The tragic story of Brandon McLelland took a much-anticipated twist on Friday.  McLelland was run over on a lonely highway outside Paris, Texas last September and, pinned against the undercarriage of the vehicle and apparently dragged down the highway. 

But who was driving the vehicle that struck McClelland and was his death intentional?  That was a question for investigators to answer.  Shannon Finley became the prime suspect after law enforcement examined the undercarriage of his Dodge Dakota pickup.   Ryan Crostley, a white passenger in Finley’s truck, was indicted as an accomplice.

 Although law enforcement accused Finley of attempting to destroy evidence by hosing down the vehicle, no evidence of skin and blood was discovered.

 The McClelland story is a cautionary tale for the civil rights community. 

Due process is designed to protect defendants from a rush to judgment.  Purported white racists are just as vulnerable to sloppy investigation and overly aggressive prosecution as purported black thugs.  In both cases, criminal justice professionals reach a conclusion before all the evidence is in then twist the facts to support their pet theory.  Had Shannon Finley been a member of a prominent Paris family the authorities would have been much more circumspect.  Had Brandon McClelland been a highly respected businessman the DPS trooper who initially investigated the incident would have searched the death scene far more carefully. 

It is always a bad sign when prosecutors try a case in the papers.  Toby Shook didn’t get incriminating evidence from Finley’s truck but he made the press believe otherwise.  You can’t blame the media for reporting what they are told–that’s their job.  Shook was trying to job the system and civil rights folks like me let him get away with it. 

Activists who have spoken out against Mr. Shook’s decision to drop the charges need to re-think their position.  There is no case.

Friends of Justice works to restore due process protections to all Americans.  The fact that poor African Americans are disproportionately victimized by a broken system doesn’t mean they are the only victims.  Racial justice is equal justice.

Friends of Justice was reluctant to join the protests in Paris.  We have seen the wheels come off too many bogus investigations.  Instead, we opened this page to people on both sides of the controversy.

Americans who care about judicial fairness need to look beyond the Mississippi Burning narrative with its innocent black victims and its virulent white racists.  Crude racial hatred hasn’t disappeared, but the species of racism that afflicts the criminal justice system is far more subtle and, as yet, ill-defined.  The New Jim Crow inflicts a world of hurt because it doesn’t conform to the Hollywood paradigm or racial injustice. 

In contemporary America, status drives the hate game far more than skin color. 

Hate groups are proliferating in America and I’m glad organizations like the Southern Poverty Law Center are monitoring their activities.  But that is rarely the species of racism that sends poor people of color to prison.  Low status black people are wrongfully convicted because they fit the thug paradigm.  Skin color factors into the equation to be sure; but it isn’t the primary cause of wrongful prosecutions. 

Shannon Finley is as white as they come, but he was easily stigmatized by his lack of education, his well-documented abuse of alcohol, his criminal record and his spotty work history.  In short, Finley fit the profile of the southern white racist, the only type in America more despised than the dangerous black thug. 

When I talk about racism I don’t have Shannon Finley in mind; I’m talking about people who vote, people attend church regularly, people who serve on juries.  These folks don’t wear their racism on their sleeves, but they take a dim view of poor people and are willing to believe the worst about every poor soul the authorities hall into court.  There is more continuity between the Old Jim Crow and the New Jim Crow than is commonly realized, but the social landscape has changed markedly (although not always for the better).

I’m not saying Shannon Finley is innocent.  If he hadn’t been driving drunk, Brandon McClelland would have remained in the vehicle and the sad saga could have been averted.  But Finley doesn’t have to prove his innocence; the state has to prove his guilt.  The state couldn’t make its case so the charges were dropped.  That’s the way the system is supposed to work. 

But what if a truck driver hadn’t stepped forward with a story about hitting something on the road?  What if a crooked forensics expert had decided to cooperate with the state’s story about blood and skin?  Under those conditions, Shannon Finley would have been convicted. 

He fits the profile.

The civil rights community needs to stop combing the Southland for Old Jim Crow stories.  Sure, these narratives can still be dredged up here and there, but they don’t explain why so many poor people of color are going to prison.  So long as we are chasing ghosts, flesh-and-blood inequities go unaddressed.

Over at Grits for Breakfast, Scott Henson offers a damning assessment of the now-extinct legislative sessionin Austin, Texas.  The spate of DNA exonerations in Dallas has embarrassed state legislators and hopes were high that meaningful reform was waiting in the wings.  Unfortunately, Democrats and Republicans wasted valuable time sparring over voter registration issues.  As a result, the session ended before a promising list of innocence-related proposals could be considered. 

The one positive note, Scott reports, is the passage of a bill requiring corroboration for inmate snitch testimony.  Let’s hope other states follow our lead on that one.  As is often the case, the discussion in the comments section is almost as revealing as Scott’s informative post.

A federal judge has sentenced five representatives of the Holy Land Foundation for Relief and Development to as much as 65 years in prison for raising money for impoverished Palestinians.  

The facts of the case are relatively simple.  In 1995, the Clinton administration placed the Palestinian group, Hamas on a list of terrorist organizations; a decision that was ratified by the Bush administration.  The money channeled to Palestine through the Holy Land Foundation (headquartered in the Dallas suburb of Richardson, Texas) was given to Zakats, local charitable organizations providing food, schooling and emergency relief to Muslims in the West Bank and Gaza.   Zakats are generally under the control of Hamas.

The government has argued that, although the bulk of donated funds went directly to relief work, Hamas could easily have diverted some of the money to terrorist activity. 

In 2007, the federal government’s first attempt to prosecute the Holy Land Foundation defendatns ended in a mistrial when a federal jury acquitted the defendants of many of the charges against them and deadlocked on others.  This legal setback was viewed by many as a profound humiliation at the time and many critics accused the federal government of overreaching and overreacting. 

In 2008, the government took a second bite at the Holy Land Foundation apple, focusing on the 108 counts on which the 2007 jury reached no verdict. 

Federal Judge Jorge Solis appears to have been deeply offended by the lack of contrition exhibited by the defendants.  At yesterday’s sentencing hearing, Solis handed down what amount to life sentences (there is no parole in the federal system), repeatedly accusing the defendants of intentionally and consciously funding acts of terrorism. 

That charge is difficult to sustain.  How can anyone possibly know whether the defendants in this case wanted a portion of the donated money to fund terrorist acts or if they sincerely believed that every penny raised was going directly to humanitarian relief.

Legally, it doesn’t matter.  The government only had to prove that the Holy Land defendants knew that Hamas would have access to the donated money.  Since the American government considers Hamas to be a terrorist organization, the defendants were guilty if they knew, or if they should have known, that the donated money might be under the control of Hamas.

Still, 65 years in prison for trying to help the poor, the sick and the hungry?  Can such a draconian sentence be justified?  Do these sentences reflect a measure of paranoia?  Can anyone imagine the leaders of a Jewish humanitarian organization being charged with aiding the building of illegal settlements on the West Bank?

There is a critical difference of course: Hamas is a terrorist organization even when it is relieving suffering; the Israelis are strong American allies even when they reduce Gaza to rubble killing hundreds of innocents in the process. 

 The real crime perpetrated by the Holy Land Foundation was viewing the Israelis are terrorists and the Palestinians as noble freedom fighters. 

Both the Israelis and the Palestinians are proud peoples fighting for survival.  Tactical differences are largely a function of the immense power differential between the two sides.  From the perspective of the British, the American colonists were terrorists in 1776. 

I am not trying to defend Hamas.  I am not a Palestinian and, like most Westerners, I have been raised to view Islam in a negative light.  Moreover, I have always been inspired by the Israeli struggle for national survival. 

On the other hand, Palestinians too are creatures of God.  Perspective in these matters is largely driven by the circumstances of birth. 

The moral ambiguities of the case explain the marked difference between the 2007 and 2008 verdicts.  Linda Moron, one of the defense attorneys representing the defendants made this statement yesterday: “Twelve good American citizens in the first trial didn’t convict anyone of anything; and 12 good American citizens in the second trial convicted everyone of everything. If you can make sense of that … explain it to me.”

  LULAC (The League of Latin American Citizens) has published a statement decrying yesterday’s harsh sentences and a number of African American opinion leaders in the DFW region have also been critical of the government’s handling of this case.

Meanwhile, the American Muslim community has been divided over the Holy Land prosecution; some see the government’s aggressive stance as evidence of anti-Muslim bigotry, others suspect that Holy Land should have been more circumspect.  Nationwide, Muslims who wish to provide aid to the Middle East have been unsure where to send their donations.  As a result, all Muslim charities have been suffering.

Laurie Goodstein’s article in the New York Times places yesterday’s events in wider perspective:

“Following the Sept. 11 attacks, the government designated dozens of Muslim charities, mostly international relief agencies, as financiers of terrorism. Muslim groups struggled for years to persuade the Treasury Department to produce some kind of seal of approval for legitimate charities that adhered strictly to humanitarian work. For Muslims, giving to charity is a religious obligation.”

These verdicts may hold up, but I would be very surprised if the unspeakably harsh sentences handed down yesterday will stand.  Ten years from now this incident will be viewed as an embarrassing overreaction to a morally complex situation.

Another innocent man convicted in Dallas County has been returned to the free world after spending twenty-two years behind bars.

Jerry Lee Evans fit the physical description of the man who raped an SMU student.  The victim rememered that her assailant had a speech impediment–so does Evans.  The victim picked Evans out of a police lineup.

That was enough for a Dallas jury.  That would likely have been enough for a jury anywhere in America.  Because the crime was so deplorable, Evans just had to be guilty.  What were the chances that looked like the real rapist and even lisped like the real rapist wasn’t the real rapist?

Once again we see how one eyewitness identification plus one coincidence equals one guilty verdict . . . at least when you have a white victim and a black defendant.

The Dallas exoneration parade prompts an obvious question: what about the victims of wrongful conviction who can’t appeal to DNA evidence?  The only way to help these people is to get involved at the pre-prosecution stage and draw loud attention to the insufficiency of the evidence.  This is where Friends of Justice goes to work.

Most defendants are guilty as charged, as everyone knows.  But how many innocent men and women are going to prison for decades because prosecutors and investigators are playing a dangerous guessing game?

Friends of Justice is currently working on a troubling case in Montgomery County, Mississippi.  I haven’t said anything about the case in this space because we are still in the investigation phase of our work.  But there is no doubt that the High School in Winona, MS held segregated proms until just a couple of years ago.

As this essay in the New York Times makes clear, segregated proms are still held all across the rural South. 

Vestiges of Jim Crow segregation aren’t hard to find in southern high schools if you take the trouble to look.  Jena provides one striking example.  And then there is the case of Church Point, Louisiana (the home of Friends of Justice board member, Ann Colomb) where separate black and white Mardi Gras parades are held every year. 

The competition for homecoming queen i n Church Point was always friendly until Margot Coleman received the most votes from the school’s football team in the mid-1990s.  This result was hardly surprising.  Margot was the best student in the school, the best athlete and (there being no justice in this world) she also possessed Hollywood good looks.  Nonetheless, when Church Point’s new homecoming queen was announced during halftime, a riot broke out in the stands and spilled out into the streets.  Church Point now selects a homecoming court but no queen.

The segregated prom in Montgomery County, Georgia that is featured in the Times article persists because white parents are unwilling to give it up.   Do these parents regard themselves as racists?  Probably not.  If they were called for jury duty and asked if they could objectively adjudicate a case involving a white victim and a black defendant they would answer in the affirmative; and they would be perfectly sincere.

They would be sincerely wrong.

You can find the entire article here, but this brief excerpt should whet your appetite.

“

“Racially segregated proms have been held in Montgomery County — where about two-thirds of the population is white — almost every year since its schools were integrated in 1971. Such proms are, by many accounts, longstanding traditions in towns across the rural South, though in recent years a number of communities have successfully pushed for change. When the actor Morgan Freeman offered to pay for last year’s first-of-its-kind integrated prom at Charleston High School in Mississippi, his home state, the idea was quickly embraced by students — and rejected by a group of white parents, who held a competing “private” prom. (The effort is the subject of a documentary, “Prom Night in Mississippi,” which will be shown on HBO in July.) The senior proms held by Montgomery County High School students — referred to by many students as “the black-folks prom” and “the white-folks prom” — are organized outside school through student committees with the help of parents. All students are welcome at the black prom, though generally few if any white students show up. The white prom, students say, remains governed by a largely unspoken set of rules about who may come. Black members of the student council say they have asked school administrators about holding a single school-sponsored prom, but that, along with efforts to collaborate with white prom planners, has failed. According to Timothy Wiggs, the outgoing student council president and one of 21 black students graduating this year, “We just never get anywhere with it.” Principal Luke Smith says the school has no plans to sponsor a prom, noting that when it did so in 1995, attendance was poor.”

Bob Herbert has a knack for reducing complex legal cases to their essential elements.  His twelve columns on Tulia in 2002-2003 didn’t just make the infamous Coleman operation look unfair, they made it look ridiculous, even bizarre.   Now that the New York Times columnist has gone to bat for Troy Davis it will become much more difficult for the Supreme Court to ignore this case. 

No one wants to give Davis and his attorneys a chance to make his case.  It isn’t that they doubt he has any meaningful evidence to present; they are afraid he will cast so much doubt on the original trial that questions will be asked about all capital cases based largely on circumstantial evidence.  The Troy Davis case provides the perfect example of just how unreliable eyewitness testimony can be.  The amazing thing about this case is that so many witnesses willingly admit that they were wrong even though this makes them vulnerable to prosecution for perjury and obstruction of justice.

In the Absence of Proof

By BOB HERBERT

The options are running out for Troy Davis, a man who has been condemned to death for killing a police officer in Georgia, but whose guilt is seriously in question.

It’s bad enough that we still execute people in the United States. It’s absolutely chilling that we’re willing to do it when we’re not even sure we’ve got the right person in our clutches.

Mr. Davis came within an hour of execution last fall. His relatives and his attorney, Jason Ewart, had come to the state prison to say goodbye. Mr. Davis had eaten his last meal, and Mr. Ewart was ready to witness his execution.

The mind-numbing tension was broken with a last-minute stay from the Supreme Court. The case then made its way to the United States Court of Appeals for the 11th Circuit, in Atlanta, which ruled 2-to-1 last month against Mr. Davis’s petition for a hearing to examine new evidence pointing to his innocence.

The countdown to the ghoulish ritual of execution resumed.

Mr. Davis was convicted of shooting a police officer to death in the parking lot of a Burger King in Savannah, Ga., in 1989. The officer, Mark Allen MacPhail, was murdered as he went to the aid of a homeless man who was being pistol-whipped.

I’m opposed to the death penalty, but I would have a very hard time finding even the faintest glimmer of sympathy for the person who murdered that officer. The problem with taking Mr. Davis’s life in response to the murder of Officer MacPhail is the steadily growing mass of evidence that Mr. Davis was not the man who committed the murder.

Nine witnesses testified against Mr. Davis at his trial in 1991, but seven of the nine have since changed their stories. One of those seven, Dorothy Ferrell, said she was on parole when she testified and was afraid that she’d be sent back to prison if she didn’t agree to cooperate with the authorities by fingering Mr. Davis.

“I told the detective that Troy Davis was the shooter,” she said in an affidavit, “even though the truth was that I didn’t know who shot the officer.”

Another witness, Darrell Collins, who was a teenager at the time of the murder, said the police had “scared” him into falsely testifying by threatening to charge him as an accessory to the crime. He said he was told that he would go to prison and might never get out if he refused to help make the case against Mr. Davis.

This week Mr. Davis’s lawyers, led by Mr. Ewart of the Arnold & Porter law firm in Washington, filed a last-ditch, long-shot petition with the Supreme Court, asking it to intervene and allow Mr. Davis’s claims of innocence to be fully examined.

An extraordinary group of 27 former judges and prosecutors joined in an amicus brief in support of the petition. Among those who signed on were William Sessions, the former director of the F.B.I.; Larry Thompson, a U.S. attorney general from 2001-2003; the former Congressman Bob Barr, who was the U.S. attorney for the Northern District of Georgia from 1986-1990; and Rudolph Gerber, who was an Arizona trial and court of appeals judge from 1979-2001.

The counsel of record for the amicus brief is the Harvard law professor Charles Ogletree. The brief asserts that the Supreme Court should intervene “because Mr. Davis can make an extraordinary showing through new, never reviewed evidence that strongly points to his innocence, and thus his execution would violate the Constitution.”

The very idea of executing someone who may in fact be innocent should also violate the nation’s conscience. Mr. Davis is incarcerated. He’s no threat to anyone. Where’s the harm in seeking out the truth and trying to see that justice is really done?

And if the truth can’t be properly sorted out, we should be unwilling to let a human life be taken on mere surmise.

There was no physical evidence against Mr. Davis, and no murder weapon was ever found. At least three witnesses who testified against him at his trial (and a number of others who were not part of the trial) have since said that a man named Sylvester “Redd” Coles admitted to killing the police officer.

Mr. Coles, who was at the scene, and who, according to witnesses, later ditched a gun of the same caliber as the murder weapon, is one of the two witnesses who have not recanted. The other is a man who initially told investigators that he could not identify the killer. Nearly two years later, at the trial, he testified that the killer was Mr. Davis.

Officer MacPhail’s murder was a horrendous crime that cries out for justice. Killing Mr. Davis, rather than remedying that tragedy, would only compound it.

“It was only after the suspects had given up lots of info, but not the info Cheney wanted, that the torture started, as it usually does in history. It starts with someone empowered with torture to get from a victim the words that will confirm what the torturer already believes.”  Andrew Sullivan

I have suggested that “enhanced interrogation techniques” serve the same function as the arrows and olive branches American prosecutors use to extract testimony from reluctant witnesses in our justice system.  Threatening a decade of prison time is a lot like waterboarding; offering a time cut to a convicted felon is a lot like making the waterboarding stop.

In both cases, as Andrew Sullivan suggests in a recent column in The Atlantic, enhanced techniques are used to confirm what the interrogator already thinks he knows.   You don’t torture a suspect to get the truth; you want the poor wretch to tell you what you already believe to be true.  If the techniques of interrogation are enhanced sufficiently you will hear exactly what you want to hear.  To make the hurting stop the torture victim will give you the words, inflection, grammar and syntax you desire.

The game is particularly easy if you are working with the broken men and women who typically fall under the shadow of the American Gulag.   Those already in prison are looking for a ticket back to the free world.  Those on probation and parole live in fear of going back to the joint.  Those who live outside what the law allows know they can escape scrutiny by saying a few magic words.  If that means implicating a fellow suspect, so be it. 

If you are looking for confirmation torture works great.  If you want to justify a war or if you are trying to bolster an inherently weak legal case enhanced interrogation techniques are invaluable.

But what if you are looking for the truth?

In that case, torture isn’t much help.  It gives you what you want, not what you need.

When prosecutors can shape testimony to their liking the truth is superfluous.

The public can’t tell when it is being bamboozled.  When a politician cites “reliable sources” or a prosecutor trots out a string of “reliable witnesses” the ordinary citizen has no way of guessing the horrific abuse behind “the facts”.

Andrew Sullivan says torture was used to justify the invasion of Iraq and the fanciful link been Saddam and Al Queda.  In our criminal justice system torture is regularly used for equally dubious purposes.

Tortured To Justify A War?

One key thing to understand about torture is that it almost never occurs when the torturers know nothing and need to find out something. That’s why seeing it as an interrogation tool, properly understood, is actually oxymoronic. What torture is about is forcing a victim to tell you something you already think you know but want confirmed – either to prevent an attack or use as propaganda or deploy against another suspect. And, as one recalls, there are many things that Dick Cheney simply knows – even though the CIA, the State Department, and much of the professional machinery of government might disagree. In fact, disagreement by State and CIA actually only tends to confirm Cheney’s view, in his mind, that he is always, always right.

So what were the two things of which Cheney was completely sure after 9/11, regardless of the objective

evidence? He was sure that there was an operational connection between Saddam and al Qaeda, and sure that Saddam had weapons of mass destruction. In Cheney’s defense, these were judgments based on completely legitimate fears – and any president or vice-president would be duty bound to figure them out. After 9/11, the possibility of al Qaeda with WMDswas terrifying, and Cheney had already been responsible for the worst attack on American soil in US history. By his reading of his oath of office, he had already broken it. So he finds two potential Qaeda suspects and they are interrogated … but although they tell him a lot about al Qaeda, they don’t tell him what he wants to know and believes is true. And what he believes is true could, in his mind, threaten the US and thousands of American lives. He wasn’t alone in this fear. I was right there along with him, as most of us were. But, from all we now know, he went one step further in this quest than any American elected official had ever done in history before.

From much of what we can glean, it was only after the suspects had given up lots of info, but not the info Cheney wanted, that the torture started, as it usually does in history. It starts with someone empowered with torture to get from a victim the words that will confirm what the torturer already believes. This evidence can then be publicly cited as proof that Cheney is right … and justify further torture and even, in this case, partly justify an entire war that killed tens of thousands and cost trillions of dollars and still has almost the entire US military locked down with no way out in the middle of the Middle East. Moreover, the result of torture – it worked! you can almost hear Cheney exult – proves that other potential torture victims could also be forced to tell us the same thing. And so the temptation to torture deepens with every session – as you believe you are nearing the truth, even as, in reality, you are entering a dark hole from which there is no escaping.

And so Ibn al-Sheikh al-Libiwas first captured by the US and tortured by CIA surrogates in an Egyptian cell. Apparently, they beat him and put him in a coffin for 17 hours as a mock-burial. To end the severe mental and physical suffering, he confessed that Saddam had trained al Qaeda terrorists in deploying WMDs. This evidence was then cited by Colin Powell as part of the rationale for going to war in Iraq. Bingo! And we wonder why torture is such a temptation. Which politician wouldn’t want to be able to manufacture evidence to support what he wants to do anyway? Take that, Valerie Plame!

Now you see the temptation to use Zubaydah for the same purpose.

He’d been interrogated successfully, given up huge amounts of information when being treated humanely, even kindly, in hospital and after – but not enough for Cheney. Cheney wanted Zubaydah to tell him what Cheney already knew: the Saddam-Qaeda connection. That would sure foil those pantywaist liberals in the State Department, the Congress and the press who kept asking for proof – as if proof were needed in such an emergency. And so Zubaydah was strapped to a waterboard to force a fake casus belli out of him. Here is the relevant section from the Bybee memo:

The interrogation team is certain that he has additional information that he refuses to divulge. Specifically, he is withholding information regarding terrorist networks in the United States or in Saudi Arabia and information regarding plans to conduct attacks within the United States or against our interests overseas.

But those in the “interrogation team” had no such certainty, according to Ali Soufan, who was part of it. And David Rose subsequently discovered what Bush and Cheney got out of the torture session, once the professional interrogators had been ushered out:

Rose quotes a Pentagon analyst who read the transcripts from the interrogation: “Abu Zubaydah was saying Iraq and Al-Qaeda had an operational relationship. It was everything the administration hoped it would be.” That analyst did not then know that the evidence was procured through torture. “As soon as I learnt that the reports had come from torture, once my anger had subsided I understood the damage it had done,” the analyst says.

We still have memos and a bureaucratic paper trail. But we don’t have the tapes of those torture sessions which were destroyed – yes this is a Hollywood movie – by the CIA. And as for al-Libi, a man who could also flesh out the details of his torture and what Cheney forced him to say … well, for a long time, he simply went missing:

“I would speculate that he was missing because he was such an embarrassment to the Bush administration,” said Tom Malinowski, the head of the Washington office of Human Rights Watch. “He was Exhibit A in the narrative that tortured confessions contributed to the massive intelligence failure that preceded the Iraq war.”

Yesterday, he was found dead in a Libyan jail, an apparent “suicide”.

Twenty-seven years ago, James Fry got the conviction he was looking for.  Charles Chatman was guilty of aggravated rape.  Fry knew it.  The victim knew it.  Most importantly, the jury knew it. 

Chatman maintained his innocence, but isn’t that what you expect?  Like they say, there are no guilty men in prison.

But Fry was wrong.  The victim was wrong.  Most importantly, the jury was wrong.

Chatman was right. 

You can’t argue with DNA evidence.

An acute  case of cognitive dissonance gripped the former prosecutor as he grappled with the exoneration of Charles Chatman.  They system had worked the way it was supposed to work.  The victim hadn’t been bribed or threatened into testifying.  A strong circumstantial case had been constructed around her identification.  If the system could get it wrong in the Chatman case, Fry wondered, how many other innocent men are we locking up?

Worse still, how many innocent men are we putting to death?

The prosecution of Charles Chatman was strictly by the book.  Most of the trials I have witnessed were shoddy by comparison.  Consider how the federal government used a string of convicted drug dealers to convict an innocent Ann Colomb and three of her sons.  The lies were patently obvious but the government swallowed them whole.  Consider the case of Little Rock attorney Alvin Clay.  The government’s sole witness told nothing but lies under oath and still the federal government refuses to abandon its case. 

A capital case Friends of Justice is currently investigating in Mississippi is riddled with prosecutorial misconduct and witness manipulation (more on that later).

As James Fry suggests, prosecutors need to value the truth above career advancement.

But it goes deeper than that.  When the state wants to snatch an American citizen out of the free world it needs proof beyond a reasonable doubt.  If the government has asked for an indictment few jurors are going to second guess that decision unless they are staring at overwhelming proof of innocence.

If the system is going to be reformed we must be willing to leave a lot more cases open and unresolved.  Prosecutors have got to tell themselves, “I could sell this case to a jury; I just wish I could sell it to myself.”

If you don’t want to take such radical talk from me, maybe a hard-nosed, law-n-order Republican prosecutor will convince you.

Alan Bean

________

James A. Fry: I put away an innocent man

03:06 PM CDT on Thursday, May 14, 2009

When I prosecuted Charles Chatman for aggravated rape in 1981, I was certain I had the right man. His case was one of my first important felony cases as a Dallas County assistant district attorney. Chatman was convicted in a court of law by a jury of his peers. They, like me, were convinced of his guilt.

Nearly 27 years later, DNA proved me – and the criminal justice system – wrong. Chatman was freed from prison in January after DNA testing proved him innocent. He spent nearly three decades behind bars for a crime he did not commit – a stark reminder that our justice system is not immune from error. No reasonable person can question this simple truth.

I am proud of having been a prosecutor; it is honorable work. In fact, I still have a portrait of former Dallas County District Attorney Henry Wade in my law office. He was a good man, and he gave me a chance to be a trial lawyer. However, my unknowing involvement in prosecuting an innocent man has been a troubling experience.

Chatman’s story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.

As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.

The fault in Chatman’s case, however, lies not with the victim, who honestly believed she had identified the right man. Instead, it lies in part with the flawed witness identification procedures used by law enforcement agencies. Research has shown that relatively small changes can greatly improve witness accuracy, changes we urgently need to implement.

Witness identification is not the only contributor to wrongful convictions. Far from it. Politicians – a category that includes elected officials, district attorneys and judges – need to be less concerned about remaining in office and more concerned with determining the truth. More effort needs to be given to see that court-appointed attorneys have adequate compensation and investigation funds. Until these issues are addressed and reforms put in place, the number of innocent men and women sent to prison will continue to rise.

Chatman’s case was not a capital crime, but the problems that led to his wrongful conviction raise the question: How can we continue carrying out executions in Texas when we know the system is so prone to error?

For years, Texas has led the nation in the number of executions. Why don’t we now strive to lead the nation in a new direction: reforming a justice system in urgent need of reform?

For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death.

I am no bleeding heart. I have been a Republican for over 30 years. I started my career as a supporter of removing violent people from society for as long as possible, and I still believe that to be appropriate.

But I also believe that the government should be held to the strictest burden before it deprives a citizen of his freedom. It is not too much to ask that we not convict and execute innocent people in our quest to enforce the law. Let’s get this system fixed.

James A. Fry was a Dallas County assistant district attorney from 1980 to 1982 and currently practices family law in Sherman. His e-mail address is jamesfrypc@verizon.net.

David Gushee teaches Christian ethics at Mercer University in Atlanta.  He taught the same subject at the Southern Baptist Theological Seminary while I was a doctoral student back in the early 90s.  He is also president of Evangelicals for Human Rights.  When the Georgia professor learned that 62% of white evangelicals support the use of torture he had to ask himself if these folks have the slightest idea what their purported Master stands for. 

True to his evangelical heritage, Gushee took it to the Lord in prayer.

Gushee is asking much the same question I addressed in “The religious roots of southern punitiveness“.  I fear that support for torture among southern white evangelicals is likely well in excess of 62%.  Asking why white evangelicals support torture is much like asking why these kind, good-hearted people are so enamored of a criminal justice system predicated on torture (physical and pschological). 

Prison may not be hell; but it’s as close as you can get this side of dying.

Please give Dr. Gushee’s prayer your careful attention and tell me what you think.  Also, check out this piece in The American Prospect’s FundamentaList that draws a parallel between Abu Graib-type atrocities and the brand of aggressive evangelism currently flourishing in the American military. 

A Christian’s Lament

Dear Jesus,

Everyone seems to be talking about the poll put out last week by the Pew Forum on Religion and Public Life. They found that 62 percent of white evangelical Protestants believe “the use of torture against suspected terrorists to gain important information” to be often or sometimes justified. Only 16 percent of this group — a community that by self-definition is very, very serious about following you — believes torture is never justified. That number was lower than any other group polled.

I think that what really got people’s attention with this poll, Lord, is that both evangelical identity and church attendance were positively correlated with support for torture. Thirteen percent more evangelicals said torture was often or sometimes justified than in the general population. In other words: The more often people go to church, the more they support torture. So those of your followers who go to church every week support torture at 54 percent, while those who seldom or never go support it at 42 percent.

These results have bounced around the country all week, reinforcing the opinion here that Christianity — the faith that purports to be related to loyalty to you, Jesus — leads people to support torture. It would be easy for casual news-watchers to conclude that if you want to end torture in this country, the best thing to do would be to empty out the churches. What a negation of the Great Commission (Matt. 28:16-20)! We could call it the Great De-Commissioning!

But, Jesus, can it be that the problem is that the churches are already empty? Can it be that the institution that you founded to advance your mission in the world is already empty of any understanding of what it might really mean to follow you? Is it already empty of people who take your teachings and example so seriously that they might have the capacity to resist seductive and dangerous ideas floating around our culture — like the idea that if torture “works” to “protect national security,” and thus is something that followers of Jesus Christ ought to support as good loyal Americans?

Is your church already empty of courageous leaders who are willing to lose their jobs in order to say a resounding NO to a heretical idea like that? Is it already empty of people who understand that if you are a Christian, you cannot serve two masters, like, for example, Jesus and National Security? Is it already empty of people who understand that because all human beings are made in your image, there are some things that we just can’t do to anyone, no matter who they are?

What is this thing called “Christianity” in this country, Lord Jesus? Does it have anything to do with you? It seems a strangely Americanized thing, a disastrously domesticated faith toward which people can nod their heads in loyalty as long as it doesn’t conflict with their full participation in whatever this country feels like it wants to do.

You founded an international, countercultural movement filled with followers who did everything you taught them to do to advance the peaceable and just reign of your Father in this rebellious world. We American Christians have turned it into a culture-religion that has nothing to say even about, say, waterboarding, slamming people repeatedly into walls, forced nudity, prolonged shackling, 11 days of sleep deprivation, psychological terror, sexual humiliation, religious desecration, and so much more! Or that even supports all of this to protect … America!

O Jesus, what have you to do with a religion like this? “I spit you out of my mouth” — these words of yours somehow come to mind (Rev. 3:16)!

Lord, you taught us much about resisting temptation. You talked about not giving the Devil a space in which to operate, and about cutting off the sources of temptation at the root (Mark 10:43-48). It seems like on this torture issue, Jesus, our nation got tempted by its fear and anger and grief to go down a road we had repudiated since our founding! When what we were doing first surfaced (Abu Ghraib, 2004), we all purported to be shocked, shocked. Now at least half of your people say it’s fine to do worse than what we did there! Where’s your Holy Spirit, leading us into righteousness and convicting us of our sins? Or, better, where is the responsiveness of your people to your Holy Spirit, the One who speaks truth to your people if we will but listen?

O Lord, you know that some of us have been fighting this torture thing for several years. We thought that America would come to its senses eventually. We thought that a transition to an anti-torture president would make a difference. Well, the policies may be changing right now, but support for torture among even your own self-identified followers remains sufficiently strong that it looks like, under a different president, we would go right back to doing it, and Christians would go right back to supporting it or just remaining acquiescent! The more torture memos that get released, the more we argue about whether torture is okay! Can nothing end this cancerous debate?

Jesus, this doesn’t look like a problem that can be solved through garden-variety activism. Another press conference, another media alert, another academic meeting, another document or article — none of this seems to make any difference.

Lord, it seems that the problem runs deeper than what such activism can solve. Clearly, your church in this land has been deeply corrupted. I’m still trying to figure out all the sources of that corruption, but it looks like some combination of an inadequate understanding of what the Bible really teaches, an inadequate grasp of who you really are, an inadequate commitment to your Lordship over all of life and thus our obligation to follow your teachings in all things, inadequate disciple-formation processes in our churches, inadequate leadership from the pulpit, inadequate social ethics (especially the lack of any firm commitment to human dignity and human rights), and inadequate understanding of the distinction between the church and the nation. I’m sure there’s more.

There are times when a church so badly misunderstands what it means to be church that it must be repudiated as fundamentally ungodly, fundamentally a negation of true Christianity. This has sometimes been called a status confessionis moment — a situation where the basic integrity of the gospel and the core witness of the church are at stake. Jesus, I believe this is one such moment.

Any church — congregation, parachurch organization, denomination, or group of individual Christians — that supports torture has violated its confessed allegiance to you and can no longer be considered part of your true church. Let them be anathema.

Jesus, I pray with all my heart for the survival of a remnant of faithful Christianity in this country. It goes far beyond torture. It has to do with whether we are really your people or are liars and hypocrites, just deluding ourselves on the way to Judgment Day.

Congressman Pete Sessions (R-Dallas) has been churning out the quotable quotes.  First, he suggested that the Republicans need to launch a Taliban-style “insurgency” against Barack Obama and the Democrats.  Then, while still attempting to extricate foot from mouth, Pistol Pete accused Obama of deliberately attempting to push up the unemployment rate, drag down Wall Street and destroy American capitalism.

This is the same Texas politician who denounced Janet Jackson for forcing her “liberal values” on conservative Americans by flashing at the Superbowl  then organized a fundraiser at a raunchy Las Vegas Gentleman’s Club.

In Mr. Sessions’ defense it should be noted that historical precedent exists for politicians conspiring to increase unemployment (permanently) even if it meant a weakened stock market.

The year was 1979 and for the first time since the WWII American profits were sagging in comparison to the European and Asian competition.  Meanwhile, wages were soaring and so was inflation.  Something had to be done.

Desperate for a quick fix, Jimmy Carter appointed Paul Volcker chairman of the federal reserve.  When Carter was eclipsed by Ronald Reagan a year later, Volcker and his tough economic remedies lived on.  By creating a largely artificial recession, Volcker and associates placed extreme downward pressure on wages, weakened the union movement and set the stage for the surging profit margins that were the hallmark of the next three decades.

By outsourcing manufacturing jobs to the developing world, American business ensured that domestic wage-earners would never recover the leverage they enjoyed during the halcyon days of the 1960s.  Thus we have seen a gradual widening of the gap between the haves and the have-nots.  There was nothing accidental about all of this; it was perfectly intentional.

What is more, the anti-labor, pro-business policies Volcker instituted enjoyed solid bipartisan support.  So did the war on drugs and the mad rush toward mass incarceration.  The prison boom and the welter of new felonies and draconian sentencing guidelines churned out by tough-on-crime politicians were an inevitable response to an immense surplus population created by neo-liberal economic policies.  Across America, inner city ghettos expanded or were created from once-thriving neighborhoods. 

This is an over-simplification, of course.  There was a lot more going on in America than tycoons and their political employees driving up profits by driving down wages.  The anti-civil rights backlash Rick Perlstein chronicles in “Nixonland” was also part of the mix.  Racism and cognitive dissonance created a twitching vein in America’s furrowed brow, allowing mean-spirited politicians to sell mass incarceration as the New Jim Crow. 

But at the heart of the prison-buidling boom lay the universally acknowledged necessity of making America safe for business.  According to the received wisdom of the age America couldn’t have goodpaying jobs for everybody.  High levels of unemployment were the price you paid for prosperity.  If that meant locking up the surplus population, so be it.

Of course, nobody wanted to put it that indelicately; hence the war on drugs.  By sucking all legitimate enterprise out of the inner city, American policy makers created a thriving underground economy.  If you want to see the outworking of all this rent a season or two of The Wire.

I don’t see a groundswell of interest in criminal justice reform out there.  On the other hand, I don’t hear a lot of politicians beating the tough-on-crime drum either.  The collapse of the old paradigm has opened the door to Keynesian job creation policies.  In the midst of the deepest recession since the 1930s, America can no longer afford its Gulag.  Crime was once the number one issue on the political calendar; post 9-11 it hardly registers.

Barack Obama isn’t trying to destroy Wall Street; but there are no guarantees that he will be able to save it either.  When the bubble bursts you can’t pump it back up.  An economic boom built on speculation and Ponzi scams holds little appeal for most Americans–at least for the moment. 

But lets face facts.  In the 1980s America stopped building televisions and started building prisons.  The two developments were intimately related.