but convictions remain in place. Cameron Todd Willingham is the obvious recent example.