Sunday Commentary: How We Can Prevent Wrongful Convictions

This was the speech I gave last night at the Vanguard Court Watch Event: Preventing Wrongful Convictions.

This has been an interesting year for the Vanguard Court Watch. When we started the program back in 2010, we had five interns, I was running the Vanguard out of my Davis apartment and there was very little overhead or expense.

Times have changed.  The Vanguard just moved into our new offices this June and, with overhead, upkeep, personnel and other expenses – we have real bills that need to be paid on a monthly basis. That plus a hectic schedule of taking children two and from school, has limited my ability to get into the courtroom on a regular basis. When I’m not schlepping kids, I’m spending my time on the phones or the computer trying to raise money.

So to make up for quantity of time in the courthouse, I have gone for quality of time. This past spring, I got a subpoena from the district attorney’s office to testify against a family accused of grand theft in a dispute they had with a repo man.  The DA wanted to go on a fishing exposition to not only get me to confirm what I had written, but to explore some other issues.

Fortunately, thanks to the good work of Attorney Josh Kaizuka who, by the way, will never ever take a call from me on a Sunday evening ever again, we were able to limit my court testimony to five minutes of useless drivel that probably helped the family caught up in this case more than the prosecution.

The first time I would go to this new courthouse in Woodland, I was there as a prospective juror.  Hey look, I get it, the Deputy DA does not want David Greenwald on their jury. Compound that with the fact that I had the misfortunate of having Deputy DA Robin Johnson who knew me well from the old days when I covered three trials in a row of hers where I swear she had the wrong defendant in each.

Robin Johnson was probably number two on the list of deputy DAs who would want me off as quickly as possible. She quickly started questioning me about articles I had written critical of the DA’s office and, in particular, her.

She brought up about five or six, all of them from 2010 or 2011. I have to admit, I was very foggy on some of them, especially about the details of the cases. In several cases, I had to respond with “may” and “it’s possible.”

One question stood out: she said I wrote that she was unethical in a case where one of the witnesses asked where the shooter was, because she did not see him in the room, and the DA had continued to prosecute the case, which was pretty clearly directed toward the wrong person. Of course, it turns out, I never wrote that she was unethical, she was attributing comments from readers to me.

So this week, Tuesday, I get a call.  About three weeks ago, there was a horrible tragic shooting here in West Sacramento, a 13-year-old girl was sitting in her living room, watching a moving, and she was hit by bullets fired from the street. She remains in a coma today. A few days later, they announced they had caught the guy.

On Tuesday, his wife calls me up and says that he can’t be the guy because she was with him with their family at a pizza place in Stockton at the time of the shooting. So I dropped everything, grabbed an intern and went to Sacramento to talk to the family.

I’m really not clear exactly what the DA believes they have connecting this guy to the shooting, but from what I have seen, I think they have the wrong man. Fortunately, in Yolo County, we have a public defender’s office that has good attorneys, reasonable workloads, money for investigators, and the works.  This guy will get a strong and rigorous defense.

The problem is that we see guys like this all over the country spend not just years but decades of their life in prison for crimes they did not commit. In Yolo County, we are lucky to have a well-staffed and financed indigent defense system, but in many other places you have defense attorneys with 500 to 1000 clients, you have scant money for investigators, and you have system that is stacked against truly innocent people or simply people who are entitled to a fair trial and process.

So this past spring, my grandmother turned 100 years old and my family and I flew out to Florida in late March for her birthday. I started the Vanguard in 2006, and really have not had a real vacation where I left the state since then.

So what does the Vanguard read when he goes on vacation?  I had just watched this amazing attorney from Alabama on TED, his name is Bryan Stevenson. He has a book out called Just Mercy.  It’s a book about his personal struggles to get a man wrongfully convicted of murder and sentenced to death exonerated.

As I read this book, I realized two critical things. First of all, Bryan Stevenson ultimately won, he got this guy out, but the system had already destroyed this man’s life. About a month ago, 60 Minutes did a segment on Glenn Ford, who spent nearly 30 years on death row, in solitary confinement, in Louisiana’s notorious Angola prison – until new evidence revealed he did not commit the murder.

Incredibly, his prosecutor spoke out to the injustice he believes destroyed two lives: Glenn Ford’s and his own.  He told 60 Minutes, “I ended up, without anybody else’s help, putting a man on death row who didn’t belong there. I mean at the end of the day, the beginning, end, middle, whatever you want to call it, I did something that was very, very bad.” He added, “I was arrogant, narcissistic, caught up in the culture of winning.”

It wasn’t that Marty Stroud was malicious in this case. Instead, as he put it, he failed to investigate thoroughly. He said, “Looking back on it, yes. There was a question about other people’s involvement. I should have followed up on that. I didn’t do that.”

The system was stacked up against Mr. Ford. His court-appointed lawyers had never practiced criminal law.

Eventually Mr. Ford would be released, he was almost immediately diagnosed with inoperable lung cancer and died less than a year later. To add injury to insult, under Louisiana law, Glenn Ford was entitled to $330,000, about $11,000 for every year of wrongful imprisonment. But the state is denying him the money.

The arrogance of Dale Cox, the current prosecutor, was unbelievable. He was asked if he [Mr. Ford] should be compensated. Mr. Cox responded, “No, I think we need to follow the law. And the statute does not require that you be charged or convicted or arrested for any of these other crimes. The statute only requires that Mr. Ford prove he didn’t do these other crimes.”

Later Mr. Cox stated, “You’re trying to portray the state of Louisiana as some kind of monster. I got him out of jail as quickly as I could. That’s what the obligation of the state is.” And as far as he was concerned, that was the end of the state’s obligation.

Mr. Whitaker asked, “What about compassion? Have you no compassion for what Mr. Ford has been through?”

He got defensive, “I’m not in the compassion business, none of us as prosecutors or defense lawyers are in the compassion business. I think the ministry is in the compassion business. We’re in the legal business. So to suggest that somehow what has happened to Glenn Ford is abhorrent, yes, it’s unfair. But it’s not illegal. And it’s not even immoral. It just doesn’t fit your perception of fairness.”

The second thing I realized reading Bryan Stevenson’s book is that no one is watching these cases. Not the media, not the public, no one.

The Innocence Projects that have sprung up around the country are heroes in the fight for justice in our courts.  Not only have they been able to help exonerate hundreds of innocent people from prison terms, but their work has exposed fatal flaws in our criminal justice system. Through their exonerations and through the work of the groups like the National Registry of Exonerations, we now have data to look at what went wrong and why.

We know the causes of wrongful convictions – problems with forensics, eyewitness identification error, prosecutorial misconduct, ineffective defense, etc. That along with recognition about the problems of mass incarcerations has led to a whole wave of criminal justice reform and new best practices.

But unfortunately, the average person spends 14 years in prison before exoneration and release. We have Rick Walker who will be talking about his story tonight, and he was one of the lucky ones as he was released after “only” 13 years in prison – we have seen people spend 20, 30, even 40 years in prison for crimes that they did not commit.

And so, while we strongly support the work of Justin Brooks and those like him who help to get people who have been wrongly convicted out of prison and back into their lives, we also have to work towards preventing wrongful convictions in the first place.

This is a huge problem – there is no transparency, no oversight, no watch dogs in the court system on a regular basis.

The media does not have the resources to really cover the courts.  Outside of a few high profile cases, the typical court case gets zero coverage and in most locations, even when there is coverage, it is not critical and detailed coverage. The result is that the police and prosecution often get away with all sorts of misconduct because the defense lacks the resources and time to expose wrongdoing.

The public is unaware of the true nature of criminal and court proceedings.  In many locales indigent defense has scant resources.  The result is that people are systematically stripped of their rights and, if the court system corrects errors done at the trial level, it is over years later after the damage is done.

Reading Bryan Stevenson’s account, I realized that one solution to this problem is a court watch program.

I believe that we need a court watch program in every courthouse in the state, in every courtroom – watching, monitoring, reporting to the public as to what is going on.  We go to court rooms on a regular basis, that otherwise no one is watching what is happening.

It was six years ago when I went to a courtroom in Yolo County for the sentencing of Ajay Dev.  Mr. Dev, who I have come to believe has been wrongly convicted, was sentenced to 378 years in prison for the alleged rape of his adoptive daughter. Through years of research, it appears that were serious problems with the courtroom process and evidence against Mr. Dev.

It was watching that case that made me realize that coming in after the conviction to report on what happened was not enough.  We have to get into the courtroom – into every courtroom – and monitor and report on what is happening as a way to stop wrongful convictions before they happen.

I have spent the last several months working to revamp our court watch program.  We have just hired our first reporter – Sarah Abfalter.  We are in the process of changing the way we monitor cases and record data so that we can analyze patterns in the court house.

But the other thing is we are looking to expand the court watch program outside of Yolo County and into Sacramento and San Francisco.

All of this is going to take time and resources.  It is not going to happen overnight.

Every little bit helps.  Here is what you can do today.  We have a subscription program – $10 a month.  $10 is less than the cost of a meal on the town.  Right now we need 150 people who can give $10 a month to enable us to meet our current monthly obligations.   I understand, for some people $10 is too much.  How about $5?  How about $3?

Every little bit counts – you can fill out the form on the table in the back and we can solve our funding problem quickly.

—David M. Greenwald reporting

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