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.


  1. Jeff, Six people saw Porter in the stands sitting next to the victims. Two watched him pull the trigger. No one puts Alstory Simon in that park anywhere near the time of the murder. This isn't a situation where it could go either way. The crusaders not only framed an innocent man, but they released a hardened killer - one who had been arrested for murder in three other cases besides this one.

  2. The problem is 'certainty'. Ugh.

    If the only path to abolition is an epistemological scorched earth all out war - necessarily resulting in incoherence and nihilism - that's the one argument I think I could reject as being more destructive than a maladministered death penalty itself.

    Absolute, pure epistemological certainty is, of course, elusive. Practical epistemological certainty often is elusive as well, but sometimes isn't. Any human institution, in fact any human endeavor or even any human thought that can be described as intelligible can't measure up to the former, but struggling within the latter is the very stuff of this life as far as anyone has been able to determine.

    I know you are very well read, almost certainly better read than I am, but if you have had any familiarity with Hegel and then Kierkegaard's critique of Hegelian excesses you'd probably see dogmatic epistemological skepticism more like I do. And the rest of the world.

    You act every day on the conviction that millions of things are certain enough for you to act and so does everyone else. The nature of the case you ought to be making, it seems to me, is that administering the death penalty requires pure certainty, pretty much unlike anything else.

    Then the problem you have to overcome is why should the death penalty have to meet that standard when, say, constructing a bridge a flaw in which could doom hundreds or thousands of innocent people doesn't have to? Or why should practical certainty be enough to imprison someone as opposed to executing them?

    I don't think "death is different, because we say so" is sufficient, although you have company there. A more principled reason would be a major contribution to the debate, I think.

    For myself, I can't come up with a rational, intellectually consistent basis to claim that death sentences require pure certainty whereas lesser sentences don't. Thus, if pure certainty is required for all the justice system is a hoax and ought to be abolished; but if pure certainty is not required then the abolition position doesn't prevail, to the extent it's based on the inability to achieve pure certainty.

    But maybe you can do better.

    1. You're completely missing the point. This isn't about epistemological certainty, and it isn't about the levels of certainty needed for a proper execution system. Nor is it about whether death is different. (The various SCOTUS opinions asserting the difference of death all describe it as different in kind from other punishments rather than different in degree - we'll kill you simply isn't the same sort of thing as we'll lock you up for some period of time, whether days or months or years or even until you happen to no longer be living; in that way it is different.)

      The point is that certainty, quotidian certainty if you like, leads people to act rashly. Not because they're necessarily wrong, but because they're too damn sure they're right. Obviously we act on everyday knowledge all the time. But the more important the things we do, the more important it is to check our certainty. That's really Irving Younger's point. And I'm certain it's right.

    2. Seems to me I got the point entirely and that you don't want to address the problem, or maybe you just missed my point or don't see it for whatever reason.

      Certainty isn't a problem in and of itself just because it involves an important thing, right? My daughter was born on such and such a date at such and such a time. That's an important thing (at least to me) and I'm quite certain about it, and I can't see that as being much of a problem, or even a problem at all.

      Maybe that's just an annoying way to put it as far as you're concerned. Trouble is you got me thinking about this and I might have some sort of post up soon. It will be my contribution to the abolitionists, and you don't have to thank me.

    3. But you aren't basing consequential actions (at least I don't imagine so) that affect other people's lives in dramatic ways, because you believe her to have been born at 10:15 rather than at 11:20.

    4. Jeff, of course that is a relevant distinction, I was only pointing out that certainty cannot be seen as a problem per se. Sometimes it seems like that's where you and others wind up, and from my point of view being uncertain when certainty is called for can be, and often is, just as destructive as being over-certain.

      I'm thinking along the lines, somewhat murkily at this point, of what might be a more successful line of argument for abolitionists, maybe something to the effect that an adversarial system provides enough certainty to act the vast majority of time, but not enough to administer a death penalty. And that distinguishes the justice system from other areas of endeavor where there's a risk of killing innocent people, like bridge building, because in those situations you don't have the ingredient of one side actually arguing in favor of killing.

      Perhaps the adversarial contest involved in the justice system can be loosely likened to sporting contests, which of course in a less civilized time actually had life and death consequences for the participants (gladiators) but which we have long since abandoned as being inconsistent with civilized behavior.

      Beyond that, ultimately I just don't see the abolitionist position getting anywhere in a court in this or that case as a constitutional matter. There's no reasonable argument to make to a court that the death penalty is cruel and unusual punishment or that it violates due process of law.

      The abundance of wrongful convictions can prompt a good case to take to the population at large for a constitutional amendment to abolish the DP, however, maybe something like I have outlined above.

      But this would require a change in mindset for many in the abolitionist camp, to begin acknowledging that it really does all boil down to innocence or guilt and our ability or inability to determine it in this or that case, not a complete renunciation of the whole enterprise.

      I just don't see a dogmatic, across the board epistemological agnosticism like that ever working aside from how it works now: making executions so long and drawn out, difficult and expensive that there's always a motive not to go there. And the downside of the current approach is fairly dramatic, because it largely discredits the defense bar and criminal defendants generally. In other words, the real price of this approach is paid by the innocent who get caught up in the machinery the abolitionists have successfully gummed up. That can't be acceptable.

  3. Wolfwood (a VA Asst. Commonwealth's Attorney)November 20, 2014 at 10:39 AM

    *Commonwealth* of Virginia

    1. Knew that. Screwed it up. Fixed it now. Thanks.