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“Wrongful
Convictions---Our Nation’s Disgrace”
By: Grace Elting Castle, CLI ®
Investigators' Super Conference
2002
Royal Sonesta Hotel, New Orleans, LA
August 24, 2002
©2002 Grace E. Castle
(The following are the speech notes for a
presentation on wrongful conviction investigations. Those who attended the
session were promised they didn't have to take notes because the important
points would be on this website. I hope that other readers will also find useful
information here)
A young Chicago girl is being viciously
raped. She's only 17, naïve with limited mental capacity. She's seriously
injured and scared to death! She's emotionally damaged. What will happen to her
attackers? Will one of us come along and try to prove that they were wrongfully
convicted?
The issue of wrongful convictions in the United
States has become hopelessly entangled with the issues surrounding the death
penalty. Even when we had the national conference in Chicago in 1998, we called
it "Wrongful Convictions and the Death Penalty," completely ignoring
those righteous men and women who sat in the audience unrecognized for the pain
and anguish they had sustained. They had been "wrongfully convicted,"
but having escaped the death penalty was the story of the weekend.
There was worldwide media representation at
that conference, but some of the best stories of the decade were missed because
of what I call the media's "death penalty blinders."
We're not going to wear those blinders today.
When I say wrongfully convicted today, I don't want you to hear "death
penalty."
I don't want you to hear "innocent".
I don't want you to hear that little voice in
your head that might be saying, "Yeah, sure."
I want you to hear "WRONGFULLY
CONVICTED."
I hope you didn't come here today to hear how
to prepare timelines, or how to get court transcripts for a trial held forty
years ago. We're not going to spend much time on the details of case review.
What we are going to do is to discuss our role in creating wrongful convictions
in the first place.
We can't solve the death penalty debate here
today. But if this discussion brings one investigator to a new understanding of
wrongful convictions-- if it brings at least one investigator to a new
understanding of our profession's role in this astounding situation, it will
have been worth the time we are spending.
Remember when I said that I don't want you to
hear "Innocent" when I say the words "wrongfully convicted"?
Before we can proceed, it is vital that everyone in this room understand that
guilty people may be wrongfully convicted! We're not always talking about
innocence!
Remember the young rape victim I mentioned? Can
you honestly say you wouldn't prejudge the rapists?
It's easier to do the work if we have an
innocent person. MUST REMEMBER: Everyone is entitled to a fair trial in this
country. Everyone is entitled to a presumption of innocence.
I have had investigators tell me that they
won't do criminal defense work, or investigate a wrongful conviction claim
because they don't want to work for guilty people. I'm glad they have made that
decision! We shouldn't try to convince them otherwise.
If an investigator has already decided a person
is guilty before the work begins, what chance does that defendant have for a
fair trial?
But that's exactly what has happened in so many
of the cases I've reviewed in the past few years. Either the defendant's
attorney or the investigator, or both, plainly had decided that this person was
guilty and thus no effort, or at least very little effort, was put forth to
assure a fair trial.
I don't believe we have to manufacture
evidence, or manipulate testimony. In fact, I think every investigator and
attorney who does that should be imprisoned!
But I do believe that we have to think, we have
to speak up, and we have to remember that defendants are innocent until proven
guilty.
If, as defense investigators, we find evidence
that seems to verify that the defendant may be guilty, it's our responsibility
to bring that to the defense team's attention. That does not mean that we have
proven the defendant to BE guilty. That's not our role.
At that Chicago conference I heard Michael
Newman say that he never claims to be a "criminal defense
investigator." He prefers to be "an investigator." I think he's
right. We may have put so much emphasis on the words "criminal
defense" that we've destroyed not only the public's perception of who we
are, but seriously affected our own understanding of our role. Some of us have
come to think that we have to "get the guy off" no matter what the
actual facts may be.
Too often in working with investigators,
especially those macho, wannabe cop-types of investigators, I have found that
there is a lack of understanding of our role on the defense team. We are fact
gatherers, not judge and jury.
One investigator who had been assigned to one
of our wrongful conviction cases became so excited over the possibility that he
could go to the prison and convince our client to confess, that he completely
forgot he was no longer a policeman. This investigator was unable to comprehend
that wrongful conviction case investigations are completely different from those
done for prosecutors! I was not unhappy to see him leave our staff.
Understanding the role of the investigator
assigned to a wrongful conviction case is difficult. It's different in many ways
than the traditional role of the criminal defense investigator. We'll explore
that role today, with a few hints to help you as you struggle with your cases.
And struggle you will. There is nothing easy about this type of investigation!
There have been numerous studies, including the
recent, media-hyped report by a blue ribbon panel in the state of Illinois. You
can find information on those reports on the Internet. Be sure to read through
them for background information. Note the statistics so that you realize how
serious the problem of wrongful convictions has become.
If you need a place to begin in your Internet
search re wrongful convictions, go to my website, www.cluesonline.com and look
for the wrongful convictions link. There you'll find many of the most useful
sites, as well as articles about wrongful conviction cases.
One important fact that you won't find on the
Internet, or in any official documents, however, is that even though Illinois
Governor George Ryan finally succumbed to the overwhelming evidence of wrongful
convictions in his state, and even though he made a huge media event of
appointing his famous committee to study the Illinois problems, he failed to
appoint even ONE investigator to that committee. He appointed a man who runs a
janitorial service, but there wasn't room for a professional investigator! He
simply ignored our volunteers, and our profession.
The media, the government, even defense
attorneys, and especially the attorneys general who have served this nation,
prefer to ignore us. To pretend that we don't exist. That
"investigations" are managed or conducted by attorneys.
In that failure, they're also failing to hold
us partially responsible for the condition of our legal system that allows
wrongfully convicted people to be rotting in our jails and prisons.
What does it mean to be "wrongfully
convicted"?
The Encarta World English Dictionary gives us a
very simple explanation:
Unlawful. Not done according to the law.
The second listed meaning is: unjust. Not just
or fair.
Unlawful and unjust. Wrongfully convicted then
means a conviction that was unlawful and unjust.
I ask you to think about this---what do we, as
professional investigators, stand for--- if not to assure our clients that they
will receive a lawful and just treatment in our nation's courts?
Kitty Hailey has just compiled a book on
investigator ethics. The contents of that book represent the foundation of every
investigation association. It represents the best of our intentions as
professionals. Certainly we will not find anything in that book of ethics that
encourages anything remotely related to promoting unlawful and unjust actions
against our clients.
We investigators have good intentions. We now
have a book about those good intentions, Yet, the nation's jails and prisons are
full of wrongfully convicted persons. How did they get there if we investigators
are doing our jobs?
The studies and reports usually have a tidy
list of reasons why there have been wrongful convictions. They usually list:
- Police and prosecutorial misconduct
- Bar Misconduct: "the lazy/greedies" not discussing today
And, tucked into one of the little paragraphs
about attorneys is usually a phrase that reads something like "failure to
investigate."
Well, really! How can any person be presumed to
have been rightfully convicted if there was a "failure to
investigate"? A determination that there was a "failure to
investigate" on ANY case should mean automatic disbarment for any attorney.
I haven't found an attorney bar or association
yet that agrees with that, by the way.
So, since we can't control the state attorney
bars, the police, or the prosecutors let's focus on what responsibility we, as
the nation's investigators, have for the fact that there are an unconscionable
number of persons who remain behind bars despite their claims of innocence. What
have we done-or not done--- to help create this mess? What can we do to help
change it? To stop this apparent runaway train?
After carefully considering the evidence I've
found in dozens of cases that were being reviewed as wrongful convictions, I
have compiled a list of five questions that investigators should ask themselves
before beginning an investigation for a person who faces criminal charges.
1. Have I prejudged this defendant's guilt or
innocence?
2. If I have, will that hinder my work as a
professional investigator?
3. Have I learned to truly LISTEN to what is
said to me so that if a defendant says "I didn't do it," or "I am
innocent," I hear what is being said?
4. Do I have enough respect for the right of
this defendant to have a fair trial that I will question any attorney actions
that seem not to be in the defendant's best interest?
5. Do I really have the experience and
knowledge, that pretty little word "expertise" to conduct an
investigation that will result in a fair trial for this defendant?
For those who may be reviewing a wrongful
conviction case, you can use these same sentences in your review.
Check the actions of the investigators, and the
rest of the defense team, against these questions. You may be surprised at how
quickly you find evidence of unprofessional conduct that may lead you to
arguable issues for a new trial.
Let's quickly take these questions one at a
time.
1. Have I prejudged this defendant's guilt or
innocence?
We've talked about this a little already. Don't
misunderstand me. I know that there are many pros and cons as to whether an
investigator needs to know whether or not a defendant actually committed the
crime.
I've been in the position of having to ask a
defendant to publicly admit his guilt to save his co-defendant from the death
penalty.
I've been involved in cases where the defense
team had the defendant take a polygraph so that we could determine the best
available defense.
These are decisions that must be made based on
the case at hand. Not all investigators will agree on the best defense.
What is important is that the work gets done
and the defendant receives a lawful and just defense. A fair trial. Or as fair a
trial as is possible in today's world of media-driven courtrooms.
If an investigator doesn't do his or her job
because of a predetermination of guilt or innocence, there can be no just or
lawful court action and the defendant has been wrongfully convicted.
2. If I have, will that hinder my work as a
professional investigator?
This is a decision that can only be made by the
individual investigator. Try to be more honest than those people who promise to
be fair and impartial jurors while at the same time glaring at the defendant!
3. Have I learned to truly LISTEN to what is
said to me so that if a defendant says "I didn't do it," or "I am
innocent," I hear, and act upon, what is being said?
Listening, truly listening, is a learned skill.
It is a vital investigator skill.
I cannot tell you how disheartening it is to
sit down with a potential client, one who has already spent ten or twenty years
in prison, and to hear: "I kept telling that attorney I was innocent!"
These are almost always the cases where crucial
witnesses were not interviewed, family members were ignored, and presumptions of
guilt were made based on the defendant's particular place in society. If you're
Black, Hispanic, or Native American in this country, and you get arrested on a
felony charge, you might as well start packing for prison unless you are lucky
enough to find an investigator who knows how to LISTEN!
Do we as investigators truly look for PROOF of
INNOCENCE, or are we simply looking for a way to shift the blame to create
reasonable doubt?
I've noticed that our society does not see
innocent people being released at the end of any trial. What we see is
"people getting off". I suggest that our profession is largely to
blame for that perception. We use those very words in our every day
conversation. We hear the "talking head investigators" on television
programs expounding on cases they didn't even work and what do they say,
"He got off." Or even worse, I think, is when they preface a sentence
with : "The way to get them off."
What's wrong with saying "The way to prove
his innocence"?
There's a reason why juries ignore the fact
that defendants don't have to testify in their own trials. There's a reason one
hears a jury member say, "Well, I would have liked to have heard him tell
us what happened." Do you really think that juror gave a lawful and just
consideration?
Part of that reason is our behavior as
investigators. We have to start listening to the defendants, and to our own
language, before we truly become the weakest link on the defense team.
4. Do I have enough respect for the right of
this defendant to have a fair trial that I will question any attorney actions
that seem not to be in the defendant's best interest?
I have spoken with investigators who
continually whined about the unethical, unprofessional behavior of the attorneys
they worked with. Always sniveling because the clients weren't getting a fair
trial due to the incompetence or greed of some attorney. Yet these same
investigators are often horrified and shocked at my suggestion that they either
fire the attorney from their client list or that they speak up in protest about
the unlawful and unjust actions.
Where are our guts, people? Are we so desperate
for clients, any clients, that we choose to associate ourselves with these
maggots? Where is our lust for justice and fairness? If we don't have the guts
to assure fairness for the defendants, why are we calling ourselves
professionals?
5. Do I really have the experience and
knowledge--- that pretty little word "expertise"--- to conduct an
investigation that will result in a fair trial for this defendant?
Wow. Does this take some honesty and
self-evaluation to answer.
It's a question that should run through our
minds every time we are about to accept a new case.
We've all taken cases we shouldn't have---it's
inevitable and sometimes unavoidable. But, if we continuously do that, with no
effort to become better educated; if we fail to bring in someone with more
expertise, either as an advisor or partner, we are creating a situation that
will result in a wrongful conviction!
I certainly don't expect you to leave this
session in total agreement with all that I've said. People seldom agree with
me-I'm used to it. What I want you to take with you from this room is something
to think about. If the wheels are turning -- If you have a new way to look at
what you might do to help prevent wrongful convictions, then this will be time
well-spent.
In closing, let me quote Professor Barbara
Bergman, one of Terry Nichols' attorneys, who said at a death penalty conference
last year "I hope we can take everything we can from our time together to
fashion the tools we need to continue our work creatively and to take from our
colleagues the strength and assurance that we are not alone."
Thank you.
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