Saturday, December 17, 2011

When 15,000 Hours Isn't Enough

15,000 hours.
That's fifteen thousand.  There are 168 hours in a week.  That comes to a bit over 89 weeks.  Not work weeks.  It's 350 of those 40 hour weeks.  No.  89 weeks at 24/7, 89 weeks of 168 hours each.  Or do it differently.  There are 8760 hours in a year.  And then most of a second year.  Non-stop.  Meal breaks? Nope. Sleep? It is to laugh.
15,000 hours.
Of course, it doesn't work that way.
The 15,000 hours have been spread over 15 years.
And they've been put in by a total of 25 lawyers.
Who aren't yet done.
Though they've pretty much cut the heart out of the case.
It was 1983 when Joe Belenchia, the manager of a grocery in Memphis, was shot and killed by someone during a robbery.  A customer identified Erskine Johnson, though he said he wasn't sure.  Someone else said she had been told Johnson was the killer.  Johnson said he was innocent, but the jury didn't buy it.
He went to Tennessee's death row in 1983.
In 1995, Cleary Gottlieb Steen & Hamilton, a white shoe law firm with offices on five continents but that calls home a space next to Zuccotti Park where the partners (who pretty much occupy Wall Street) probably didn't Occupy Wall Street, took on the case pro bono.  They assigned then-senior associate (now partner) David Herrington to the case.  And they worked it, he and the firm.  For 15,000 hours.  And 15 years.
They did the sort of work they can do because 15,000 hours over 15 years is pro bono for them.  They can get 25 lawyers involved at least for bits of work over that 15 years. And they've got the money to hire all the investigators and experts and to jet to the hearings and who knows what all.
And they did.
And they needed to.
Oh, some progress came fairly quickly.  In 1999, after just 14 years on death row, a Tennessee trial judge vacated Johnson's death sentence. Seems police had hidden the fact that they knew he couldn't have also shot a store customer (who lived), but it was the claim that he did shoot the customer that made Johnson  eligible for death.  14 years.  Or maybe 16, since it was 2001 when the Tennessee Supreme Court affirmed that decision.  Or maybe it was 19 years, since it was 2004, before the state abandoned the effort to get him back on the row with a new death sentence. So, yeah, 19 years.  Life to go.
Life is something, of course. But it's still a death sentence, still Death in Prison, albeit with a different mechanism for the death - nature rather than paid killers for the state.  And if you're innocent, as Johnson claimed . . . . 
Here's Julie Triedman for the AmLaw Daily.
Herrington recalls that the Cleary team got its first break while poring over prosecution and police records. Those records, he says, showed that prosecutors had withheld information from Johnson that supported his claims of innocence.
Among other things, Herrington says, the Cleary lawyers turned up testimony from a store customer who had identified a member of the local "Brown Gang," not Johnson, as the gunman, as well as testimony from a teenager who had told police that he saw two members of the Brown Gang changing the license plate on the alleged getaway car just before the robbery occurred. The Cleary lawyers also learned that police knew the car in question had been stolen from the St. Louis airport, and that members of the gang often stole cars there and brought them to Memphis.
. . .
Cleary's work on the case wasn't done. The firm's investigators tracked down a new witness being held in a Kentucky prison who undercut the credibility of the prosecution's key witness at trial. The Kentucky convict—a Brown Gang associate—said that the prosecution witness had close ties to a Brown Gang member who had herself been implicated in the robbery—giving the witness a motive to testify dishonestly.
The trial court said that wasn't good enough.  You had no right to take so long to find compelling evidence that he's innocent.  We don't care.
The court of appeals did care.
So did the Court of Criminal Appeals.
Back to the trial court, which said,
Ho, hum.  Innocent?  Maybe.  But maybe not.  Let him rot.
And so up the case went again.
And on December 9, the Court of Criminal Appeals said they'd had enough.
Conviction vacated.  New trial ordered.
Let me be clear.  I don't know whether Erskine Johnson killed Joe Belenchia, though from what I've read, it seems unlikely.
See, this isn't actually a post about an innocent man on death row.  It isn't a post about Erskine Johnson, either.  Nor about David Herrington and Cleary, etc.
It's a post about 15,000 hours.  Which is more than 89 weeks at 24 hours a day, seven days a week.  More than one and a half years worth of every hour of every day.  350 weeks at 40 hours per.
It's a post about time.
And it's a response to those who say - one trial.  One appeal.  One quick round.  Justice delayed is justice denied.  Kill 'em and get it over with.
It's a response to them.
Because, see, they'd have killed Erskine Johnson.
And it's a response to the State of Ohio that thinks it's appropriate to say that you get one shot at state post-conviction relief and the petition has to be filed within 180 days of the day the transcript is ready for the direct appeal.  Can't get your evidence by then?  That's your problem.  Because we have to get on with it.
Finality, don't you know.
And, by the way, you can get paid up to $500 for investigating and preparing and litigating that petition in Lucas County, though you can get another $500 for the appeal.  So for 15,000 hours, you can make $1,000.  Which is $0.066667 an hour.  Yep, just under 7 cents an hour.  Which is a lot less than your overhead.
But really, there's no excuse for it taking that long.  Just because the cops hid the evidence from you?  You should have found it sooner.  And then done your own investigation.  ASAP.  Sleep?  Meals?  Just assign some of the other lawyers you don't have working for you to do it.  For free, of course.
As I say, this is a post about time.  And about resources.  And about possibility.
Erskine Johnson, if he's innocent, and it sure looks like he is but what do I know, was damn unlucky.  And damn lucky, too.
The first part can happen even without the cops hiding the evidence that they've got the wrong guy.  Witnesses make honest mistakes.  Juries get it wrong.  Under the best of circumstances and when everyone acts properly and with honesty and integrity, that can happen.  Humans are fallible and they can and do screw things up.  (Add malfeasance and dishonesty and convicting the innocent becomes routine.)
But if we can't prevent the bad luck of the innocent being convicted, we can make a serious effort to allow for correction.  Which takes time and resources.  And shouldn't rely on the chance of finding  some guys with offices in South Korea deciding that they'll dump 15,000 hours over fifteen years into a case.  For free.  And the chance of being in a state that has a procedure for litigating actual innocence.
Wait, did I say 15,000 hours?
And counting.
The local prosecutor wants to try Johnson again.


  1. "Which is $15 an[] hour."

    Ummm, isn't it 15 hours per dollar? You can't even hire Chinese child labor for that.

  2. I knew I was fucking up the math. Thank you.

  3. Compare that to the Scott Peterson case in California where one audit showed the state spent $11 million to 'get' Peterson. This included 20,000 hours of time booked by the police ("Sightings of Laci Peterson were not a priority" -- MPD) plus an astonishing 20,000 hours more booked by prosecutors. Yes, that's 20 prosecutors working for 6 months on this one case alone - in which the state produced exactly zero relevant evidence of guilt. And how many more millions were spent by the media airheads to create the appearance of guilt, usually by merely repeating often false 'leaks' from the MPD or prosecutors? If the state was limited to $1,000 total, what could they have done?

    And then there's Phil Spector.

    So much for the notion of a fair trial.

  4. I still can't help but think that the solution for some of this is to make prosecutorial misconduct in capital cases chargeable as conspiracy to commit murder. It might never actually be charged given how frequently misconduct is prosecuted now, but perhaps it'd make a bit of difference - accusations of misconduct seem inside baseball to the general public, accusations of criminal conspiracy not so much.

  5. I don't have a problem with a statute like that, but if it never gets applied (and I think it never would) it becomes a joke rather than a threat.

    There are real remedies available. Courts could actually start taking prosecutorial misconduct seriously. Instead of saying, "Not really," they could say, "Absolutely." And then they could reverse. And they could actually impose sanctions on prosecutors - and on their bosses.

    But they mostly blow off misconduct finding it not really misconduct but maybe "close to the line." And even when they find misconduct, they rarely reverse convictions for it. And even then, they don't punish the prosecutors.

    Sanctions of any sort, when they're not applied, simply encourage more misconduct.