Grieving from the homicide of a loved one is tough enough. But what if you’re also wrongly charged for it? It doesn’t happen often, but when it does, it’s life-changing even if you aren’t convicted.
The biggest risk factors contributing to a wrongful conviction are being African-American, having faulty eyewitness testimony, prosecutorial misconduct, law enforcement misconduct and relying on junk science from forensic experts. In other words, race matters, and so does careless eyewitness reporting and officials willing to bend the rules to get what they want.
On average, innocent people who are exonerated serve 14 years for a crime they didn’t do. And they are the luckier ones. Others serve three or more decades.
We can learn a lot from homicide co-victims who have been wrongly convicted of murdering a loved one. Here are two people who went through this nightmare:
Michael Morton was imprisoned in Texas for the 1986 murder of his wife, Christine. Prosecutor misconduct was a big factor in his conviction. The D.A. did not disclose key evidence (“exculpatory evidence”) gathered from Mr. Morton’s young son (who described the attacker) and several neighbors (who witnessed a green van circulating the neighborhood the morning of the murder). Mr. Morton served 25 years before being exonerated (found innocent) in 2011 due to new DNA evidence.
Debra Milke was imprisoned in Indiana for the 1989 murder of her four-year-old son. Her conviction was based solely on the false testimony of Detective Armando Saldate, Jr. who claimed Ms. Milke had confessed to him. There was no physical evidence, no history of abuse, no witnesses. She fought for her freedom for over two decades from death row. In 2013 the federal 9th Circuit Court of Appeals overturned her conviction after it was discovered that Detective Saldate had lied in several more cases.
Most people outside the legal or law enforcement systems have little idea of what to do in this awful situation. Misleading information from Hollywood makes it worse. (This is the “CSI effect.”)
Understand it’s legal in the U.S. for investigators to lie to an arrestee to get a confession. They may say, “We have you on a security camera getting in the car of the deceased an hour before her body was discovered.” Or “A witness came forward and said they saw you violently grab the arm of the deceased in the parking lot the morning she went missing.”
Remember you don’t have to prove your innocence to detectives. That is for a judge or a jury to decide.
Here are some dos and don’ts in this situation gleaned from defense attorneys.
Do take your right to remain silent seriously. Anything you tell the arresting officers (after being read your Miranda rights) will be used in court against you. Silence is your friend and your legal right.
Do ask for an attorney immediately, respectfully and repeatedly. Say nothing else. Memorize this recommendation.
Do exercise your right to one phone call to ask a family member to find an attorney. This is usually extended to you after booking (fingerprinting, mug shot, etc.).
Do read any search warrant carefully if presented. Is the date / address accurate? Does it have a judge’s signature and seal? What room or device is authorized for a search (computer, office desk, car)? If investigators search beyond that, they cannot use evidence they seize at trial. Landlords, hotel staff, housekeepers, roommates and children cannot stop a search if a valid warrant is presented.
Do try to remember details of what is said and done in as much detail as possible and jot down the facts at the first opportunity. Use quotes. Add names. Estimate the timeline. Describe the treatment of you in facts (not opinions). Include the number of times you asked for an attorney and to whom you made the request. Include the names or descriptions of any witnesses, car license plates, or what you overheard on law enforcement radios. Avoid speculation.
Do take note if anyone videos the interaction.
Do not give voluntary consent to search your car, office or home. A warrant is needed to do this unless an emergency is underway (such as someone screaming inside your office).
Do not get defensive, resist, try to flee or destroy evidence.
Don’t look toward areas you want left alone (maybe your nightstand?). Investigators look for these glances as a tip-off. Look down instead.
Don’t post anything on social media, text or send emails after you have been arrested.
Don’t assume phone calls inside jail are private. They are all recorded.