OP-ED | Who Is An Exoneree?
After deliberating for nearly 10 months, in late July 2013, the Connecticut Supreme Court issued its opinion in a case called Sean Adams v. Commissioner, which involved a murder from 1996.
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The Court had been asked to decide whether a prosecutor’s failure to correct a key witness’ perjured testimony about any agreement the witness had entered into was sufficient to reverse the conviction. The court found it was. A few days later Michael Dearington, the State’s Attorney for New Haven — now retiring after an illustrious 40-year career — declined to re-prosecute Adams and his three co-defendants, setting them free.
Similarly, in March 2014, Glenn Ford was exonerated by a court in Louisiana and his conviction reversed because, according to prosecutors, there was evidence that Ford “was neither present at, nor a participant in, the robbery and murder.” He was released from the notorious Angola Prison after serving 30 years on death row there — an American record.
These two cases, however, are more than just your average exoneration story: earlier this year, the four Connecticut men were awarded compensation under Connecticut’s exoneration statute, causing outrage, leading the claims commissioner to resign his post. In contrast, Glenn Ford’s family - he has since died of cancer - was denied a meager $330,000 compensation by the State of Louisiana earlier this week, because he didn’t prove that he was factually innocent of the crime, despite the prosecution’s acknowledgment of his lack of involvement in the murder. These incongruent results and the backlash surrounding them have prompted many to ask: just what do we mean by an exoneree?
Who is an exoneree? Should an exoneree be someone who has conclusively and affirmatively proved his factual innocence? Should the definition be broader, including those who prove that they could not have committed the crime, but are unable to prove that someone else did? Or should the definition encompass all those who are wrongly convicted — that is, those who should never have been convicted in the first place, had there been no factual or legal errors?
Richard Leo, professor of law at the University of San Francisco School of Law and nationally renowned expert on false confessions has a critically important new paper out this month exploring exactly that. In his paper, he explores how the innocence network in America has made DNA exonerations synonymous with innocence, separating it from legal innocence.
Lack of biological evidence. Limiting this definition of exoneration or innocence to factual innocence alone is misleading and dangerous. Starting at the beginning, most estimates put the percentage of cases in the justice system that do not have any biological evidence at about 80-90 percent. This means that the vast majority of cases don’t have DNA or other forensic evidence - even the discredited kind - to save and compare later on to other possible suspects. In some cases, the DNA evidence may have been destroyed or lost. Tying innocence exclusively to those cases in which DNA is available is to unfairly restrict the definition of who an innocent person is.
In many cases, convictions are obtained on the backs of questionable informants, who later recant claiming pressure from police and promises of leniency in their own cases. In cases like those, without the happenstance of DNA or a confession by another individual, it is incredibly difficult to prove not only that a person did not commit a crime, but that some other identifiable person did. Such a limited definition of an exoneree would require defendants to prove the existence of a negative, which is nearly impossible to do. To tie exonerations or innocence to such a strict standard is to all but ensure that the vast majority of innocent people will never be able to prove that they are so.
This is why the conversation must shift from referring to exonerees as factually innocent and instead refer to them as wrongly convicted. This broader term not only encompasses those who are factually innocent, but also those who are legally innocent — a critically important second category whose years spent in jail are no less valuable.
The legally innocent are those who, had the justice system worked the way it was supposed to, would never have been convicted in the first place — those who were incarcerated because of the actions of prosecutors, defense lawyers or police, whether wilful or negligent or unintentional.
Compensation for harm. The quality of an individual’s experience in jail does not alter based on whether one is imprisoned because of a factual error or a legal error. Why should our society, when deciding how to compensate those among us whom we have accidentally and wrongly incarcerated, differentiate between those who have the good fortune to be able to affirmatively point to another as the real culprit and those who can “merely” show that they should never have been convicted in the first place? The compensation isn’t an attempt to make up for the type or cause of harm, but rather the fact of the harm itself.
An attempt to amend Connecticut’s compensation statute initially sought to reduce compensation in cases where the conviction was reversed because of official misconduct, but that view seems to have been overriden and the version currently pending in the legislature, is one that seems to take the view advocated in this column. If passed, an individual would be able to receive compensation if he or she is able to prove that:
(2) Such person’s conviction was vacated or reversed and (A) the complaint or information dismissed on grounds of innocence by a court of competent jurisdiction, (B) the complaint or information dismissed on a ground consistent with innocence by a court of competent jurisdiction, or (C) the complaint or information dismissed on a ground citing an act or omission by any officer, agent, employee or official of the state or any political subdivision of the state that contributed to such person’s arrest, prosecution, conviction or incarceration
In other words, when there is no conviction, the presumption of innocence applies and all are innocent, whether legally or factually so. For the sake of the wrongly convicted, it’s time for us to stop acting like there’s a difference.
Tejas Bhatt is a public defender in New Haven. The views in this column are his alone and do not reflect those of the Division of Public Defender Services. Nothing in this column should be construed as legal advice.
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