In 2011, Maurice Caldwell came to speak at the Vanguard’s first Dinner and Awards Ceremony. He had just been released from prison after serving nearly 20 years for a crime he did not commit. Not only did the conviction take a huge toll on Mr. Caldwell, but because they caught the wrong person, the real perpetrator was not in custody and ended up killing someone else.
That is the tragedy of wrongful convictions – particularly ones involving prosecutorial misconduct. The rush to convict often leaves vulnerable people in the community at risk from the real offender.
At the same time, spending years in custody takes a toll on everyone. This week I read about the story of William Lopez who spent 23 years in prison for a crime he did not commit.
Mr. Lopez was freed due to the work of Jeffrey Deskovic, himself exonerated in 2006 after spending 16 years in prison for a rape and murder he did not commit. Facing his own inner demons upon release, Deskovic would save himself and others by founding the Jeffrey Deskovic Foundation for Justice, with a mission of freeing others wrongly convicted.
Mr. Lopez was their first success – he was walked out of the Brooklyn Supreme Court in January 2013, a free man.
As the news article reports, “Lopez was convicted in 1990 of shooting and killing a drug dealer in Brighton Beach, Brooklyn, despite a complete lack of credible evidence. The federal judge who released him called his case ‘rotten from day one,’ lambasting prosecutors as ‘overzealous and deceitful,’ and urged the state to apologize.”
However, that was not the end of the story. Notorious Brooklyn DA Charles Hynes refused to drop the charges. Never mind that “the prosecution’s evidence was flimsy to begin with,” as U.S. District Judge Nicholas Garaufis wrote, “and has since been reduced to rubble by facts arising after trial.” When Mr. Hynes was defeated finally, the new DA dropped the appeal, arguing it would be “contrary to the interest of justice.”
Still, Mr. Lopez’s story does not end well. Last month, Mr. Lopez suffered a massive, deadly asthma attack in the middle of the night. The article notes, “Lopez suffered from asthma from the time he was a boy; perhaps it would have taken his life even if he had never gone to prison. But it’s not likely. Even without the trauma of a wrongful conviction, prison is like a debilitating illness; it literally speeds up the aging process.”
It is difficult to read stories like these. We read the celebration, and rightfully so, when these guys are released from prison, as Roeling Adams was last week. He walked out of San Quentin, freed after he spent 28 years in prison for a crime he did not commit.
Adams was wrongfully convicted of a shooting in 1986. He provided an alibi at trial and has always maintained his innocence. In an effort to protect the true culprits, the main prosecution witness testified that Adams was responsible. This witness later recanted and identified the true perpetrators.
“One of the leading causes of wrongful conviction is misidentification,” says Justin Brooks, Director of the California Innocence Project. “I am so pleased that Roeling finally has his freedom after 28 years of wrongful incarceration.”
But later, when the excitement fades, I often hearken back to the movie, Shawshank Redemption, where the film depicts not only life in a prison but also what happened to two inmates upon release. They were older men and never able to adjust to life outside of the prison. One committed suicide, while the other was rescued by the main character from a similar fate.
We hear stories locally like that of Ajay Dev, a case that is on appeal. Based on my research into that case, I have come to believe that Mr. Dev is innocent of the charges. But how long will he stay in prison for a crime he most likely did not commit? He has already been in custody for five years.
Last week, the Yolo County DA’s office announced that it was following the lead of other counties by creating a Conviction Integrity Unit. Those I have spoken to, not just in this county but across the state, who know Yolo County’s reputation are understandably skeptical.
Mr. Reisig stated in the release, “A prosecutor’s role is to ensure that our system achieves justice which includes not only convicting the guilty but also guaranteeing the protection of the innocent. The creation of this Unit helps us to obtain both of these goals.”
As the office explains, “This unit will be headed by an Assistant Chief Deputy District Attorney to review all claims of factual innocence made by persons who have been convicted of crimes.“
The release goes on to explain how the process will work: “The Unit will conduct an initial inquiry to determine whether further review or investigation is necessary. The Unit will review transcripts, evaluate forensic evidence in light of new scientific knowledge, conduct additional forensic tests, interview witnesses, or conduct any other investigation deemed necessary. This Conviction Integrity process supplements the appellate process already available to defendants and is designed to avoid the possibility of an innocent person being punished for a crime they did not commit.”
But those we talked to are concerned that the standard of “actual innocence” may be too high a standard. The DA’s office notes, “The existence of a reasonable doubt does not necessarily result in a conclusion that the defendant is actually innocent, the conclusion must be that there is clear and convincing evidence that there exists a plausible claim of actual innocence in the case.”
The model that we support is Santa Clara’s model, which was created in concert with the the Northern California Innocence Project. Santa Clara DA Jeff Rosen said, “Integrity is central to the Santa Clara County District Attorney’s Office. We will protect defendants’ rights, even as we justly prosecute them. For a prosecutor, the ends never justify the means, we do the right thing, and we do it the right way.”
David Angel, a deputy district attorney, runs the program in Santa Clara and he will be one of the featured speakers when the Vanguard holds its Fourth Annual Dinner and Awards Ceremony on Saturday, November 15, at the Senior Center in Davis.
“The reason it is so important for a District Attorney’s office to have a Conviction Integrity Unit is sometimes there’s mistakes made in the criminal justice system,” Jeff Rosen said in a 2011 interview at the Berkeley Law School. “It’s a system made up of human beings — from police officers to witnesses to prosecutors, defense lawyers, and judges. And sometimes there are mistakes.”
He added, “I think that it’s very important that just because a mistake may have been made five or ten years ago and someone perhaps was wrongfully convicted or received a sentence that they should not have received, we should go back and fix that. So, I think it’s part of having an ethic in the office of sort of continuous quality improvement.”
But for a program like this to work, the office has to be able to admit to making mistakes. Skepticism creeps in with a department that has never acknowledged mistakes.
The problem goes beyond that. What represents evidence of actual innocence? If there is new DNA evidence that points to another suspect, that is one thing. But most new and recent cases are not going to involve new DNA evidence.
So, we have issues like eyewitness identification, failure to turn over exculpatory evidence, and witness recantation. Would any of those meet the test of evidence of actual innocence? On the surface that would seem an extremely high bar and would only be used in cases where there was new physical evidence that pointed toward the guilt of someone else.
On the other hand, the Dev case will likely turn on whether the judge properly admitted evidence involving the alleged victim’s interpretation of a 50-minute pretext call that meandered between English and Nepali, the judge’s failure to properly instruct the jury on the law, and the judge’s refusal to allow potentially exculpatory evidence.
The defense argues that the prosecution relied on three pieces of evidence to convict Mr. Dev: the pretext call, the victim’s allegations, and pornographic evidence “which was used to support the intent elements of the sex-related crimes and two separately charged pornography charges.”
The appeal attacks the legal foundations under which this evidence was admitted by Judge Fall, but none of this is likely to meet the standard established by the DA’s office, even though a close reading shows that a series of errors by Judge Fall ultimately led the jury to reach a guilty verdict.
The bottom line is that we believe that the idea of a Conviction Integrity Unit is a good one. However, if Mr. Reisig wishes for this to be more than just talk, he should consult with the Northern California Innocence Project and others to create real safeguards in his department to protect the integrity of his convictions and to keep innocent people out of prison.
—David M. Greenwald reporting