How an Innocent Person is Convicted, Part 4: The Rule of Silence

The business of defense attorneys is mostly one of cutting deals. Nationally, about 85% of cases are plea-bargained. Of those that go to trial, contention often depends upon issues of mitigation rather than innocence. Defense attorneys will tell you that the scariest case for them is the one where they are defending an actually-innocent person. To lose such a case is to lose everything. Yet, their sharpest skills--the ones they use daily--are those for negotiating, not those needed for winning.

Defense attorneys are worriers. Theirs is the job of wondering the "what-if's." What if the client does something unrelated but stupid while the case is under review, what if some crackpot or old enemy shows up with an incriminating comment? What do the police know that that defense doesn't know?

Defense attorneys advise clients to play it safe. Keep mum, avoid the press, don't talk to anyone about the case. Todd's attorney told us not to talk to him about what happened that night. "There's no parent confidentiality privilege," he said.

But how could we not talk?

How an Innocent Person is Convicted, Part 3: From Witness to Suspect

Officer Brad Shannon wanted Gloria and me to to tell our sons to speak with detectives without an attorney present. He told us they were just witnesses, that Todd had just been in a stare-down with another young man, that there was some trash talk, but Todd hadn't done anything. But he needed our encouragement to tell the police what he knew.

Our heads were spinning. Less than an hour earlier, another detective had told us that there'd simply been a minor tiff. But now we knew that someone had died. Why had the police lied? We were way out of depth and needed help. We knew we needed to retain an attorney.

Our decision was firm: we'd not advise Todd or Joel to speak without cousel, which we'd retain immediately.

Shannon's response: "If you don't cooperate"--meaning if you get an attorney--"we'll start looking at your sons as suspects rather than witnesses."

It was both a threat and a promise. In Colorado Springs exercising one's right to counsel is tantamount to self-incrimination.

How an Innocent Person is Convicted, Part 2: Cultivation of Ingnorance

The cold gray November day flowed in from the street as I opened the door of our house to what turned out to be a plainclothes detective from the El Paso County Sheriff's Office. The chill followed him inside. "We want to talk to your son, Joel," he said.

Joel was at his apartment near the Colorado Springs campus of the University of Colorado, where he was working on his since-finished degree in chemistry. We asked why the detective wanted to speak with Joel. The answer seemed less than forthcoming. The detective said Joel had witnessed an event the preceding night--not a big deal, the detective said, "just a minor tiff--no not even a minor tiff." Just a trivial thing.

It sounded disingenuous. If this event were so minor, why a plainclothes officer, why a Saturday afternoon?

Gloria, my wife, called Joel at his apartment and told him to come to our house. When Joel arrived, the detective wanted Joel to come downtown with him. We demurred. The detective retreated to the cul-de-sac in front of our house.

Inside, the phone rang. Gloria took the call upstairs. Afterwards, she called to Joel and to me, "That was Officer Shannon from the Sheriff's Office. He said that last night Brad Orgill stabbed someone and killed him. They need to talk to Joel and Todd as witnesses."

How an Innocent Person is Convicted, Part 1: the forgotten witness interview

When a member of your family languishes in prison for a crime he didn't commit, you find youself haunted by the simple question: Why? I've spent my whole working life sworn to defend the constitution--as a military pilot, a member of the FBI, a professor at the Air Force Academy. To see a wrongful conviction firsthand is a tragedy that is multiplied by the high expectations I'd come to have for American justice. I still believe in our founding principles, but I've come to realize how imperfectly we've implemented them.

The path to wrongly convicting Todd began early on the day Anthony Madril died. Detective Ricky Frady interviewed one of the most important witnesses, Chas Shwartz. Schwartz sat in the driver's seat of his pickup while Madril and Orgill battled in front of him and while Lopez and Todd confronted each other just outside the passenger-side door. A file containing a transcript from Frady's interview is available online.

In his initial report of the this interview, Frady writes (in error) that the videotape machine had malfuntioned, so he had only his memory and notes to go on. As a result the report is sketchy and fails to mention details that reveal the sequence of events that night. If you read the actual transcript of the interview (taken from the videotape, which, it turns out, had been recorded after all), you'll see how Frady focuses on exactly where Todd was and where Madril was and how Madril was fighting with Orgill. Much of that detail failed to make it into Frady's initial report. In fact, Frady would not actually view the videotape for another year and a half. In the meantime, the police were not able to consider this important eye-witness account, which provided significant detail that was exculpatory for Todd.

Next: Part 2--Ignorance leads to more ignorance.

The Prosecution's Theory

We felt confident that the prosecution at Todd's trial would not be able to show how Todd could have possibly stabbed Anthony Madril. After all, Todd had never gone forward of the pickup truck in front of which Anthony Madril and Brad Orgill fought so violently. Todd had been engaged non-violently with Madril's friend Chisum Lopez the whole time.

Both Lopez and Madril's other friend Chas Schwartz placed Todd at a considerable distance from Orgill and Madril as Madril shouted "It's on!" Madril and Orgil were the only two seen in a physical confrontation. When that confrontation was over, Madril emerged bleeding from his chest and told his buddies, "I've just been stabbed."

The prosecution presented their entire case--nearly two weeks of testimony--and never once did they specify exactly when or how the stabbing took place. Not until their closing argument, after the defense had rested, did prosecutor Stephanie Rikeman reveal their fabulous theory:

Todd runs up to Madril, a meeting that is unseen by any of the six witnesses, and stabs him in the heart, tearing open both ventricles. Madril then goes off to fight enthusiastically with Orgill and Todd goes on to a non-violent confrontation with Lopez.

That the prosecution waited until the closing argument to voice this theory can only suggest that they didn't want anyone to think about it for too long. Beyond the obvious question of one's ability and interest in engaging with a second person after just being stabbed in the heart, the prosecution's theory also raises many other questions:

1. Why would Madril yell "It's on" instead of announcing that he'd been stabbed?
2. Why didn't anyone see this confrontation? Did six other young men find something else more interesting to watch?
3. Why would a person suddenly stab someone in the heart and then just put the knife away and limit himself to verbal jousting?
4. Why would Todd not have blood transferred to his clothing--especially to his pockets where he kept the knife?
5. Why does the trail of Madril's blood begin and end with the trajectory of his confrontation with Orgill?
6. Why was Todd never seen in the area that contains the trail of Madril's blood?

Because the prosecution's theory came so late in the trial, it became even more important that the defense be accorded an opportunity to have a fully-developed theory of defense instruction for the jury.

The Theory of Defense Instruction to the Jury

The entitlement to a "theory of defense" instruction helps balance the advantage the prosecution gains by being able to set the pacing and agenda of a trial. The prosecution decides which witnesses to call and when to call them as the case is made. In other words, the prosecutor determines the plot of the story being told to the jurors. That can disadvantage the defense as it battles the prosecution's interpretation of evidence and testimony while at the same time trying to advance its own understanding of what happened.

In Todd's case the defense was hampered by the loss of a central piece of evidence--the condition of the knife that the prosecution alleged to be the murder weapon. That disadvantage was compounded when the trial judge refused the theory of defense instruction proposed by the defense attorneys. One of the key elements of the rejected instruction was the defense theory of how the knife came to have a minute amount of blood on it. The judge's reason for refusing the instruction (that the evidence supporting the theory was not "ample") is not consistent with the legal standard. (The details are available in the appeal briefs). In truth, the trial record offers considerable supporting evidence for the instruction offered by the defense.

Deferred Sentences and a Quid Pro Quo

Dennis Huspeni reports in today's Colorado Springs Gazette about the local DA's use of deferred sentences. Assistant District Attorney Amy Mullaney defended the practice saying, "District attorneys are mandated to seek justice, not just to convict everyone or send everyone to prison. Sometimes good people just make a mistake."

Such use of deferred sentences makes good sense; however, Mullaney avoids raising the issue of the deferred sentence that serves as a quid pro quo--a deferral in exchange for services rendered, typically testimony favorable to the prosecution in an upcoming criminal trial. That's the very sort of deferred sentence Mullaney arranged for Brad Orgill in exchange for testimony against Todd.

A closer look at the circumstances surrounding Orgill's deferred sentence raises questions that Mullaney may not want to answer. You see, Orgill turns out to be the only person confronting Anthony Madril on the night Madril was killed. Orgill and Madril fought a fierce and bloody fight, which was witnessed by Madril's friends. According to his friend and witness, Chas Schwartz, Madril emerged from the fight saying "I've just been stabbed." Orgill's clothing was covered in Madril's blood.

Despite having been warned by others that a deferral may not be in the best interest of justice, Mullaney offered one to Orgill before the CBI crime lab even received all the evidence in the case. Almost a year after Mullaney gave Orgill the deferred sentence, the Colorado Springs Metro Crime Lab released a report stating that Orgill could not be ruled out as Madril's assailant.

Another item of interest: About four months after being given his deferred sentence, Orgill, then 30, was accused of rape by a nineteen-year-old woman. He admitted to having provided the under-aged woman with alcohol, but insisted that their sexual contact was consensual. The woman received a medical exam, which confirmed sexual contact; the DA's office paid for the exam and the DA's office is listed as a releasee for the medical report.

Orgill told the investigating police officer that he was on a deferred sentence as an accessory to murder. About a month later, the rape accusation was settled in a most curious way: the police officer, Orgill, and Orgill's attorney sat down together, chatted about the attorney's trip to Sturgis, and then made a pretext phone call to the accuser and got her to drop the charges. When queried about the practice of making pretext phone calls to alleged rape victims, both TESSA and CSPD said that such calls would be highly unusual--if ever--made.

Although providing alcohol to a minor is a violation of Orgill's deferral, as far as I know, there have been no repercussions.

The question for Mullaney: Do deferred sentences such as this one serve justice or some other agenda?

Altered Evidence: How the State Explains the alteration of evidence in its possession

Consider this: The forensic detective examines the purported murder weapon, notes the existence of black debris on it--debris that seems to have come from contact with a tire. The detective considers its importance, discusses with his supervisor how best to preserve it, and decides to leave the debris intact and send the weapon to the Colorado Bureau of Investigation (CBI) crime lab. But when the weapon arrives at the state crime lab, its analysts note that no such debris exists. What's happened to it?

We wondered about that in Todd's case.

So did the trial judge who accused the state of "dropping the ball."

The state never offered an explanation at Todd's trial, but Patricia Van Horn, the attorney representing the people in Todd's appeal, came up with a creative answer:

"It is true that the substance disappeared from the knife while in the custody of law enforcement. But there is nothing to show that law enforcement was responsible for destroying it. The substance was still present when the detectives placed the knife in the envelope to be transported to CBI, and the substance may have simply oxidized or been chemically altered to a non-detectable form by exposure to air in the envelope." (a direct quotation from Van Horn's brief, p. 11)

Bad science or magical thinking? You be the judge.

Altered Evidence

Is it fair for the prosecution in a criminal case to rely upon evidence altered while in possession of the police?

In Todd's case, the prosecution alleged that his knife had been used to stab the victim. But when the police first examined the knife, they found no blood on it. They found no blood in Todd's pockets where he had carried the knife.

They did find a black debris on it--debris, that suggested the knife's use to puncture a tire some 30 feet away from the area where the victim and Brad Orgill were engaged in a violent and bloody fight.

The knife was not shipped to the state crime with the other physical evidence. Some six months later the state crime lab called the El Paso Sheriff asking where the knife was. It had been hiding out in their evidence room. So Officer Jeff Nohr drove it down to the state lab in Pueblo. At this point we'd been dogging the authorities for six months to test the debris on the knife because of its apparent exculpatory value.

Unfortunately, by the time the knife arrived at the lab, the black debris was gone. We were never told of the missing debris, until in desperation, we obtained a court order 13 months after Todd's arrest, for the state to produce the knife for independent testing. Only when it reached the independent forensic lab did we learn that the debris was gone.

What does the state's playing fast and loose with this crucial piece of evidence suggest? Should such altered evidence be acceptable in a court of law? If so, do we open the door for the more general use of trumped up evidence to obtain convictions?

The Appeal Process

Contrary to the belief of many, a legal appeal is not a do-over or a repetition of the trial. Rather, it is an avenue for reviewing the procedures used by the trial court to determine if the trial was fair. To make its decision, the Court of Appeals reviews the official record of the trial in light of existing legislation and decisions made in previous cases. The purpose for this review is to ensure that the trial was fair. A more formal legal term for fairness is “due process.”

The legal briefs in Todd's case flesh out the bare outline that follows, but here in briefest summation are the three questions of fairness that they raise:

1. Is it fair for the state to use altered evidence to gain a conviction? In this case, the altered evidence is the knife which the state alleged to be the murder weapon. There is no dispute that the knife’s condition changed while it was in police custody. When the police first examined it, they saw black debris on it but no blood; later at the state crime lab, a minute amount of blood was found on the knife, but the black debris was gone. The trial court judge decided on technical grounds to permit the knife’s use as evidence anyway.
   
2. Is it fair for the trial court judge to restrict the defense from having a full theory-of-defense instruction for the jury? Despite the fact that the knife’s condition had been altered, the defense was not permitted to include in its theory-of-defense instruction a theory of how the blood might have been deposited on the knife.
   
3. Is it fair for the prosecution to usurp the jurors’ responsibility to be the sole arbiters of the truthfulness of witnesses? During closing arguments the prosecuting attorney vouched for the honesty of Brad Orgill—the only person seen fighting with the victim and who was covered in the victim’s blood. The prosecutor also asserted that the defense attorney had lied in his summation. The trial court judge failed to instruct the jury to disregard this emotionally charged accusation.
   

Should the court find that any of these issues causes doubt in the integrity of the verdict, they will have to find a remedy for the unfairness. They may direct a new trial that could include certain sanctions, or they may order a dismissal.

For more about the appeal, including links to the legal briefs, click here.

Oral arguments approach

We've received word that oral arguments for Todd's appeal are scheduled for April 10th. They'll be heard at four o'clock at the Denver University's Sturm School of law. Details can be had at http://www.law.du.edu/lawproc/judgesday2008.htm.

For us this is a time of hope and of fear. Hope becuase it is our best chance for justice. Fear because so far the legal system has failed so miserably. Still, we have no choice but to trust that those charged with administering justice on the state level will, unlike their Colorado Springs counterparts, fulfill their duty to the truth.

Wrongful vs Unlawful Convictions

Richard Moran, a professor of sociology and criminology at Mount Holyoke writes (subscription required) in the August 2, 2007 New York Times, "My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel."

The issue recently made headlines when the FBI admitted framing four men in the murder of gangster Edward Deegan. The four innocent men were convicted over 30 years ago. Only two survived to regain their freedom. The cost to taxpayers: $101.7 million dollars. The loss of freedom for those men and their families: beyond measure.

The significance of Moran's research, though, is that we often wrongly conclude that what he calls unlawful convictions are simply the results of honest errors rather than malice. Our failure to call such convictions unlawful shields the guilty parties from the consequences that could reduce such miscarriages of justice.

Wrongful Convictions and Evidence Procedures

This week the Denver Post is running a special feature on the mishandling and misuse of evidence. The focus primarily deals with the inappropriate destruction of DNA evidence that might reveal the actual perpetrator of a crime and exonerate someone wrongly convicted of it. The success of the Innocence Project in using such evidence is widely known. What is not known is how long it will take for authorities to refocus their efforts on finding the truth in questionable convictions rather than covering up their own misjudgments. Today's installment reports that "in 1997, the clerk in Harris County, Texas, threw out 50 rape kits days after then- Gov. George W. Bush pardoned Houston's Kevin Byrd from a wrongful conviction exposed by DNA tests."

Will Mike Nifong Pay the Piper?

Disgraced and now disbarred, Mike Nifong, the nefarious prosecutor in the Duke lacrosse case, may (and should) face further sanctions. USA Today reports he may face a criminal investigation. About time. The real scandal, though is how many prosecutors never face consequences for violating the public trust. Bill Peterson, the Ada, Oklahoma, district attorney exposed in John Grisham's book Innocent Man, continues to practice law as the District Attorney in Ada, even though he admits to his role in sentencing an innocent man to death. On his web site, Peterson says, "I cannot change the reality that two men were convicted of a crime they did not commit." He neglects to say that had he exercised a bit of diligence and common sense while representing the people of Oklahoma, he could have prevented the wrongful conviction in the first place. The cavalier arrogance of prosecutors more concerned with the appearance of justice rather than the pursuit of justice is, simply, against the law. Prosecutors, as representatives of the people, are charged with seeking truth and justice rather than simply convictions. When their ethical compass becomes obscured by ambition, a polictical agenda, or just mean-spiritedness, they need to face consequences. They need to pay the piper.

More on the Wrongful Conviction Rate

Samuel R. Gross, the Thomas and Mabel Long Professor of Law at the University of Michigan, writes in today's LA Times:

If 1% of commercial airliners crashed on takeoff, we'd shut down every airline in the country. That would be nearly 300 crashes a day. If as few as 1% of criminal convictions are erroneous, right now there are more than 20,000 innocent defendants behind bars.

But 1% seems like a low number based upon his research. At least 3.3% of those convicted of murder were innocent. How many were wrongly convicted of lesser crimes for which there is less scrutiny? How many innocent people, fearing the possibility of a wrongful conviction, much less the wanting to avoid the expense of a trial or time lost while unable to make bail, have copped pleas? How much are we paying to incarcerate the innocent?

A Roll of the Dice

Those who research wrongful convictions have widely acknowleged the challenge of getting good statistics on the frequency of wrongful convictions. See "Wrongful Convictions and the Accuracy Of the Criminal Justice System" by H. Patrick Furman, and "Convicting the Innocent: An Empirically Justified Wrongful Conviction Rate" by D. Mcichael Risinger.

Risinger points out that the results of the Innocence Project provide a window of opportunity for empirical research on the wrongful conviction rate, at least as it applies to capital and other serious crimes where DNA evidence is available. Furman acknowleges the importance of such research, but raises an important consideration: can we expect the rate of wrongful conviction to be same for less serious crimes?

Peter Neufeld of the Innocence Project has had his faith shaken by the number of wrongful convictions uncovered. In an interview with PBS's Frontline, he says,

I always thought, my whole life I've been practicing law, especially as a criminal defense attorney that 98%, 99% of the people convicted by juries and judges must be guilty. And now I look at this new data which shows that with DNA testing they're exonerating 25% of the people accused in sexual assault cases and I'm completely freaked out by the number because it tells me that the number of people who are unjustly convicted in our system is extraordinarily high, is a number that we as a democracy can't live with, is a number that I want to do everything that I can to change.

Perception as well as empiricism, of course, is important in considering the level of accuracy in our justice system. What do the lawyers and judges think? How are their thoughts revealed in their language?

As we endured the investigation and trial of our son, we were shocked to hear professionals in the criminal justice system refer to a jury trial as a "roll of the dice." How, we wondered could trial by one's peers, something so valued in American culture be compared to a game of chance. When the verdict in our son's case arrived, we understood.

Moreover, the use of the phrase "roll of the dice" tells us that those in the best position to see how the system works have known its shortcomings for a long time.

Judge Morris Hoffman and the Wrongful Conviction Rate

Since the publication of his op-ed piece in the April 26 Wall Street Journal, Morris Hoffman's claim of an astonishingly low wrongful conviction rate (0.00065 %) has been embraced by some as an indication that we should simply stop worrying so much about wrongful convictions. Close readers of Hoffman's article--and those who actually passed 5th grade math--should be cringing at the starting assumption of Hoffman's calculation: that 20% of all trial verdicts are wrong.

Hoffman reduces the 20% number to .00065% by dividing the 20% by the enormous number of cases that are plea-bargained.

For those who have rejoiced at Judge Hoffman's conclusion that wrongful conviction is rare, let me ask: Is a 20% error rate at trial acceptable?

Hoffman mentions parenthetically that innocence projects fail to mention cases where defendants are wrongfully acquitted. What he fails to note is that a wrongful conviction is really an especially pernicious kind of wrongful acquittal. Remember that when a crime is committed and the wrong person is convicted, the actual perpetrator goes free--something that should outrage all who are concerned about victims' rights.

The problem of wrongful conviction is one that should concern all thinking citizens of all ideological stripes.

200 Exonerated by Innocence Project

The Innocence Project has produced a pamphlet that tells the stories: 200 people wrongly convicted, imprisoned, many facing death.

The tragic truth revealed by the Innocence Project is that our criminal justice system gets it wrong. And remember, for each wrongly convicted person, a guilty party may go free.

Every one of those exonerated by the Innocence Project had been charged and convicted of the most serious crimes. You'd think that if the system got anything right, it would be the serious crimes.

One of the great disappointments during the tragic journey our family has been on is that those in the legal profession know how inaccurate the system is. They often refer a jury verdict as a "role of the dice." How terrible, I thought upon this, that such a cherished American tradition would be degraded to a game of chance. Sadly, though, that is the case, and it will continue to be the case until we can hold prosecutors accountable for unethical actions, and until we improve juror education and training.

Jurors and the Presumption of Innocence and Reasonable Doubt

Where has reflection and thoughtful analysis gone? Certainly, it's not modeled on TV. There's money and ratings in being cock-sure. Consider the popularity of CNN's own prosecutor-in-residence Nancy Grace. Jon Stewart provides some insight on this former prosecutor's ability to look at the evidence rationally:



So, should it be surprising that jurors often don't understand what presumption of innocence and reasonable doubt mean?

Though few jurors have spoken publicly about their decision process in Todd's case, the remarks of one, who chooses to remain anonymous, are enlightening and shocking:



Here's the transcript of the operative soundbite reported by Brian Arnot:

Q: Do you think beyond a reasonable doubt that he did do it?

Juror: I don't know....

Beyond reasonable doubt? Presumption of innocence? Now add to the obvious frustration rule of evidence 606(b): Such statements by jurors are inadmissable in court, and cannot be considered when reviewing a case on appeal.

The rush to indict

The DA charged Todd with murder four days after the stabbing. It would still be another three months before the forensic evidence would be sent to the state lab. It would be a half year before the lab completed its serology report. Months more would pass before any DNA analysis would be performed. Almost a year would pass before the DA requested the metro forensics unit in Colorado Springs to produce a crime scene analysis. Over thirteen months would pass before that report was released. It would say that a second person at the crime scene, the only person seen fighting with the victim, the person who, unlike Todd, was covered with the victim's blood, could not be eliminated as an assailant. By then the DA had already cut a deal with this likely assailant, had placed him beyond prosecution. The DA cut him a deal two months before the state crime lab had even opened the evidence packets in the case.

Today the news is filled with the Duke rape case. The New Times (12 April 2007) reports the conclusion of North Carolina's attorney general Roy A. Cooper:

“In this case, with the weight of the state behind him, the Durham district attorney pushed forward unchecked,” said Mr. Cooper, who took over the case in January. “There were many points in the case where caution would have served justice better than bravado. And in the rush to condemn, a community and a state lost the ability to see clearly.”

Bravado is seductive for the ambitious politician, and many prosecutors are politically ambitious. When faced with the trade-off between using the time it takes to get it right and the advantages of exuding action and decisiveness, ambition can tip the scale away from caution, away from truth. The premature indictment becomes an article of faith for the prosecutor who now needs to assert infallibility as well as decisiveness. It now steers the subsequent investigation. The goal: eliminate alternate suspects, avoid forensic tests that may be problematic to the case, conceal information that might help the accused. The new imperative is not "let justice be done"; rather, it becomes: "win the case."

Reade Seligman, the recently exonerated Duke lacrosse player, described the experience:

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed,” Mr. Seligmann said. “If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves. So rather than relying on disparaging stereotypes and creating political and racial conflicts, all of us need to take a step back from this case and learn from it.

“The Duke lacrosse case has shown that our society has lost sight of the most fundamental principle of our legal system: the presumption of innocence.” (from the New York Times, 12 April 2007)

The loss of the presumption of innocence: all Americans should shudder.