The long-awaited trial day has arrived. The accused is about to face public scrutiny for the murder of your loved one. You know you’re surrounded by hungry media; and that upon exiting you’ll face the supporters of the accused.
You do so anyway to bear witness to the tragedy that crushed your family.
You do so anyway to remind everyone the deceased was loved.
You do so anyway to stare at the accused defiantly.
The prosecutor informed you that law enforcement has secured a confession. The video clip of the admission of guilt will be shown in open court. And, she adds, they have an eyewitness that places the defendant in the vicinity at the time of the homicide. It feels like a sure thing.
Throughout the next two weeks, you’re reminded not to speak to the press. You’re expected to be cleanly dressed and expressionless while court is in session. Like it or not you’re on display.
Testimony has been spoken. Evidence was presented. Attorney summations have echoed in the courtroom. Now it’s time for the decision.
“All rise!” orders the bailiff. It’s up to the judge now. Everyone sits but the defendant and attorneys. The courtroom is silent. Your heart races and your fists are sweaty and tightly curled. Everything in the last two years has led to this moment. It feels as if time is distorted.
With a serious expression, the judge clears his throat, pauses, looks over his papers directly at the defendant, and says:
The court has reviewed all testimony and evidence and weighed the mitigating and aggravating factors. The aggravating factors substantially outweigh all others. The court finds it appropriate, legal, and necessary to impose the death penalty based on the information presented. Therefore, the sentence of death is the appropriate punishment in cause #29A-64266-2023 for the murder of said victim in Count One of the indictment. Accordingly, you are reprimanded into the custody of the Department of Corrections. You will be confined until the date selected for your execution by the Governor. And, on that date, you will be executed in a manner provided for by the laws of this state. May God have mercy on your soul.
You leave exhausted but gratified and grateful. Justice was done. Reporters want your reaction. You say little, but nod with approval and relief.
Surrounded by the love of relatives and friends you go home to begin the long healing process you know lies ahead.
The first several post-verdict weeks yield to the next several months. Depression begins to lift every so often. You’ve returned to work. You experience your first night of true, restful, nightmare-free sleep. What a difference it makes.
There’s an occasional smile on the faces of those closest to you. Your appetite is waking up and the jaw-clenching has eased.
Two years pass. Life has settled into a new normal. You know your family will never be as it was before the homicide, but there’s reason for hope.
Five years later a reporter abruptly knocks. Cameras face your front door in the hopes of catching your reaction. It’s evening. You were about to get ready for bed. The disruption pierces your hard-earned new normal. You experience your first flashback in ages. Microphone in hand the reporter bluntly asks:
Are you aware of recent developments in the conviction of the murder of your loved one?
The D.A.’s office announced that the conviction was overturned based on new DNA evidence and proof of a coerced confession. The eyewitness recanted. This has been in the works for 18 months. The prisoner will be released from death row early tomorrow. Care to comment?”
Stunned, confused, flooded by memories of that day in court you’re left speechless. You feel faint. Others immediately ask “How did this happen? What went wrong?”
How Convictions Go Off the Rails
The most common factors leading to wrongful arrest, conviction and incarceration are listed below. Case examples follow in parenthesis to get a deeper understanding.
false /misleading forensic evidence. (Todd Willingham, was convicted of triple murder by faulty arson forensics in the burning death of his daughters. He was incarcerated for 13 years in Texas and then executed in 2004. Todd was exonerated post-humus in 2011.)
police / prosecutorial misconduct. (Jeffrey Deskovic was interviewed off sight from the police station by a friend of the arresting officer without Jeff’s mother present. He was convicted at age 17 of the rape and murder of a friend and confined to an adult prison. DNA evidence proved him innocent in 2006 after serving 16 years. He is now an attorney in New York.)
inadequate legal defense. (Temujin Kensu, incarcerated since 1987 for murder in Michigan is awaiting help. His defense attorney was relapsing on cocaine during the trial. Kensu’s innocence is widely supported by law enforcement and former judges. So far the prosecutor won’t budge.)
eyewitness errors. (Marvin Anderson was convicted in 1983 and sentenced to 201 years in Virginia. His lineup photo was the only one shown in color. He was exonerated after 15 years.)
perjured testimony. (Debra Milke, was convicted solely on the perjured testimony of one detective in the death of her son. She was exonerated in 2014 and works in a law office.)
being African American. (Blacks have a much higher chance of being wrongfully charged and convicted. Calton Lewis was exonerated in Syracuse NY at the time of this writing. He served 31 years for a murder he didn’t do.)
coerced confession involving the “Reid Technique.” (Melissa Lucio was subjected to a coercive and unethical interrogation technique that begins with a presumption of guilt. Melissa has been on death row since 2014 for the “murder” of her youngest daughter in Texas (who fell down the steps). She had a stay of execution in 2022. Like Kensu, she has wide support for her release but their cases are stalled.)
The U.S. has 5% of the world’s population but 25% of the world’s prisoners. Criminal Justice Reform is imperative. The key driver of all of this is the public’s demand to “Go hard on crime!” So, convictions by the prosecutor are a top priority if they want to be re-elected.
What Can You Do?
Become informed and inform others. The demand for swift convictions is a common outcry from the public. This encourages some court officials and law enforcement personnel to cut corners, conceal evidence, lie on the witness stand, rush to judgment, and rely upon slip-shod testimony of eyewitnesses, jailhouse informants, inept forensic experts, and crooked cops. They want a case to be closed at all costs.
(Recommended viewing: “Making of a Murderer” on Netflix (2015).
(Recommended reading: “Getting Life” by Michael Morton (2014).
Know your rights. If you or a loved one are being looked at for a murder you did not commit, it’s imperative you know what to do and not do. Stop communication with everyone by any means. Repeatedly request an attorney. Do not touch or conceal evidence. Read and follow the search warrant. (For more information see Chapter 19 in my book What Now?)
Support The Innocence Project. There is a state chapter of the Innocence Project everywhere. This group needs help in the form of volunteer time and/or donations. Add your name to their mailing list. Read their case studies.
Fund Public Defenders. Gather signatures to send notice to your state senator that more money and personnel are needed in the public defender’s office. It’s in a chronic state of crisis. They’re underfunded and overworked. About four of five criminal defendants rely on public defenders to assist in their defense. We should all be concerned. With no time to properly prepare, public defenders rely on plea deals to close the case.
Know What Exonerees Are Entitled to In Your State. Many states offer exonerees no help once released. And several states require exonerees to “prove they have clean hands” (i.e. any conviction whatsoever can disqualify them). There are other roadblocks as well. No national standard exists.
Meet an Exoneree. You can hear their stories on podcasts, some are in documentaries and others are known to your public defenders. Attend an Innocence Project conference and you are sure to meet several. (Both Jeff Deskovic and Temujin Kensu have episodes on my podcast Domino Effect of Murder.)
Volunteer. Is there an attorney in your area who works full-time on exonerations? They could use help even if you’re not an attorney or law student. Are you skilled with computers? Exonerees need training in how to use them (and cell phones).
Watch Over Your Local Prosecutor. They are human. Some make honest mistakes. But those who deliberately tilt the scales of justice in their favor are the least likely to admit it. Many are very politically motivated and have a dedicated commitment to reelection. They often campaign on being “tough on crime.”
Keep An Open Mind. Leave room for the possibility of innocence when in court. Detainees can surely be guilty, yes. But others have been swallowed in a theater of the absurd (at taxpayers’ expense) leaving the true murderer to roam free.
Humankind has not woven the web of life.
We are but one thread within it.
Whatever we do to the web, we do to ourselves.
All things are bound together. All things connect.
—- Chief Seattle