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The Case For Innocence
by Ronni Mott
Photo by Ronni Mott
January 9, 2008
It was Ron Williamson’s obituary in the Dec. 9, 2004, issue of The New York Times that caught attorney and author John Grisham’s eye.
“It had all the elements of a novel,” Grisham said in an interview with the Jackson Free Press. “The small town Southern feel to it; the small town sport hero going off to make his mark in the major leagues and failing; a grizzly murder; a wrongful conviction; a trip to death row; insanity; a near execution; exoneration; the eventual conviction of the real killer; a lawsuit to recover damages. I could not make that up, and if I did make it up, nobody would believe it. It’s too rich to pass up.”
After 11 years on Oklahoma’s death row, DNA evidence proved that Williamson was not the killer of 21-year-old Debra Carter. He and Dennis Fritz, who a jury in Ada, Okla., also convicted of the crime, walked away free men on April 15, 1999.
But for Ron Williamson, exoneration came too late; he was unable get his life back on track. His long history with drug and alcohol abuse—compounded by bipolar disease, personality disorders and a mild form of schizophrenia, all untreated during his incarceration—had taken their toll. The one-time minor-league baseball hero died of cirrhosis of the liver at age 51 on Dec. 4, 2004, less than five years after his release. At the time of his death, people mistook him for a man 30 years older, his hair prematurely white and his skin sallow around his empty, sunken eyes.
Grisham was so intrigued by the story that he spent 18 months writing his only non-fiction book to date, “The Innocent Man: Murder and Injustice in a Small Town,” which was published in October 2006.
“Non-fiction is brutal,” he said. “I had to hire a full-time research assistant just to plow through all the documents and keep everything straight.”
Hard work aside, it was the process of writing the book and his friendship with Fritz—who received a life sentence in the Carter case, and whom Grisham credits with helping him—that opened his eyes to the problems of death-penalty cases and wrongful convictions.
“I met other wrongfully convicted people, some have been out of prison, some are still in prison,” Grisham said. “It doesn’t take too many conversations with men who are imprisoned and will probably never get out, who are innocent, to kind of flip you, to make you suddenly aware of this problem. That’s what happened to me.”
The book also brought him into contact with the Innocence Project, a non-profit group whose mission is “to free the staggering numbers of innocent people who remain incarcerated and to bring substantive reform to the system responsible for their unjust imprisonment,” according to their Web site. The project’s main weapon, DNA evidence, has been instrumental in exonerating 208 wrongfully convicted defendants since 1992, including 15 on death row. These people had an average of 12 years of their lives wasted in prison.
The state of Mississippi has exonerated only one such prisoner. Cedric Willis spent three years in jail waiting for his first trial, and nine years in Parchman for a crime he did not commit. When the state sent him home on March 6, 2006, Willis had received no education, no help to adjust to life outside of prison—where he had spent his entire adult life since his arrest at age 19—and no restitution.
“People’s lives have been totally wrecked,” Willis told the JFP in 2006. “I can’t get back the time they took from me. Some of my loved ones have passed away while I was inside. My son has grown up, and I didn’t get to see it. Money would help me a great deal.”
“The amazing thing about Cedric’s case is that they (police and prosecutors) knew he was innocent before they tried him,” said Emily Maw, director of the New Orleans Innocence Project, who helped Willis with his appeal. Hinds County Judge Tomie Green agreed when she exonerated Willis.
Willis currently has a lawsuit pending against the city of Jackson, the Jackson Police Department and four police officers for $36 million for wrongful arrest and prosecution.
Project Mississippi
In January 2007, Grisham and a group of Mississippi lawyers, law professors and retired judges opened their wallets to fund the Mississippi office of the Innocence Project, now headquartered in Oxford. Until then, the Louisiana IP office was also helping with Mississippi cases.
“We just all came together at one time with some other attorneys who were willing to write checks,” Grisham said. “The law school at Ole Miss got on board quickly; the university got behind it.”
In Mississippi, before the Innocence Project can make meaningful strides correcting wrongful prosecutions and convictions, the laws have to change.
“You’ve got to start with the Legislature, and you’ve got to have someone like the Innocence Project as an advocate for change,” Grisham said. “That’s what we are trying to become.”
“There are a couple of problems,” said Tucker Carrington, director of the Mississippi Innocence Project office. “There’s still significant resistance to this kind of legislation in the state. … The outright resistance is, in my opinion, completely meritless. There really is no reason not to do the right thing, and by the right thing I mean, not just helping the clients that we represent, but helping law enforcement. I mean, that’s their job, to lock up the right people. Then, of course, there are the victims, too. They deserve some sort of justice.”
Carrington and Maw are rightly concerned that new laws are enforceable, which means that a solid infrastructure, training and funding go hand-in-hand with the necessary legislation. People entrusted to enforce the laws must have the wherewithal to do their jobs.
The task is daunting. In Mississippi, once a defendant’s trial is over and he—it’s usually a man, a black man—receives a sentence, the deck is stacked against him. Reflecting the state’s long, sad history of racism, Mississippi has no laws on the books requiring courts to preserve evidence, no laws that allow defendants access to post-conviction DNA testing, no laws that require police to record interrogations, and on the slim chance of exoneration, no laws to compensate defendants for the lost years of their lives.
“Your usual sort of exoneration is an eyewitness who’s either mistaken or lying—lying because they have an incentive to lie provided by the state … or crazy,” Maw said. Studies have shown that eyewitness identification, especially cross-racial identification, is unreliable. And often, in an attempt to get evidence, police and prosecutors will cut deals with people willing to identify a perpetrator, thus incenting them to lie. In 77 percent of post-conviction exonerations, mistaken eyewitness identification testimony played a major role, making it the leading cause of wrongful convictions.
“By the time you get to trial, if you have a rape victim and she sits there and points a finger at the guy and says, ‘He raped me,’ that’s very, very powerful stuff. And that’s right about half the time,” Grisham said. “Frankly, especially if it’s a black-on-white rape, the victim is so traumatized—and most of them happen at night—it’s very difficult to make a positive I.D.”
“There’s been a lot of work done on why eyewitness identification is fallible,” Carrington said. That work—scientific research—has to do with our inherent inability to recognize faces with features different from our own. Put bluntly, white people have a harder time distinguishing black features and vice versa. Many jurisdictions across the U.S., though, do not generally accept that as legitimate science, although the evidence has been around for decades.
But racial discrimination still plays a big part in who Mississippi sends to prison and death row. The state provides virtually no funding for indigent defense, the burden of which falls to county governments. Defendants who can’t afford legal representation can wait up to a year for their first meeting with a public defender, who often lacks the resources for even basic investigations, much less the knowledge and muscle needed to mount a capital defense, the ACLU reported recently in “Race & Ethnicity in America: Turning a Blind Eye to Injustice.”
“You can’t always find a lot of good defense lawyers to take the cases because there’s no money,” Grisham said. “So you start off with the lawyer who is maybe not that experienced and not that well paid. A lot of judges refuse to give the defendants access to certain experts. The state may have a fingerprint expert, but the defendant can’t get one—he certainly can’t afford one. The state has the authority to give him one, but it costs a lot of money, so oftentimes that’s denied.”
The state has taken some steps to rectify the problem of inadequate indigent defense. In 2000, the Capital Defense Litigation Act established the Office of Capital Defense Counsel to provide adequate counsel to indigent defendants charged with death-penalty offenses. The office opened in September 2001, and has the resources to take on a maximum of 20 cases a year, representing people at trial and in direct appeals.
“Setting up this office was a good step to see improvements at the trial level,” said André de Gruy, director of the Capital Defense office in Jackson. “…We’re the only state-funded public-defender office in Mississippi.” The state did not provide any lawyers for post-conviction cases prior to 1998, de Gruy said, and they still don’t in non-death-penalty cases. Until the establishment of his office, death-penalty convicted defendants had to defend themselves if they couldn’t afford private representation.
“We know that there are about 80 or so people every year charged with a capital, death-penalty-eligible offense. Probably, about 60 of those are indigent. … I would guess that at least 25 percent to 35 percent of the 60 people facing the death penalty could not be represented by this office even if this office were tripled in size, because of conflicts. This office can’t represent two people charged with the same offense,” de Gruy said. In other words, when there is more than one defendant in a crime, Capital Defense Counsel only can represent one of them.
Regardless, de Gruy’s office simply does not have the resources to defend all of the people eligible for their services. No one knew in 2000 what the numbers would be, but the American Bar Association set a standard for capital-offense representation of three to five cases per year per attorney, with two attorneys on each case. With four lawyers, the office maxes out at 15 to 20 cases. Between the issues of conflict cases and resources, that leaves roughly 60 defendants charged with capital offenses annually at risk of getting thoroughly inadequate representation.
If an indigent defendant isn’t faced with death, instead spending “merely” decades in the penitentiary, the situation is grim. De Gruy estimates that felony cases per year in Mississippi is somewhere around 17,000, with 75 percent to 90 percent of those represented by court-appointed lawyers. Mississippi’s rate of incarceration is 39 percent higher than the national average, and 70 percent of those in prison are African American. The state also leads the nation in disenfranchising felons, recently expanding its list of felonies that would prevent a convicted felon from voting even after his release—unconstitutionally, according to the ACLU, which is challenging the Mississippi ruling in the courts.
“It all goes back to basic constitutional rights to a fair trial,” Grisham said. “These are not fair trials; the field is not level by any means.”
Climbing Over the Obstacles to Justice
Maw and Carrington identified three major areas of concentration for changing Mississippi’s laws. First on the list is enacting legislation requiring courts to preserve evidence—rape kits, blood and other types of biological material—after conviction. Twenty years ago, few anticipated that DNA science would play such a crucial role in proving guilt or innocence. And it would take a crystal ball to foresee what new science will emerge 20 years from now.
“It’s a huge problem,” Grisham said. “There are a lot of guys at Parchman right now who have been there for many years who have claims of innocence that should be pursued, but the evidence is not there. There may have been DNA 20 years ago, but the evidence is gone. Those are hopeless cases. And it’s not just in Mississippi, that’s everywhere.”
Maw mentioned one case where the Supreme Court ordered DNA testing 25 years after the case. “Of course, the evidence had been thrown away,” she said. In another case, a 17-year-old black defendant convicted of raping a white woman in Jackson in 1981 “doesn’t even have a transcript of his trial,” she said. “They (originally) had a rape kit in that case; they could have done testing.”
“Then we had a case where, 35 years after the crime, the clerk of court had preserved the victim’s panties,” in a Louisiana rape case, Maw said. Among the several male samples found, the client’s DNA was not among them. “He’s now free,” she said, after having spent 35 years in prison.
The second area is providing convicts access to post-conviction DNA testing, which may prove innocence in a small percentage of cases—Maw estimated 1 percent. But with tens of thousands of prisoners in Mississippi, such evidence could potentially exonerate hundreds of prisoners. Since Louisiana passed their law in 2001, the state has paid for about 20 tests. The “flood of applications” many cite to bar such laws simply hasn’t happened.
“Most states have passed legislation that allows convicted prisoners to apply for DNA testing if that testing can prove their innocence,” Maw said.
“The reason that you basically need a statute that grants people that right is that everyone in prison is poor. You can’t tiptoe around that point; the people in prison are poor and simply can’t afford a DNA test that’s thousands of dollars. They can’t afford lawyers. So you need a mechanism so that people in prison can either apply for it themselves, or get a lawyer to do a relatively simple application process. (If) the evidence is there and can be tested and could prove that that person is completely innocent, and there’s some doubt as to their conviction, then they should be able to prove their innocence.”
“When you’ve got a defendant who is adamantly claiming that he is innocent and he can prove it with DNA, we ought to be able to run the test and pay for it and make sure,” Grisham said. “But we don’t have that in Mississippi right now, and we need to get that.”
The third area Maw was adamant about is changing the Public Records Act. That act essentially leaves the decision of which police records to make available to the public at the discretion of police, prosecutors and court clerks. Those already convicted have no right in Mississippi to get additional legal representation, and no rights to any police documents whatsoever.
“People just can’t get the documents, because they don’t have access to law enforcement records,” Maw said. Most states allow prisoners access to those records post-conviction, she said, adding: “That’s very important. You can’t put people in prison and then deny them access to the documents that justify their imprisonment. That’s crazy. Usually, those mean nothing, but occasionally, in cases where the police have more evidence (than was used at trial) … or where police may have offered a witness incentives, that stuff is in those files and (prisoners) can’t get hold of them.”
Today, Mississippi also lacks forensic oversight, leaving the door wide open for the introduction of junk science and forensic “experts” without proper certification. The top position, a board-certified medical examiner, is mandated by state law, but the Legislature has failed to fund the position, leaving coroners and district attorneys leeway to shop for autopsy results from “their favorite medical examiners,” reported reason.com in November 2007. Those examiners, such as Steven Hayne, whose testimony the state Supreme Court recently threw out in the case of Tyler Edmonds, inordinately tend to favor the prosecutors, who can afford to pay for their testimony.
“We need a forensic science division independent of the law enforcement agencies,” de Gruy said. Full funding of the crime lab, he feels, is something everyone should be able to agree on. He suggested that the state crime lab and medical examiner be put into a discrete agency and not be part of the Department of Public Safety so that they could set and manage their own budget.
Still, one of the biggest barriers to overcome in Mississippi and much of the Deep South is the perception that wrongful convictions simply aren’t a problem.
“It’s a very hard sell in a lot of jurisdictions,” Grisham said. “A lot of it is race-based. I mean, the white community does not believe it’s a problem. That’s true in a lot of states, not just Mississippi. If you go into the black community, they know. They know someone who has been pushed around, abused or wrongfully convicted. … What we’ve got to do first is convince the people that there’s a problem with the system.”
‘Change Comes So Slowly’
In Noxubee County, Miss., Kennedy Brewer was exonerated of rape and murder based on DNA evidence in 2002, after 15 years on death row. DNA proved that the mildly retarded African American laborer was not the rapist of his girlfriend’s 3-year-old daughter, but prosecutors weren’t finished with him. They simply changed their theory of the crime, saying Kennedy assisted an as-yet-to-be-identified “someone” else, and moved him from death row to the county jail where he has been for five years. They intend to retry him on capital murder charges, but not seek the death penalty; Forest Allgood, the county prosecutor, believes DNA evidence doesn’t prove innocence, The New York Times reported earlier this year.
“Likely as not,” Carrington said, “whoever raped and murdered this little girl is still at large. Both of those things, both locking Kennedy Brewer up and failing to solve the crime, probably would not happen today if there were this kind of legislation on the books.”
Compounding the general lack of knowledge about the problem is the general human resistance to change.
“In many jurisdictions … change comes so slowly. And this (the work of the Innocence Project) has found resistance all over the country—again, it’s not just the Deep South,” Grisham said. “People don’t acknowledge the fact that we do convict innocent people.”
The Innocence Project’s modest legislative goal for 2008 is to fund a bipartisan task force made up of representatives from both sides of the issue: law enforcement and criminal defense attorneys, prosecutors, public defenders, crime lab directors, judges, law professors, victim’s rights advocates and so forth. The idea is to come to a strong agreement about what the laws should say and how the infrastructure will be set up and funded before putting a package of new laws in front of law makers.
“I’m hoping that we can get a DNA bill passed this year,” Carrington said, adding that he would be satisfied to see a solid, working task force moving toward enforceable legislation. There is federal grant money available for states that show a desire to enact laws to prevent wrongful convictions, and such a task force would have minimal costs.
“There is a distinct, identifiable, substantive benefit for law enforcement in this legislation, and there’s a distinct, identifiable, substantive benefit for victims of violent crime,” Carrington said. “There’s nothing worse than being a victim of a violent rape, say, and dealing with that trauma, and working to get over it, and then 10 or 15 years later coming to find out that the person you identified or you thought was the perpetrator and had locked up isn’t the right person. That’s horrible.”
“What happens is that first you have the exonerations—and they’re high profile. Then you have the lawsuits, like Cedric’s. Then you have the settlements, and they can be huge. And then the taxpayers pick up the bill for that. Finally, when people get tired of all the lawsuits and the embarrassment from so many wrongful convictions, then you might bring about change,” Grisham said. “I hope that’s not what it’s going to take in Mississippi, but that’s been the case in many states.”
Interview with John Grisham
The Case For Innocence
by Ronni Mott
Photo by Ronni Mott
January 9, 2008
It was Ron Williamson’s obituary in the Dec. 9, 2004, issue of The New York Times that caught attorney and author John Grisham’s eye.
“It had all the elements of a novel,” Grisham said in an interview with the Jackson Free Press. “The small town Southern feel to it; the small town sport hero going off to make his mark in the major leagues and failing; a grizzly murder; a wrongful conviction; a trip to death row; insanity; a near execution; exoneration; the eventual conviction of the real killer; a lawsuit to recover damages. I could not make that up, and if I did make it up, nobody would believe it. It’s too rich to pass up.”
After 11 years on Oklahoma’s death row, DNA evidence proved that Williamson was not the killer of 21-year-old Debra Carter. He and Dennis Fritz, who a jury in Ada, Okla., also convicted of the crime, walked away free men on April 15, 1999.
But for Ron Williamson, exoneration came too late; he was unable get his life back on track. His long history with drug and alcohol abuse—compounded by bipolar disease, personality disorders and a mild form of schizophrenia, all untreated during his incarceration—had taken their toll. The one-time minor-league baseball hero died of cirrhosis of the liver at age 51 on Dec. 4, 2004, less than five years after his release. At the time of his death, people mistook him for a man 30 years older, his hair prematurely white and his skin sallow around his empty, sunken eyes.
Grisham was so intrigued by the story that he spent 18 months writing his only non-fiction book to date, “The Innocent Man: Murder and Injustice in a Small Town,” which was published in October 2006.
“Non-fiction is brutal,” he said. “I had to hire a full-time research assistant just to plow through all the documents and keep everything straight.”
Hard work aside, it was the process of writing the book and his friendship with Fritz—who received a life sentence in the Carter case, and whom Grisham credits with helping him—that opened his eyes to the problems of death-penalty cases and wrongful convictions.
“I met other wrongfully convicted people, some have been out of prison, some are still in prison,” Grisham said. “It doesn’t take too many conversations with men who are imprisoned and will probably never get out, who are innocent, to kind of flip you, to make you suddenly aware of this problem. That’s what happened to me.”
The book also brought him into contact with the Innocence Project, a non-profit group whose mission is “to free the staggering numbers of innocent people who remain incarcerated and to bring substantive reform to the system responsible for their unjust imprisonment,” according to their Web site. The project’s main weapon, DNA evidence, has been instrumental in exonerating 208 wrongfully convicted defendants since 1992, including 15 on death row. These people had an average of 12 years of their lives wasted in prison.
The state of Mississippi has exonerated only one such prisoner. Cedric Willis spent three years in jail waiting for his first trial, and nine years in Parchman for a crime he did not commit. When the state sent him home on March 6, 2006, Willis had received no education, no help to adjust to life outside of prison—where he had spent his entire adult life since his arrest at age 19—and no restitution.
“People’s lives have been totally wrecked,” Willis told the JFP in 2006. “I can’t get back the time they took from me. Some of my loved ones have passed away while I was inside. My son has grown up, and I didn’t get to see it. Money would help me a great deal.”
“The amazing thing about Cedric’s case is that they (police and prosecutors) knew he was innocent before they tried him,” said Emily Maw, director of the New Orleans Innocence Project, who helped Willis with his appeal. Hinds County Judge Tomie Green agreed when she exonerated Willis.
Willis currently has a lawsuit pending against the city of Jackson, the Jackson Police Department and four police officers for $36 million for wrongful arrest and prosecution.
Project Mississippi
In January 2007, Grisham and a group of Mississippi lawyers, law professors and retired judges opened their wallets to fund the Mississippi office of the Innocence Project, now headquartered in Oxford. Until then, the Louisiana IP office was also helping with Mississippi cases.
“We just all came together at one time with some other attorneys who were willing to write checks,” Grisham said. “The law school at Ole Miss got on board quickly; the university got behind it.”
In Mississippi, before the Innocence Project can make meaningful strides correcting wrongful prosecutions and convictions, the laws have to change.
“You’ve got to start with the Legislature, and you’ve got to have someone like the Innocence Project as an advocate for change,” Grisham said. “That’s what we are trying to become.”
“There are a couple of problems,” said Tucker Carrington, director of the Mississippi Innocence Project office. “There’s still significant resistance to this kind of legislation in the state. … The outright resistance is, in my opinion, completely meritless. There really is no reason not to do the right thing, and by the right thing I mean, not just helping the clients that we represent, but helping law enforcement. I mean, that’s their job, to lock up the right people. Then, of course, there are the victims, too. They deserve some sort of justice.”
Carrington and Maw are rightly concerned that new laws are enforceable, which means that a solid infrastructure, training and funding go hand-in-hand with the necessary legislation. People entrusted to enforce the laws must have the wherewithal to do their jobs.
The task is daunting. In Mississippi, once a defendant’s trial is over and he—it’s usually a man, a black man—receives a sentence, the deck is stacked against him. Reflecting the state’s long, sad history of racism, Mississippi has no laws on the books requiring courts to preserve evidence, no laws that allow defendants access to post-conviction DNA testing, no laws that require police to record interrogations, and on the slim chance of exoneration, no laws to compensate defendants for the lost years of their lives.
“Your usual sort of exoneration is an eyewitness who’s either mistaken or lying—lying because they have an incentive to lie provided by the state … or crazy,” Maw said. Studies have shown that eyewitness identification, especially cross-racial identification, is unreliable. And often, in an attempt to get evidence, police and prosecutors will cut deals with people willing to identify a perpetrator, thus incenting them to lie. In 77 percent of post-conviction exonerations, mistaken eyewitness identification testimony played a major role, making it the leading cause of wrongful convictions.
“By the time you get to trial, if you have a rape victim and she sits there and points a finger at the guy and says, ‘He raped me,’ that’s very, very powerful stuff. And that’s right about half the time,” Grisham said. “Frankly, especially if it’s a black-on-white rape, the victim is so traumatized—and most of them happen at night—it’s very difficult to make a positive I.D.”
“There’s been a lot of work done on why eyewitness identification is fallible,” Carrington said. That work—scientific research—has to do with our inherent inability to recognize faces with features different from our own. Put bluntly, white people have a harder time distinguishing black features and vice versa. Many jurisdictions across the U.S., though, do not generally accept that as legitimate science, although the evidence has been around for decades.
But racial discrimination still plays a big part in who Mississippi sends to prison and death row. The state provides virtually no funding for indigent defense, the burden of which falls to county governments. Defendants who can’t afford legal representation can wait up to a year for their first meeting with a public defender, who often lacks the resources for even basic investigations, much less the knowledge and muscle needed to mount a capital defense, the ACLU reported recently in “Race & Ethnicity in America: Turning a Blind Eye to Injustice.”
“You can’t always find a lot of good defense lawyers to take the cases because there’s no money,” Grisham said. “So you start off with the lawyer who is maybe not that experienced and not that well paid. A lot of judges refuse to give the defendants access to certain experts. The state may have a fingerprint expert, but the defendant can’t get one—he certainly can’t afford one. The state has the authority to give him one, but it costs a lot of money, so oftentimes that’s denied.”
The state has taken some steps to rectify the problem of inadequate indigent defense. In 2000, the Capital Defense Litigation Act established the Office of Capital Defense Counsel to provide adequate counsel to indigent defendants charged with death-penalty offenses. The office opened in September 2001, and has the resources to take on a maximum of 20 cases a year, representing people at trial and in direct appeals.
“Setting up this office was a good step to see improvements at the trial level,” said André de Gruy, director of the Capital Defense office in Jackson. “…We’re the only state-funded public-defender office in Mississippi.” The state did not provide any lawyers for post-conviction cases prior to 1998, de Gruy said, and they still don’t in non-death-penalty cases. Until the establishment of his office, death-penalty convicted defendants had to defend themselves if they couldn’t afford private representation.
“We know that there are about 80 or so people every year charged with a capital, death-penalty-eligible offense. Probably, about 60 of those are indigent. … I would guess that at least 25 percent to 35 percent of the 60 people facing the death penalty could not be represented by this office even if this office were tripled in size, because of conflicts. This office can’t represent two people charged with the same offense,” de Gruy said. In other words, when there is more than one defendant in a crime, Capital Defense Counsel only can represent one of them.
Regardless, de Gruy’s office simply does not have the resources to defend all of the people eligible for their services. No one knew in 2000 what the numbers would be, but the American Bar Association set a standard for capital-offense representation of three to five cases per year per attorney, with two attorneys on each case. With four lawyers, the office maxes out at 15 to 20 cases. Between the issues of conflict cases and resources, that leaves roughly 60 defendants charged with capital offenses annually at risk of getting thoroughly inadequate representation.
If an indigent defendant isn’t faced with death, instead spending “merely” decades in the penitentiary, the situation is grim. De Gruy estimates that felony cases per year in Mississippi is somewhere around 17,000, with 75 percent to 90 percent of those represented by court-appointed lawyers. Mississippi’s rate of incarceration is 39 percent higher than the national average, and 70 percent of those in prison are African American. The state also leads the nation in disenfranchising felons, recently expanding its list of felonies that would prevent a convicted felon from voting even after his release—unconstitutionally, according to the ACLU, which is challenging the Mississippi ruling in the courts.
“It all goes back to basic constitutional rights to a fair trial,” Grisham said. “These are not fair trials; the field is not level by any means.”
Climbing Over the Obstacles to Justice
Maw and Carrington identified three major areas of concentration for changing Mississippi’s laws. First on the list is enacting legislation requiring courts to preserve evidence—rape kits, blood and other types of biological material—after conviction. Twenty years ago, few anticipated that DNA science would play such a crucial role in proving guilt or innocence. And it would take a crystal ball to foresee what new science will emerge 20 years from now.
“It’s a huge problem,” Grisham said. “There are a lot of guys at Parchman right now who have been there for many years who have claims of innocence that should be pursued, but the evidence is not there. There may have been DNA 20 years ago, but the evidence is gone. Those are hopeless cases. And it’s not just in Mississippi, that’s everywhere.”
Maw mentioned one case where the Supreme Court ordered DNA testing 25 years after the case. “Of course, the evidence had been thrown away,” she said. In another case, a 17-year-old black defendant convicted of raping a white woman in Jackson in 1981 “doesn’t even have a transcript of his trial,” she said. “They (originally) had a rape kit in that case; they could have done testing.”
“Then we had a case where, 35 years after the crime, the clerk of court had preserved the victim’s panties,” in a Louisiana rape case, Maw said. Among the several male samples found, the client’s DNA was not among them. “He’s now free,” she said, after having spent 35 years in prison.
The second area is providing convicts access to post-conviction DNA testing, which may prove innocence in a small percentage of cases—Maw estimated 1 percent. But with tens of thousands of prisoners in Mississippi, such evidence could potentially exonerate hundreds of prisoners. Since Louisiana passed their law in 2001, the state has paid for about 20 tests. The “flood of applications” many cite to bar such laws simply hasn’t happened.
“Most states have passed legislation that allows convicted prisoners to apply for DNA testing if that testing can prove their innocence,” Maw said.
“The reason that you basically need a statute that grants people that right is that everyone in prison is poor. You can’t tiptoe around that point; the people in prison are poor and simply can’t afford a DNA test that’s thousands of dollars. They can’t afford lawyers. So you need a mechanism so that people in prison can either apply for it themselves, or get a lawyer to do a relatively simple application process. (If) the evidence is there and can be tested and could prove that that person is completely innocent, and there’s some doubt as to their conviction, then they should be able to prove their innocence.”
“When you’ve got a defendant who is adamantly claiming that he is innocent and he can prove it with DNA, we ought to be able to run the test and pay for it and make sure,” Grisham said. “But we don’t have that in Mississippi right now, and we need to get that.”
The third area Maw was adamant about is changing the Public Records Act. That act essentially leaves the decision of which police records to make available to the public at the discretion of police, prosecutors and court clerks. Those already convicted have no right in Mississippi to get additional legal representation, and no rights to any police documents whatsoever.
“People just can’t get the documents, because they don’t have access to law enforcement records,” Maw said. Most states allow prisoners access to those records post-conviction, she said, adding: “That’s very important. You can’t put people in prison and then deny them access to the documents that justify their imprisonment. That’s crazy. Usually, those mean nothing, but occasionally, in cases where the police have more evidence (than was used at trial) … or where police may have offered a witness incentives, that stuff is in those files and (prisoners) can’t get hold of them.”
Today, Mississippi also lacks forensic oversight, leaving the door wide open for the introduction of junk science and forensic “experts” without proper certification. The top position, a board-certified medical examiner, is mandated by state law, but the Legislature has failed to fund the position, leaving coroners and district attorneys leeway to shop for autopsy results from “their favorite medical examiners,” reported reason.com in November 2007. Those examiners, such as Steven Hayne, whose testimony the state Supreme Court recently threw out in the case of Tyler Edmonds, inordinately tend to favor the prosecutors, who can afford to pay for their testimony.
“We need a forensic science division independent of the law enforcement agencies,” de Gruy said. Full funding of the crime lab, he feels, is something everyone should be able to agree on. He suggested that the state crime lab and medical examiner be put into a discrete agency and not be part of the Department of Public Safety so that they could set and manage their own budget.
Still, one of the biggest barriers to overcome in Mississippi and much of the Deep South is the perception that wrongful convictions simply aren’t a problem.
“It’s a very hard sell in a lot of jurisdictions,” Grisham said. “A lot of it is race-based. I mean, the white community does not believe it’s a problem. That’s true in a lot of states, not just Mississippi. If you go into the black community, they know. They know someone who has been pushed around, abused or wrongfully convicted. … What we’ve got to do first is convince the people that there’s a problem with the system.”
‘Change Comes So Slowly’
In Noxubee County, Miss., Kennedy Brewer was exonerated of rape and murder based on DNA evidence in 2002, after 15 years on death row. DNA proved that the mildly retarded African American laborer was not the rapist of his girlfriend’s 3-year-old daughter, but prosecutors weren’t finished with him. They simply changed their theory of the crime, saying Kennedy assisted an as-yet-to-be-identified “someone” else, and moved him from death row to the county jail where he has been for five years. They intend to retry him on capital murder charges, but not seek the death penalty; Forest Allgood, the county prosecutor, believes DNA evidence doesn’t prove innocence, The New York Times reported earlier this year.
“Likely as not,” Carrington said, “whoever raped and murdered this little girl is still at large. Both of those things, both locking Kennedy Brewer up and failing to solve the crime, probably would not happen today if there were this kind of legislation on the books.”
Compounding the general lack of knowledge about the problem is the general human resistance to change.
“In many jurisdictions … change comes so slowly. And this (the work of the Innocence Project) has found resistance all over the country—again, it’s not just the Deep South,” Grisham said. “People don’t acknowledge the fact that we do convict innocent people.”
The Innocence Project’s modest legislative goal for 2008 is to fund a bipartisan task force made up of representatives from both sides of the issue: law enforcement and criminal defense attorneys, prosecutors, public defenders, crime lab directors, judges, law professors, victim’s rights advocates and so forth. The idea is to come to a strong agreement about what the laws should say and how the infrastructure will be set up and funded before putting a package of new laws in front of law makers.
“I’m hoping that we can get a DNA bill passed this year,” Carrington said, adding that he would be satisfied to see a solid, working task force moving toward enforceable legislation. There is federal grant money available for states that show a desire to enact laws to prevent wrongful convictions, and such a task force would have minimal costs.
“There is a distinct, identifiable, substantive benefit for law enforcement in this legislation, and there’s a distinct, identifiable, substantive benefit for victims of violent crime,” Carrington said. “There’s nothing worse than being a victim of a violent rape, say, and dealing with that trauma, and working to get over it, and then 10 or 15 years later coming to find out that the person you identified or you thought was the perpetrator and had locked up isn’t the right person. That’s horrible.”
“What happens is that first you have the exonerations—and they’re high profile. Then you have the lawsuits, like Cedric’s. Then you have the settlements, and they can be huge. And then the taxpayers pick up the bill for that. Finally, when people get tired of all the lawsuits and the embarrassment from so many wrongful convictions, then you might bring about change,” Grisham said. “I hope that’s not what it’s going to take in Mississippi, but that’s been the case in many states.”
Interview with John Grisham
