I follow the Innocence Project, the Prison Reform Movement, The Marshall Project, ACLU, Amnesty International and numerous other groups dedicated to advocating for justice, for the wrongly convicted, for the unjustly imprisoned, for those suffering abuse and torture, and for fair treatment of the incarcerated.
Before deactivating Facebook, I joined groups of people sharing the stories of friends and loved ones who were accused and/or convicted of crimes they had not committed. They came to social media to share their stories with others who had similar stories, to give and receive tips and advice, to raise money or by some miracle to attract an advocate with clout or knowledge. Most of these cases will not attract the attention of any legal advocate because the cases do not contain the elements that will help to exonerate the person or the charges are not serious enough or charges are ones that do not encourage advocacy. The cases with the greatest urgency, death penalty cases, attract champions. It is the choice with the greatest impact and need – life over death vs. incarcerated life over non-incarcerated life.
The stories are massively oppressive, yet offer a bittersweet ending for the exonerated person and hope for others. Still I often battle a sense of hopelessness. An accused person will have a handicap in convincing authorities to look for the truth after charges are filed; once convicted the person will struggle to interest anyone outside his/her own family and friends to look at the case. For most people it takes years. The climb from conviction to innocence is Everest without equipment.
A lawyer in the documentary An Unreal Dream said that he eventually destroyed his case files and wiped thoughts of cases from his mind (except for his client, Michael Morton. He said that there are just some cases that will not leave you.). That is what the criminal justice system does with convicted people, forgets. The system does not want to revisit decisions. If justice is done, good; if an injustice is done, oh well, it happens.
I recently added the Strangers podcast to my subscriptions. The host and producer of this series is Lea Thau. She is originally from Denmark and during the introductions to several shows she shared the differences she had observed between Americans and life in America with Northern Europeans and life there.
On my drive yesterday, I listened to “Franky Carillo: Life”, a podcast from April 11, 2013. Carillo told the story of his arrest, conviction and exoneration. He was arrested at age 16 and charged with murder and attempted murder for a drive-by shooting. He was convicted on eyewitness identification that was abetted by the police officer who presented the photo array. This is not the first story I have listened to, watched or read about with similar actions by law enforcement. It is one story too many to espouse this as an isolated incident; it seems systemic of law enforcement procedures and performance in eyewitness identification.
The accused will be judged on appearance and demeanor. Everything the person has ever done will be brought up even if those things are not relevant to the charges. In Carillo’s case, he had associated with gang members when he lived in the neighborhood of the murder; although he had never ‘jumped in’. He was a victim of violence, so his father moved the family from the neighborhood long before the murder. Carillo was in a new school and had new friends at the time of his arrest.
When he was arrested, he talked to the police because he was innocent and thought they would believe him. He admits he did not take it seriously because he was innocent. The picture used in the photo array was taken by a sheriff while Carillo was riding bikes with his friends one day. It was not taken because he had been arrested. He let the sheriff take the picture when he asked because he and his friends thought it was funny. It was profiling.
His father was his alibi witness, but by the very fact of that relationship, he lacked credibility. My opinion of credibility is that witnesses for the prosecution are often considered credible no matter what the agenda of the witness, the prosecution or the police may be; while witnesses for the defense are often considered not credible simply by their connection with the accused. It is as if accusation equates with conviction. Carillo’s father died while he was in prison; he never saw his son outside prison walls again.
Carillo continued to believe that those in authority would find the truth, but they were not looking for the truth. At his sentencing, a lawyer comes dramatically into the courtroom and tells the judge he has a witness who wants to testify that Carillo was not the shooter. The judge said it was too late. When is it too late for the truth?
Carillo spoke and sounded like a very well-adjusted person who went from being a boy of 16 living with his father to a man in prison living with sometimes violent adults. He spent 20 years in prison for a crime he did not commit and did not seem bitter. He spoke of life in prison where he drew pictures for inmates to send to their families and wrote letters for them. He reached out to a woman who taught at the prison for help and eventually she interested someone in his case. He had adopted the prison persona of ‘tough guy’ in the beginning, but ultimately he rejected that image and refused gang alliance.
There are too many cases of wrongful convictions to ignore the problems with the criminal justice system. Unfortunately, many people who realize that learn the hard way when someone they know falls victim to errors, incompetence or outright criminal actions. That system includes judges, lawyers for the prosecution and defense, and the police. There are those within the system who have seen those same things and work from within for change and accountability. Many lawyers volunteer their services to work on cases of the wrongfully convicted. Every individual case is also a case against a system; it is not a case in isolation. In the Michael Morton case, his prosecutor who later became a judge was charged with felony contempt. His cases are all under review. How many is that?
What is the percentage of wrongful convictions? In 2006 the late Antonin Scalia quoted .027% while another calculation gave a figure of 4.1%. Figures vary depending on who is calculating and who is relaying the information. I have read articles stating the calculations are overestimated and other articles stating they are underestimated. There may be errors and difference in the data used in calculations. I was reminded of my economics class discussion of the monthly unemployment rates. The professor told us that the rates may not be correct because groups of people might drop from the data used in the calculation. This might happen when unemployment benefits run out, but the person is still unemployed. It might happen when a person is searching through state agencies and gives up the search. There are people who are unemployed and want to work but are not included in the calculations.
The stories we hear of wrongful convictions are mostly about the successful exoneration or the cases that innocence projects work on and publicize. Their work takes years of effort. The stories we do not hear are the ones of people who have no advocate to speak for them. They are the stories of people who have lost hope and resigned themselves to doing the time. They are the stories of people who are afraid to fight. They are the stories of people who have accepted guilt in exchange for an expedient and/or lenient sentence.