Knights In Dirty Armour
In America, when a prosecutor brings charges against an
innocent person, his or her innocence will be uncovered by a
true and honest jury. This is the core belief in our American
Justice system, but it is also one of the biggest myths.
Television and Hollywood images of a jury always vindicating an
innocent person help to perpetuate this myth. It does happen,
but not as often as one might believe. With the exception of
high profile cases reported in the national media, most wrongful
convictions as Janet Reno spoke of in Oklahoma go unnoticed by
the American public. Charles Owens, an Oklahoma county district
judge said, “We like to indulge in that historic fiction that
the purpose of a trial is to reach the truth on both sides, but
that’s not the way it works in reality, perhaps regrettably.”{1}
Some jurists believe that our justice system is 95% accurate,
but even if the American System of justice proved 99.5%
accurate, it would still generate more than 10,0000 “Wrongful
Convictions” a year…and those would reflect only the eight
serious index crimes.{2}
Overzealous and unethical prosecutors, “junk science,”
expensive legal fees and jury weakness are some of the flaws in our
system that are responsible for “Wrongful Convictions.”
Traditionally, these injustices have been borne by the poor and
politically disenfranchised, but the abuses are beginning to find
their way into middle-class America. It’s now much more likely a
dishonest prosecutor will go after you…and that will be your worst
nightmare. Innocent people who find themselves caught in the net
through unfortunate circumstances will find the enormous weight and
power of the State bearing down on them. A small but growing number
of citizens who have been victimized by the justice system have
become vocal and bitter critics of this system.
125
Virginia McMartin, a businesswoman in California targeted for
prosecution said, “Don’t tell me about Russia or South Africa. Here
in America you are guilty, and God help you if you try to prove your
innocence.”{3} Prosecutors and others try to minimize the extent of
the problem by asserting that juries get it right most of the time.
Unfortunately, they fear that if the public knew how many innocent
people were being convicted, it would undermine the public’s faith
in our system. Most middle-class never expect to be a target of
criminal prosecution. Because of their feelings of removal, they
give little thought to the abuses that are rampant in our system. As
long as there is no large public outcry for reform, such as Janet
Reno envisions,{4} the problems besieging our justice system will
continue to escalate.
Just how many innocent people are convicted each year? There
is no way to determine the exact number. Janet Reno said last year
157 “Wrongful Convictions” were overturned by DNA alone. And that is
just the tip of the iceberg. There are 800 under investigation in
her state alone and that is far too many.{5} There is no way to
determine the total exact number. There will always remain doubt in
some cases, and the states do not keep statistics on the people they
know were falsely convicted and later exonerated. We can, however,
make a reasonable estimate from the numbers we know were Wrongfully
Convicted and also from research studies conducted in the field of
criminal justice. Conservative estimates of the number of people
Wrongfully Convicted each year range from ½% to as many as 5% of the
total number of convictions.{6} Gerald Lefcourt with the National
Institute for Criminal Defense Attorneys says that innocent people
today are convicted more than they ever have been in the
past.{7}
According to a 1996 FBI study, out of eight thousand criminal
convictions, two thousand were falsely accused.{8} This study raises
serious doubts about our justice system. Barry Sheck, co-director of
the “Innocent Project” in New York, believes there are thousands of
innocent people wrongfully convicted each year.
126
During a recent interview, he said that studies suggest
one/third of rape convictions are cases of mistaken identity.{9} His
clinic alone has been responsible for exonerating 34 people
Wrongfully Convicted since it’s
inception.
Edwin Radin, author of The Innocents, asked a highly
respected judge his opinion on how many innocent people are
convicted. He said, “For the sake of argument, let’s say that
justice does falter in 5% of cases tried. In this imperfect world,
you would certainly admit that any system that renders justice 95%
of the time is doing very well.”{10}
I would expect a sitting judge to be extremely cautious when
it comes to criticizing the justice system. 95% sounds impressive;
although, attorneys who specialize in cases of Wrongfully Convicted
defendants believe our system falters much more than 5% of the
time.
In a study published by Charles Huff and referenced in his
book, Convicted But Innocent, jurists, prosecutors and others
involved in the criminal justice system were surveyed and estimated
the number of Wrongful Convictions to be as high as 5% and as low as
less than 1%.{11} For the sake of argument, lets assume the number
of innocent people wrongfully convicted is a conservative ½% and see
how it converts to actual numbers. According to the FBI’s “Uniform
Crime Reports,” there were 2,848,400 arrests for the major “index
crimes” in 1990.{12} The conviction rate varies, but an average of
70% of persons arrested for crimes are convicted. This means that an
estimated 1,993,800 were convicted in 1990.{13} If we use the
conservative figure of ½% as the Wrongful Convictions rate, than an
estimated 10,000 Americans were Wrongfully Convicted in 1990 alone!
That is an unacceptable figure for a country that proclaims to be a
free society.
Overzealous and unethical prosecutors like Charles Ramsey are
a major reason far too many innocent people are Wrongfully
Convicted. For an overzealous prosecutor, conviction becomes the
overriding concern with little thought to the possibility of
innocence.
127
They develop tunnel vision after making up their minds as to
the guilt of defendants and plunge head on for a conviction,
sometimes even knowing the defendant may be innocent. They
completely lose sight of the fact that the trial should be a “search
for justice.” (“Seeking the truth” is how Janet Reno expressed
it.){14}
Being overzealous is just as bad as being corrupt. The late
Judge Jerome Frank said, “An overzealous prosecutor is just as great
a menace to public safety and tranquility as is a deficient,
slothful, or corrupt one.”{15}
Unethical prosecutors like Mayes County Oklahoma’s Charles
Ramsey view the trial as a game to be won by outwitting their
opponent, manipulating evidence and the jury, and routinely
withholding crucial evidence that would help the defendant. Clarence
Darrow, one of the best trial lawyers in the twentieth century
stated that the courtroom was “an arena where contending lawyers
fought not for justice, but to win.”{16} Unethical prosecutors who
use their office for political advancement feel the need for a high
batting average. If the jury finds the defendant not guilty, they
consider it a loss. According to the author, Edward Radin, a young
assistant prosecutor who had taken part in a case that resulted in
the conviction of an innocent person, was asked how he felt about
it, he said, “I’m not working for the defense, you
know.”{17}
In New York, Isidore Zimmerman was given the death sentence
because an overzealous prosecutor withheld crucial evidence from the
court and jury. His sentence was later commuted to life and he spent
24 years behind bars. In 1962 the court received evidence the key
witness against Zimmerman had lied and the prosecutor had known he
had lied. The overzealous prosecutor had been so personally obsessed
with “winning at all cost,” ignoring the truth he focused only on
conviction.{18}
In 1982, Andrew Gendus, from Bakersfield California,
prosecuted several innocent people with such little evidence it was
reminiscent of the Salem Witch Trials.{19}
128
Two of these people, Scott and Brenda Knivens, were wrongly
convicted and sentenced to 245 years each for child molestation
which was later overturned, but only after they languished for 12
years in a California prison.
How long must Gilda Marie Schoonover languish in an Oklahoma
prison?
Convictions were obtained by using statements from the
Knivens’ two children who were bullied and threatened into making
incriminating statements against their parents. The two boys, now
adults, have testified that they were interrogated for hours by
investigators who used Gestapo-like tactics. It was only when the
prosecutor was accused of child molestation by the same group of
children that the public realized these trials were “Witch Hunts.”
All of the children recanted their testimonies and the California
State Attorney General denounced Mr. Gendus for overzealous
prosecution. Gendus is typical of the aggressive prosecutor who
becomes a zealot in the courtroom.
A classic example of prosecutorial misconduct (not
withstanding the instant matter) is the case of the Du Page Seven
Trial reported in the Chicago Tribune. The “Tribune” reported that
three former assistant prosecutors and four policemen from Du Page
County Illinois were charged with manufacturing evidence against
Rolando Cruz in the 1983 slaying of Jeanine Nicarico, 10, of
Naperville Township, and with concealing evidence that might have
cleared Cruz of the crime.{20} Cruz was convicted in 1985 and sent
to death row. Prosecutors withheld exculpatory evidence from Cruz’s
defense attorneys, including a confession of another person whose
DNA was found at the scene of the crime. Cruz spent 10 years on
death row until someone exposed the prosecutors and the police. He
was acquitted in 1995. His exoneration led to indictments against
the prosecutor and police, but it is doubtful they will be
convicted. Prosecutors and police commit these atrocities with
virtually complete immunity from any accountability.
129
The Chicago Tribune printed a series of articles on
prosecutor misconduct and reported on 381 homicide cases that were
reversed because prosecutors used false evidence or concealed
evidence suggesting innocence.{21} This type of prosecutor
misconduct is much more widespread than the public might
believe.
It’s an American principle that the prosecutor’s duty is to
protect the innocent as well as to prosecute the guilty. As the
Pennsylvania supreme Court said: “The district attorney is a
quasi-judicial officer. He represents the Commonwealth, and the
Commonwealth demands no victims. It seeks justice only…equal and
impartial justice…and it is as much the duty of the district
attorney to see that no innocent man suffers as it is to see that no
guilty man escapes. Hence, he should act impartially.”{22} How can
you have respect for the law when it withholds its protection from
those accused of a crime?
Another serious problem in our justice system is the
proliferation of “junk science” introduced by experts whose opinions
masquerade as scientific fact. This “junk science” is produced in
court as scientific fact beyond challenge. The practice of using
scientifically invalid evidence to convict is widespread among
prosecutors who otherwise could not prove their case. They routinely
get their experts to hatch a theory to match their own personal
invalid theory of guilt. The jury believes these theories because
they are presented by an “expert” and are introduced by the state.
Lay juries are rarely in a position to adequately analyze
“scientific” testimony.
Crime labs across the country misrepresent, misinterpret, and
consciously or unconsciously present invalid tests as evidence
because they are pressured by prosecutors to come up with a
conviction. Even the FBI crime lab in Quantico, Virginia has
recently come under attack by one of its own experts, Frederick
Whitehurst, who has claimed that their labs have offered a plethora
of tainted or otherwise invalid scientific evidence for several
years.{23}
130
Fred Zain, an expert in West Virginia, used “junk science” to
convict hundreds of innocent people. He gave police and prosecutors
tainted forensic evidence against defendants they had targeted for
prosecution.{24} In court, Mr. Zain routinely overstated the
strength of the evidence and misrepresented the results of tests.
Eventually, an investigation was launched which uncovered hundreds
of cases spread over a ten year period where people were convicted
based largely on overstated or otherwise tainted evidence. In 1987,
Mr. Glen Woodall was one of the men Zain helped send to prison, and
his case was responsible for launching the investigation. Mr.
Woodall spent several years in prison before his conviction was
overturned.{25}
In Brownsville, Texas, Susie Mulbry was accused of murdering
her husband.{26} She was tried, convicted, and sentenced to life
imprisonment based largely on a blood expert’s testimony.
Fortunately, her son discovered the expert’s testimony was
scientifically invalid, and she was granted a new trial after
spending five years in prison. Dusty Heskew, the blood expert,
admitted his test was invalid and he knew it at the time of her
trial.
Tony Keko was another innocent man wrongly imprisoned for
life based on “junk science.” he was convicted of murdering his wife
even though there was little evidence to support
the prosecutor’s theory.{27} His conviction was
based on an expert’s testimony that Mr. Keko had left bite marks on
the victim’s shoulder. The expert, Michael West, had testified in
many trials and was used by police departments and prosecutors
around the country. West had even set up schools to teach police
departments his techniques. By sheer coincidence, the evidence used
against Mr. Keko was reviewed by another forensic expert who
discovered that Mr. West’s testimony was scientifically invalid. Mr.
Keko’s conviction was overturned, but not until he had spent
twenty-six months in prison. Michael West is responsible for sending
many others to jail based on the same kind of “evidence,” but those
people have not been exonerated and may never be released from
prison.
131
In the instant case, Marie Schoonover was indigent and was at
the mercy of the court and not allowed any “expert testimony” from
any “expert witness” to prove an accidental fall as the state had
three “expert witnesses” for the prosecution and Judge Post
arbitrarily decided a physicist was not necessary for Marie‘s
defense.{28}
Another problem is the high cost of justice. Money, to a
great extent, determines who wins or loses in the American
Courtroom. The price of justice in America is expensive, and most
defendants do not have the money to hire expensive experts and a
talented defense team to level the playing field. Instead, many rely
on public defenders who are no match against the powerful and more
experienced state prosecutors who have unlimited resources at their
disposal. The U.S. Justice Department estimates that in
three/fourths of all felony cases and almost all murder cases,
including this one, the defendant is too poor to pay for necessary
expensive forensic experts.{29} Even citizens with moderate funds
find that good experts are out of their reach financially. If your
life is at stake in a criminal prosecution, you better have a
minimum of $100,000 to counter the state’s enormous power.
Unfortunately, most people don’t have that much to hire a defense
team that can match the state’s resources. By contrast, those
wealthy enough to hire expensive and talented defense counsel
usually win in the courtroom. In a recent program aired on CNN,
Greta Van Susteren stated that the O.J. Simpson Trial was one of the
few cases where the trial was on a level playing field and the
prosecution lost. His case is only one of many where wealthy
defendants are able to level the playing field by hiring expensive
experts able to question the integrity of the state’s evidence.
In 1975, Jerry Paul who successfully defended Joan Little in
a high profile murder case said, “The question of innocence or guilt
is almost irrelevant. I can win almost any case in this country
given enough money. I’m going to tell you the truth, you must
destroy the charade, the illusion of
justice.{30}
132
In 1981, Claus von Bulow, a Rhode Island socialite, was
accused of killing his wife, convicted by a jury, and sentenced to
thirty years.{31} While out on a one million dollars bail, he
appealed the conviction in an appellate court which overturned his
conviction. Because he was wealthy, he was able to afford experts to
challenge scientific evidence. Alan Derchowitz said, “If Clouse von
Bulow had been a poor butler, he would be in jail today. Without a
lot of money he wouldn’t have been able to get scientific evidence
to obtain justice which is a sad commentary on the American Justice
System. Without money, you can’t get justice.”{32} His wealth bought
him justice.
It’s expensive to hire the best counsel, to mount an
extensive jury selection process, to hire investigators, to fly in
experts, and to spend thousands on counseling the defendant to
prepare them for their testimony. Being innocent is not enough to
insure an acquittal, and it’s another myth that the truth will
always “come out.”
Lastly, there is a dangerous weakness in our jury system.
There is a joke among lawyers about the difference between jury
trials in England and the United States; in England, the trial
starts once the jury selection ends; in America, the trial is
already over. Henry J. Abraham, a professor of government at
Harvard, doubts that juries are capable to answer accurately the
fundamental question of guilt or non-guilt.{33} In an article for
Political Science Quarterly, he writes, “Jurors are usually at best
only marginally qualified to judge the issues; they are increasingly
chosen by outside specialists in jury profiles from panels of no
controversial individuals whose regular activities society
apparently does not value; they have ample time on their hands; and
they have informed opinions and training on preferably nothing.{34}
To compound the problem, the jury is expected to discover facts in a
hostile adversarial setting. The late Judge Jerome Frank, in a
critique on the adversary process could visualize nothing less
likely to bring out the truth than our adversary
process.{35}
133
Juries routinely convict innocent people even when a
reasonable trier of fact could not find guilt. They are instructed
they should find beyond a reasonable doubt, but reasonable doubt
remains completely subjective and is a fiction created by law to
allow juries an excuse to convict or acquit based on their “gut
feelings.” This allows them to reach a verdict that is against the
weight of the evidence and to speculate. This is the reason that
when faced with the same evidence, one jury will find guilt and
another will acquit. There is no way to predict what a jury will do.
In many cases, it remains a crap shoot.
There are critics of televised trials, but these trials have
given the public a unique look into the weakness’ of the justice
system. In the O.J. Simpson trial, there was more than enough
circumstantial evidence to convict; however, the jury acquitted him.
In the Loiuse Woodward trial (The British Nanny), valid scientific
evidence should have created a reasonable doubt, but the jury found
her guilty.
A study by the New York Times showed that one/third of jurors
make up their minds using faulty reasoning after hearing the opening
argument.{36} “These jurors decide on a version of events based on a
preliminary story they find convincing, often at the time of the
opening argument.” An argument never told under
any binding oath of truth. “Which then colours their interpretation
of the evicence so much that they seize on whatever fits their
verdict and discount the rest. Such jurors tend to make up their
minds far earlier than others, and by the time they enter the jury
room for deliberation they cannot be budged.”{37} In effect, they
are hearing the evidence with a closed mind. They don’t weigh the
evidence against all alternative versions of what could have
happened. It boils down to two versions of a story: The prosecutor’s
and the defense’s. The most dramatically compelling story is more
likely to appeal to the poor decision makers among a
jury.”{38}
134
We cannot look into a crystal ball and see all the past
unjust jury verdicts; however, DNA testing has come close by
exonerating hundreds of innocent defendants found guilty by jurors
who were certain of guilt. The cases are far too numerous to cite
here, but the conclusion is those cases are just the tip of the
iceberg.{39} I am not suggesting that the jury system be abandoned
but it does need radically changed. From “Twelve people of average
ignorance” to twelve highly educated people versed in the law that
are not swayed by the infection of emotional prejudice of
unscrupulous prosecutors whose goal is to win at all costs.
Overzealous prosecutors, “junk science,” expensive “experts,”
and wrong jury verdicts are only a few of the problems facing our
criminal justice system. Other problems such as police investigator
misconduct, mistaken or perjured testimony, coerced confessions;
worse, fabricated confessions by immoral investigators, and inept
defense counsel. Suppressed exculpatory evidence and faulty
eyewitness testimony also lead to the convictions of thousands of
innocent people. Sister Helen Prejean, author of Dead Man Walking,
said it was a sobering discovery for her to see just how flawed and
at times chaotic our system of justice really is.{40} It’s easier to
think of these problems as remote, occurring in other parts of the
country, but they are happening in your community. It’s also easy to
believe that you could never be a victim of our justice system
simply because you are a law abiding citizen; however, as the net
grows wider in an attempt to obtain more and more convictions, the
more your chances increase of being wrongly accused and wrongly
convicted. There are not 1.2 million people in American prisons,
surpassing the rate of incarceration that exists in the Soviet
Union. We lead the world in prison population due in part to
Wrongful Convictions and Oklahoma leads the nation as well as the
world in female prison population due in part to Wrongful
Convictions.
135
There will never be a perfect justice
system devised in this society and there will always be innocent
people wrongly accused and convicted, but we can limit that number
by demanding accountability from prosecutors, police, and others who
abuse the awesome power given them by the government and under the
cloak of immunity from accountability. It’s time that we wake up and
realize our criminal justice system is in need of serious reform as
there are far too many innocent victims of
“Wrongful
Convictions.”{41}
The safeguard of individual liberty is the cornerstone of a
free society. For evil to flourish, good people need only to sit
back and do nothing and that is what is happening today. I believe
in full accountability for criminal behavior; be it citizen,
prosecutor or judge, with no immunity from justice. But not at the
expense of the innocent. The loss of one innocent person’s freedom
diminishes all of our freedom.
There is not a shadow of doubt
that Gilda Marie Schoonover is
an
absolute innocent
scapegoat.
* * * * * * * * * * * * *
J.V.D.
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