Ruben “Hurricane” Carter is perhaps one of the best known exonerees, having had his story presented by Bob Dylan in the form of song and by Denzel Washington in the form of a feature motion picture. On Sunday, Ruben Carter died at the age of 76. He spent 19 years in prison for a crime he did not commit, despite maintaining his innocence, and he was free for the last 28 years of his life after a federal judgment dismissed charges against him on the grounds of prosecutorial misconduct.
The timing here was ironic, because it came just two days after I attended yet another march for Ajay Dev, who in 2009 was sentenced to 378 years in prison. As I have written before, I did not start out a believer in Ajay Dev’s innocence. I had not seen the trial, though I was troubled at his sentencing by the enormity of the 378-year sentence and the disproportionality of his crime to the time he would serve.
I was troubled at the notion of such a long sentence for a conviction that was really based on two very thin pieces of evidence. First, the alleged victim’s testimony, which even the jurors acknowledged was difficult to swallow, and second, the ambiguity of the pretext phone call.
It was not until I read the appellate brief where the missteps, mistakes and outright misconduct of both the judge and deputy district attorney were laid out for all to see. Judge Fall mishandled the pretext phone call and translation, lost his patience, and made the ridiculous legal ruling allowing the victim herself to act as a quasi-court appointed expert on translations.
The bottom line is, without the pretext phone call, it is difficult to see how the conviction stands, though the Attorney General somehow attempts to dismiss its importance and argue that the totality of the evidence would still be sufficient to convict Ajay Dev.
What really starts to trouble one is looking at some of the cases – rare as they are – where there is just enough evidence to exonerate the innocent.
It took Ruben Carter 19 years and two separate trials before he was free. Maurice Caldwell was exonerated after 20 years in prison for a murder he did not commit. Obie Anthony was released after 16 years. Franky Carillo spent 19 years in prison. John Thompson spent 14 years on death row and several other years in prison.
Michael Morton spent 25 years in prison before he was exonerated in a case in which the prosecutorial misconduct was so bad that the state of Texas actually pursued criminal charges against former prosecutor Ken Anderson.
Last month, Glenn Ford was released after 30 years on death row and Walter Lomax was released last week after 40 years in prison.
As rough as it is to spend twenty, thirty, or forty years of your life in prison for a crime that you did not commit, these individuals are lucky. Carlos DeLuna would be executed by the state of Texas, as would Cameron Todd Willingham, for crimes in which the overwhelming amount of evidence suggests that innocent men were put to death.
In that respect, Brian Banks is fortunate. While pressured to take a plea agreement by his attorney, he would only spend five years in prison. And, once exonerated, he was allowed to attempt to belatedly resume a professional career.
There is an object lesson here and that is that we have to find a different way to handle these cases. An individual accused of committing a crime is innocent until proven guilty in a court of law. That is a legal guideline that often seems to be overlooked at the trial phase.
But once that happens, they become guilty until proven innocent. But the more we have learned about exonerations, thanks to the work of the Innocence Project and now the National Registry of Exonerations, the more we need to find a way to prevent innocent people from spending decades of their lives in prison for crimes they have not committed.
Last year, the National Registry of Exonerations recorded 87 for the year. That may not seem like a lot compared to the total number of convictions, but understand, the number is going up – not down.
Trends are changing. The number of DNA exonerations, which used to make up nearly all, has continued to decline slowly for the last decade. By 2013, only one-fifth of all exonerations were DNA-based; the rest involved other issues.
The great majority of exonerations in every year were naturally homicide and sexual assault cases. That is not surprising, given that the length of sentences in those cases prompt the majority of the money and assistance.
However, there is increasing evidence that these are just the tip of the iceberg and the data coming out of the National Registry bears that out. The Registry found, “The proportion of exonerations that do not involve rape or murder has grown over time, from 18% from 1989 through 1998 to 24% from 2009 through 2013. In 2013, 29 exonerations, 33% of the total, did not involve either of these extreme crimes of violence – a record number of exonerations in such cases, and a comparatively high proportion of all exonerations.”
What all of this suggests is that the more than 600 official exonerations is just the tip of the iceberg and that countless numbers of people have spent years of their lives in custody for crimes they have not committed.
In 2011, when Mr. Dev reached his second year in custody, Woodland Daily Democrat Editor Jim Smith was inundated by a survey petition to free Mr. Dev.
He wrote, “I have no sympathy for child molesters. In my book, Ajay was found guilty by a jury after a trial. That decision which is being appealed. That’s how our justice system works. Until that appeal is heard and the jury’s decision is overturned, Ajay is guilty and must do the time as ordered by the judge.”
While Mr. Smith is correct here, that system does not appear to work so well when it takes 20, 30, 40 years for exoneration.
The tragedy of Mr. Dev’s incarceration goes beyond that. Because of the nature of the crime, Mr. Dev has been denied physical contact with either of his two sons, including the youngest one, whom he has never even been allowed to hold.
Think about missing out on the first years of your children’s lives. That’s a very severe and unnecessary punishment.
As we continue to learn more about wrongful convictions, flawed forensics, and prosecutorial and judicial misconduct, we need to figure out a better way to keep those who committed horrific crimes in custody, while protecting the innocent.
The life of Ruben Carter is a tragic one. What we did not see is the impact of his incarceration on his family and supporters, who hung with him as long as he allowed them to.
We don’t want to have to wake up in 20 years to Mr. Dev finally being exonerated.
—David M. Greenwald reporting
I totally agree with you that we do not want to find out that it will take 20 years to exonerate Ajay.
Several people have asked about DNA testing to help speed up the process. The problem here is that there is no DNA because there was no crime scene or anything to do with a crime where DNA could be found. In fact, AV’s medical records, her doctor, and her adoption social worker all revealed that there was no evidence of rape or other sexual assaults, even though she claims the alleged rapes happened approximately every other day for a period of 5 years (over 550 rapes).
There is no DNA because there was no crime. This was a fabrication.
Sorry that I’m repeating myself. I hope to God Mr. Dev does not accept some sort of deal with the DA. that would free him, but put him on the sex offender registry for the rest of his days. It would be a very tempting deal, and it may help the DA to save face, somewhat. But he will never be free if he has to register for the rest of his life.
D.D. we are still in the process of appeal. The next step is for the judges to read the briefs, then oral arguments and then a decision. No one knows how long the process will take. But in answer to your post, I know Ajay will not accept a deal that would require him to register as a sex offender for a crime he never committed.
“In 2011, when Mr. Dev reached his second year in custody, Woodland Daily Democrat Editor Jim Smith was inundated by a survey petition to free Mr. Dev.
He wrote, “I have no sympathy for child molesters. In my book, Ajay was found guilty by a jury after a trial. That decision which is being appealed. That’s how our justice system works. Until that appeal is heard and the jury’s decision is overturned, Ajay is guilty and must do the time as ordered by the judge.”
David, this is a very disturbing quote. the fact that the local paper refused to even look into this story is why your blog is so important. Keep up the good work.
i’m reposting my comment from december. i think you have to look at a jury the way you would look at the planning commission. the jury are a citizen’s group who are assigned to apply law to the facts of the case. they can only weigh in on the facts that are presented before them. in my view, the biggest culprit in this case is judge fall who failed to properly weigh the law with regards to the critical evidence of the pretext phone call.
DP
I agree that the majority of the fault here lies with Judge Fall’s handling of the translation of the pretext call.
However, from the information provided on the Vanguard with regard to information provided by jurors, I think that you are letting the jury off too lightly. How can it be that they felt that the victim’s testimony was not credible, and yet accepted her translation of the pretext phone call uncritically ? This is simply mind boggling to me. The translation was not a matter of “fact” but rather a matter of subjective translation and interpretation by one of the two most biased parties involved. How this could be allowed, or accepted, as “factual information” is beyond my ability to comprehend.
My best to the members of the Dev family who I see as the real victims in this matter. And where is their help as innocent victims from the DAs office ?
That’s a very good point Tia.
“It was not until I read the appellate brief where the missteps, mistakes and outright misconduct of both the judge and deputy district attorney were laid out for all to see. Judge Fall mishandled the pretext phone call and translation, lost his patience, and made the ridiculous legal ruling allowing the victim herself to act as a quasi-court appointed expert on translations.”
Nothing will ever change until judges, prosecutors and detectives are held accountable. I wonder if the misconduct in the courtroom and investigative process would change if judges, prosecutors and detectives had to serve out the time of those that they helped wrongfully convict?
“…which even the jurors acknowledged was difficult to swallow, and second, the ambiguity of the pretext phone call”
There are cases where jurors felt intimidated and/or threatened by others to vote a certain way, I’m not saying that happened here but the juror’s quote makes me wonder.
“It was not until I read the appellate brief where the missteps, mistakes and outright misconduct of both the judge and deputy district attorney were laid out for all to see. Judge Fall mishandled the pretext phone call and translation, lost his patience, and made the ridiculous legal ruling allowing the victim herself to act as a quasi-court appointed expert on translations.”
Other than knowing that he was convicted and sentenced to many years in prison and that Dev has a lot of people on his side who are certain of his innocence, I don’t know the facts of this case. But it sounds like you believe Mr. Dev’s conviction will be overturned by the appeal’s court.
My questions: How common is it for a criminal conviction in California to be overturned on appeal? And how strong or weak is Tim Fall’s record as a trial judge–i.e., have many criminal cases he provided over been overturned on grounds that he erred?
I’m not convinced that the appellate will overturn it, but I was surprised when I read the appeal how many rules and procedures and evidence code sections were violated, so I think there is a chance. My guess is less than 1% get overturned. It’s worth noting that most of the cases that are actually overturned are not overturned by the appellate court but rather by the combination of new evidence and recantations.
Re:”recantations”: Let’s imagine for one glorious moment that the woman accuser grows up and has a change of heart. Let’s imagine she takes responsibility for some of her poor life choices, feels like total crap, and recants her entire spectrum of accusations against Mr. Dev. Let’s imagine that she writes a heart felt apology letter to everyone she hurt. Would this be enough to free Mr. Dev?
Not generally.
I found the answer to my first question.
Source*: http://www.courts.ca.gov/documents/2013-Court-Statistics-Report.pdf (see page 69)
From 2009-10 to 2011-12, the Courts of Appeal disposed of 15,128 criminal appeals by defendants. In just 670 cases, the convictions were reversed. That is 4.43%. In another 225 cases, the convictions were dismissed. That is 1.49%. So together convictions were reversed or dismissed in 5.92% of cases heard by Courts of Appeal.
Of those which were affirmed, 3,867 convictions (25.57%) were affirmed with modification (apparently meaning the sentence was reduced). Finally, in the other 10,366 convictions (68.52%), the Courts of Appeal upheld the convictions without modification.
So the odds for a common criminal conviction in California to be dismissed or overturned on appeal are low. However, Mr. Dev’s supporters (and David Greenwald) seem certain that his case is not common, and if they are right, his odds would be much better than 5.92%.
FWIW, if you go to the link I discovered, it also shows stats for criminal appeals by prosecution and appellate numbers for non-criminal cases and so on.
———————
*2013 COURT STATISTICS REPORT
Statewide Caseload Trends
2002–2003 Through 2011–2012
Google was not able to help me find a record of Judge Fall with regard to the success rate for criminal conviction cases he presided over which have been overturned on appeal. However, the very first case I looked up with Judge Fall’s name on it, which went to appeal, was THE PEOPLE, Plaintiff and Respondent, v.KEVIN BRYAN SPENCE, Defendant and Appellant, and lo and behold, Judge Fall was reversed in that case.
P.S. I am not going to bother to do this. However, if someone really wants to do the work to find the answer, I am sure Judge David Rosenberg either has it or he would point you in the right direction.
Rich,
Thank you for your statistics on reverses at the appellate level. You are right when you say it is extremely difficult to reverse a decision. I can give you a few particulars about Ajay’s appeal.
1. There were 10 errors that were cited in the appeal. Most appeals have one or two errors.
2. Each error is enough if proven to reverse the case, and certainly, the cumulative affect of the errors in total could very well lead to a reversal.
3. Before a court can reverse a case it has to prove two things–first that an error occurred and second that it caused enough prejudice to have altered the decision of at least one juror. Ajay’s lawyer has done a very good job showing both.
The appellate initial brief and appellate reply brief are available for you to see. These are made available because the Advocates for Ajay want the people to see for themselves how this wrongful conviction happened. If the appellate court reverses this case, it will most likely be remanded back to Yolo County for a re-trial.
We hope that Ajay Dev beats these difficult odds because many, many people know a tragedy has occurred. There are many that know first-hand that she was lying–see my post in the article on Saturday for a list of lies she told.
The appellate brief and appellate reply brief are on http://www.seekingjusticefortheinnocent.com
David has taken the time to read them and outline them for you, but feel free to read them and see what you think.
Rich wrote:
> Other than knowing that he was convicted and sentenced to many years in
> prison and that Dev has a lot of people on his side who are certain of his
> innocence, I don’t know the facts of this case.
I’m in the same position as Rich, but I know other innocent people that have been forced in to doing things when a women told them “if you don’t do it I’ll say you tried to rape me” (knowing that they might up sharing a cell with Mr. Dev and if they are “lucky” stay free and have people point at them and call then a “rapist”).
I also know multiple people (who tell me their situation is very common) that were accused of sexual and/or physical abuse in a divorce (and have to deal with many of the people they know thinking they are some kind of perverted wife and kid beater).
It is sad that more than 20 years after he walked out of a courtroom an “innocent man” that Dr. William Kennedy Smith who had spent years helping people injured by land mines was thinking of running for office did a poll and the majority of people responded “the rapist” when asked if they recognized his name…
David, your magnanimity and conscientious support, in connection with the untoward legal judgment rendered against an innocent man in the State v. Ajay Dev has been nothing short of heroic.
You have eclipsed both personally and professionally what I declare to be the Gold Standard, whereby ethics, moral conscience and courage take precedence above and beyond power, patronization and privilege.
Consequently, to best promote and diligently serve the interest of justice within our societal, political and legal organisms– the following challenge remains proprietary:
“What are we as individuals living under the prescription of law prepared to risk in the name of reputation and career in defense of principle?”
The answer to the aforementioned interrogatory will definitively determine to what degree we as citizens ultimately facilitate and enshrine justice as the touchstone of a civilized culture.
How do we assure that “real” rapists are dealt with, while false accusers are also dealt with? How many women serve time in jail if they are false accusers? If a woman is a false accuser, does she need court-ordered heavy duty psychological counseling, or does she need jail time? Or does she need a combination? Maybe she just needs spiritual counseling? (And isn’t that a form of psychological counseling, anyway?)
The false accuser I had to deal with had recently broke off an engagement. She was extremely fragile, and she transferred all her rage and frustration to the next man she met online, which, unfortunately, happened to be a good friend of mine. She has still never apologized for her false accusations. My friend took multiple lie detector tests to prove his innocense. If she recants her story some day, what should happen to her?
This is a tough call.
I think those that make false allegations might be more likely to recant if they are guaranteed that they are safe from prosecution.
So then it becomes a matter of which one can you live with ……giving the false accuser immunity so that you can let a wrongfully convicted man out of a life sentence, or letting the wrongfully convicted person suffer because you don’t want the false allegations to go unpunished.
After seeing this first hand, I would rather take the recant to save an innocent man.
I agree, we would take the recant. Even though the evening news put a picture of my friend’s home on t.v., while the t.v. announcer spoke: “seven registered sex offenders were re-arrested in the governor’s Operation Vigilance annual sweep of sex offenders” (I am paraphrasing here.) What the news announcer did not state in her comments was “the picture of the house you are seeing houses a man who was found in complete compliance and it is the home of a man who was NOT re-arrested.”
This home identification on television was especially painful because he plea bargained to “zip code only”. Meaning, his ID was supposed to be kept under wraps, and only his zip code was supposed to be revealed.
We would still take the woman’s recant. And, for the record, my good friend has forgiven his false accuser. He can’t forget her, but he has totally forgiven her.