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Exonerate the Innocent; Incarcerate the Guilty

Photograph Source: 826 PARANORMAL – CC BY 2.0

Three innocent men — Alfred Chestnut, Ransom Watkins and Andrew Stewart – were recently fully exonerated and released from a Maryland prison after spending 36 years in jail for a murder they did not commit.

On Thanksgiving, 1983, the-then teenagers were accused of killing a 14-year-old boy in the hallway of a Baltimore junior high school over his jacket.  The incident was part of what was then known in Baltimore as “clothing murders” because city youth were being attached over sneakers or sports apparel.

When the now-grown men were released, Baltimore States’ Attorney Marilyn Mosby admitted, “These three men were convicted, as children, because of police and prosecutorial misconduct. What the state, my office, did to them is wrong. There is no way we can ever repair the damage done to them. We can’t be scared of that and we must confront it.”

Mosby added, “I want to thank these men from the bottom of my heart for persevering for decades to prove their innocence. They deserve so much more than an apology.” Mosby says she will push for state legislation that would require the state to provide compensation for exonerees.

The unasked – and unanswered – question is what about the police and prosecutor who conspired in the “misconduct” that ended with Chestnut, Watkins and Stewart spending essentially two-thirds of the lives in prison for a crime they did not commit?

***

The role of exoneration takes on greater reality in light of Supreme Court Judge Learned Hand’s remarkable admission in his 1923 decision, United States v Garrison: “Our [criminal] procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.”

The “unreal dream” is, sadly, a very real nightmare.  A 2014 study the National Academy of Sciences, “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,” brings Hand’s nearly century-old insight to the present.  It reports the following:

False convictions, by definition, are unobserved when they occur: If we know that a defendant is innocent, he is not convicted in the first place. They are also extremely difficult to detect after the fact. As a result, the great majority of innocent defendants remain undetected.

Going further, it notes that “in the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to death.” And as to all the rest who have been falsely tried and convicted, most of their cases go unaddressed.

The Innocence Project provides the following alarming statistics as of 2018 exonerations based on DNA information:

+  367 DNA exonerees to date;

+  28 percent of those exonerated were convicted based on false confessions;

+  37 states where exonerations have been won;

+  14 is average number of years served;

+  5,097.5 years is the total of years served;

+  26.5 years is the average age at the time of wrongful conviction;

+  21 of the 367 people exonerated served time on death row;

+ 41 of 367 people exonerated pled guilty to crimes they did not commit.

Looking broader than those exonerated based on DNA information, the National Registry of Exonerations identifies some 90-plus men and a few women who have been exonerated so far this year.  It also reports that since 1983, 2,522 people have been exonerated.  And the Death Penalty Information Center reports that between 1973 and 2018, 164 people have been exonerated from death row.

In a 1998 study, two legal scholars, Richard Leo and Richard Ofshe, argued, “In a criminal justice system whose formal rules are designed to minimize the frequency of unwarranted arrest, unjustified prosecution, and wrongful conviction, police-induced false confessions rank amongst the most fateful of all official errors.”  They go on to remind readers, “police elicit false confessions so frequently that social science researchers, legal scholars, and journalists have discovered and documented numerous case examples in this decade alone.”  The most troubling words are “so frequently.”

***

Among the most famous cases involving the exoneration and prison release of people falsely charged and convicted is the “Central Park Jogger” case.  In a spring night in 1989, a 28-year-old white woman was brutally raped and left in a coma while jogging in Central Park. Moving aggressively, the New York Police Department (NYPD) quickly arrested five teenagers of color – Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana and Korey Wise – who were ultimately tried and convicted of the crime.  Their story has been beautifully told by Ava DuVernay in her four-part series, When They See Us.

As DuVernay shows, the police – led by an African American officer, Eric Reynolds — aggressively interrogated the five for up to 30 hours and got all to confess to taking part in the crime.  The case was prosecuted by Linda Fairstein, head of the sex crimes unit of the Manhattan District Attorney’s office from 1976 until 2002.

Then NYC mayor Ed Koch called the attack the “crime of the century” and future president Donald Trump ran full-page ads in many newspapers that read:

Mayor Koch has stated that hate and rancor should be removed from our hearts. I do not think so. I want to hate these muggers and murderers. They should be forced to suffer … Yes, Mayor Koch, I want to hate these murderers and I always will. … How can our great society tolerate the continued brutalization of its citizens by crazed misfits? Criminals must be told that their CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS!

Trump called for the five to get the death penalty.

In 2002, convicted rapist and murder, Mathias Reyes, admitted to the attack of the jogger and DNA evidence confirmed that he was the rapist. The convictions of the Central Park Five were vacated.  To this day, Reynolds and Fairstein continue to claim that Reyes didn’t act alone and, in all likelihood, acted with some or all of the Central Park Five.  More troubling, Trump continues to refuse to apologize for his ad and acknowledge the men’s innocents.

The U.S. “justice” system, first and foremost, protects police and prosecutors.  The Supreme Court has held that while cops have only limited immunity from lawsuits, prosecutors enjoy what’s known as absolute immunity for their conduct under most circumstances.  Only in the most extreme cases of abuse — including killings and with bodycam videos as evidence – do police get arrested and prosecuted.  Still less are prosecutors prosecuted for questionable, if not illegal, practices.

In New York, the most scandalous example of misconduct by a NYPD officer involves Detective Louis Scarcella, a once-renowned officer who in recent years has faced numerous allegations of misconduct. He is now retired at full pension.  However, most recently, a Brooklyn Supreme Court Justice ordered the release of Shawn Williams, the 14th conviction based on Scarcella police investigation that’s been overturned.

It’s harder to find incidents in which a prosecutor is prosecuted for misconduct; Fairstein wasn’t.  The Guardian reported on a 2016 case in which a Texas prosecutor, Charles Sebesta, was found guilty of extracting “false confessions and withheld testimony to convict Anthony Graves, who spent 18 years in prison before he was exonerated.”  The Texas supreme court-appointed board of disciplinary appeals said Sebesta’s behavior in the case was “egregious”.

Trump is not alone among today’s leading politicians who has supported questionable arrests and prosecutions.  In 2015, when former presidential candidate Sen. Kamala Harris (D-CA) was California Attorney General, she defended a state prosecutor, Robert Murray, who the Fifth Appellate District, the California Court of Appeal, accused of committing “outrageous government misconduct.” He was found to have falsified a transcript of a defendant’s confession.  In the works of The Observer, he “added two lines of transcript to ‘evidence’” to the defendant confessed that threaten the defendant with charges that carried a term of life in prison.

In admitting to the miscarriage of justice in the case of Chestnut, Watkins and Stewart, States’ Attorney Mosby said she will seek compensation for exonerees. This is an often-overlooked aspect of the legal process, what happens after the exonerated is released.

Maurice Caldwell served 7,494 days — 20-plus years — for second-degree murder that he did not commit.  In 2011, he was released from a California prison after another man confessed to the crime. As The Los Angeles Times reports, “at 43, he was released to the streets of San Francisco with only the prison-issued clothes he wore and a belief that good times were coming.”  For the last eight years, he’s suffered from health problems, PTSD and “the stigma of a conviction that makes it hard to find a job and a place to live.”  There’s justice and then there is justice.

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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