[Vision2020] Wayne's Analysis of Criminal Innocence

[Tbertruss at aol.com]

Wayne, Shelley et. al.

In your example of the driving habits of some who reside near where you live, 
you witnessed the alleged wrong doing.  Your certainty that this wrong doing 
occurred is thus at a very high level, unless you are to question the 
reliability of your perceptions or memory, or maybe your speedometer.

You did not witness, as far as I know, the alleged crimes Mubita is charged 
with committing, so the parallel between the dangerous drivers you describe 
with your eye witness accounts, and your knowledge chain regarding the facts of 
the Mubito case, is not exactly analogous. 

Mubito's alleged crimes amount to nothing more than failing to utter certain 
statements mandated by law for those HIV positive who know they are positive, 
in special circumstances, or uttering false statements about ones HIV status 
in the same special circumstances.  You, and apparently many others, believe 
they have enough evidence to feel reasonably certain, before the evidence has 
been presented in a court, that Mubito both knew that he was HIV positive, and 
either kept quiet about this, or deliberately misled one or more of his sexual 
partners, regarding his HIV status.  

Much of this evidence I do not have access to, and reports in the newspapers, 
or police reports, or rumors around the Palouse, are for me only a starting 
point to investigate the truth, especially at this point in my life, after 
observing numerous times the inaccuracies and flat out falsehoods that get into 
print and other media and, yes, falsehoods from law enforcement.  Even my best 
friends recall events we shared with serious inaccuracies!  See book review at 
bottom for more info on how faulty memory impacts guilt or innocence in our 
legal system.

One question I pondered about the Mubito case was whether he received any in 
person face to face counseling regarding his alledged HIV positive status, or 
was he contacted only by phone, e-mail or snail mail to inform him of his HIV 
status?  He may have not received all the proper information regarding what it 
means to be HIV positive.  Also, what are his capacities to understand the 
full implications of what it means to be HIV positive?  But I digress!  I am 
starting to litigate the case on Vision2020.

I agree that the public health issues should be addressed aggressively, 
regardless of Mubito's guilt or innocence.  This can be done with no impediments 
resulting from giving the Mubito case all the time it needs for all the facts to 
be examined and logically assessed for truth or falsehood in our legal 
system.  

The one issue that should immediately concern the public regarding the legal 
issues in the Mubito case is bail, where some harm to the community might 
result from the accused being released, or where the accused may flee.  House 
arrest is another option, as has been discussed.  If someone is carrying a 
potentially lethal virus that they may have been spreading with willful intent, is it 
outrageous to suggest bail should be denied, till the potential risks such an 
individual poses to others is fully assessed?

What I find troubling is why so many people are so quick to need to achieve 
certainty that Mubito is guilty?  I can understand this motivation when someone 
is committing crimes and getting away with them, like the dangerous drivers 
in your example.  But in Mubito's case, he is confined, apparently not able to 
make bail, and of no threat to the public at this time.  

If we trust our legal system, why not respect the very important principle of 
innocent until proven guilty, and let the system do its job?  

There is no doubt that too much discussion of the certain guilt of an accused 
facing charges can hamper the legal system in assuring a fair trial.  
Prosecutors and judges can feel pressure from the public to make decisions based on a 
kind of mob frenzy, rather than the guide of lady justice blindfolded holding 
the scales (fairness) and sword (the power of the legal system).  Unbiased 
jurors can be hard to find when the press and media and even list serves create 
a bias in huge numbers of people regarding a specific criminal case.  
Potential jurors need to state honestly that they can listen to the evidence with an 
open mind in a trial.

If I was a defense lawyer, Wayne, I'd reject you from serving on the jury, if 
there is one, in the Mubito case, absolutely, based on your statements on 
Vision2020.

When the actual details are examined of the numerous criminal cases where it 
has been proved that innocent people have been sentenced as guilty in a court 
of law, many of the complexities are revealed regarding how this can happen 
when so many people are so certain that someone is guilty.

I encourage everyone to read this book review, if not the book itself:

The National Center for Reason and Justice 

[Copyright 2000 Mark Pendergrast. First printed in the Atlanta 
Journal-Constitution and the Philadelphia Inquirer, 27 February 2000. Posted here with 
explicit permission from Mark Pendergrast. 

Book Review 


> Actual Innocence: Five Days To Execution, 
> And Other Dispatches From The Wrongly Convicted. 
> 
> 
by Barry Scheck, Peter Neufeld, & Jim Dwyer. 
Doubleday, 2000. $24.95. 298 pages. ISBN 0-385-49341-X. 

Reviewed by Mark Pendergrast 

Chilling. Disturbing. Terrifying. Appalling. These words describe not only 
the gruesome rapes and murders detailed in this book, but the fate of the 
innocent men who were accused of these crimes, convicted, and ultimately cleared by 
DNA evidence. What emerges from these pages is a chilling, disturbing, 
terrifying, and appalling portrait of the much-touted United States legal system. 
While the accused are supposed to be presumed innocent until proven guilty, it 
appears that the convicted are presumed to be guilty even when proven innocent. 
In case after case, prosecutors and judges have attempted to keep innocent men 
locked behind bars, citing the need for "finality," a word that is all too 
real for those on death row. 

Why? Although it defies common sense, the law of the land was stated by Chief 
Justice William Rehnquist in 1993: "A claim of actual innocence is not itself 
a constitutional claim." Thus, the title of the book, Actual Innocence, is 
ironic. It is a technical legal term used dismissively by many judges. In a 
recently aired Frontline documentary, The Case for Innocence -- which featured 
lawyers and authors Scheck and Neufeld -- filmmaker Ofra Bikel asked Texas Judge 
Sharon Keller whether a man cleared by DNA tests might be innocent. "If you're 
talking about the point of view of actual innocence?" Keller asked, clearly 
startled by the notion. "Oh! Um, I suppose that is a possibility." But that 
wasn't the point for her. Whether the convict was actually innocent was 
irrelevant. 

Scheck, Neufeld, and Dwyer, a Pulitzer Prize-winning investigative 
journalist, offer compelling case histories of men such as Walter Snyder, convicted of 
raping Faye Treatser in Virginia. They document how, once police zero in on a 
suspect, everyone recasts the evidence and their memories to make him match. 
Eyewitness testimony is notoriously fallible, particularly if, as in Snyder's 
case, his picture is first shown to the victim, then she sees only him sitting 
on a bench at the police station. Eventually, though Treatser first passed over 
his picture, she proclaimed herself "100 percent sure" he was her rapist. 

Snyder was convicted in 1986 and sentenced to 45 years in prison. Like many 
innocent men, he refused to take the course for sexual offenders and was 
consequently denied parole. (Ironically, real sex offenders who play the game are 
paroled earlier.) Eventually, despite a string of incompetent or greedy lawyers, 
Snyder got a new DNA test which proved the rape sperm was not his. But in 
Virginia, as in many other states, a convict has only 21 days after his 
conviction to prove his innocence. This had taken seven years. The only option was to 
ask Governor L. Douglas Wilder for a pardon. Despite the support of the state's 
Attorney General Randy Sengel (unusual, since many prosecutors resist DNA 
evidence), Wilder waffled until sympathetic news stories on Snyder's case forced 
Wilder to grant a pardon. 

Actual Innocence is not an easy read emotionally, but it is very clearly 
written, with a strong narrative thrust and interesting historical anecdotes that 
will appeal to lay as well as legal readers. It is gratifying that 64 
convicted men have been cleared by DNA evidence. But that isn't the point. "What 
matters most is not how these people got out of jail but how they got into it," the 
authors observe. In a succinct summary, they tick off the contributing 
factors: "Sometimes eyewitnesses make mistakes. Snitches tell lies. Confessions are 
coerced or fabricated. Racism trumps the truth. Lab tests are rigged. Defense 
lawyers sleep. Prosecutors lie."

Each of these short sentences summarizes a disturbing chapter in the book. 
Jailhouse "snitches" frequently fabricate hearsay confessions in order to 
shorten their own sentences. Police routinely lie and use mind-games to extract 
so-called "confessions" from innocent people. If you are a black man accused of 
raping a white woman, you are in deep, deep trouble not only from overt racism 
but because "they all look the same" to many white witnesses. Before the 
iron-clad DNA tests arrived, junk science ruled the courts, with ambiguous blood 
evidence and bogus hair identification, and such evidence is still used. 
Underpaid public defenders may be overworked idealists, but they can also be 
incompetent and/or uncaring. 

Most disturbing is the callous and sometimes vicious attitude of prosecutors. 
Take the case of Robert Miller, convicted in 1987 of the rape/murders of two 
elderly women in Oklahoma City. Miller was sentenced to two death penalities 
plus 725 years. After Miller's incarceration, the same pattern of rapes of 
elderly women continued, with the same modus operandi, and the guilty man, Ronald 
Lott, was captured. Even though prosecutor Ray Elliott knew about Lott, he 
kept it to himself. The jurors never heard that Lott had admitted to identical 
crimes in the same neighborhood. And even when DNA evidence cleared Miller and 
implicated Lott in the murders, Elliott insisted that Miller must have been 
present. "We're going to give Robert Miller the needle," Elliott gloated. "He's 
just blowfish." The prosecutor summoned Lott and offered him a deal if he would 
implicate Miller, but Lott refused. Today, Ray Elliott is an Oklahoma judge. 

This book documents several cases like this, in which prosecutors, cops, 
pathologists,and others either lief or distorted evidence. But why would they do 
that? Generally, it is because they were truly convinced that this man was 
guilty, and so a little tweaking of the evidence was justified. Once invested in 
this belief system, it became very difficult for them to reverse themselves and 
admit they had incarcerated an innocent man. So they denied it and fought the 
DNA evidence. 

What is to be done about the situation? The authors make specific, workable, 
common-sense suggestions throughout the book, summarizing them in an appendix. 
The most obvious recommendation is to use DNA testing wherever possible, 
within weeks of a crime. And test old evidence. "Hundreds of thousands of rape 
kits from unsolved cases are thrown out or sit in dead storage for years with no 
effort made by the authorities to run DNA tests," they write, "squandering 
opportunities to identify serial offenders and clear the wrongly convicted." 
Other recommendations include videotaping all police interrogations, limiting the 
use of snitches, making crime labs independent of police and prosecutors, 
disallowing junk science, paying court-appointed defenders more, compensating the 
wrongly convicted, and putting a moratorium on the death penalty. 

But until police, prosecutors, and judges are held legally accountable for 
their actions, their near-absolute power will continue to corrupt absolutely. 
They are generally immune from prosecution themselves, and until that changes, 
these travesties of justice are likely to continue, in one form or another. 
"Under the current setup," write the authors, "a prosecutor can't be sued for 
knowingly allowing perjured testimony or for deliberately covering up evidence of 
innocence." 

Scheck and Neufeld run the Innocence Project, specializing in cases where DNA 
can clear the wrongly convicted. But what about innocent people who cannot 
rely on DNA evidence? After a conviction, it is very difficult to win an appeal 
without compelling new evidence. Actual Innocence should be required reading 
for everyone involved in our justice system, but it raises many more questions 
than it answers. 

—Mark Pendergrast is the author of Victims of Memory and, most recently, 
Uncommon Grounds.
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Vision2020 Post by Ted Moffett
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