POLI 203 Ghost of an Innocent Man This

POLI 203, Ghost of an Innocent Man • This lecture focus on the even-numbered chapters, 2 to 18. • So: Policy Reforms and Activism Leading to the Creation of the NC Innocence Inquiry Commission. • April 1, 2020 Baumgartner, POLI 203, Spring 2020 1

Announcements and catch-up • Please review the slides and short lecture about the Mc. Gautha exercise. Those are available at the class web site. • Please take Quiz 3, available at noon on Wed. It is due at 5 minutes to midnight on Friday. • Email me with an explanation if you had an impediment to taking Quiz 1 or 2, last week. Did you lack internet; opportunity to participate; some other interruption? If so I’ll be lenient. If not, sorry. • All prison visits / tours have been cancelled. I’m so sorry. Baumgartner, POLI 203, Spring 2020 2

Policy Reforms: The actors • Chris Mumma, UNC law student, then Exec. Dir. of the NC Center on Actual Innocence • I. Beverly Lake, conservative judge, Chief Justice of NC Supreme Court • Richard Rosen, UNC law professor, director of the Innocence Project • Attorney to Ronald Cotton, exonerated for the attack on Jennifer, my spouse! • Theresa Newman and Jim Coleman • Theresa you saw as a speaker earlier this semester • Jim is a major figure, and actually represented Ted Bundy… • Pete Weitzel, journalist, close to retirement, becomes staff to the budding NC innocence project, joint with Duke and UNC Baumgartner, POLI 203, Spring 2020 3

Policy Reforms: The times • Willie Grimes was arrested in 1987 • DNA was just starting. Gary Dotson was the first person exonerated for a crime based on DNA: 1988. • 1995: Ronald Cotton released, thanks to Rich Rosen, others • 1998: Center for Wrongful Convictions at Northwestern Law School hosts the first innocence meeting, bringing together 28 exonerees and putting them on a stage: https: //www. nytimes. com/1998/11/16/us/survivors-make-the-caseagainst-death-row. html Baumgartner, POLI 203, Spring 2020 4

1990 s: The rise of the innocence movement • The 1990 s saw the growth of a number of innocence projects. • Centurion Ministries, NY Innocence Project, some others go back to the 1980 s, but the 1990 s saw the creation of many. • The 1998 Northwestern meeting was a water-shed, bringing together dozens of exonerees in the same place, and the attorneys who represent them. Now, there is an annual meeting of the Innocence Network. (I presented my paper on “wrongful liberty” at the conference in Portland a few years ago. ) • Duke, UNC, others met to create an “innocence clinic” at the law school. Rich Rosen retired a few years back, so only the Duke version continues. But it was a joint thing for a while. Baumgartner, POLI 203, Spring 2020 5

A meeting at Chris Mumma’s house • The Chief Justice invites everyone • Neutral territory: not a sheriff’s office, not a Chapel Hill faculty meeting room. • The regular liberals from the innocence network community (e. g. Rosen, Newman, Coleman, etc. ) • But convened by Lake, conservative, NCSC Chief and therefore in charge of the court system, concerned with public trust • And including a number of conservative, law-and-order actors: Judges, DA’s, police chiefs Baumgartner, POLI 203, Spring 2020 6

An initial meeting leads to some progress • Judge Don Stephens explains: I’m inundated with mostly baseless claims of innocence. How can I tell? We need help. • That’s the opening to an agreement to reach across the state-defense divide in the criminal justice system and search for the truth. • They agree to meet every month and create a working group: • The Actual Innocence Commission • 15 members, working on potential policy reforms Baumgartner, POLI 203, Spring 2020 7

Issues to look at (p. 104) • More DNA tests / backlog • False accusations / confessions • Quality of defense counsel • Eyewitness id practices / line-ups • Snitch / fabricator testimony • Junk science • Tunnel vision during police investigations • Postconviction review of innocence claims in a nonadversarial process Baumgartner, POLI 203, Spring 2020 8

The work of the Actual Innocence Commission • 2003, when they are just getting started: • Governor Ryan empties the Illinois death row, expressing concern about innocence and errors. Ryan: I’m in favor of the death penalty. But only for guilty people! • This issue is getting a lot of attention. • Eyewitness ID reform: how to do line-ups, emerges as a key issue Baumgartner, POLI 203, Spring 2020 9

Many of these actors had experience with the Jennifer Thompson / Ronald Cotton case • Tye Hunter and Rich Rosen, appellate attorneys for Ronald • Mike Gauldin, the police investigator in Burlington, NC and later the Police Chief there; tireless advocate for avoiding mistakes, a “good cop” who was nonetheless involved in a judicial tragedy • Jennifer was also part of the working group, testifying about eyewitness errors in 2003 • To read more about the story, look through these original source documents: https: //www. pickingcottonbook. com/case-file • Note: Tom Lambeth is now a Superior Court Judge in Alamance County. He sometimes presides at the Chapel Hill Courthouse, right across from campus on Franklin St. He and Rich Rosen got Ronald out. Baumgartner, POLI 203, Spring 2020 10

How can you mess up a police line-up? • Let us count the ways… • You saw it already in the Willie Grimes case. Suspect has a mole. Bring in six individuals or show six photos, ONLY ONE OF WHICH has a mole. Duh. • Witnesses / victims are told that of course the true perpetrator may not be there. But still, they want to help get the person off the street. • (Even though they say: “The true perpetrator may not be in this set of photos” and “it’s just as important to exclude someone who is not guilty as it is to identify the perpetrator”, psychologically, the witness wants to help. And they think that means make an identification…) Baumgartner, POLI 203, Spring 2020 11

Issues with line-ups (cont. ) • Police have to get good “filler” individuals: non-suspects, who still look pretty much like the suspect, to be sure. • Don’t let it be a “multiple choice exam” kind of thing: don’t let the witness see just six photos and feel pressure to pick the closest match. Rather, give an infinite / huge set of photos. • Double-blind: Don’t let the investigating officer or anyone else who knows who the suspect is administer the line-up. That way they cannot linger longer on one photo or say “good job, that’s who we thought it was” depending on the witness choice. • None of these things were done with Grimes or Cotton. Baumgartner, POLI 203, Spring 2020 12

Contaminated memory • Once a line-up is done, and the witness now associates a particular photo or person from a line-up with the crime and the police investigation, that photo or face becomes associated with the concept of the guilty person. • Even if it’s the wrong person, it can become the person the witness thinks they saw. • So they can testify powerfully, honestly, and wrongly! • (Gary Wells, who testified to the Commission, is a leading expert on this topic. So is Elizabeth Loftus. Google them and read some of their stuff. They are professors of psychology. ) Baumgartner, POLI 203, Spring 2020 13

Pushback and hassles • The Commission is internally diverse. • However, law enforcement pushes back on any reforms. Winston. Salem PD in particular. • A peculiarity of the US justice system: it’s extremely decentralized. • Trials occur typically in district (county) courts; there are 3, 000 counties! • Investigations are done by police departments; there are 18, 000 of them! • No one likes to be told they are making mistakes. And most can say: the errors are coming from elsewhere, not here. • So Mike Gauldin, from Burlington PD, and others, had to push back. Baumgartner, POLI 203, Spring 2020 14

An entirely new procedure • Old procedure. Once you are convicted, and sitting in prison, you can file a “Motion for Appropriate Relief” (MAR) • People do this all the time. Most are ignored. • If they succeed, the original trial or sentence is vacated. The person is no longer guilty. But they have not been proven innocent. The state can re-try, or drop charges and not re-try. (That’s an exoneration when that happens. ) • They decided they would not try to make another version of an MAR. • Rather, they would make something entirely new, something that would lead to an actual declaration of being factually innocent. Baumgartner, POLI 203, Spring 2020 15

The UK case • Criminal Cases Review Commission • Official body in the UK, can review post-conviction cases and recommend them to appeals courts, who can reverse. • So they had someone come from that body to explain how it works. • There is no equivalent in any US court system. Baumgartner, POLI 203, Spring 2020 16

Some pretty strong demands for anyone to file a claim • Claims can only be on the basis of “actual innocence”: no involvement at all. It can’t be that you were over-charged, or your sentence was unfair. Rather, it has to be you were not involved whatsoever. • Claimants have to give up many rights: self-incrimination, privacy of attorney-client correspondence, many things that are quite shocking to defense attorneys. And if things come up in the investigation that lead to a finding of a new crime, these can be reported to the district attorney or police for possible prosecution. So this will not be an easy process, and it will have a very high threshold and the claimant will give up a lot of rights. • Their concern: MAR’s already exist, and there are too many to review. This has to be a trickle, not a flood. And it’s not for unfair sentences; only the actually innocent need apply. Baumgartner, POLI 203, Spring 2020 17

The beginnings of some progress • So, the Actual Innocence Commission members keep working. • They start to develop some shared ideas of what this might look like. • They continue to have difficulties bridging the divide of the criminal justice system: State v. defense. These people do not typically work together. Baumgartner, POLI 203, Spring 2020 18

A word about how policy change occurs • The NC Innocence Inquiry Commission, which eventually was created based on the recommendations of the Actual Innocence Commission described in the book, is unique in the United States: the only official state agency of its kind. • Note that this dramatic change in public policy, the creation of an entirely new entity and a new legal right to people claiming innocence, did not happen because of an election. • Rather, it happened because of the entrepreneurial efforts of a group of people led by Chris Mumma but including a wide range of others from both sides of the political (criminal justice) divide: Defense attorneys, prosecutors, judges, and police investigators. Baumgartner, POLI 203, Spring 2020 19

What brought these people together? • They had their attention focused on the possibility of errors. • But errors have always been with us. • One side (the defense attorneys) was continually concerned by them. • Another side (police) thought the problem was vastly overstated. • Another side (judges) were concerned about a small fraction of cases but overwhelmed by the vast numbers of meritless appeals • These last two, however, had to admit that there was a lot of concern for wrongful convictions, and the early 2000’s was a time of attention to this issue. Baumgartner, POLI 203, Spring 2020 20

A combination of timing and pushing • Chris Mumma and others pushed this issue at the right time. • One, it takes a forceful and effective “policy entrepreneur” • But that person making those same arguments at the wrong time, when people are not ready for it, will fail. • So, a “window of opportunity” opened in the 2000 s because of national and NC-specific attention to the issue of wrongful convictions, and Chris Mumma pushed these reforms through. (And it took a lot of pushing, from within the community of professionals who know a lot about the topic. ) • Studies of policy change consistently reveal this dynamic. Relatively few come from facebook ads or mass public appeals. That’s a big difference between elections and policy change within a specific policy domain. Baumgartner, POLI 203, Spring 2020 21

That’s it for today • Have a wonderful weekend. • Do a quiz before Friday. • Email me with questions, or visit my zoom office hours: https: //unc. zoom. us/j/391002438 • I’ll see you next week! Baumgartner, POLI 203, Spring 2020 22