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Friday, September 2, 2011

DEAD MEN WALKING by Thom Nickels ICON Magazine, September 2011 issue

by Thom Nickels

I’d spot him on Center City streets in the 1980s. He was not young but in fact had a rumpled, unkempt look: longish white hair (like architect Walter Gropius before his death), thick Bennet Cerf-style glasses, and a tall, skinny frame visible from great distances. In his trademark coat and tie, he cut a picture of ruined yet elegant aristocracy despite his air of cosmetic decrepitude.

He was journalist John Guinther (1927-2004), who wrote for the same Philadelphia weekly where I was once a columnist. In those days I remember thinking that Guinther looked as though he’d been through a war. Later I learned that he had not only been through a war but that he had pretty much played the role of an (Old Testament) David who had just beaten the giant, Goliath, with persistent uses of a slingshot.

Goliath in this case was then Philadelphia DA Edward Rendell, a man much loved by Philadelphians. Mounting a Rendell offensive then was pretty much seen as foolish as trying to ban Philly cheese steaks, but that’s what Guinther did when he challenged the conviction of Neil Ferber, a furniture salesman, in the 1981 shooting death of Philly Greek mobster Steve Booras and his girlfriend in a South Philadelphia restaurant.

The murder sent shock waves throughout the city, but rather than taking time to investigate the case, the prosecution went into speed dial mode and put a jailhouse snitch on the stand, one Jerry Jordan, who testified (in exchange for a reduced sentence) that Ferber, the antithesis of a mobster, shot Booras and his girlfriend. Jordan’s testimony was taken as gospel despite his having flunked a lie detector test.

It took Goliath--in this case, Rendell-- 3 years to acknowledge Jordan’s test results but by this time Feber was on death row about to be executed.

Guinther, meanwhile, in his signature rumbled up coat and tie— remember, he was a political nobody who had probably never even been to lunch at the Union League-- investigated the case with a vengeance and eventually published a feature on Ferber in Philadelphia Magazine. Goliath’s people ignored the piece, forcing Guinther to continue his investigations on the murder until he eventually published a piece entitled, “An Innocent Man on Death Row,” which caught the attention of WWDB radio personality Herb Homer, who read the piece on the air.

The reading got the attention of Goliath, who then ordered another lie detector test for Jordan. Jordan failed the test a second time and this resulted in Ferber’s freedom.

Today, a journalist like Guinther would have the support and backing of the Pennsylvania Innocence Project, a non-profit organization founded in 2009 that deals with wrongful convictions.

The Pennsylvania Project was founded by two Philadelphia lawyers, David Richardson of Pepper Hamilton, and David Rudovsky, one of the country’s leading civil rights and criminal defense attorneys and teacher of criminal law at the University of Pennsylvania (he is co-author of the book, Police Misconduct: Law and Litigation 2009: the Art of Arrest, Search & Seizure in Pennsylvania). The two men recently celebrated PIP’s second anniversary on May 24th with a party at Eastern State Penitentiary.

PIP’s offices are located in an obscure office at Temple University’s McConnell Hall. On a recent visit to the office I counted as many as 15 law student volunteers working diligently at computers. The barebones office has minimal decoration and is a study in Spartan economy: Filing boxes cover the floors, and the volunteers, glued to their computers, look like the readers of great mystery novels thoroughly engrossed in the stories or case studies at hand.

Marissa Bluestine, the Project’s Legal Director, exudes a feeling of inexhaustible vitality.

“I oversee all of the legal work of the project and the networking of the project,” she tells me, sitting down next to more filing boxes and reams of paper.
I’m thinking of Gunither when I ask her if the recent media attention to wrongful convictions has had any impact on the criminal justice system.

“Though there’s more attention paid to wrongful convictions today, there have been no prominent changes,” she says.

That’s because while other states have made progress in this area, the great state of Pennsylvania is stuck in a kind of retrograde vortex. Consider, for example, the subject of police interrogations.

“Although recording interrogations of subjects, videotaping or audio taping them, do not stop all false confessions, what it does do is give a jury or fact finders the ability to determine whether it may be a false confession. But we don’t do that in Pennsylvania. A lot of these fixes on best practices in terms of protocol that are happening across the country are not happening in Pennsylvania,” Bluestine says.

The recent U.S. Supreme Court ruling stating that police, both local and federal, are permitted to lie to a suspect during an interrogation doesn’t help matters any, either. In Europe, the opposite of this is true: police are forbidden to lie to a suspect, however heinous the crime. “The only thing that the police cannot do is threaten people with the death penalty, or with violence or some kind of physical ramifications,” Bluestine adds.

We live in an era when getting tough on criminals or those suspected of a crime is seen as a way to fight crime. Stiffer sentences, the greater use of capital punishment, as well as a tendency to assume guilt before innocence has been the collective reaction in a world where crimes heretofore rather rare—multiple random killings or family murders-- now seem to have become the norm. An indicator of this change has been the Internet, where harsh “vigilante” feelings about suspects exceed the boundaries of civility. Here it’s not uncommon to read how people want suspects put away for life or strung up in worse-than-Guatamenno prisons without the benefit of a trial.

Add to this the occasional misperception that the Innocence Project is some kind of “get out of jail” card for the guilty, another so-called liberal agenda contribution to the decline of Western Civilization.

But nothing could be further from the truth.

Bluestine explains that when she does slide shows and trainings with law enforcement, she literally comes out says, “I am not Barry Scheck.” (Barry Scheck co-founded The Innocence Project in 1992 and is currently co-director of the New York Innocence Project. He was part of the defense team for O.J. Simpson).

“We make a very strong point that we’re not the New York Innocence Project, but we are the Pennsylvania Innocence Project, an entirely separate organization. When we meet with the District Attorneys and law enforcement, I emphasize that we don’t take cases unless we believe that the person is innocent.”

Since the Pennsylvania Innocence Project’s founding the organization has received some 2100 letters claiming wrongful conviction status, but from that huge pool, Bluestine says the Project selected 3 cases (with 3 others having been taken on outside that batch of letters). “In addition, we identified at least 100 cases as probable Innocence cases. The rest we rejected.”

But even after a thorough analysis by law school and other trained volunteers (who all make confidentiality agreements), the Project may still decide, albeit in the late the 11th hour, that cases that don’t hold up or that lack sufficient “innocence” evidence have to be dropped.

Consider the “undropped” case of Harold Wilson, who spent 16 years in prison and who, in 1989, was given 3 death sentences. Wilson was prosecuted by Philadelphia DA Jack McMahon and convicted of 3 counts of murder and robbery in South Philadelphia. When Wilson was originally arrested he cooperated with police and assumed that his innocence would somehow protect him. But this assumption, according to the National Center for Reason and Justice, is a mistake. “If you are accused,” states the Center’s logo, “your innocence does not protect you.” This is especially true for poor and friendless suspects “that are unable to attract committed advocates.”

Happily for Wilson, his sentence was overturned in 1999 when it was revealed that his original defense did not present mitigating evidence at the trial. Wilson’s appeal to the Pennsylvania Supreme Court resulted in a new hearing where DNA evidence confirmed that blood at the scene was not Wilson’s.

The timeline for the Pennsylvania Innocence Project can be traced to 2006, when Philadelphia lawyer David Richardson was sitting in the annual meeting of the Pennsylvania Prison Society. As a Board member of PPS, Richardson was paying particular attention to the speaker, Bill Moushey a retired investigative reporter for The Pittsburgh Post Gazette. Moushey’s talk focused on the criminal cases he’d been involved with as well as the 40 Innocence Projects he’s been involved with around the country.

Moushey asked the audience, “How is it possible that there isn’t an Innocence Project in Philadelphia?”

Richardson, who used to work for Arlan Specter and who refers to that time as “the Golden Age of Philadelphia’s Prosecution Office,” says he took Moshe’s comment as a personal rebuke. As a corporate litigator for Pepper Hamilton since 1974, his involvement in prisoner’s rights thus far included representing all the inmates of Philadelphia county prisons in a prisoner’s rights class action suit.

While working on that case he met David Rudovsky, then a Public Defender. Richardson himself was as a Philadelphia DA in the late 1960s and early 1970s.

The two David’s, their prisoner’s rights minds already in sync, decided to do something about the Goliath of wrongful convictions and formed a Pennsylvania Innocence Project. The catalyst was serendipitous connection during the Moshe lecture-- an officer at Riker’s Island whose wife was the Executive Director of the New York Innocence Project overheard their conversation. Here, then, was the first building block.

Richardson offered his Philadelphia office in November 2006 for the launch meeting, which included about 20 people, mostly law professors, practicing lawyers and public defender types. A working group was formed, and in 2008 the Pennsylvania Innocence Project incorporated as a not for profit charitable corporation. In April of the following year the Project opened.

There was still the question of a physical office space. Richardson’s law firm, Pepper, had opted not to host the project. “I had some support for it,” Richardson said, “but in the end the decision was made not to do it at Pepper. They told me it was ‘really interesting’ but that they were not ready to take this on.”

The proverbial silver lining appeared in the form of JoAnne Epps, a long time faculty member at Temple, who became Dean of the school. Epps told Richardson, “I’d love to do it if we can find some space.” Epps also informed Richardson that while Temple was handing over free office space, Temple wasn’t going to be financially responsible for the project.

Richardson says he looked at her and said, ‘Well, we’ll do that.”

Who better then to walk on the scene, as if out of a dream, then Gerry Lenfest. Richardson had never met Lenfest but he was able to find a contact who knew him through the Prison Society. The contact’s mission was to ask Lenfest for money. Lenfest told the contact, “I’ll give them the money as long as I don’t have to meet them.”

Lenfest was also adamant that he thought support for this kind of work was the responsibility of the legal community and told Richardson, “I’m happy to give you a kind of start up expense,” meaning, of course, that it would be inappropriate to ask for continuing support.

“What people find most appealing about the Pennsylvania Innocence Project is that we are only representing people who have claims of actual innocence,” Richardson emphasizes, adding that he’s quick to tell peers that the Project does not exist to get people off on legal technicalities. “While these people deserve a defense and representation, that’s not the purpose of the Innocence Project. “We’re talking not only about a legally erroneous conviction but the fact that it resulted in an innocent person going to jail,” he says.

The 50 Innocence Projects in the United States and the additional ones around the world are independent entities although there is an annual conference in which organizers network.

Co-founder Rudovsky says that while DNA exonerations have worked to overturn wrongful convictions, at least 70% of wrongful conviction cases involve erroneous eyewitness ID’s. “The problem is the methodology that the police use,” he says. He cites so called sequential showing (of suspects) to the victim as opposed to “the spread, where people tend to pick the suspect that looks most like what’s in their mind.”

“Social scientists are finding that the mind does not work like a video tape recorder you can play back a year later. There’s a deep drop off in the first 24 hours as to memory.”

The jail house snitch issue has to be addressed but not, he says, in the probation of their use but in “making sure of how questionable their testimony might be.”
Jail house snitches always get deals, and there are professional snitches that have made a career out of playing one side against another. Public defenders are overloaded in terms of case load, and appointed counsel are often not given sufficient funds to properly defend the case.”

Both Richardson and Rudovsky agree that journalists have done “incredible” work in wrongful conviction cases. “Law students,” Richardson says, “are used to writing briefs and they are unlikely, like journalists, to do the grubby work of digging out facts and finding witnesses.”

In both DNA and non-DNA exonerations, PIP reports that eyewitness misidentification has led to a wrongful conviction. How does this happen? PIP says it is because of pre-trial ID procedures that improperly suggest to the eyewitness that the guy that the police have arrested is the wrong doer. “Once that suggestion is implanted,” Richardson says, “the witness by the time of the hearing or trial recognizes the person who their attention has been called to in a lineup or photo. The eyewitness says, ‘Oh yeah, I recognize that person.’ By the time of the trial, they are convinced.”

Perhaps the strangest of all wrongful conviction culprits is the false confession.

Why would somebody confess to a crime they did not commit? That green light that gives police departments in the United States permission to lie to a suspect to get a conviction is partially to blame.

“The police come in and they tell a suspect, ‘We’ve arrested your accomplice and your accomplice has already testified that you are the wrongdoer and so you are going to be executed for the offense unless I can help you. Give me something!’”

Or, as Richardson elaborated, the police might pretend to have DNA evidence that shows that the suspect is the one who did the crime.

“If you’re being interrogated for 5, 10 or 15 hours at a stretch, and if the police aren’t even acknowledging your denials but say ‘We know you did it,’ the suspect thinks, ‘I gotta stop this because I know that the system will work and once I get outa here it will all be made right.’ But the truth is, nothing gets made right.”

Most false confessions, I was told, come from the young and marginally educated who don’t have a lot of emotional support in their lives.

Phony science, notably the old Fire Marshall belief that certain burn patterns are indictative of arson, are old wives tales, according to Richardson. “This theory has never been empirically tested.”

Richardson cites prosecutorial misconduct or suppression of evidence as a reason for wrongful convictions.

“Justice Scalia will say ‘Nobody innocent has ever been executed.’ Well, that’s bullshit. A lot of people who have been exonerated have been on death row and we’ve only been doing this work for a few years.”

For Marissa Goldstein, the cases that cross her desk often do not leave her head.

“When you have a guy that you know is 100% innocent, it’s hard to leave that at the office. I’m going to bed in my nice suburban home with my kids and it’s hard not to think what this guy is doing right now. He’s on a cot in a room not even as big as my bathroom.”

Thom Nickels