Tainted Justice: West Memphis Three Freed From 18 Years in Prison Having Proved Their Innocence. Or Did They?

In 1993 Damien Echols, Jessie Misskelly and Jason Baldwin were convicted of first- degree murder in the gruesome, and allegedly satanic,  killings of Steven Branch, Christopher Byers and Michael Moore, three 8 year old cub scouts whose bodies were dumped in Robin Hood Hills. Steven Branch and Michael Moore drowned in 2 feet of water; Christopher Byers bled to death and his genitals were mutilated.

Subsequently,  the Arkansas Supreme Court upheld the convictions and sentences. Echols was on death row; Misskelly and Baldwin were serving life sentences.

On August 19, 2011, the three walked out of jail free and, as they contend, innocent. Innocent, after Baldwin and Echols pled guilty to three counts of first-degree murder and Misskelly pled guilty to one count of first-degree murder and two counts of second-degree murder.

How did the West Memphis Three end up back in court after their sentences were upheld only to have their convictions and sentences vacated and plead guilty, yet claim to be innocent?

As a criminal defense attorney in Minnesota for over 30 years, I have been in this situation. It is uncommon, but not rare. Undoubtedly, after the three had their convictions and sentences affirmed on appeal, they sought “ collateral review” of their cases. Collateral review is where the trial court reviews allegations of constitutional or statutory rights, as opposed to “direct review” where the appeals court reviews claims arising from the trial court.

Keep in mind that the trial courts are where trials are held. That is, prosecutors present evidence to the fact finder. The fact finder can be a judge (as in a court trial) or a jury in a jury trial. Once there is a conviction and a sentence has been imposed, then the defendant may appeal. On appeal, the appellate court does not take testimony or retry the case. The appellate court is an error-correcting court.

On appeal there are different standards of review the court applies. The purpose of these standards is to determine how much deference the appellate court gives to the trial court. In other words, if on appeal a defendant claims the trial court erred in admitting certain testimony, or evidence, the appellate court will apply the abuse of discretion standard. Why? Because the trial court heard the testimony and observed the demeanor of the witnesses. These observations are not in the record-and the appellate court does not take testimony on appeal.

Consequently, the trial court is vested with much discretion in admitting testimony. Therefore, the appellate court will require the complaining party on appeal about admission of evidence to establish the trial court abused its discretion in allowing the evidence.

If there were a collateral review, then the defendants created a record for review by the appellate court once their claims were denied. Apparently, the three claimed that certain errors occurred at trial. Baldwin and Echols claimed that the jury committed misconduct by accessing information about Misskelly’s confession that was not introduced in their trial.

All three alleged that their DNA was not present at the crime scene. On appeal, the Arkansas Supreme Court remanded the case to the trial court for  an evidentiary hearing to determine whether the jurors  committed  misconduct and to determine whether the absen of the defendants’ DNA  at the crime scene raised an issue of their innocence.

It is obvious that the attorneys and the judge met before the hearing to  discuss the purpose of the hearing and what each side intended to prove. Based on these discussions it became apparent to all parties that both sides wanted to avoid a new trial and, potentially, either total vindication or a verdict neither side could accept.

This is how the pleas were crafted. Welcome to North Carolina vs. Alford, a 1970 United States Supreme Court decision that permits a defendant to plead guilty to take advantage of a plea offer while claiming to be innocent. I usually utilize this plea procedure where the evidence is substantial, the defendant doesn’t recall what happened and doesn’t want to go to trial.

The critical language in an Alford plea is that the defendant admit that the prosecution has such evidence that there is a substantial liklihood that if a jury were to hear this evidence, they would convict. But the plea also allows the defendant the right to proclaim he is innocent.

This is what Echols, Misskelly and Baldwin did. They technically admitted they were guilty so the judge could impose a sentence, but then said they are innocent. This plea arrangement allows the prosecution to close this case with convictions. It also allows the defendants to hold their heads high while professing their innocence. But it  deprives the defendants from suing the state for wrongful conviction or any other tortious claim they could make.

And the West Memphis Three are on ten years unsupervised probation. No reporting to any probation officer. The purpose of unsupervised probation is to monitor the file. If any one of them is arrested for a new offense or a violation of probation, then the court will be notified and that probationer could be returned to prison for 21 years. 

This quirk in the law allowed all the parties to save face.

But what about Steven Branch? Christopher Byers? Michael Moore? Did the Alford plea deliver  justice? The prosecution says it did. That is why the prosecution is closing its file. There is(are) no other suspect(s) to prosecute.

And what about the West Memphis Three? How many people can say they pled guilty, were sentenced, but still are innocent? Well, actually, there are many who have been convicted, sentenced and still claim they are innocent. The prisons are bursting at the seams with innocent prisoners. Ask them.

And this is why we have the Innocence Project. It took dedication and a sharp focus on the issues to bring about what is perceived by most as justice.

 

 

Mn. Legislature's Proposed Dept. of Corrections' Budget Cut Delivers One-Two Punch To Chemically Dependent Inmates

Minnesota prisons are not Party City, nor should they be. Instead, inmates are-first and foremost-imprisoned for retribution, then rehabilitation. Unfortunately, the education emphasized is the prison-style Three R’s(Respect, Reputation and Revenge).

So, when an authentic, effective drug treatment program is operating within the prison walls with documented success, it is in every one’s interest to maintain the program. You would think.

The Minnesota Legislature feels differently. As reported in the May 26, 2011, StarTribune, the legislure proposes a 25 percent cut in treatment funds. This, from a program that reduces the recidivism rate by 25 percent!

How important is this program? It serves up to 1,200 inmates per year in a state with 85-90 percent of its inmates chemically dependent. The degree of dependency does not surprise me. As someone who was nurtured on a wide array of drugs in my teen years, from alcohol to hallucinogens to shoot-dope, and then spent 7-8 years in and out of juvenile and adult “corrections” facilities, followed by the last 32 years as a criminal defense attorney, it was common knowledge among inmates the extent to which inmates were addicted.

In fact, it was the inmate who never drank or did drugs that stood out as the exception to the population. Interestingly, I found as I progressed through the county and then state institutions a marked increase in drug abuse. Many times the addiction would overlay and cloud numerous personal issues, including illiteracy and abandonment, as a child and as an adult. 

As Sen.Warren Limmer, R-Maple Grove, chair of the Senate Judiciary and Public Safety Committee, stated in justifying the budget cut proposal,  the priority is having task forces knocking down doors to drug houses to make the communities safer. But who do the drug houses serve? As a criminal defense attorney who handles a large number of drug cases in both state and federal courts, it is extremely rare to find a drug seller or a patron of a drug house who is not chemically dependent.

Focusing on eliminating drug houses while deemphasizing treatment is a disaster in the making. People go to prison because we-the community-want them in prison. And people will receive treatment when we-the community- decide we want them to have treatment. As Dianne Seger, director of chemical dependency services at the Dept. of Corrections, stated, “They’re going to be your neighbor. Do you want them sober, or do you want them doing what they were doing?”

Surely, not all inmates in the program are genuinely interested in treatment. Undoubtedly, some are gaming the system. But at least they positioned themselves to become exposed to a healthy lifestyle alternative. With them, it might work.

But if we support a reduction in funds, we consciously reduce bed space and counselors dedicated to protecting society through drug rehabilitation, one inmate at a time.

Sen. Limmer, is that not an immediate priority?

Transparency in Employment-How Much?

Mpls. Star and Tribune Reporter Dan Browning captured my attention with his May 9, 2011, article  titled  ”Ex-cons make a killing selling coins”. Apparently, the theme of his article is that the precious metals investment industry is rife with unsavory characters who, while selling gold coins , have engaged in unethical practices.

Mr. Browning’s investigation into  this wide-open industry exposes some shortcomings that seem to be typical of most businesses. The article is peppered with such terms and phrases as “convictions,” “criminal records.” Reference to U.S. Rep.A.Weiner, D-N.Y., who has previously introduced legislation to rein in this industry seems plausible.

Transparency is important. But how far does it get us? 

Two days after Mr. Browning’s article appeared, I read in the New York Times the explosive story of billionaire  Raj Rajaratnam, the manager of Galleon Group hedge fund with 7 billion in assets, who was found guilty of numerous counts of fraud. 

What would transparency have told us about Mr. Rajaratnam? That he was a graduate of  the prestigious Warton School at the University of Pennsylvania and  an accomplished invester and trader. How would the investors in his hedge fund been put on notice that he was engaging in unethical practices?

The point is that regulation of an industry does not assure the average consumer that he/she will be insulated from exploitation. But the bigger issue for me is that Mr. Browning takes a broad swipe at one of the most maligned and easily exploited groups in society: convicted felons. Surprisingly, working for one of the most progressive  newspapers in the country,  Mr. Browning defines this group by historical reference to where some had been in life: prison.

How does defining these employees by their past move the discussion forward regarding protecting the public? Maybe  we can protect the public by marginalizing convicted felons and restrict even more their employment. Hell, they don’t need to have lawful, gainful employment. They have a family- children-to provide for? Their street skills should allow for a steady income for the necessities of life.

Unless, of course, we acknowledge that no matter how flawed, these “ex-cons” are like the rest of us. I’d go so far as to say that one major difference between “ex-cons” and others working in many of our loftier professions is that the “ex-cons” have been caught. What was Bernie Madoff’s criminal background before he was brought to justice?

Quite simply, until we move beyond this label of “ex-con,” any dialogue regarding protecting unsuspecting investors and allowing for fair employment is meaningless.

I mean, if this country can look past Pres. Obama’s associations that would have  undoubtedly prevented him from clearing a background check to be an FBI agent, and yet be elected president of the United States, then we can surely look past a felon’s transgressions and allow him/her be a contributing member of society.

Economics Trumps Retribution in Minnesota Prisons

In an Opinion piece contained in the May 19, 2011, Minneapolis Star and Tribune, Hennepin(Minneapolis) County Sheriff Rich Stanek co-authored an article advocating that tough budget times dictate that we consider releasing non-violent offenders from prison and, instead, use some of the $33,000.00 spent on each inmate each year towards rehabilitation in community-based programs.

If escalating costs drive the argument for reducing prison expenses through utilizing community-based programs, so be it. The recognition that citizens simply cannot afford to subsidize this folly of warehousing  non-violent offenders, regardless of the costs-including sheer economics-is way past due.

Non-violent felons is one of the most exploitable groups by politicians who wrap themselves in the mantel of law and order, to say nothing of the fact that this group politically impotent. Yet, repeatedly, most return to their communities and try to regain some semblance of normalcy while struggling with their demons.

If society as a whole is concerned only with costs, then the most efficient and most rewarding means to dealing with this nagging problem in our prisons is to reduce the inmate population by utilizing community-based programs.

Simply put, we can no longer financially afford to subsidize the illusion of security through incarceration. It is a concept that, if not abandoned, will drag down our economy while continuing to prop up a very wobbly and demonstrably inefficient fallacy.

Post Script to Apr.13, 2011, Post regarding Mn. Gov. Dayton's selection for Commissioner of Corrections

Yesterday,  I posted my opinion as to why I believe rehabilitation is not more successful in Minnesota. Although anecdotal and limited to Minnesota, one can extrapolate the consequences of poorly conceived and executed rehabilitation policies nationwide and witness the results.

Today,  I became aware of the Pew Center’s most recent study detailing recidivism rates state-by-state. Guess what? Minnesota has the highest recidivism rate (61%) of all states! And the national rate? 40% of felons return to prison within three years of being released to the streets. These are not statistics to be proud of, especially since so much money has been thrown at the problem.

These numbers are bothersome. But what is really disturbing is a quote from Mr. Jim Reams, a New Hampshire prosecutor, who apparently spoke on behalf of the National District Attorneys Assoc. regarding this study. His remark, partly  paraphrased, allegedly reflects a  common perception that people in prison are choir boys and if they were let out of prison, “all will be well.”

That opinion reflects a naivete certainly not shared by those working in the criminal justice system, or by the population as a whole.

  As a criminal defense attorney in Minnesota for the past 32 years, I have not known the National District Attorneys Assoc. to aggressively support any treatment-based alternatives to incarceration. In fact, I’ll go so far as to say that the prosecutor’s association listens intently to the law enforcement community, and that community strongly supports prison, not probation, for the majority of felons. And to take this a step further, I believe the association supported the implementation of sentencing guidelines that ushered in determinate sentencing. Why would they support determinate sentencing?  To limit the sentencing discretion of judges. What has been the effect of the guidelines in state and federal courts? To shift the power to prosecutors who, based on which crime is charged, can increase or decrease the severity level of the crime and, consequently, the sentence to be imposed.

It is a well-known fact that most of the money pouring into the prison system is for security, not rehabilitation. And the emphasis on most treatment programs is at the front end.  That is, while incarcerated. Relatively speaking, most of the  money is not allocated toward the transitional phase from these programs and back to the community when felons are most vulnerable. Felons need assistance in finding jobs, places to live just like the rest of us.

Until the criminal justice system- as a whole- takes a more realistic approach to grappling with the recurring problems felons encounter upon release from prison, the states’ recidivism rates will continue to remain inexcusably  high.

Treatment-based alternatives to prison and continuity of treatment through the transitional phase from prison to streetside for the majority of felons is sorely lacking. Why is this so difficult to see?

Mn. Governor Dayton steps into the sunlight of rehabilitation with his selection for Commissioner of Corrections

Mn. Gov. Dayton has selected Mr.Tom Roy, a veteran probation and parole officer to head the Mn. Dept. of Corrections. Wow! Finally, someone to lead state corrections who sees beyond retribution and confinement!

Let me share  Minnesota’s flirtation with prisoner rehabilitation. It’s a short chapter in “prison reform.”

In 1970 I sat in the auditorium at Red Wing State Training School for Boys in Red Wing, Mn., listening to Harry Vorath speak glowingly of the salient aspects of positive peer culture (“ppc”) introduced at the instituion. For the next 8-9 months I took part in the group therapy program. Obviously, it didn”t work for me as I was sitting in a prison cell a couple of years later, having been convicted of a commercial burglary.

Did it not work because there was no follow-up once I hit the streets? Once I was released from Red Wing I was on my own, save for periodic contact with a parole officer. However, when I entered St.Cloud Reformatory for Men in St.Cloud, Mn., it was a different story.

At St.Cloud I again took part in a ppc program. This time it was Project Newgate, a college-level program with its initial phase at St.Cloud and subsequent transition to the University of Minnesota Mpls. campus. After nine months in the prison program I was released to campus where I eventually completed my B.A. in political science and then a J.D. from Hamline University School of Law.

While in undergraduate school I participated in the Legal Advocacy Project representing inmates before disciplinary (“due process”) hearings in Stillwater Prison and St.Cloud Reformatory. I also filled the “ex-offender” slot for the Ramsey County (St.Paul, Mn.) Corrections Advisory Board.

It was during this period of time that I became aware of a disturbing trend: the inevitable rollback of funding for community corrections, which directly impacted such programs as Project Newgate that was essential to my surviving after being released from prison and going on to become an attorney.

I watched with increasing frustration as effective community programs appeared before the advisory board pleading for the ever shrinking dollar. From my perspective, the process was complete when the Minnesota legislature encted the Minnesota Sentencing Guidelines that restricted the sentencing judge’s discretion and required application of a presumptive sentence based on severity level of the offense and the defendant’s criminal history score.

Many states, including the federal government, followed suit with their version of “equitable” sentencing policies. With determinate sentences,  there is little an inmate can do to secure an early release from prison. Sure, there has been a tweeking of the system to alleviate overcrowding in our prisons.

Maybe Gov. Dayton, through his commissioner- designate, can undue some of  the damage to our communities heaped upon us by having embraced this myopic and draconian view of “corrections.” If not, then we-as a nation- can continue to enjoy our well-deserved status as the country to lock up more people than any country in the world.

Off to war?

What is our position in Libya? And where is the money coming from to finance our involvement in this non-war?

How about taking the 50 million dollars it costs the United States each day to be in Libya and redirect it to our wars at home? The war on poverty. The war on environmental pollution. The war on crime, and the untold collateral consequences to communities.

What about more aggressive investment in our crumbling infrastructure? Our educational institutions? The homeless?

If we are going to spend money we don’t have, at least spend it where we get the greatest return. In my opinion, investing in our country can never be a mistake. I recall the late 60′s-early 70′s when there were many community-based  corrections programs that worked tirelessly to rehabilitate felons. 

These programs helped make the transition from prison to community easier. It was done through therapy, education and employment. But then the focus shifted from rehabilitation to retribution or, as one judge affectionately referred to it, “just desserts.”

As an ex-felon who had many tours of Minnesota’s juvenile and adult “correctional” institutions, and benefited from participating in a  community-based program that resulted in a pardon and eventually becoming a criminal defense attorney, I hope that we, as a society, can find our way.

Dire economic conditions awaken Ohio Govenor to reality of non-violent offenders

Ohio Gov. Kasich, in an effort to grapple with Ohio’s economy, recently stated  during an interview his plan to release some non-violent offenders early from their prison sentence.

While there may be much to criticize in Kasich’s plan, his early release of non-violent felons is premised on two well-founded observations. First, most non-violent felons are housed with, and exposed to, extemely violent felons. Consequently, these non-violent felons return to society more bitter and frustrated than they were when entering prison.

Secondly, the cost of custodial containment in prison is significantly more expensive than confinement in a community-based program.

In addressing Ohio’s economic plight, Gov. Kasich’s early release of non-violent felons may have a salutory effect on Ohio: early reintegration of some of its citizens who have the opportunity to contribute to the economy and save Ohio.

Jobs for Ex-Offenders

There has been much discussion recently about Chicago Mayor Daley aggressively reaching out to unemployed felons. Wow!

It is indisbutable that most felons return to prison due to an inability to find stable, respectable work. This problem is only compounded by the irrefutable studies confirming what most reasonably intelligent people know: the vast majority of felons return to society.

It is not that Mayor Daley was the most enlightened public servant to recognize this phenomenon. Rather, he simply acknowledged the obvious. Felons, as all of us, are part of the essential fabric of society and recognize their concomitant responsibility to family and community.

And many of them, when given the opportunity, have become rehabilitated and are successful, contributing citizens.  They inspire the rest of us.