GIST: "A number of high-profile exonerations have made national headlines this month.
Among November’s exonerations was that of David Morris, a Maryland man whose murder conviction was secured when the prosecutor illegally withheld crucial exculpatory evidence from his defense.
Two weeks after the judge in the Morris case threw out his conviction, on Nov. 17, the Manhattan District Attorney’s office announced that two men convicted of killing Malcolm X in 1966* would be cleared of all charges, due to misconduct by the Federal Bureau of Investigation and the prosecutors in their cases.
And this week, the New York Times reported on the exoneration of the so-called “Groveland Four” who were falsely convicted of rape in 1949. One day later, the Times also reported on the case of Kevin Strickland, freed from prison after serving 43 years for murders he did not commit.
Over the last three decades, there have been 2,891 cases in which someone was released from prison after being sentenced for a crime they did not commit. According to The National Registry of Exonerations the victims of those miscarriages of justice spent more than 25,600 years behind bars, with 11 of them serving four decades or more in jail.
When these cases do elicit any comment, most suggest they are an aberration in the nation’s allegedly reliable criminal justice system. But each exoneration, including the most recent set that have made national headlines, raise both new and long overdue questions about miscarriages of justice, how they can be prevented, and what society owes to the exonerated.
These stories suggest that wrongful convictions are a recurring feature of, not an occasional flaw in, the American criminal justice system.
They are most likely to occur where the crimes are most serious, the public pressures to find the perpetrator are greatest, and the penalties–long prison terms or the death penalty—are most severe.
Yet exonerations, whether highly publicized or not, are only the tip of the iceberg.
Just below the surface are many more miscarriages of justice that have yet to be identified, acknowledged, and undone. Estimates of the number of innocent people in American prisons vary, with the low being 1 percent of the United States prison population, approximately 20,000 people, and the high end being 10 percent or more than 200,000 people.
All too often, the response to such startling numbers and grievous wrongs is complacency or acceptance. They are written off as what the crime correspondent Duncan Campbell has called “genuine accidents.” Or just the price of doing business in a system doing its best to provide fair trials and adequate procedural protections for the accused.
In another indication of such attitudes a recent Gallup Poll found that 78 percent of the respondents believed that there is “some risk that an innocent person will be put to death.” And yet, as the Gallup put it “the death penalty… continues to draw support from a majority of Americans despite widespread doubts about its administration.”
Occasionally the response to wrongful convictions is cruel and callous.
Such cruelty and callousness were displayed in the Supreme Court case of Herrera v. Collins in 1993 by former Supreme Court Chief Justice William Rehnquist.
In this case, Herrera wanted to challenge his death sentence based on evidence of his innocence that surfaced eight years after his conviction.
“Petitioner asserts,” Rehnquist wrote, “that the Eighth and Fourteenth Amendments to the United States Constitution prohibit the execution of a person who is innocent of the crime for which he was convicted. This proposition has an elemental appeal, as would the similar proposition that the Constitution prohibits the imprisonment of one who is innocent of the crime for which he was convicted. After all, the central purpose of any criminal justice is to convict the guilty and free the innocent.”
Yet in a breathtaking denial of Herrera’s actual innocence claim, Rehnquist concluded that “’[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.’ To conclude otherwise would all but paralyze our system for enforcement of the criminal law.”
The sheer number of wrongful convictions as well as the high-profile exonerations that have surfaced this month should not be met by such cruelty or complacency. They should galvanize a top to bottom reform of many of the standard practices in police departments, prosecutors’ offices and courts around the country. And they should raise a concerted national effort to strengthen fail safe methods needed to stop the epidemic of wrongful convictions.
Those efforts should begin with banning testimony by jailhouse snitches, prohibiting the use of deception in interrogations as Oregon did this year, and reforming police lineup and identification practices to require “double-blind” lineups, in which the officer conducting the lineup doesn’t know who the suspect is as Louisiana did in 2018 following the exoneration of Malcolm Alexander, who spent nearly 38 years in prison for a rape he did not commit.
And, as the novelist John Grisham proposed in an August, 2021 Washington Post op ed, reforms should involve “removing the broad immunities that police and prosecutors now enjoy, and holding them accountable for when they engage in misconduct.”
These kinds of reforms are long overdue, but do not go far enough.
They need to be supplemented by state and federal legislation establishing Conviction Integrity Units of the kind now found in only 24 jurisdictions across the country. These units should be set up as independent bodies with authority to supervise every prosecutors’ office. They are needed to try to prevent wrongful convictions before they occur and to correct them when they do.
When states cannot stop these grievous wrongs, governments need to adequately compensate those who are erroneously sent to prison or sentenced to die for crimes they did not commit.
Today exonerees may pursue compensation claims in three ways: suing state actors, lobbying state legislatures to pass private compensation bills, or filing for compensation under a state statute. “The federal government, the District of Columbia, and 37 states have compensation statutes of some form,” according to a report by The Innocence Project, a non-profit working to free the wrongfully convicted.
In each of these systems exonerees bear the burden of action in compensation claims. State laws say only that exonerees “should have an available avenue to seek compensation.” Declaring that exonerees should have an avenue to seek compensation is a far cry from saying that “exonerees must be compensated.”
When exonerees do sue, file statutory claims, or lobby legislators, none of those things leads either to adequate monetary compensation or the kind of social services needed to help exonerees successfully transition to life outside prison.
And in many cases, including Strickland’s, who was released from prison in Missouri after 43 years, they get nothing. State law in Missouri allows for payments only to prisoners who prove their innocence through a specific DNA testing statute. That was not the case for Strickland, or most exonerees across America.
While compensation for the wrongfully convicted can never make up for the injury done to them,we can at least ensure that exonerees get redress quickly and easily. Compensation must be generous, inclusive, and complete.
In the end, Grisham, who spent years working as an attorney before becoming a novelist, got it right when he said that in the United States, “It is infuriating that our criminal justice system is so broken that bogus convictions happen at all. Innocent lives are destroyed. The guilty roam free. And the police and prosecutors are almost never made to answer for their bad behavior.”
Perhaps this month’s highly publicized exonerations will help public officials and citizens to face and fix those facts. More than infuriating, miscarriages of justice within our criminal justice system are ethically unacceptable, and it is up to lawmakers, prosecutors, judges, and the police to do better."'
The entire story can be read at:
"I am innocent, innocent, innocent. I am an innocent man, and something very wrong is taking place tonight."
Leonel Herrera:
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MEMORABLE QUOTE (2):
"Justice Blackmun decried the Court’s refusal to consider Herrera’s petition, bluntly writing in his dissent, “The execution of a person who can show that he is innocent comes perilously close to simple murder."
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MEMORABLE QUOTE (3):
PUBLISHER'S NOTE: I was really moved by a column written by Molly Ivins, the late liberal columnist noted for speaking her mind about her Texas culture, which appeared on the day Leo Herrera was to be executed. "Soon after midnight tonight (May 11) the state of Texas, in your name and mine, will execute Leonel Herrera for killing a cop, He probably didn't do it. The Supreme Court said the probability was so high that her needed a new hearing. This is the same Supreme Court that has been turning down death penalty appeals with the monotony of a stamping machine. But Herrera dies anyway because of a catch-22 so bizarre it makes you wonder if the whole criminal justice system doesn't have a morbid sense of humour. In the meantime, Leonel Herrera dies soon after midnight. Look, a convicted murderer is not someone even a bleeding-heart liberal can work up sympathy for. But all of us have an obligation to leonel Herrera because he is being killed in our name, We are his executioners. No one who has lived in this state long enough can be unaware that the state of Texas has been known to miscarry justice. Nor is there any doubt that had the new evidence presented at Leonel Herrera's trial, he would not have been convicted. The reason we have an obligation to preserve a scumbag like Herrera is because they are legal rights. You may not think that you will ever have to worry about being accused of killing two cops you never even saw. But you do live in Texas. So don't bet too much money on it." Reporter Natalie Smith-Parra wrote an excellent article on Norma Herrera's efforts to save her brother's memory - even though she could not save his life. The sections below contain excerpts from her article, which was published by Justice Denied."
Harold Levy: Publisher: The Selfless Warriors Blog.
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THE CRIME: "(Excerpt): "Last Words from Death Row is a sister’s gift. It is a record of the death of an innocent man, author Norma Herrera’s brother Leo, executed in 1993 by Texas’ legal system.The saga begins in a small south Texas town where Leonel (Leo) Herrera’s family is partners with the local sheriff and his deputies in smuggling large amounts of cocaine into the United States from Mexico. When two deputies are killed, it is Leo who is arrested for the crimes – which he didn’t commit. He is captured and beaten unconscious by 20 officers. When Norma is admitted into the jail with a lawyer, she sees her brotherhand cuffed wrists to ankles, bloody and unconscious. Every officer she passes on the way to Leo’s cell has blood on his knuckles, arms, boots, or clothes. Norma has little medical training, but upon seeing her brother on the concrete floor she administers CPR to save his life. She first has to tilt his head to allow blood to slither out of his mouth. The sheriff finally transports Leo to the hospital emergency room...in a hearse."
CONVICTION: (Excerpt): "And so begins a story of injustice and brutality that the Herrera family suffered, a story so horrific, that few people would believe it could occur in a so-called civilized country. Eventually, Sheriff Marmalejo is arrested and convicted for his role in the drug smugling operation. He is sent to prison in Florida, but none of the considerable assets he acquired from the drug trade are seized.As too often happens in small towns, four members of Leo’s jury are intimately connected to local law enforcement and the two murdered deputies."
PROOF OF HIS INNOCENCE: (Excerpt): "After Leo’s conviction and death sentence, his brother Raul came forward and admitted to the killings. He explains that when he shows up instead of Leo to cut the drugs, Deputy Rucker becomes infuriated. An argment ensues during which Raul shoots Rucker. Raul shoots the second deputy on the way home when he is stopped for speeding. Raul’s son, then nine years old witnesses both murders, and when he is questioned by law enforcement, he tells what he knows. Years later, Raul Jr. writes an affidavit attesting to what he saw: His father shot both men and his Uncle Leo was not present. Several other witnesses also executed affidavits clearing Leo of the murders."
INNOCENCE BE DAMNED: A PERVERSE SUPREME COURT RULING: (Excerpt): "Hours before Leo’s first scheduled execution, a U.S. District Court judge orders a stay so that his writ of habeas corpus’ claim of innocence can be considered. In his order he writes, “...a sense of fairness and due process made it necessary for a state court to listen to Herrera’s evidence of innocence.” The State ofTexas appeals. In overruling the stay and giving the OK for Leo’s execution, the federal Fifth Circuit Court of Appeal writes:“The existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Leo then obtains a stay while he appeals to the U.S.Supreme Court. In February 1993 the U.S. Supreme Court rules against Leo, “Petitioner urges us to hold that this showing of innocence entitles him to relief in this federal habeas proceeding. We hold that it does not.” National Public Radio Commentator Nina Totenberg summed it up: “Innocence is irrelevant.” The Supreme Court’s ruling in Leo’s case is memorialized in Herrera v. Collins (USSC 1993.)"
AN EXTRAORDINARY LAST REQUEST: (Excerpt): "The way is paved for Texas to carry out Leo’s sentence. A series of protests take place on the daysleading up to Leo’s execution scheduled forMay 12, 1993. Celebrities, including actor Danny Glover, attend the protests of an innocent man about to be executed. The final telephone conversation between Leo and his sister and mother is as heart-breaking a page of writing as has been written. Norma agonizes about how to tell their mother that all avenues to save Leo have been exhausted: What do you say? “I’m sorry, Mom. There is nothing left to do.They are going to execute Leo. ”Leo makes a final request to his sister: “My story, remember, I want you to make sure that people know what was done to me and the whole truth. This will be the last thing I will ask of you.”And it is the last thing Norma is able to do for her brother: to tell his story. To save his memory, even though she couldn’t save his life."
THE BOOK: As I have not yet received a copy of "Last Words from Death Row,' I have been able to access excerpts of the book published by Google Books, and the release announcing publication: (I will run a second post after I have had the opportunity to access the entire book). The release tells us that: "If all the court proceedings, including the Supreme Court's decision prior to Leo's execution represent the visible tip of the death penalty iceberg, Last Words from Death Row exposes the enormous human tragedy that resides below the surface. Her questions drive a powerful wedge between the legal process in capital cases and the truth. Why do the guilty go unpunished? When is innocence not enough to free a convicted man? Does Truth not prevail in the American Justice system? Who pays? Who is next?" From what I can tell from the Google Book portions, Norma Herrera, was a very intelligent, articulate human being, who did not let her anger at the justice system, which took her brother's life on a technicality while acknowledging his innocence, get in the way of honouring her commitment to him to truthfully tell his story, after his life had been so unjustly taken. We know from a review of the book published by The Death Penalty Information Center, that Last Words from Death Row: The Walls Unit reveals that, "Norma Herrera recounts the tribulations she and her family suffered as they worked to free her brother, Leonel, from death row in Texas. The book documents court events and press coverage of the case and captures the family’s efforts to assist Leonel prior to his execution in 1993, four months after the U.S. Supreme Court held in Herrera v. Collins that, in the absence of other constitutional violations, new evidence of innocence is no reason for federal courts to order a new trial. Leonel was a decorated war veteran with post-traumatic stress disorder when he was sentenced to death for the murder of two police officers. He was nearly beaten to death after his arrest for the crime. He was quickly sentenced to death by a jury that largely consisted of local police department employees or those closely associated with them. As they fought to prove their client’s innocence, Leonel’s appellate attorneys introduced eyewitness evidence that Leonel’s brother had actually committed the crime and that local police officials were part of an effort to hide the truth. One of Leonel’s attorneys, Robert McGlasson, noted, “Indeed, never in my almost ten years of death penalty practice had I seen such extraordinary evidence demonstrating not just my client’s innocence, but the extreme degree of government involvement in deceit and criminal involvement.”
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THE 'SELFLESS WARRIOR': Norma Herrera's story is starkly different from all of the other 'Selfless Warriors' published thus far in this series: Their herculean efforts to free someone they believe to have been wrongfully convicted - have proven successful (often many years later) albeit with great disruption to their lives. Norma and the members of her family who fought so hard to save his life - had to live with fact that Leo, whose innocence had been acknowledged by the courts, had been executed. Still, Norma did not stop advocating for Leo after the state so unjustly took his life. She honoured her commitment to truthfully his story, and reportedly advocated for his innocence right up to her death on January 14, 2008 at the age of 54.
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COMMENTARY: I prefer to sum up with Norma Herrera's own words from the book - words that stayed with me a long time after I read them:
"I kept and collected the following pictures as the years went by. No matter how many years go by, our loved one will remain in our hearts and prayers. Often people have told me to put closure to this ordeal, however, it is so so hard to forget the atrocious ordeals that happened. The one thing that does console my heart at the time of this writing is that I did fulfil my brother's last request. I love you Leo."
Then, along side a photo of her brother's grave, bearing the inscription 'Leonel Herrera. US Navy. Vietnam, one reads the words: "The final resting place of my brother Leo's ashes. You can now rest manito, for your story has been told."
READING MATERIALS:
Last Words from Death Row; (Nightengale Press);
http://www.prweb.com/releases/2007/04/prweb516564.htm#
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Last words from Death Row: (Google Books):
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Natalie Smith-Parra article;
http://justicedenied.org/issue/issue_39/last_words_jd39.pdf
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Molly Ivins column:
https://news.google.com/newspapers?nid=799&dat=19930512&id=I74dAAAAIBAJ&sjid=vVcEAAAAIBAJ&pg=3501,6542126-------------------------------------------------------
A final word: Many thanks to University of Albany Archivist Jodi Boyle for all of the helpful assistance she provided me with. The University's 'Grenander Department of Special Collections and Archives' is home to the 'Leonel Herrera Collection: 1954-2007 which can be accessed at:
https://archives.albany.edu/description/catalog/apap300
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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;
