Saturday, December 12, 2009

...and Justice For All

What do the movies "Twelve Angry Men", "The Verdict", and "A Few Good Men"

have in common? Each movie is about courtroom drama and about justice. In all three

movies the system works, good wins out over evil, truth is revealed, and injustice prevented.

I love these movies because "once upon a time", sometimes naively, I truly felt the American

system of jurisprudence was designed to seek justice and prevent injustice. I hate being naive

especially when I am wrong.

The New York State Legislature is deciding whether or not to pass a bill that would

allow a judge to overturn a conviction when evidence "conclusively establishes" innocence,

Why would such a law be necessary? In America, can a person go to jail even if there is

conclusive evidence of innocence? Wouldn't that violate every concept of justice we have

grown to believe in? The answer is: Not only can YOU go to jail even if there is conclusive

evidence you are innocent, YOU can be kept in jail even after innocence is proven, and YOU

can even be executed. I'm not kidding. In America, a person (YOU!) can be executed even

if there is conclusive evidence that you are innocent. Think about it.

The key to this extraordinary situation is a legal technicality. It's all about when

evidence is discovered and how it is discovered. Once someone has been convicted in a trial,

the only way to overturn the conviction is if there is new evidence or if constitutional rights

were violated. So what's the problem? The problem is new evidence must be determined

to be information which couldn't be found during the trial. If a judge rules it could have been

found, the "new" evidence is ruled out and the guilty conviction stands. Once a conviction is

established, there can be a video of the true culprit committing the crime, even his signed

confession and DNA evidence; but the innocent person cannot be freed unless some procedural

error has been made. It may be wrong, but it's business as usual in the federal courts.

In federal courts, actual innocence is not recognized as grounds for overturning a

conviction. The fact that the person didn't do the crime is not relevant to federal judges.

This even extends to the death penalty. Supreme Court Justice Antonin Scalia stated:

"This court has never held that the Constitution forbids the execution of a convicted defendant

who had a full and fair trial, but is later able to convince a "habeas corpus" court that he is

actually innocent." Scalia sees no injustice in executing someone who didn't commit the

crime. When I read this it seemed to turn the whole concept of justice upside down. Yes,

you heard me correctly, an innocent person can be kept in prison, and even executed in spite

of evidence proving innocence. Once a trial is over, even if it can be proved conclusively

that someone else did the crime, you're still guilty. This seems like something straight out

of a "Kafka" nightmare or the Siberian Gulag or "Red" China. But America?

In America today, if you are in jail and file a petition asking for your conviction to be

overturned based on the fact you are "actually innocent", most states and the federal courts

will deny your petition. Now you can understand why some are pushing for a new law in

New York which would allow a judge to set people free who are "actually innocent".

I am having a hard time conceiving of any possible reason why society would want

a person kept in jail or executed who was innocent. How can it be just? What better purpose

is served? Is there a blood lust in this country I am not aware of? Opponents of the "actual

innocence" concept (yes, there are opponents to setting innocent people free) stress the need

for finality in the criminal justice system. They say allowing people to be freed who are

actually innocent could result in a flood of frivolous claims by desperate prisoners. They say

it's more important to stop frivolous lawsuits than it is to make sure someone's freedom or

life has not been unjustly taken from them. And I say, I'm not buying it!

In Texas, there is an on-going controversy over the execution of a man convicted of

setting his home on fire and killing his family. Internationally acclaimed arson experts

concluded the fire was not arson. They concluded the State Fire Marshall was incompetent

and did not understand the science of how fires start. The Governor of Texas ignored this

new evidence and allowed the execution to proceed. It is considered the most blatant example

of the execution of an innocent man in recent times! However, even if the governor had

commuted the death sentence to life in prison, the convicted father would have had to stay

in prison because Texas doesn't recognize the doctrine that actual innocence of a crime is

a reason to overturn a conviction. But Texas is not alone in this travesty.

The American system of criminal justice is broken. The scales of justice pamper

the wealthy, the powerful, and the politically connected; while the poor and weak are

brutalized and made examples of. It is a system where the color of your skin can have a

direct effect on the type of justice you receive. Elected prosecutors use convictions for

political gain and police lie and cover up because of economic benefits they receive.

Until recently, I would have said ours was the best judicial system on earth; but

how is it possible that innocence, under any circumstance, wouldn't be an acceptable argument

for freedom? It's not. So what are we to do? Every state needs to have a law allowing a

conviction to be overturned if a person is "actually innocent". Congress must pass legislation

prohibiting any American from being held in prison or put to death who is "actually innocent".

Until this is done, no American can honestly say the Pledge of Allegiance because, right now,

as you read my words, "liberty and justice for all" doesn't exist in America. What do you

think? I welcome your comments and rebuttals. Please send them to

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