The Duke lacrosse case, which ended last week with state Attorney General Roy Cooper’s declaration that the three student-athletes charged were “innocent,” was marked by a rogue prosecutor, unreliable testimony by the alleged victim, inept police work and media racing to convict somebody before an all-star team of defense attorneys finally stepped in and turned things around.
When it was over, the defendants thanked their families, who paid large legal bills, and wondered aloud: What happens if a prosecutor like Mike Nifong comes after you and you’re not rich?
That’s the question we all should be asking, says Ken Rose, senior attorney with the Center for Death Penalty Litigation in Durham. Do poor folks get railroaded in North Carolina for crimes they didn’t commit?
“It happens all the time,” Rose says, “even in capital cases.” He ticked off a list of men convicted of murder and sentenced to die in Raleigh who were later acquitted (Alan Gell, Charles Munsey) or are awaiting a second trial (Jerry Hamilton). The common denominator in all these cases was evidence gathered by the prosecution but then suppressedand withheld from the defensethat pointed to the defendants’ innocence.
And in non-capital cases? Richard Rosen, law professor at UNC-Chapel Hill, says prosecutorial misconduct is neither common nor rare. It happens, he says. But the bigger problem is bad evidence by bad witnesses.
Rosen heads an Innocence Project conducted jointly by law students at UNC and Duke, one of many such efforts that have sprung up around the country in recent years due mainly to advances in DNA testing.
“They see a lot of cases based on a single, barely credible witness, and yet the jury convicts,” Rosen says. The Ronnie Long case is like that, he says. Long, who insists he’s innocent, is serving a life sentence for a 1976 rape in Concord based solely on the victim’s identification of himwhich she made after she was brought into a courtroom to see him.
Another factor to consider is bail, says Malcolm Ray Hunter Jr., executive director of the Office of Indigent Defense Services, a state agency. Unlike the Duke defendants, who posted bond quickly and were free throughout their legal ordeal, he says, “A poor person would have a substantial bond put on them and have no chance to make it, and then you’re in a completely different position” in terms of your legal leverage. After you’ve been locked up for 10 to 12 months, Hunter says, the prosecutor might offer you a deal: Plead guilty to a reduced charge, and your sentence will be time served.
“I don’t have any statistics about that,” Hunter adds, “but I think it happens all the time.” And reasonable people, or desperate ones, take the deal.
For that reason, Hunter says, the General Assembly made a mistake when it set up the new N.C. Innocence Inquiry Commissiona good ideabut barred it from reviewing cases with guilty pleas.
Lawyers interviewed were unanimous that the state’s recently enacted discovery laws, which require the prosecution to turn all their evidence over to the defense prior to trial, are a huge improvement in the system. They could’ve helped Gell, whose investigators sat on the evidence that he was in jail for something else on the day of the murder for which he was convicted.
Turning over all the evidence puts the burden for determining what’s exculpatory where it belongs, which is on the defense, Rosen says. Before, prosecutors were supposed to believe in their cases and fight fiercely for them, while also figuring out which evidence suggested they were wrong. Now, each side in the adversarial process can do its own figuring.
Some weaknesses remain.
Rose points to North Carolina’s grand juries, so weak they provide no check at all on the prosecutor. The defense has no chance to introduce evidence, and even the prosecution doesn’t have to put in very much to get an indictmentand what it does put in is a mystery, since no records are kept and even the prosecutors themselves are rarely present.
And as good as the discovery rules now are, they won’t help if the defense lawyers don’t read the files with the care that the Duke defendants’ legal team did. But when court-appointed counsel is on your side, as happens when you can’t afford your own, state compensation is just $65 an hour, which about equals the overhead in many law offices, according to Rose.
Hunter’s pushing for a raise to $75 an hour; legislation is pending in the General Assembly to do just that, he notes. On the other hand, he says all of the lawyers in the Duke case also take appointed-counsel cases “because they feel an obligation to give back.” So just because you’re poor doesn’t mean you can’t get a good lawyer, Hunter says.
“It is absolutely true, however, that the compensation we provide for appointed lawyers is way below the market, and that does impact quality.”
Rosen also notes that, although a state commission appointed by then-Chief Justice Beverly Lake issued solid guidelines for police lineups, the Durham police ignored them, showing the complainant only pictures of Duke lacrosse players. The guidelines should be followed, he says. If they had been, the stripper’s story probably would’ve fallen apart within a few days, rather than a year later.