Wednesday, April 11, 2007

Duke rape case just the tip of the iceberg in a broken criminal justice system.

Today the North Carolina Attorney General announced that the rape charges and all other charges against three members of the Duke LaCrosse team were being dropped, and went so far as to declare that the men were innocent. He pointedly, without naming Durham county prosecutor Mike Nifong, indicated that the prosecutor in the case had committed a serious ethical breech in continuing to push the case even when more and more evidence piled up that contradicted the accuser's story, including DNA evidence, other witness testimony and contradictions within her own story of such a magnitude that they simply could not be reconciled.

Now, I wish the three young men the best with their lives. Now that they have been cleared, they will certainly be in line to sue the county prosecutors office, and possibly others. Potential targets could include members of the media, Duke University, Mr. Nifong personally and conceivably even the accuser personally if they can prove that she intentionally gave false statements to the police.

What this does though is crack a lid on a larger issue. This case got national exposure and high profile coverage. Also, the accused had access to some very good legal representation. But is there anyone who believes that Mike Nifong is the only prosecutor in America who might be willing to twist evidence, move ahead on a case that shouldn't be pushed forward in the face of inadequate or exculpatory evidence, or pull out all the stops to try and send people who he knows full well might be innocent to prison?

Over the years we've seen more and more evidence of innocent people being released from prison, and in fact just today Florida moved forward on a bill that would pay people falsely imprisoned $50,000 per year of false imprisonment. This is a good bill which should become law and hopefully will serve as a model for other states.

In fact, given the adversarial nature or our prosecutorial system and the fact that prosecutors are generally either politicians who have to run for election themselves or are answerable to politicians, it is quite likely that there are many more Mike Nifongs out there, who simply have not made the mistake of trying to railroad rich white kids at an elite university who can afford good attorneys and get national press coverage, but have instead done so to poor, mainly minority defendants who can only afford a public defender. Certainly that was the case with Anthony Porter, who came within two hours of getting a lethal injection a few years ago in Illinois, along with the majority of the other over one hundred and counting former death row inmates who have since been exonerated (this is in contrast to the thousands who have simply received a new trial or had their sentences commuted on a technicality.) In fact, the one hundredth man exonerated after having spent time on death row in the United States for a crime that he did not commit was an Arizonan, Ray Krone.
I mention this only because of the fact that while those on death row may have been sent there for a different crime-- murder-- than the majority of prisoners, those one hundred give us a snapshot of those sent to prison and later exonerated. And the large majority of them are poor, minorities (Krone was an exception) and had been represented by public defenders. Some public defenders are quite good, but then it is also true that many lawyers who are chronic losers and can't get hired anywhere else, end up as public defenders.

Life in prison can also be tough for the innocent. They are of course convicted felons, like all the others in prison. And there is no doubt that at least 95% of the people in prison are guilty as heck and should be there, and we know some of what goes on in there. And then comes the parole hearing. As we read last week after Anthony Capozzi was exonerated after living in prison for 22 years for a series of rapes that he did not commit,

He had been denied parole five times since becoming eligible in 1997. His refusal to admit the crimes made it impossible to complete a mandatory sex offender program, his defense said.

“It’s the biggest Catch-22,” [his lawyer] said.

How many have simply realized that the real truth didn't matter and confessed to a crime they did not commit in order to get out of prison (or for that matter to cut a plea deal before they go in?)

It would be a mistake to suggest that the problems with the criminal justice system begin and end with the Durham county prosecutor's office. It is true that in even the best criminal justice system mistakes are bound to be made (one big reason I oppose the death penalty). But the criminal justice system we have in America is far, far from the best, and perhaps we should go through it from one end to the other and try to figure out what it will take to, as Joe Friday used to say, focus on 'just the facts.'

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