Why are some innocent defendants kept in prison? Attorney Harvey Silverglate unmasks the perversion of justice when judges give finality more weight than fairness.
In North Carolina in 1983, half brothers Henry Lee McCollum, 19, and Leon Brown, 15, were arrested and charged with a heinous crime, the rape, and murder of an 11-year-old girl. Public pressure to solve the case was intense. A lot of facts were overlooked because the police felt certain they had the right suspects. The two brothers were interrogated for hours on end, finally confessed, and then were sentenced to death.
But after an initial state appeal, the young men’s confessions were seen as coerced and vacated. They stood trial but were convicted again. Only the sentence changed. This time Henry Lee remained on death row while Leon, being still a minor, was sentenced to life in prison. Further attempts to appeal their case were rejected by judges citing the state’s interest in “finality,” a principle of law that often prevails over justice.
I often receive letters and comments from newer readers of These Stone Walls who may not know the history of my own attempts toward justice. The well-meaning comments suggest that I seek out the Innocence Project for assistance, or that I appeal to the New Hampshire Supreme Court, or file a habeas corpus petition in the federal courts.
I know that these readers would have to plow through a lot of past material on this site to get a sense of how strenuously we have tried all of the above. The Innocence Project has saved many lives, but before taking a case it requires the existence of irrefutable DNA evidence that would exonerate a prisoner.
THE ABSENCE OF EVIDENCE IS NOT EVIDENCE
A conviction like mine is different. Because no crime ever actually took place – a truth that comes down to my word against an accuser’s word – there was no evidence and nothing to review except facts. For reasons you might understand if you keep reading, the facts, no matter how compelling, have so far been unable to prevail over the court’s interest in finality.
The sheer numbers of cases overturned with irrefutable DNA evidence do not seem to translate for judges into a concern that wrongful convictions are more common than they want to admit. Mistakes that are made when there is evidence do not compel judges to consider that mistakes are also made when there is none. How finality prevailed over justice in my own attempts at appeal was laid out in an important article by Ryan MacDonald, “A Grievous Error in Judge Joseph Laplante’s Court.”
The grievous error notwithstanding, Judge Laplante was not in error in his procedural handling of my habeas corpus appeal. He simply followed existing case law. One of the most egregious principles of law to come out of the United States Supreme Court in modern times was a 1993 decision in Herrera v. Collins.
Chief Justice William Rehnquist wrote in his majority opinion in that case that “A claim of Actual Innocence is not itself a constitutional claim” that entitles a convicted defendant to federal habeas corpus relief. This also applies to death penalty cases. Actual innocence is not a bar to lawful execution.
Let that sink in. But first, back to half-brothers Henry Lee McCollum and Leon Brown in North Carolina: After being sent to prison for the heinous rape-murder charges, the two young men themselves became the victims of sexual and physical assaults.
In a bizarre twist, an older prisoner befriended them, stating his belief in their innocence. That prisoner, Roscoe Artis, had been convicted for a series of sexual assaults against women and was a suspect in at least one “cold case” homicide. It turned out that Mr. Artis believed in the innocence of Henry Lee McCollum and Leon Brown because he himself actually committed the crime for which they were in prison. He did not tell them this, however.
In 2014 – 31 years after being sentenced to prison – the case of Henry Lee, still not yet executed, was revisited by Sharon Stellato, an investigator for the North Carolina Innocence Inquiry Commission. She undertook a dogged pursuit of the actual evidence against them but found none. What she did find, however, was some DNA evidence from the crime scene that had never been tested.
It was enough – just enough – to overcome finality so a judge ordered it to be tested. It excluded Henry Lee and Leon from any involvement in the crime, and it convicted Roscoe Artis, the man who befriended and protected them in prison. It was also revealed that fingerprints found at the 1983 crime scene were not a match for either Henry Lee or Leon, a fact that the police never conveyed to prosecutors or defense attorneys. At ages 50 and 46, Henry Lee and Leon were finally released.
POLITICS, PROSECUTORS, AND CAREER PATHS
About every other week or so, usually on a Friday afternoon, I am summoned to a prison office to open and sign for an item of legal mail Anything sent to a prisoner that obviously comes from a court, a lawyer, or a law firm falls into this category. It simply means that unlike all other mail, the item is opened in my presence after I sign a log indicating that I accepted it.
Prisoners shudder when the P.A. system announces their names for legal mail. It is generally an omen of bad news for prisoners. Those who are guilty of their charged offenses – and yes, they are the vast majority – don’t mind so much. They expect little beyond the justice already meted out to them. But those who maintain their innocence brace themselves for a letdown, or another step toward bankruptcy, whenever their names are called.
It is one of the myths of prison that many prisoners claim to be innocent. The reality is just the opposite. Those who do so are taunted as “damn fools” by nearly all others. I spent my first few years here fending off a taunt by both prisoners and guards: ‘You could have been out of here in ONE YEAR if you took a deal? What an idiot!” I once wrote of the myth of false claims of innocence in prison in “When Priests Are Falsely Accused The High Cost of Innocence.”
Much of the legal mail that I am summoned to pick up these days is from Harvey A Silverglate, a well known civil rights and appellate defense lawyer in Cambridge, Massachusetts. Mr. Silverglate is author of the book, Three Felonies a Day: How the Feds Target the Innocent (Encounter Books 2009).
The foreword of the book is by Alan Dershowitz, a Harvard Law professor and a colleague and friend of the author. Both Misters Silverglate and Dershowitz appear frequently in the Boston and national media, and I have followed them for years.
In his Foreword, Alan Dershowitz presents with clarity a crucial point that I have made in a number of posts, most recently in “Plea Deals or a Life Sentence in the Live Free or Die State.” Mr. Dershowitz writes:
“Prosecutors in other countries are civil servants who do not pander to the people’s understandable wish to be safe from crime… fun the United States, prosecutors are not only elected… but the job is a stepping stone to a higher office as evidenced by the fact that nearly every congressman or senator who ever practiced law once served as prosecutors. Winning becomes more important than doing justice.” (p. xxv)
It is also an important fact that prosecutors routinely move on to political appointments as judges. Judge Joseph Laplante, who declined to hear any evidence or testimony in my federal habeas corpus appeal, had a career as a federal prosecutor spanning twenty years before his appointment to the federal bench.
Judge Arthur Brennan, who presided over my 1994 trial, was personal legal counsel to then-Governor Judd Gregg (1989-1992) when he received a political appointment to a judgeship just months before my trial. Judge Larry Smukler, who declined to hear my state habeas corpus appeal, also declined to provide any biographical information about his career trajectory for the official 2017 or 2018 New Hampshire Law Directory.
The Acknowledgements section of Harvey Silverglate’s Three Felonies a Day is a virtual Who’s Who of many of the advocates for justice who have taken up my case. The names there include Dorothy Rabinowitz whose writings in The Wall Street Journal reopened my story in the important court of public awareness.
Also included there is Bob Chatelle, founder and president of the National Center for Reason and Justice which continues to feature my story and its appellate case files. Mr. Chatelle also hosts the Friends of Justice site which links to many of my posts and has featured posts about my experience of justice.
HARVEY SILVERGLATE’S “FREEDOM WATCH”
Mr. Silverglate, being a Massachusetts attorney, has not taken up my case, but he generously sends me each installment in his series of articles called “Freedom Watch” published by WGBH News. I am most grateful for these informative, eye-opening glimpses into the.inner function, and too often. DYSfunction, of the criminal justice system. Mr. Silvergiate has also long been a reader and supporter of These Stone Walls.
The latest article that he has sent me is “When the Criminal Justice System Can’t Admit a Mistake: The James Rodwell Case.” He refers to this murder conviction as “a case that will not go away” because “too many people remain disturbed by the outcome.’ Harvey Silverglate is one of them because…
“[The] instinct that drives people to persevere when the system misfires is countered by the system’s self-protective reflex that makes it difficult to get judges to take a second, third or fourth look into a case, even when new and powerful evidence of a severe miscarriage of justice surfaces.”
This self-protective reflex, Mr. Silverglate says, has long roiled the justice system, producing “considerable disagreement between the two camps of judges – those who view finality as the ultimate goal, and others who deem justice to be paramount.” The central issue in the James Rodwell case, says Silverglate, is whether Mr. Rodwell actually committed the murder for which he has constantly maintained his innocence throughout 36 years in prison.
The sole evidence against him was the testimony of “two inmate thugs” who were treated favorably by prosecutors and police in exchange for their testimony. One of them claimed that Rodwell confessed to the murder while they occupied neighboring cells in a county jail where they were held pre-trial. Further, the district attorney’s office had since “lost” the entire file of its prosecution of this case.
Harvey Silverglate went on to describe the “remarkable display of clairvoyance” in a Superior Court judge who denied Rodwell’s latest appeal. The judge stated that “it is highly unlikely” that the ‘lost’ files contain evidence of prosecution deals afforded to inmate witnesses in exchange for their testimony.
This judicial clairvoyance struck a familiar note. When my own habeas corpus appeal came up against a wall of finality, Judge Joseph Laplante offered some clairvoyance of his own. While declining to hear from witnesses, including my accuser’s former wife, Judge Laplante attributed a motive for her to lie today about her ex-husband’s perjury: Thomas Grover was charged with felony domestic assault for punching her and breaking her nose before my trial – a charge conveniently dropped on the day my trial ended in a conviction.
Her bravely coming forward with the truth today was explained away by Judge Laplante who asserted that my defense could have called her as a witness at my 1994 trial, and could have tried to elicit the truth then. This assertion completely overlooks the fact that she may have been terrified of the man who had just broken her nose for questioning his truthfulness then. It is fascinating how all the credence afforded to victims of abuse and domestic violence is set aside when their testimony might right a judicial wrong.
Harvey Silverglate’s “Freedom Watch” article went on to describe some of the “far too many infamous cases where the indications are strong that justice misfired, but where the systemic preference for finality and the resistance to the confession of judicial error are strong.” One of these cases he cited is that against the Amirault family and the “witch trial” prosecution of them in the notorious Fells Acres Day Care Center case. It was also extensively covered in an important post that I will link to at the end of this one.
Mr. Silverglate also cited the notorious case against Bernard Baran, another story covered at These Stone Walls and linked below. Both stories convey powerfully both the perversion of finality prevailing over justice and the perversion of justice when politics preside over a courtroom. In their book, Actual Innocence (New American Library, 2003) Innocence Project founders Barry Scheck and Peter Neufeld describe how the doctrine of “finality” is an obstacle to justice:
“Only the criminal justice system exempts itself from self-examination. Wrongful convictions are not seen as catastrophes, but as topics to be avoided… Finality is a doctrine that can be explained in two words when it comes to innocence tests: willful ignorance… The Innocence Project and other advocates have spent hundreds of hours just arguing against ‘finality’ doctrines that are used to block inquiries that no fair person would resist.” (Actual Innocence, p. 320)
For Harvey Silverglate, Advocate for Justice, “The key question is whether judges, clothespins firmly attached to noses, will continue to pretend that justice was done.” None of the rest of us are given clothespins.
Note from prison by Father Gordon MacRae: This is another “Justice is blind, deaf, and dumb” post that begs to be shared on social media and wherever else you can. You may also like these related posts: