Tuesday, March 29, 2011

A Voice for Innocence

It was probably 10 years ago.  With my co-counsel, I was going to the Mansfield Correctional Institution ("Manci" to the cognoscenti) to visit a client on death row.  We'd been there often enough, that we knew the routine.
At the front desk, you signed in, got your badge, left cigarettes and lighter with the guard manning the desk, went through the metal detector, and waited for your escort before passing through the sally port, getting in the golf cart, and riding to the row.  There you signed in again, passed through several locked doors, and eventually got to see your client in a small room.  You sat on one side of a table, he sat on the other.  You might be dressed like a lawyer.  He would be wearing a jump suit and a belly chain and leg irons that were locked to a bolt buried in the concrete floor.
Except, Manci is a prison and the rules at a prison vary from day to day.
So this one day, the guard at the front desk wouldn't take my cigarettes and lighter and wouldn't give us badges.  Our escort came, we went through the sally port, got on the golf cart, rode to death row, got off, entered the building, passed through the first locked door, and went to sign in.
Guard: Where're your badges?
Me: Guy out front wouldn't give them to us.  Said we didn't need them.  He wouldn't take my cigarettes or lighter, either.
Guard: Shit.  Hang on.
And so we stood around while this guard called the front desk and then waited for the guy with the golf cart to come back and take us back to the sally port and the desk where we got badges and I turned over the smokes and the lighter and then back we went.
Because going to see people at prisons is a real pain in the ass.
Frankly, getting in and out is a pain in the ass even if you're one of the guards.  I was at the Toledo Correctional Institution (ToCI) a couple of weeks ago and was kept waiting for close to an hour before they'd let me go back to see my client.  It was getting close to shift change, and I watched as the guards arrived, in uniform.  They punched the time clock, then went through the metal detector, first taking off their coats and gear belts and all the other crap they had.  They watched as the guy behind the desk pawed through their lunch bins to make sure they weren't bringing in who-knows-what inside that container of apple sauce.  Then  into the sally port and . . . .
Jim Petro used to be the Ohio Attorney General.  Since he's left office (and he'll tell you even while he was in office), he's become an advocate for the innocent accused and convicted.  Not a defense lawyer.  He says that he just can't be someone who'd defend someone he believed was guilty.  Really, what he means is that he could only defend someone he actively believed to be factually innocent.  Still, he's got it down that the system screws up way too often.
And he was on his way to London Correctional (LoCI) to meet Dean Gillispie, who had already served some 18 years of a maximum 50 year sentence arising from sexual assaults he  may not have committed.
As I walked toward the grey steel security stop, I began to empty my pockets.
"Oh, that's okay, sir," the guard said. "We know who you are."
In spite of the fact that I am more private than some politicians, I was pleased that this law enforcement officer remembered my public service.
"Oh, thank you.  How are you?" I said, extending my hand. "I'm Jim Petro."
"Yes sir," the guard responded, shaking my hand. "We were expecting you. Please come this way. I will escort you.
That's from Petro's book, written with his wife, Nancy, False Justice: Eight Myths That Convict the Innocent, and it captures one of the book's strands - a strain of noblesse oblige.  Jim Petro, after all, was one of the elect[ed].  And his election was to be a Republican enforcer.  
He was a member of the Ohio House of Representatives in 1981 when the Senate voted out a death penalty bill.  As a member of the Judiciary Committee, he voted the bill out of committee.  When it came to the floor for a vote, he voted it out again.  He served as Ohio's Attorney General for 8 years, overseeing the state's crime lab, providing direct and indirect support to the state's prosecutors and prison system.  He oversaw the work of habeas counsel and backed efforts to enforce the death penalty he'd helped enact.
Yet Petro developed over the years a wariness about what was happening.  As he tells the story in False Justice, he makes it sound like that wariness came quickly.  The first time someone actually pointed out to him that there might have been a mistake, that an innocent man might have been convicted of a serious offense, he wasted no time and struggled mightily to prove the man's innocence and secure his freedom.
The story, at least from some of those I know who watched it unfold, is more of a public official harassed by the press into finally and grudgingly looking into the case.  But credit where it's due, because nobody much disputes that once he dug in, he saw that he needed to act.  Whether it was political pressure or some innate sense of integrity or just basic decency, Petro did work to free the innocent.
And if he gives that tale a bit of spin - hell, it's his book and his story.
In fact, it's four stories.
There's Clarence Elkins, convicted of two rapes and a murder, none of which he committed.  The DNA proved it, but Elkins was convicted spent years in prison.  There's Michael Green, convicted of a rape he didn't commit.  The DNA proved it, but Green was convicted and spent years in prison.  And there's Roger Dean Gillispie, convicted of a couple of rapes he probably didn't convict.  There's no DNA in his case.  And (spoiler alert), though it was uncertain what would happen at the time the book went to press, a quick search of DRC records the other night reveals what I thought to be true: he's still in prison.
There are, of course, lots of other stories along the way.  But the overarching story is Petro's growing recognition that the system is seriously fucked.  We convict innocent people.  With regularity.  And, by gosh by golly, something must be done.
Petro will never be a criminal defense lawyer, and given his attitudes, we can be grateful.
Many defense attorneys defend people at trial even when they know or assume guilt.  Everyone deserves legal representation in our system, and I am glad that there are those who provide it; however, as a young lawyer, I decided that, for me, it would be difficult, if not impossible, to defend someone I knew to be guilty.  I could, in good conscience, advocate upon his or her behalf to reach a fair punishment.  But this is not the mindset of successful criminal defense attorneys, and so I did not pursue criminal defense work.
But Petro has become a serious advocate for fixing the system.
Hence, the book.
He admits there's nothing new here for people who've studied this stuff.
When Nancy and I looked deeper into wrongful criminal conviction, we discovered that many of our questions had already been answered.
Sure.  The people who've done the research know.  The criminal defense lawyers know.  The poor innocent folks who get charged and convicted of crimes they didn't commit sure as hell know.  Even the judges and prosecutors and legislators know if they're willing to think about it for a bit and then be honest with themselves.
But Petro's probably right that the public doesn't know.  And he's certainly right that major change won't happen without at least public indifference if not support. Because it has to come from the politicians, the legislators and the prosecutors and the elected judges (and those who are appointed) and the governors and the attorneys general.  And they won't do it until they believe that it has no political cost, and that maybe it has some political benefit.
So the word has to get out.
And False Justice is a good step toward that happening.  It's simple and straightforward and clear.  And it gives lots of anecdotes and enough hard data to make the point. And it's written with some passion.
So, the Eight Myths.
  1. Everyone in prison claims innocence.
  2. Our system almost never convicts an innocent person.
  3. Only guilty people confess.
  4. Wrongful convictions are the result of innocent human error.
  5. An eyewitness is the best evidence.
  6. Conviction errors get corrected on appeal.
  7. It dishonors the victim to question a conviction.
  8. If the justice system has problems, the pros will fix them.
Of course, that's not exactly the list I'd come up with.  Let's see (and I'll even steal a couple of his), eight myths.
  1. Eyewitnesses don't make mistakes.
  2. Cops really can tell when someone's lying.
  3. Innocent people don't confess.
  4. Police and prosecutors don't jump to conclusions.
  5. Crime lab types and forensic guys and the CSI team and the coroner's are disinterested scientists who follow the evidence wherever it takes them.
  6. Police and prosecutors don't lie and cheat.
  7. Almost nobody is convicted who isn't factually guilty.
  8. If we do, somehow, make a mistake, it will be fixed on appeal.
There's some overlap, of course.  My list is more cynical than Petro's, but he's part of the system and invested in it in a way I'll never be and I'm an outsider and have for a couple of decades now made my living challenging his golfing partners.  And yet everything I said is subsumed in something he said.  The differences are style and emphasis more than substance.
Which is really the point.
False Justice didn't tell me anything much I didn't know.  But then, I'm not the one who has to learn.  For those who do, it's an important book.
A little self-serving maybe, and god knows Petro's sense that he can, at least sometimes, tell who's for sure innocent and who's not (and his conviction that his belief matters) is troublesome.  But Petro's earned some of the right.
Seven or eight years ago, Larry Marshall was speaking at a seminar to a group of capital defense lawyers.  He was explaining how it was that Illinois had (at that time) executed 12 men but exonerated 13 from death row.  And he said that Illinois wasn't unique.  He said, roughly (I don't have a transcript and my notes aren't handy),
We're no different from your state.  We've just put in the effort to prove those guys innocent.
False Justice, which very specifically isn't about the death penalty, though of course it is, goes a long way toward making that point.
Buy a copy and send it to your legislator.  And the editor and publisher of the newspaper.


  1. Yes, visiting people in prison is a pain in the ass. But I was struck by your statement: "We convict innocent people. With regularity."

    Let me be argumentative for a minute. I thought you have said elsewhere that it doesn't matter to you whether a client is innocent or guilty. But now all of a sudden it does.

    So is the conviction of the innocent, which shouldn't matter to you any more than the conviction of the guilty, just an emotional tactic for your abolitionist position?

    You can see how someone might think that, right? Especially people who are prone to being politically manipulative, like judges.

    Now, if you're asking me - which I know you aren't, but humor me - rather than address this with strained arguments about how in the one case you are speaking as a "professional" and in the other you are more like the unwashed, I suggest you reconsider your statements that innocence doesn't matter. You don't really believe it anyway. Nobody does.

  2. Innocence matters to the criminal justice system, of course. It undercuts whatever legitimacy the system has. And it matters, of course, to the wrongly convicted individuals. And it matters (in some cases) to public safety as it can leave guilty and sometimes dangerous people out on the streets.

    And it matters to public perception, which is why it's a useful talking point for abolitionists.

    Innocence matters to criminal defense lawyers, too, at least to experienced ones. When we have it, or have evidence of it, it becomes a practical issue in the case. And we mostly hate representing innocent people.

    All that said, does innocence matter to me in the role of abolitionist? No. It's wrong for the state to execute. Always. It's not more wrong to execute the wrong guy than the right guy. It's still wrong.

    There may be an extra tragedy associated with killing the innocent guy whether by mistake or calculation, and the innocence issue may be a powerful reason that a court or a governor might undo a death sentence, but those are practical considerations. They don't have a thing to do with the fundamental wrong of the state engaging in murder.

  3. Come on, Jeff. You can do better than that. Innocence MAY be an "extra tragedy"?

    Take your time. I get over here often enough.