PASSAGE OF THE DAY: "Five months ago, I quit my own job as a federal prosecutor to found St. Louis County’s version of a conviction integrity unit, which we call the Conviction and Incident Review Unit. In the three months since we’ve started accepting applications, we have received dozens, and it is with a sinking heart that I recognize that we will soon have hundreds. The amount of hours it will take to review and investigate them is staggering, but my team and the prosecutor who heads my office, Wesley Bell, are committed to seeking justice. In a development that may surprise some, I have received nothing but support from the other prosecutors whose offices line the hallway where I sit — or used to sit, before we were all confined to our houses. The vast majority of prosecutors, like the vast majority of police officers, know that the conviction of an innocent man, or a conviction obtained through perversion of the justice system, hurts all of us. On my second day, my next-door office neighbor brought me flowers. And yet, there is a void at the top. The Department of Justice — with one narrow, geographic exception — does not have an entity to investigate wrongful convictions in the federal system. (The U.S. Attorney’s Office for the District of Columbia, which serves as the local prosecutor for Washington, D.C., does have such an office.) Now, is it possible that federal prosecutors are simply more careful, and don’t need a conviction integrity unit because they never wrongfully convict anyone? As a former federal prosecutor, I would love to believe in my own infallibility. (Many of us already do, as the joke goes.) But many or most wrongful convictions are not a result of deliberate misconduct or lack of care or judgment. They are the result of witnesses who lie or who are never found, of defendants who plead guilty out of fear of a long prison sentences, or of missed or misunderstood evidence that only now has come to light because of new technology. In short, they are often visible only with the benefit of time and resources, and they can happen to even the most careful and diligent prosecutors. The federal government should fill this void by creating a conviction review unit within the Department of Justice."
COMMENTARY: "Unjust Convictions Must Become a Justice Department Priority," by Dana Mulhauser, published by The New York Times on May 8, 2020. (Dana Mulhauser is the chief of the conviction and incident review unit at the St. Louis County Prosecuting Attorney’s Office in Missouri. She previously spent eight years as a federal prosecutor.)
PHOTO CAPTION: "Brittany Johnson, at a news conference in downtown St. Louis last year urging the release of her father, Lamar Johnson. Mr. Johnson has been imprisoned since 1995 for a murder, that another man has admitted to, as well as the eye witness having recanted their identification of Johnson."
GIST: In 2003, Greg Elking wrote a letter to his minister. Mr. Elking was the sole witness to a murder nine years before. On the strength of his eyewitness identification, jurors convicted a man named Lamar Johnson of the crime. But it wasn’t true, as Mr. Elking confessed in his anguished letter.
“The reason I’m telling you this now is my conscience. I regret not coming to you or anyone else sooner. I don’t believe it was right thing to do then & more so now.”
The killer had been masked, and Mr. Elking wrote that he had never been able to see his face. When St. Louis police detectives first brought Mr. Elking in front of a lineup, he failed three times to identify Mr. Johnson.
But then a St. Louis police detective pulled Mr. Elking into an elevator. He told him that the police knew that Mr. Johnson was the killer, and that only an identification by Mr. Elking would be enough to put him away. So he walked out of the elevator, sat down with the detective, and shakily signed a statement saying that Mr. Johnson was the killer.
Mr. Johnson is still incarcerated today, 17 years after Mr. Elking recanted, 25 years after another man admitted to committing the same crime in return for a generous plea bargain, and a year after an investigation by the prosecutor’s office revealed other serious constitutional violations, including $4,000 worth of witness payments to Mr. Elking that were not disclosed, and testimony from the same detective who coaxed Mr. Elking to make the identification that Mr. Johnson would have been able to travel six miles round-trip, murder the victim, and be back at a party, all within a mere five minutes.
The Missouri Supreme Court heard arguments last month about whether the prosecuting attorney who convicted him has any mechanism to get that conviction overturned. The lower court has already said no: Whatever the evidence of innocence may be, the prosecutor has no way of asking for the judgment to be reversed. The Missouri Attorney General made the same argument before the justices: that court rules prohibit the prosecutor from seeking a new trial on Mr. Johnson’s behalf decades later.
What the Missouri Supreme Court will do remains a question.
How could this happen? How could an eyewitness recantation, a confession by the true killer, and evidence of perjury and prosecutorial misconduct not be enough to free a man from prison?
The truth is, getting unjust convictions overturned is monumentally difficult work. Courts are deluged with petitions from prisoners pleading their innocence, some legitimate, some attempts to gain release from prison by any means they can find. Those petitions typically go to courthouses in the understaffed rural counties where the prisoners are incarcerated.
How is a court supposed to separate the wheat from the chaff when there is no one to research the claims? Often, the petitions are stamped “denied” within days of receipt.
A number of organizations have stepped in to fill the void. The first and best known is the Innocence Project, which initially focused on innocence that can be proven through DNA testimony. Other nonprofit groups have joined this effort, some of which take on cases involving false eyewitness testimony — like Mr. Elking’s — or discredited theories like arson science or shaken-baby syndrome.
Over the last decade, prosecutors’ offices themselves have stepped in by creating conviction integrity units, which investigate convictions obtained by their own offices. This movement is not a red-state or blue-state phenomenon: a number of the earliest and most active offices were in Texas, and they now exist in a majority of states.
Five months ago, I quit my own job as a federal prosecutor to found St. Louis County’s version of a conviction integrity unit, which we call the Conviction and Incident Review Unit. In the three months since we’ve started accepting applications, we have received dozens, and it is with a sinking heart that I recognize that we will soon have hundreds. The amount of hours it will take to review and investigate them is staggering, but my team and the prosecutor who heads my office, Wesley Bell, are committed to seeking justice.
In a development that may surprise some, I have received nothing but support from the other prosecutors whose offices line the hallway where I sit — or used to sit, before we were all confined to our houses. The vast majority of prosecutors, like the vast majority of police officers, know that the conviction of an innocent man, or a conviction obtained through perversion of the justice system, hurts all of us. On my second day, my next-door office neighbor brought me flowers.
And yet, there is a void at the top. The Department of Justice — with one narrow, geographic exception — does not have an entity to investigate wrongful convictions in the federal system. (The U.S. Attorney’s Office for the District of Columbia, which serves as the local prosecutor for Washington, D.C., does have such an office.)
Now, is it possible that federal prosecutors are simply more careful, and don’t need a conviction integrity unit because they never wrongfully convict anyone? As a former federal prosecutor, I would love to believe in my own infallibility. (Many of us already do, as the joke goes.)
But many or most wrongful convictions are not a result of deliberate misconduct or lack of care or judgment. They are the result of witnesses who lie or who are never found, of defendants who plead guilty out of fear of a long prison sentences, or of missed or misunderstood evidence that only now has come to light because of new technology.
In short, they are often visible only with the benefit of time and resources, and they can happen to even the most careful and diligent prosecutors.
The federal government should fill this void by creating a conviction review unit within the Department of Justice.
The unit should investigate the innocence claims of federal inmates and support those that turn out to be meritorious.
The unit should be staffed with attorneys, yes, but also with investigators and federal agents dedicated to researching the facts underlying these innocence claims.
The unit should also provide legal and investigative support to local prosecutors trying to do the same in their own jurisdictions, a function the Justice Department already fulfills in numerous other law-enforcement contexts.
The unit should be supported by the department’s Bureau of Justice Assistance in sponsoring grants to local conviction integrity units — something that the bureau had supported before reversing course this year.
Like conviction integrity units everywhere, this idea is not a red proposal or a blue proposal. It fits directly in line with the criminal-justice goals of President Trump, who championed the First Step Act, which, among other things, modified sentencing laws, including mandatory minimum sentences for nonviolent drug offenders. And it matches the goals of the presumptive Democratic nominee, Joe Biden, who has promised criminal justice reform.
Wrongful convictions are the most shameful part of our criminal justice system, and we have it within our power to correct them.
In the words of Greg Elking, “I don’t believe it was right thing to do then & more so now.”
The entire commentary can be read at:
https://www.nytimes.com/2020/05/08/opinion/unjust-convictions-justice-department.html
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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