I am sitting in a Holiday Inn in St. Louis having just re-read Shirley Baccus-Lobel’s excellent appeal brief on behalf of Alvin Clay.

The Clay case has placed the federal judicial system in a pickle. Alvin Clay was convicted on the uncorroborated word of Donnie McCuien. Subsequent to Clay’s trial in June of 2008, virtually every statement McCuien made under oath has been exposed as a lie. It got so bad that the government decided to hand a sweetheart deal to the final defendant in the case rather than go to trial. There was no way they were going to put a proven liar back on the stand.

But Alvin Clay remains convicted. He has surrendered his law license and, if the Eighth Circuit Court of Appeals doesn’t get this case right, the Little Rock attorney will be doing time in a federal prison.

“Respectfully,” Baccus-Lobel argues in her brief, “the uncritical lens with which the government viewed McCuien’s self-serving statements assured the portrayal of Mr. Clay as a wrongdoer would not be disturbed.”

The government got the conviction it was looking for. Sure, their star witness has turned out to be an embarrassment but, hey, nobody’s paying attention so it doesn’t matter.

That’s the degree of cynicism we are dealing with here.

Tomorrow morning, Baccus-Lobel and the Assistant US Attorney who prosecuted this case will have twenty minutes to make final arguments to a panel of three justices. Will they do the right thing or hold their noses and protect the system?

In theory, a trial is a search for the truth. Far too often, however, prosecutors flee from truths they find inconvenient. Every case Friends of Justice has been involved with has followed this pattern.

In Tulia, Texas, DA Terry McEachern believed everything undercover agent Tom Coleman told him even though none of Coleman’s narcotics buys were corroborated and despite strong evidence that the son-of-a-Texas-Ranger was a psychopathic liar. Knowing too much about Coleman would have made it impossible to prosecute 47 defendants and Mr. McEachern wasn’t going to walk away from that much glory.

In Lafayette, Louisiana, Assistant US Attorney Brett Grayson believed Dexter Harmon and the thirty jail-birds Harmon recruited to corroborate his testimony. At one point, Grayson argued that his witness’s credibility was none of his concern—that was for the jury to determine. Grayson wasn’t searching for the truth; he was searching for a conviction.

In Jena, Louisiana, DA Reed Walters chose to believe that the gradually escalating racial feud he helped instigate had the slightest relation to the beating of Justin Barker. Common sense stood between Walters and the twenty-five year sentences (without parole) he was dying to dish out.

In Winona, Mississippi, DA Doug Evans has embraced the testimony of knaves and fools who would be an embarrassment to a principled prosecutor.  It mattered not that most of Evans’ witnesses are exchanging low-level perjury for a promised payoff of  $30,000—somebody had to be convicted of killing four people in a Winona furniture store. So what if the case against Curtis Flowers is patently ridiculous—Curtis was the only suspect Evans had.  If Flowers didn’t do it Evans would have to re-open an investigation he has been living with for fourteen years.   Even after being reversed by the Mississippi Supreme Court three times and two hung juries, the man perseveres.

In St. Tammany Parish, Louisiana, investigators chose to place implicit trust in a repeat offender named Frank Knight so long as he helped Sheriff Jack Strain “solve” a high-profile homicide case. What makes Strain and company think a guy looking at life in prison wouldn’t lie to them if it’s his only way out of a life sentence? Everyone in Knight’s social circle says he’s lying, but neither the sheriff, the DA nor the judge in this case appears to care.  They’ve already moved on to the next case.

In similar fashion, Jack Strain’s boys cut a murder suspect a sweet deal when he dreamed up a story about two additional defendants. Investigators should have known something was wrong when the key details of the crime shifted every time the man attempted a coherent narrative. Finally, after one of the new defendants was convicted at trial and the second took a plea bargain, Jack Strain’s informant told the truth: he implicated two innocent people so he could transform a life sentence into fifteen years. Will it make any difference, or will Jack and the gang decide their man was telling the truth the first time?

Lord knows it would be simpler that way.

We know that court-appointed attorneys assigned to indigent defendants generally lack the time and resources to adequately defend their clients. If the guy has $30,000 you hire experts and launch a full investigation. If the client can’t pay, you cut the best deal you can make and hope you don’t have to go to trial. This is a common dilemma.

Few realize that prosecutors face a similar problem. Cases pile up on your desk and you simply don’t have the resources to give them all your best shot. So you offer plea bargains on the little stuff and focus on the big, high-profile cases. It’s strictly a matter of the squeaky wheel getting the grease.  If there is a lot of public pressure to get a conviction you move heaven and earth; if no one cares, you don’t. 

In this kind of environment it doesn’t take much evidence to convince an unscrupulous prosecutor that he’s got the right guy.  As soon as you’ve got a semi-credible case on a defendant you stop searching for the truth and begin shaping the evidence to fit your theory.

Soon, everybody associated with the case is with the program.  Suggestions that more investigation is needed are met with pained looks; declarations that the defendant is guilty as hell are greeted with enthusiastic agreement.  Those who live in this kind of echo chamber have a hard time thinking independently.

In the Alvin Clay case, a couple of Assistant US Attorneys decided to go after a defense attorney who messed with their work shop.  When Clay accused the government of launching a vindictive prosection, the Eastern division of the DOJ in Arkansas recused itself and the Western division took over.  Instead of bringing fresh eyes to the case, the new attorneys streamlined the case, tossed the most egregious counts, and plunged ahead. 

But the case still depended on the veracity of a patent liar named Donnie McCuien.  The new prosecutors embraced their star witness with idiot fervor.  They couldn’t drop the case.  That would make it appear that Clay’s assertion of vindictive prosecution were justified.  Hell, he might even sue.  So they soldiered on, fleeing from the obvious truth that their star witness was scamming them to save his own skin.

Friends of Justice exposes the mechanics of wrongful conviction because these cases generally escape public awareness.  The media rarely questions prosecutorial decision making–that isn’t their job.

So long as they refrain from breaking the law, prosecutors are immune to conviction.

We pay attention.

How will things turn out tomorrow in St. Louis?  I’ll keep you posted.