Bringing Professionalism to A Case of the Wrongfully Convicted

By Grace Elting Castle, CLI

Should the defense investigator be concerned with the guilt or innocence of a defendant?

Those who are adamantly in support of knowing whether or not the defendant is guilty often insist upon requiring the defendant to submit to a polygraph test. Others are just as adamant that the job of the investigator is to gather the facts, without thought to guilt or innocence. It’s a question that will be debated for as long as there are persons who call themselves detectives or investigators.

For those who are working a case of wrongful conviction---you’ll WISH that someone had worried about whether the defendant was guilty or innocent! There are varying situations in which the convicted claim to be innocent, of course. Every case will be different. But in some ways every case will be the same: the convicted will be imprisoned due to the inexperience or unprofessional behavior of either the defense attorney or the defense investigator—and too often of both! 

The underlying facts of the original case may show that the police lied and cheated, that the politically-motivated prosecution team was too involved in getting a "win" or that the media may have been breathing down everyone’s political neck demanding a conviction, but that is now true of many criminal defense cases.

When a potential client comes to us with claims of innocence of the charges for which a conviction was made, more often than not we find that the defense attorney either didn’t bother to hire an investigator or that an inexperienced or unmotivated investigator was retained. Either scenario spells disaster for the defendant. Death Rows across our nation are filled with the victims of this atrocity.

A professional investigator would never accept an investigation assignment, the result of which could mean life or death for the defendant, unless that investigator was experienced and knowledgeable in that particular type of investigation. The professional investigator, unprepared to competently investigate such a case, would most likely associate someone with the appropriate experience and then utilize this opportunity to develop expertise.

A professional attorney would recognize that these cases should never be tried without engaging the knowledge and expertise of a trained investigator. A professional attorney would not deprive the defendant of his or her rights to be involved in the case, nor would that attorney encourage a guilty plea without ever having investigated the case. But, as the doors to Death Row are flung open time after time to release the wrongfully convicted, we begin to realize that there is a problem in the defense of these victims of the justice system¹. Someone is not being professional.

Last November, at the first National Conference on Wrongful Convictions and the Death Penalty²more than a thousand attendees sat spell-bound as nearly half of the 75 persons who had been released from Death Row by that date solemnly approached the podium and stated, "If the State of (home state) had had their way, I would be a dead man (or woman)now". These people, many still impoverished and broken by those years on Death Row, were so inspired by the concept of the Conference that they came to Chicago to tell their stories, hoping that they could keep others from suffering the same fate.

Their stories, told in special sessions, in private conversations in the hallways of the law school, over meals with conference attendees or in press conferences for the world’s media in attendance at this historic event, were chillingly similar---for years no one would listen to their cries of innocence!

Most had attorneys who somehow didn’t comprehend that this was a human life for which they were responsible. Very few had the assistance of an investigator. None had had the assistance of a professional, competent investigator.

Those imprisoned persons coming to us, to you, with pleas of their innocence may very well be innocent. It’s easy after working many years in the system to think that one has heard everything and to believe that everyone in jail claims to be innocent. We must keep it foremost in our minds that these generalizations are not true---there are innocent people in our jails and prisons. These are people from our communities, admittedly some that we may not love, in fact can barely tolerate, but if they are innocent of the charges for which they are convicted, they deserve to be heard. They deserved to be heard before they were convicted, but the professional attorneys and professional investigators were not there for them.

Innocence projects are developing in law schools across the nation, but they are overloaded and unable to help all those who are seeking competent investigators to review their cases. Some inmates have the financial means to pay for this assistance, others do not. While our professional associations are, or at least should be, seeking ways to ensure that every defendant is assisted by professional, competent investigators, it is up to those of us who are trained and concerned about the current state of the justice system in this country to come forward to assist the wrongfully convicted.

At the Conference³, I met an author whose recent book⁴ details the history and status of women on death row. The author, Kathleen O’Shea, a former nun who is a social worker in Maryland, recognized the dearth of information on the use of the death penalty against female defendants and dedicated a portion of her life to researching their stories. The first to approach this information in this format, O’Shea has written a detailed and important book. I recommend that any investigator involved in, or considering becoming involved in, wrongful conviction and/or death penalty cases read it.

In addition to presenting a synopsis of each condemned woman’s story, this book provides an historical overview for each of the states where the death penalty has been instituted. If you’re working a case in Alabama, turn to page 33 to see that electrocution is the favored method of execution in that state, with sixteen being the minimum age of eligibility. Those facts are followed by a brief history, the current status of the death penalty, and the stories of those women who have been sentenced to death there. Few of us will be called upon to review a wrongful conviction of a female sentenced to death row---the numbers are much less than the convicted males, but this book has valuable death penalty information for the professional investigator. This is not a read it once book, but rather one that should be read, and then added to your reference library to be frequently consulted.

When approached to review a possible wrongful conviction case, it is important to put aside any emotional reaction to the person making the pitch. Often it is a mother or sibling who comes with a notebook full of reasons why their loved one is not guilty. It’s difficult to resist their desperate pleas, but be firm. Ask for the basic information needed to review the case and then do that review out of their presence! Send them home. Tell them to come back in a month. Do whatever is necessary to get them out of your mind, and away from your sight, or their misery and dedication will influence you.

Later, once you have given them your decision, be sure to also confirm it in writing---a letter declining the case, or a contract detailing your agreement with them.

If the request comes from a prisoner’s letter, read it, decide whether or not you think there is a possibility this might be one of the wrongfully convicted and then answer the letter. You either say, "Send me this information (be specific), and my firm will review your case for possible action"--- making it clear that you are not committing to taking the case, only to reviewing it---or you say that you have read the letter and cannot be of assistance. Perhaps you can suggest another investigator who might be interested in reviewing the case. Whatever your answer, try to respond to every initial request.

Time after time I’ve heard those who have been released from prison after someone has proven their innocence exclaim, "Thank God someone finally listened to me!" Dennis Williams⁵, who spent 17 years on Death Row protesting his innocence, as well as that of three men convicted with him, says that he never gave up the fight, but that he became desperately discouraged with sending letters pleading for someone to listen to him. Despite the years of writing letters seeking assistance, his plea wasn’t recognized until a fellow Death Row inmate, on his way to execution, urged a university professor to concentrate on proving that Williams was innocent.

What is needed for an initial review of the case?

• Convicted person’s name, current address, sentence information, date of conviction and original case number.
• Convicted person’s background, including date of birth, race, education, prior convictions.
• Name of judge, court site and whether conviction was by judge or jury.
• Brief synopsis of the case, including why the convicted person (or the representative) thinks he/she was convicted. This should include a listing of any new evidence or witnesses not known, or not used, during the initial trial. Also included should be information on any motions or appeals filed since the conviction, with the outcome of each.
• Names, addresses and phone numbers of all attorneys involved in the original case and any subsequent actions. (Including the prosecuting attorneys).
• Names, addresses and phone numbers of all investigators involved in the original case and any subsequent action.
• Copy of all police reports
• If possible, it is also helpful to have a timeline from the convicted person’s birth through the latest action on the case, but that is not likely to be available. Most often it is developed by the investigator at a later stage of the review, or after the decision has been made to pursue the case.

You may want to add to this list.

Making these decisions is not an easy task. There are no magical rules, seldom any clear -cut signs that this is, or isn't, an innocent person. The investigator has to rely on the instinct that comes from years of experience and knowledge of human behavior. Seldom will you pick up a police report or a case synopsis of a person who sits on Death Row and find the key to proving their innocence, although often when it is found one wonders why it wasn’t obvious from the beginning! It takes long hard hours of analyzing records, preparing timelines, reconstructing the scene and event, and identifying and locating witnesses who may now be dead or unable to recall pertinent details. It may take finding the real murderer (and getting them to confess!), or it may be that you will have to prove that the police knew this was the wrong person and deliberately covered it up.

In the case of Dennis Williams, and his three co-defendants, who came to be known as "The Ford Heights Four," it took all of that and more---a coordinated effort by private investigators, a university professor, journalists, lawyers, paralegals, students---a virtual community effort to undo what the police and prosecutors had done to four innocent young men nearly twenty years before.

The emotional intensity of these cases can cause an investigator to take a step over the line of advocacy that can reflect poorly not only on one’s own professional reputation, but on the validity of the proof of the inmate’s innocence. Be very, very careful that a distinct line is drawn between your role as a professional investigator and that of an advocate against the death penalty, and other issues associated with the case.

The family, friends and other supporters of the wrongfully convicted may be marching in the streets and storming the legislature, ranting against the death penalty, prosecutorial misconduct and police brutality, but the investigator must distance him or her self from political activity so as to assure that the evidence of innocence will be accepted as such by the rest of the legal team and, most importantly, by the judge. There is apt to be doubt in the mind of that judge as to the validity of the evidence if the investigator has been seen on the nightly news marching in the city’s streets.

It’s important to explain to the wrongfully convicted and their supporters, early on, that the investigator’s role in proving innocence is much different than theirs.

These are high-profile defense cases. Often one is working against an execution deadline, against a media blitz as the prosecutors and family of the victim keep the public incensed against the convicted, and against years of complicated and intermingled records of the police actions, trials and hearings. Almost with certainty those witnesses from an event of a decade or more ago will either be dead, dying, imprisoned, or difficult to find. Don’t believe the media hype that results when an investigation is successful and a Death Row inmate walks---these are not simple cases and an investigator does not just walk in and get someone else to confess without a lot of prior investigation having been done.

If you take on one of these cases (and I hope those who are qualified, do!) be aware that these are time consuming, intense projects.

If your investigation project is successful and you’re lucky enough to be in the courtroom when the judge orders the innocent released, you’ll forget how difficult it was getting there. But if it isn’t successful, if you run out of time, or the facts just aren’t there, or witnesses won’t cooperate even though you know they’re lying, you will be faced with the probable execution of a person to whom you have dedicated a large chunk of your life.

We find that concentrating on that probability motivates us to find that proof!

1 To date 80 men and women have been freed from Death Row, six already this year. Death Penalty Information Center website: http://www.essential.org/dpic/Innocentlist.html 
² Northwestern University School of Law, Chicago, IL. November 1998
³ Ibid
⁴ O’Shea, Kathleen Women and the Death Penalty, Praeger, Westport, Connecticut & London; 1999
⁵ Protess, David and Warden, Rob A Promise of Justice, Hyperion, New York; 1998¹

© Grace Elting Castle

(This article was originally published in the Fall 1999 issue of PI Magazine, Toledo, OH 43609)
 

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