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Thursday, February 26, 2015

Watchmen

By Eduardo Ramirez

In 2014, the Philadelphia District Attorney's Office announced the implementation of a Conviction Review Unit (CRU). But what exactly is the objective of the CRU? It's stated mission is to "...investigate claims from convicted people who say they are innocent." (The Philadelphia Inquirer 4/16/14) while noble in its intent, a closer inspection into the nature of this unit and the agents involved suggests something different.

Society can agree that there exists no good reason for innocent people to be in prison; and to prevent this, a "good faith" review of legitimate claims is necessary. But before a review can be in good faith there are a few questions that the public should ask of the CRU.

1. What criteria must be met for review?
2. Who will be conducting these reviews, and what are their qualifications?
3. How will this process be different than already existing processes?

It is one thing for "new evidence" to turn up, or even old evidence that was never evaluated properly, and then to present these cases as examples of how innocent people are sometimes the victims of oversight. But this accounts for only some of the wrongful conviction claims. Outside of newly discovered evidence (and untested evidence) there exists a great number of innocent men and women, some who were juveniles at the time of their incarceration, who remain in prison because of faulty eyewitness accounts, perjured testimony, ineffective assistance of counsel, trial court error, and a host of violations of constitutionally protected rights. To ignore these issues, or to treat them as if they were less than worthy of review does a disservice to any process that seeks to free the innocent and suggests that they are unworthy of review before any appellate court.

A review by the CRU should be open to all claims currently under appeal so that it can seek to restore the dignity and freedom that have been unjustly denied. Additionally, the CRU should suggest to the appellate courts that the city and county of Philadelphia considers these matters in earnest and is attempting to ease the backlog of cases that tie up the appellate courts for years. A process for justice that crawls along at a snail's pace is not justice; it is not even in the same universe. The breadth and scope of the CRU should extend to all convictions that are currently under appeal so that the CRU can assert its good faith intentions.

We can assume that assistant district attorneys will be recruited for their service. But how will this work? Are these recruits above reproach? Does their record reflect a lack of official complaints lodged against them? Of those official complaints that have been lodged: what were the charges, the findings, the resolutions--sanctions, if any? ADA's will be expected to inform the courts--and the public--of any irregularities and improprieties that are found in a number of cases that their office has tried. How effective can the public expect the CRU to be at this task? One of the most—if not the most--damning indictment of the criminal justice system is the all too often occurrence of prosecutorial misconduct. Can it be honestly expected of the CRU to impartially, and without bias, investigate possible misconduct that has been committed by their office and colleagues--misconduct that may involve the CRU investigator? Even if the CRU's intent is to do this, can the CRU investigator be trusted to suppress that subconscious part of the psyche that will undoubtedly try to suggest that what appears to be improper is nothing more than "harmless error"? In particular, can the CRU investigator be expected to review him- or herself impartially and without bias?

The citizens of the Commonwealth must come to recognize their absolute shared ownership of every courtroom and law enforcement office in the Commonwealth and districts in which they reside. Accordingly, the stewards of the criminal justice system must come to recognize that they are servants of the public, and therefore subject to be held in contempt for any contemptuous behavior; that the consequences for contemptuous behavior, including misleading the public from the improper behavior of their coworkers, will be severe and immediate. 

The most tragic flaw in the criminal justice system is that innocent people are arrested in the first place. This is the root of injustice. Further compounding this injury is the offense of the trial court that wrongfully convicts an innocent person. Still more injurious is the offer on behalf of the courts to hear an appeal on the promise that it will correct itself-- only to delay this process for years that often turn into decades. At every stage of this process the district attorney's office advocates to maintain the innocent individual's status as an offender. For the district attorney's office to now offer yet another version of the same process does absolutely nothing to address the fundamental problem: the criminal justice system cannot serve two masters; convictions are not synonymous with justice.

What lies at the heart of this flawed system of criminal justice is the fixed thinking of the usual cast of conviction-oriented officers of the court. The closed world of courtrooms and administrative proceedings must be subject to independent review by professionals who are not themselves a part of the criminal justice system. In addition to those recruited from within the district attorney's office, the following agencies should be involved in the process: law professors, criminologists, sociologists, journalists, advocates for the wrongfully convicted, community activists, and the community itself. If the objective is to "get it right," as ADA Mark Gilson--chief of the CRU--suggests, then the process which got it wrong in the first place cannot be employed again; this includes rejecting the services of those who got it wrong.

This again brings us to the true objective of the CRU. Is it to review claims of wrongful convictions with the purpose of freeing the innocent? Or is it to protect valid verdicts of guilt? Consider Philadelphia District Attorney, Seth Williams' assessment of this:

While we are looking at these cases with an open mind, it does not mean that we will agree with all or any new claims of innocence or evidence; Mr. Gilson will also be working to protect valid verdicts of guilt. (The Legal Intelligencer, 4/17/14)

The doubting mind will invariably find reason to confirm that doubt. If Mr. Williams and his office have doubts regarding the legitimacy of whatever claims they might be presented with, how then can they assure fairness without an independent review? Additionally, Mr. Williams asserts that wrongful convictions receive a great deal of media attention. According to the National Registry of Exonerations there were 87 exonerations in 2013; how many received national media attention? Contrary to what Mr. Williams believes, cases of exoneration too often receive little to no media attention. Furthermore, even less media coverage is given to men and women who continue to assert their innocence while in prison. Mr. Williams' opinion takes into account victims of wrongful convictions only after they have been discovered. The purpose of the CRU should be to highlight the multitude of men and women who remain in prison now. There is no good reason why innocent men and women should remain in prison. The fact that there are innocent men and women in prison suggests a sad reality: the criminal justice system has a vested interest in projecting the image that it functions as advertised. But it does not; if it did function properly there would be little need for a conviction review unit. The implementation of this unit presupposes the flaw of wrongful convictions and implies the necessity for change. It is doubtful that change can arise by employing the same faulty mechanism.

Indeed, a different result can only come about by changing factors. The objectives of the CRU can only be truly met if, and when, it performs a fair investigation of all convictions currently under appellate review; when it employs outside agencies to conduct these reviews; and, when it recommends for the imposition of penalties upon officers of the court for irregularities and improprieties at all stages of the criminal justice process, including any substandard review or wrongful conviction claims. This will enable a paradigm shift from a conviction-oriented process to a process that is justice-oriented. If the District Attorney's Office of Philadelphia is genuine in its search for justice then it must be equally genuine in its process of searching.

As concerned citizens we should not be simply content with the promise of progress; we should engage those who make promises so that we can guide them, and so that together we are all accountable for that progress. The duty falls on us to ensure that our concerns are met.

Eduardo Ramirez DN6284
SCI Graterford
P.O. Box 244
Graterford, PA 19426


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