Reflections on System Resistance to Innocence Part II

In a blog post that appeared on March 14, 2012 entitled Bryant ‘Rico’ Gaines to Walk Free Today in Ohio:  Reflections on System Resistance to Innocence (Blog Post), I expressed frustration over how the criminal justice system in Cincinnati reacted to a post-conviction claim of innocence, in the context of a specific case, in a way that I felt did not comport with a prosecutor’s duty to search for truth and ‘do justice.’

After the Blog Post was published, I heard that at least one member of the Prosecutor’s Office was upset because he or she believed that the Blog Post contained some inaccurate facts.  As a result, I invited the Prosecutor or his representative to respond to the Blog Post in the comment section and asked them to specifically address any mistakes I had made so that we could flesh them out through discussion.

I later received this 10-page letter dated April 3, 2012 (‘the Letter’).  After receiving the Letter, representatives of the Prosecutor’s Office confirmed that it was intended as a public response to the Blog Post and encouraged me to post it in my blog, which I have done above.  [Note:  The Letter responded to my Blog Post by using the names of the various actors in the case.  I did not use names in the original Blog Post because I see this as an academic discussion about the criminal justice system broadly rather than a discussion that is personal in nature.  Therefore, I have redacted most names from the Letter.]

My response to the Letter:

I.  Global Comments

A.   Prosecutorial Tunnel Vision and Resistance to Innocence Claims

First, I would like to clarify the point of my Blog Post.  I intended to explore the concept of prosecutorial tunnel vision in post-conviction cases and to allow blog readers to contrast the reaction of the Prosecutor’s Office when presented with post-conviction evidence of Gaines’ potential innocence with how police and prosecutors have reacted in other similar cases I have celebrated on the blog, such as in the articles herehereherehereherehere, and here.

Specifically, in the Blog Post, I pointed out examples of prosecutorial behavior and attitude in the Gaines case that troubled me, including among other things, the following occurrences:

(a) The Ohio Innocence Project (OIP) sent a new eyewitness to meet with the Prosecutor’s Office with the hope that they would interview him with open minds to determine if justice had been done.  Instead, the assistant prosecutors sent a message and demonstrated their mindset by arresting the new witness on years’ old traffic tickets and held him in custody until he could gather enough money (from friends and church) to be released; and

(b) At the first evidentiary hearing in this case, the assistant prosecutor who tried the Gaines case years earlier, and who was by then a sitting magistrate in the same building, entered the courtroom and gave unsworn and uncross-examined ‘testimony’ informing the court that the State’s eyewitness at trial was very certain that Gaines had been the second shooter.  The former prosecutor/current magistrate then assured the court that he and the police officers involved had done nothing to encourage the witness to identify Gaines (thereby implying that he could see no legitimate reasons for the witness to now recant his trial testimony and thus the recantation must be false).  He made this lengthy, unsworn statement from the back of the courtroom over Gaines’ lawyers’ objections.  As I indicated in the Blog Post, it appeared that the former prosecutor/current magistrate addressed the court by prior agreement as the trial judge and prosecutors did not appear surprised and did not ask him why he was there. The trial judge stated without being asked that he would hear from the former prosecutor/current magistrate first as the judge was sure the magistrate had important business to tend to elsewhere.  After the former prosecutor/current magistrate spoke, the trial judge announced that he did not need to hear from the defense witnesses and ultimately denied the motion for new trial based on newly discovered evidence (until the Court of Appeals later reversed and ordered the hearing to go forward).

[The secondary point of the Blog Post was to highlight the procedural lengths the Court of Appeals went to avoid overturning a murder conviction on grounds of innocence, but that point is not relevant to this discussion.]

At the outset, it is important to note that the Letter does not respond to these two specific instances outlined above.  Nor does it respond in any way to the primary point of the Blog Post.

The ‘DNA Revolution’ or the ‘Innocence Movement,’ which has in the past 2 decades exonerated 290 individuals through DNA testing and more than 2,000 when non-DNA cases are included, presents a great ‘learning moment’ for the criminal justice system.  As a result of the Innocence Movement, scholars and those who study the criminal justice system have noticed, among other things, the phenomenon that has become known as ‘prosecutorial tunnel vision.’

When tunnel vision exists, it causes prosecutors to resist post-conviction claims of innocence in ways that sometimes defy notions of proper prosecutorial duty discussed here and here.  Rather than reacting with open minds when new evidence of possible innocence surfaces years after conviction, a prosecutor with tunnel vision will react in a defensive manner without objectivity and, instead, will summarily reject the new evidence and ‘defend the conviction.’  This phenomenon has been studied and written about in forms too many to count, some of which include the recent book here, this law review article, and the materials and books cited in footnote 9 of my article here.  In addition to this article, I discuss at length the problem of tunnel vision here.  The phenomenon of tunnel vision has been recognized and addressed by law enforcement community in The Police Chief magazine here.

I want to be clear that when I argue that some prosecutors suffer from tunnel vision in post-conviction innocence cases, it is not a personal attack on those prosecutors.  Nor is it a failure to recognize the difficult job they perform on a daily basis to keep our streets safe.  It also is not a general attack on the important and honorable position of being a prosecutor (a position in which I formerly served).  Indeed, as I expressed in this post, which is a commentary about Kristen Ziman, a wonderful police officer who most certainly does NOT suffer from tunnel vision:

[M]ost police officers and prosecutors who fail to respond properly to post-conviction innocence are not ‘bad apples’ or corrupt.  They fail to respond properly and fairly because they are human beings, and because human beings are prone to lose objectivity when they are deeply invested in a case or a process.  Thus, the prosecutors and police who react unreasonably to post-conviction evidence of innocence are usually good people.  They are not the ‘corrupt’ cop or prosecutor out to destroy someone like you might see depicted in a movie, but rather, the type of people who you might meet at church or see volunteering to read a book to your child’s 1st grade class and cause you to think, ‘That’s a hell of a guy/gal.  I’m glad she’s a prosecutor.’  But these same ‘good people’ too frequently wreak havoc and destroy families in post-conviction innocence cases because they suffer from the very human phenomenon of tunnel vision, and they (and their employers) fail to do anything about it.

By way of example, when a new witness comes forward 10 years after conviction who says the inmate is innocent, a cop or prosecutor with tunnel vision will do the opposite of what Kristen Ziman’s police department does, and will make the immediate knee-jerk reaction that this new witness is not credible.  They will assume with steadfast conviction, for example, that the new witness has ‘obviously’ been ‘put up to it’ by the prisoner or his family.  Instead of meeting the witness with an open heart and open mind and re-investigating while striving to remain as fair and objective as possible, the tunnel-vision cop or prosecutor will set out with one goal in mind:  to ensure that the new witness’ credibility is destroyed (‘as it should be’).

The cop or prosecutor does not do this because he is a ‘bad apple’ or is a corrupt person generally.  He does it because he honestly believes, in good faith, that the evidence at trial was overwhelming of guilt, that the prisoner is a danger to the community, and that this new wrinkle is some falsely constructed attempt by the prisoner to escape responsibility and obtain undeserved freedom and compensation.   The tunnel vision cop or prosecutor believes he or she is protecting the public and carrying out his duties with integrity when acting in this fashion.

The phenomenon of police and prosecutorial ‘tunnel vision’ has become so well recognized that there are many scholarly articles–and psychiatric studies–discussing it.  Simply put, it is a human weakness to which we all are capable of succumbing.  Despite those in Innocence Projects screaming for years about how tunnel vision by law enforcement is wrecking the lives of innocent people, I find most police officers and prosecutors to be woefully ignorant of the problem (or in total denial of it).  And of all people, it is police and prosecutors who need an understanding (and perhaps training) regarding tunnel vision more than anyone else.  When a teacher suffers from tunnel vision, for example, she is not as effective a teacher as she can be.  But when a prosecutor or police officer suffers from tunnel vision, innocent lives are ruined and families are shattered.  For an example of how lives are destroyed by tunnel vision, watch this Dateline NBC episode here

The point of the Blog Post was to provide blog readers with what I believe to be an example of tunnel vision.  This was not intended as a personal attack on the Prosecutor’s Office or anyone in the Office.  I write the blog with a hope that the Innocence Movement, and all that we are learning from it, will gradually reform the criminal justice system in a way that will make it not only tough on crime but also smart on crime and more just in individual cases.  It is my hope that someday all or most prosecutor’s offices (as well as Innocence Projects and all important entities in the criminal justice system) will institute structures and training to combat tunnel vision and create a culture of openness.

This is not a pipe dream on my part.  It is already happening in many police departments and prosecutor’s offices around Ohio and the country, as we begin to understand the reality that the system sometimes makes mistakes, and that we need to be open-minded about investigating potential mistakes when they are brought to our attention (see here, here, here, and here).  Twenty years ago at the beginning of the Innocence Movement, prosecutorial tunnel vision was rampant, and this problem was well documented.  Now, as more and more law enforcement officials have accepted the fact that the system makes mistakes more often than we previously imagined, more and more prosecutors have learned to openly embrace both constructive criticism of the system and post-conviction evidence of innocence when it arises.

B.   Junk Science and Prosecutors Who Resist Learning and Reforming in Light of New Understandings

I need to make a second ‘global’ point before turning to the specifics of the Letter.  This point may not seem relevant at the moment, but its relevance will become clear once I reach the specifics of the Letter.

As I mentioned previously, the Innocence Movement has taught several important things about our criminal justice system.  One is the need to set up internal structures and cultures to combat tunnel vision.  And another is that many innocent people have been, and continue to be, convicted on what has become known as ‘junk science.’  As has been widely reported, the problem of authorities convicting people (many of whom were innocent) on unreliable, untested, and unsubstantiated ‘junk science’ is one of the leading causes of wrongful conviction.  It is such a problem that the National Academy of Sciences (an independent federal agency initiated by President Lincoln) issued this extensive report on the subject in 2009, supervised by United States Court of Appeals for the D.C. Circuit Judge Harry Edwards, which recognized this problem and called for major, wide-sweeping reforms in the area of forensics.  A detailed PBS documentary on junk science in the courtrooms, featuring Judge Edwards, is available for viewing here.

I am frequently troubled by the fact that many prosecutors are wholly unaware of (or in denial about) the NAS Report and the use of junk science to obtain or support criminal convictions.  A major point of frustration for those in the Innocence Movement is that too many prosecutors, who have power over the life, liberty, and property of their citizens, are resistant to staying updated about (or open-minded to) advances, trends and reforms that are essential to ensuring that very life, liberty, and property of the citizens.  For a recent example, see here.  This phenomenon caused me to write in this article:

I believe, from personal experience, that the vast majority of wrongful convictions do not occur because a police officer or prosecutor intentionally sought to convict an innocent person. Rather, I believe most occur because of ignorance and negligence—prosecutors introduce unreliable eyewitness testimony or ‘junk’ science fully believing that they are introducing solid, reliable evidence, and thus are seeking a just conviction.

Such prosecutors are innocent of any intentional wrongdoing. They are not innocent, however, in the sense that they have great responsibility over the lives and freedom of others, but have often failed to take the necessary steps to question their own activities and learn the problems with the system.

The DNA exonerations over the past two decades and the corresponding scientific studies of these cases have revealed deep systemic flaws with eyewitness identifications, junk science, and other problems.  The studies offer an unprecedented learning moment if we are willing to listen with open minds. The failure to respond to the problem of wrongful conviction, the failure to explore and learn from our mistakes, is in my opinion, where the fault lies as the system continues to resist change and reform.

II.  Some Specific Responses to the Letter

The Letter seemingly misses the entire point of my Blog Post.  While I was talking about the attitude of some prosecutors to post-conviction claims of innocence, the Letter does not address the points concerning the arrest of the new witness and the improper ‘testimony’ of the prosecutor-turned-magistrate.  In addition, it does not address my concerns about prosecutorial attitude and the criminal justice system generally, but instead responds with personal attacks.  Thus, the tone and content of the Letter tend to reinforce my original point in the Blog Post about defensive attitudes rather than a culture of openness and objectivity that welcomes criticism.

In attempting to respond in an organized fashion, I have divided the comments in the Letter into 3 broad categories:  (A) the behavior of the OIP staff attorney who handled the case; (B) the OIP’s claim that ‘not a shred of evidence’ still exists implicating Gaines; and (C) my Blog Post’s inaccurate label of a state’s witness as a ‘snitch’–someone who gave testimony in exchange for leniency.

A.   Unethical Behavior

The Letter makes the allegation that the OIP staff attorney who handled the case engaged in unethical–or at least improper–conduct by offering a plea deal that included a ‘gag’ agreement that the OIP would not discuss the settlement with the media afterwards.  Notably, the Letter does not cite any ethical cannons or standards for this strong allegation.

My own research could find nothing supporting the allegation of improper or unethical behavior.  In fact, my research revealed that it is a commonplace practice for parties involved in litigation to reach a settlement and agree to a voluntary, informal ‘gag order’ in the case where they agree not to discuss the case or the settlement.

To confirm my research, I sent the relevant paragraphs of the Letter to legal ethics professors and experts across the country.  All were uniformly puzzled by the allegation contained in the Letter, and by the remark that the Prosecutor’s Office rejected the offer because it was unethical.  The experts agreed that this is a commonplace occurrence in American litigation.

B.    ‘Not a Shred of Evidence’

Rather than responding to the point of my Blog Post, the bulk of the Letter is spent re-arguing the facts of the case that have already been litigated in the post-conviction context for the past several years.  The hook it employs to reignite this discussion is the claim that the OIP staff attorney misspoke when she claimed that ‘not a shred of evidence’ points to Gaines’ guilt.  This, again, is a diversion that fails to respond to my Blog Post.  Indeed, even if the OIP staff attorney had exaggerated by stating that, “Not a shred of evidence of guilt still remains,” it does not change the main point lamented in my Blog Post that the prosecutors here demonstrated a mindset from day one that they were not going to objectively re-examine the new evidence with open minds.  But despite the nonresponsive nature of this accusation, I will address to it nevertheless.

Let me note at the outset that the ONLY court that has considered the post-conviction evidence of innocence–and who watched the witnesses testify live–found that the new evidence of Gaines’ innocence was sufficiently compelling to throw out a murder conviction.  When the Prosecutor’s Office appealed this finding, the court of appeals did not dispute the lower court’s ruling on the nature or weight of the evidence.  Rather, the court of appeals held that the new evidence–that the lower court found to be compelling–should have been discovered prior to trial by the criminal defense attorney.  Thus, the lower court’s ruling was overturned on a technical ground, rather than a ground that directly contested the weight of the evidence as found by the lower court.

Nevertheless, the bulk of the Letter is spent rehashing evidence the Prosecutor’s Office believes implicates Gaines.  I will address each item raised in turn.

Gunshot Residue (GSR)

The primary evidence the Letter identifies in support of Gaines’ alleged guilt is the gunshot residue (‘GSR’) testimony from the original trial.  Although the Prosecutor’s Office mentioned the GSR evidence in passing early in this post-conviction litigation, it has not been a focal point in the argument put forward by the Prosecutor’s Office until now.

When the Prosecutor’s Office failed to pursue this evidence as a major point of contention in the litigation, we assumed it was because the Prosecutor’s Office was aware of the problematic nature of this evidence, and was aware of reports like this one, from the FBI (see also here and here).  New studies demonstrate that, among other serious problems with GSR evidence, when a suspect is transported to the police station in a squad car and is interviewed inside a police station, there is a risk that he will obtain GSR on his hands or clothing simply because police cars and police stations are often awash with GSR from all the firearm training that police officers must undertake.  Because Rico Gaines’ clothes were not bagged in this case until after he had had contact with the primary areas of concern (back of a police car, police station, etc.), this GSR evidence from trial now is known to be problematic.

At this point, I am unsure if the Office was unaware of these new studies regarding the probative value GSR evidence (see the problem outlined in Section I(B) above), or if the Prosecutor’s Office simply wanted to bring it up in a forum, unlike a courtroom, where it could not be challenged by experts.

New Witness (NW)

The Letter also takes issue with the credibility of the new witness in this case. When this new witness tried to meet with prosecutors from the Office, they had him arrested.  Even after his arrest, he steadfastly wanted to right this wrong.  The OIP offered to allow the Prosecutor’s Office to polygraph him with a polygraph expert of its choice.  This offer was not accepted.    This new witness then passed a polygraph test that was undertaken by the OIP using a polygraph expert recommended to us by a Cincinnati police officer.

Most tellingly, the Letter does not address the fact that this witness testified live before a judge, and this judge found the testimony to be sufficiently compelling to overturn a murder conviction.

Instead of highlighting these most important facts relating to the new witness’ credibility, the Letter points to discrepancies in the new witness’ statements through time.  I am sure most will agree, as prosecutors argue to juries on a daily basis, that nearly all witnesses will have discrepancies in their testimony over time.  Thus, if the mere existence of discrepancies through time dictated credibility, prosecutors would never be able to obtain convictions.

However, two points need to be made about the alleged ‘discrepancies.’  First, the Letter overstates the discrepancies to a significant degree (like interpreting the phrase ‘shot in the back’ to mean the literal back as opposed to the back of the head or back of arms, when the witness clearly meant ‘from behind’ rather than the literal back, as one shot entered the ‘back’ of the arm and one shot entered the ‘back’ of the head).  Second, and more importantly, prosecutors pointed out these discrepancies to the sole judge who heard this new witness testify live, and this judge found the new witness to be sufficiently compelling despite these overblown ‘inconsistencies.’  In other words, the judge found sufficient evidence that points to Rico’s innocence to overturn a murder conviction.  The Letter merely attempts to resolve a dispute that already has been resolved in a manner that was not favorable to the Prosecutor’s Office.

State Witness’ (SW) Recantation

With regards to the Letter’s characterization of SW’s recantation, the Letter perhaps suggests that SW recanted his trial testimony in exchange for a judicial release letter written by the OIP staff attorney to the judge in charge of SW’s case.  A few points need to be made here as well.

First, I recognize that prosecutors must be able to give incentives to conspirators/cooperators in order to acquire their testimony in important cases.  Without this tool, too many crimes would go unsolved.  There is no inherent problem with prosecutors providing leniency in exchange for testimony if done carefully and with the appropriate safeguards.  See Section 2(C) below.

But in this case, the OIP was not engaging in this particular tool that prosecutors so frequently employ.  SW recanted his trial testimony long before the Ohio Innocence Project became involved in this case.  And the judicial release letter was not written until long after SW had completed his recanting affidavits. SW signed an affidavit fully recanting his trial testimony on August 1, 2007 — several months before the OIP had ever heard of Rico Gaines and before the staff attorney even worked at OIP.  In addition, SW signed an affidavit fully describing Lonnel Dickey’s in-prison admission that Dickey’s brother (not Rico Gaines) was the second shooter on September 19, 2008.  The staff attorney did not write the letter to the judge until April 24, 2009 — long after SW had repeatedly recanted his trial testimony and explained how the perpetrator told him how the crime had happened. There simply was NO quid pro quo as the Letter tries to suggest (by ignoring the timeline).

Indeed, the staff attorney wrote the judicial release letter only after a Cincinnati Police Officer involved in SW’s arrest telephoned her and asked her to write a letter in support.  As the staff attorney had no access to SW’s prison records, all representations she made to the judge concerning SW’s prison conduct were based on information SW’s prison case manager provided to her.

Second, the Letter expressed concern that SW’s initial recantation stated that his trial testimony “was inaccurate,” yet his testimony at the December, 2010 evidentiary hearing contained statements that his original trial testimony “could have been a mistake” and “possibility that I made a mistake.”  However, it is important to note that those statements were made in response to the assistant prosecutor’s “were you lying then or are you lying now” line of questioning.  For example, “[Y]ou came to the conclusion that your testimony which you swore to tell the truth repeatedly was a lie?” (T.p. 152); “So when you said that to your brother, you were lying?” (T.p. 154); “Now you’re saying you were mistaken, when you told your father that within minutes of Gene being killed . . . Not a lie?” (T.p. 158-159); “[C]ould it be a possibility that you were right the first time . . . and what you’re now telling the Court is a lie?” (T.p. 160); “Well, is this a lie then, or . . . how can it be a mistake?” (T.p. 160); “You didn’t have an eye problem that night, did you?” (T.p. 161); “There wasn’t some conspiracy out there where you had to make this up, is there?” (T.p. 164); “Tell us what kind of guns they had. . . Not now, not what you’re making up, tell us what you saw with your own eyes.” (T.p. 168); “And you’re telling us all that’s a fabrication?” (T.p. 169).

When questioned on direct examination, SW stated he was confident his trial testimony was mistaken based on what the admitted shooter told him about the murder in prison and his own examination of the autopsy report. (T.p. 148-151).

Third, SW testified that he told Detectives before trial that there were “rumors going around” that Dickey and a person named “Chuckie” (not Rico Gaines) killed Gene, but the officers told him they “can’t go off nicknames.” (T.p. 186-187).

Indeed, the fact that the Letter freely uses the staff attorney’s notes to attack her simply supports the point of the Blog Post – that the Office cared far more about protecting the conviction than investigating the new evidence to ascertain the truth.  The OIP staff attorney voluntarily (and obviously naively) furnished to the Prosecutor’s Office ALL information she possessed relating to this case trusting that prosecutors actually would initiate an objective investigation into whether the wrong man was incarcerated for this crime.  Her trust was obviously misplaced.

Finally, the one judge who heard the witnesses testify live in this case–including SW’s live testimony–found the current state of the evidence sufficient to overturn the murder conviction.

Other Evidence of Alleged Guilt

The other hearsay statements the Letter mentions on page 4 do not make Gaines the shooter or culprit in this case. Or, the statements come from a witness who has recanted, and thus, the statements have been retracted and undermined.

Based on the foregoing paragraphs, I believe the OIP staff attorney’s assessment of the current state of evidence was not out of line.  If one looks at the original trial, there was the testimony in court (and an out of court hearsay statement) of a witness who has since recanted.  There was GSR evidence that since has been shown to be problematic (and was seemingly abandoned for the most part by the Prosecutor’s Office during the litigation until now).  No evidence of Gaines’ culpability as a shooter now remains that has not been undermined.  Whether one says, ‘Not a shred of reliable evidence remains,’ or ‘Not a shred of evidence remains,’ is irrelevant–they are understood to mean the same thing.

This point could be discussed and parsed over ad infinitum.  Even if those in the Prosecutor’s Office do not agree with my assessment of the evidence, and would have preferred the OIP staff attorney to have said, “In my opinion, there is not a shred of reliable evidence left,” or, “In my opinion, the evidence strongly favors Gaines’ innocence,” the entire issue is making a mountain out of a mole hill.  It was clear that the OIP staff attorney was giving her opinion as an advocate in the adversarial setting.

Two final points need to be made here.

First, it is ironic that the Prosecutor’s Office now criticizes the OIP staff attorney for making comments as an advocate in an adversarial context.  The staff attorney had hoped to have open and ongoing discussions about the evidence to keep the process from turning adversarial.  The OIP has had such open and objective conversations with prosecutors in other counties in Ohio, such as Franklin and Cuyahoga, among others.  In the same vein, the OIP staff attorney approached prosecutors from the Prosecutor’s Office openly before the adversarial process started, and shared her witnesses and work product, etc., naively giving the Prosecutor’s Office the benefit of the doubt that it would fully investigate this matter with an open mind.  But that was not to be, and so the process turned adversarial.

The OIP is very selective.  Since its founding in 2003, it has investigated nearly 6,000 case, but has taken the position that someone is innocent or deserving of a new trial in only 24 cases (about 0.004% of the cases).  That does not mean that the OIP is not capable of making mistakes.  But when well-intentioned law professors, lawyers, and law students come to prosecutors in good faith saying, “We really believe a miscarriage of justice occurred here, please take a close look,” the OIP had hoped that said prosecutors would investigate objectively with one goal in mind–justice.  The Prosecutor’s Office did not respond in that fashion, unlike many other prosecutors in Ohio, which was the point of the Blog Post.

Finally, the Letter accuses the OIP staff attorney of exaggerating her case by stating that “not a shed of evidence of guilt remains.”  The Prosecutor’s Office, in the same adversarial setting, repeatedly claimed that the evidence of guilt is “overwhelming.”  Certainly the OIP staff attorney’s statement was more literally accurate than that of the Prosecutor’s Office, which makes this particular criticism even more ironic.

It may seem silly to the reader for me to engage in an argument about who allegedly exaggerated the most in the adversarial context and I agree.  I am merely responded to the points raise in the Letter.

C.   SW as a ‘Snitch’

Lastly, with regard to my statements that SW was a jailhouse snitch, I made a mistake.  The OIP is currently litigating several cases where we believe a wrongful conviction occurred because the state gave leniency to a witness in exchange for what appears to be false testimony (see example here and the recent Sixth Circuit case here).  Thus, I mixed this case up with another case.

A few points need to be made about the comments in the Letter on this topic.

First, the Letter suggests that my mistake on this issue was not an honest mistake, but rather, a “total fabrication.”  I made my incorrect comment on a Blog Post where anyone—including prosecutors from the Office—could click “Post Comment” and in seconds point out any mistakes I made.  My mistake also involved a matter could be easily disproved, as the Letter demonstrates.  Common sense suggests that I would not intentionally fabricate this fact in such a forum.  The fact that the Prosecutor’s Office interpreted my comments to be a deplorable fabrication, under these circumstances, is a perfect example of what I have been talking about.  It is, once again, reflective of the kneejerk, less-than-objective reaction to facts that I lamented in the Blog Post.

Testimony from witnesses who have been given leniency in exchange for their testimony is necessary and appropriate if done carefully, but is a leading cause of wrongful conviction when abused or not executed with the appropriate safeguards.  Because of the propensity of such witnesses to testify falsely in exchange for benefits, such witnesses have been given the nickname “snitches” or “jailhouse snitches” in the wrongful conviction literature in everything from law review articles to New York Times articles.  Many scholars and commentators have pointed out that the extensive use of “jailhouse snitches” is a vehicle that too often has been abused by prosecutors seeking a conviction at all costs without concern for ultimate justice. This has spawned a wealth of literature and commentary suggesting that prosecutors need to be far more careful than they have been when using this type of witness (see, for example, here, here, here, and here).

Pointing out problems that have arisen with the careless use of this type of evidence is not a suggestion that those who step forward and testify honestly are not courageous or deserving of credit.  And the concern expressed in the Letter for the witness whom I referred to as a “snitch” thankfully turned out to be unnecessary in this particular instance.  The OIP has spoken to this witness and offered an apology.  He understands the mistake, takes no offense, and perfectly understands the problematic use of such witnesses by prosecutors’ offices that has given rise to the popular use of the word “snitch.”

I want to make clear that I realize the problems prosecutors face on a daily basis with witnesses who are afraid to testify for reasons of safety, or for fear that their status as a state’s witness will be known in the community.  As a result, legitimate witnesses are intimidated and violent crimes sometimes go unsolved. I fully recognize this problem, and acknowledge that it is a very serious problem for prosecutors and the public at large, that often times, legitimate witnesses will not step forward for these strongly felt and very real concerns.  This well documented problem is discussed here, among other places.

It should have been abundantly clear to any objective person reading my Blog Post, however, that I was not commenting on this particular problem, but rather, was talking about the countervailing concern that wrongful convictions are too often manufactured when this investigative technique is abused or not employed carefully.   The post appeared in a blog called, “The Wrongful Convictions Blog.”  The content of the post made clear that it was referring to that facet of the problem that involves wrongful convictions—not other facets of the issue that are important but not relevant to this post.

A blog post about the problems prosecutors face because of witnesses who are afraid to testify would be an important post that I would read with great interest.  But my blog is designed for readers who are interested in the topic of wrongful convictions, so I was, of course, using the phrase “jailhouse snitch” in that context.  I was invoking the concerns that arise in that particular field.

Curiously, the Prosecutor’s Office saw my comments only as a personal attack on a particular witness in this case, and as an attack on the brave citizens who step forward and testify honestly to bring justice to wrongdoers.  It apparently did not occur to them that word has another meaning, when it is used to refer to the wrongful conviction problem.  It also apparently did not occur to them that my post was a comment on a broader need for reform.  This demonstrates not only that the Prosecutor’s Office missed my point, but perhaps reinforces the underlying theme of my Blog Post that: (1) some prosecutor’s offices do not have a culture of trying to see the world through anything but their own lens, or (2) the Prosecutor’s Office is unaware of this countervailing problem and the cries from scholars for reform in this area that has been going on for decades.  See Part I(B) above.

In any event, I was mistaken about this particular witness. I will make a notation in the Blog Post to flag this error and refer readers to this post for an explanation.  Even if I had not been mistaken, the use of the phrase “jailhouse snitch” was clearly meant to refer to the body of scholarship, which uses this phrase, regarding the abuse of such witnesses that results in wrongful convictions.  In no way should it have been taken to mean anything else.


In sum, the Letter seems to miss the point of my Blog Post—that the Prosecutor’s Office reacted to new evidence of possible innocence in a defensive and kneejerk manner in this case, and did not demonstrate the level of objectivity of which one would hope.  It responds with personal attacks and defensive assumptions that reconfirm the underlying theme of my Post.

I appreciate the tough job prosecutors have.  I also appreciate all the work they do to keep our streets safe.

The Letter reveals that the Prosecutor’s Office was quite offended that I was critical of the system and of some of the specific ways it handled the Gaines case.  By making criticisms I am not minimizing the positive things that prosecutors do on a daily basis.  In good faith, I simply am trying to improve the system in some small way.

As Senator William Fulbright once said, “To criticize one’s country is to do it a service…Criticism, in short, is more than a right; it is an act of patriotism – a higher form of patriotism, I believe, than the familiar rituals and national adulation.”  Justice Potter Stewart, for whom our own federal building in Cincinnati is named, often stated that the best leaders in a democracy are not be offended by criticism, but encourage it:

[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it indices a condition of unrest, creates dissatisfaction with things as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for understanding.

2 responses to “Reflections on System Resistance to Innocence Part II

  1. Elizabeth Joseph

    Wow. I cannot believe the Innocence Project has to deal with such negative issues from prosecutors! What a useless waste of your time (which could and SHOULD clearly be well spent fighting the good fight trying to free innocent people who have been wrongfully incarcerated). It is ridiculous that you should have to spend any of your time responding to such inane letters from prosecutors. I am sorry you – and other Innocence Projects – have to deal with such absolute nonsenense. Keep on doing what you’re doing. Keep fighting the good fight. It’s just sad that you have to put up with issues like these. Hopefully, the prosecutors who are guilty of having this “tunnel vision” will someday see the light and work with you – instead of against you – and you can work together to accomplish justice. Thanks for all you do.

  2. Pingback: Bryant “Rico” Gaines to Walk Free Today in Ohio: Reflections on System Resistance to Innocence | Wrongful Convictions Blog

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