Jed, a white man in his sixties, was even more impaired but no less lovable. His records indicated he had a severely low IQ, in the 40s. His brother hired me and tearfully told me Jed had never been educated in the southern state where they grew up. The brother explained that Jed believed he was a dinosaur. Jed was charged with felony assault on police in a confrontation outside a schoolhouse. Police suffered no serious injuries in the incident, but Dinosaur Man was badly beaten, his nose broken, among other injuries. At first glance, the case smacked of the unintended mess I frequently saw when militarized police responded to mental health calls. Serious injury to the mentally ill person routinely resulted. Often the injury coincided with criminal charges against the mentally ill person. Some police believe charging a person they’ve injured with crimes will protect their careers from disciplinary scrutiny or protect them and the city from lawsuits.
Before I visited him, it seemed to me Dinosaur Man would never go to trial, because the law did not allow it. Jed was not competent under the law to understand court proceedings, and it appeared, after three tests done months apart, he never would be. Jed was in limbo. There would be no bed available to him in our devastated mental health system. The charges were serious, and judges were reluctant to simply release him onto the street. So he sat for over a year in custody with no pathway to trial or a guilty plea that might resolve the case, and no mental health facility where he might be placed anytime soon.
Jed was housed in the mental health wing of the jail, where I expected to meet him at a table rather than in more restrictive surroundings. The corrections officers who guided me into the jail to see him smiled when they read my pass, which was inscribed with Jed’s name. One of them told me he hoped I could get my client out. From seventy-five feet away, I heard a low growl that persisted until I took my seat opposite the slight man. I explained slowly that his brother had sent me, that I was a lawyer here to help him, and that I needed to talk about what had happened. He stopped growling and at first perseverated on telling me his name, covering for his difficulty in communicating.
Over the course of an hour he advised me that his encounter with police had been a showdown between himself, a dinosaur, and King Kong. Mostly he explained by standing and acting out the epic battle in slow motion and not very well, sound effects included. I knew things were going okay half an hour in when he was seated again and told me I was a stegosaurus, which I knew to be a plant-eating dinosaur. I disagreed, preferring to be a Tyrannosaurus Rex, a kingly carnivore, on the theory this might give me dinosaur dominance, or at least more persuasive sway with Jed should we disagree on legal matters in the future. He maintained I was a stegosaurus. We agreed to disagree on my dinosaur classification for the moment and moved on to the next topic. Most important, we agreed that his brother was a good man and that Jed would like to go down south with him. I knew his brother had arranged housing and treatment there—to begin fairly immediately—that was completely unavailable in Philly.
The arrangement worked. A truly memorable hearing with human growls followed. Somehow a harried court reporter recorded them during a release hearing before a compassionate judge. The court staff were at first bothered, and then transfixed. After the hearing, the brother, sufficient sleeping pills, and an Amtrak safely delivered Dinosaur Man to a better and freer future in the South. (An airplane was too much of a risk.) Sadly, Philadelphia prosecutors had done next to nothing with their considerable power and discretion to expedite this or a better outcome. Jed was neither dinosaur nor person to them during the year of his incarceration. He was just an inch of paper inside a brown file that kept coming across their desks from time to time, at taxpayers’ expense.
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But those stories don’t answer the daunting question of how we fix the cases where those same tricks and lack of prosecutorial integrity worked. What do we do about the innocent people we’ve imprisoned and the guilty people we let get away? What do we do about more mundane abuses of discretion and power, about everyday but sweeping indifference to people who live with challenges? And what do we do about restoring public health systems that address these challenges more effectively than law enforcement and unjust custody?
Nothing in the prosecutor’s oath to seek justice limits the obligation to the future, to seeking justice moving forward in time. The oath applies equally to cases from the past and to new ones. Some legal scholars and many traditional prosecutors emphasize finality—the importance of a conviction being final, with no further litigation allowed forever—as if the systemic and the bureaucratic convenience of not looking back were more important than justice and the lives affected. It isn’t. Finality and closure? For whom? For bureaucrats and public officials, or for the people criminal justice should serve?
Finality and the prosecutor’s oath to seek justice collide when crimes remain unsolved or when innocent people remain in jail. Prosecutors must solve and prosecute cold cases. Prosecutors must exonerate and get people out of jail whose convictions lack integrity. It’s a heavy obligation to fix injustice in the past and in the future, especially when those involved are still living. In a perfectly just world, that obligation to seek justice goes on forever: Innocent people deserve their reputations back, even after they are executed or die in jail; guilty people who escaped accountability deserve the ignominy they avoided in their lifetimes, commensurate with their crimes. Even as an unattainable ideal, the commitment of our justice system to correct its mistakes, to constantly try to do better, is essential to public trust, which is at the core of a functioning system.
In 1693, William Penn wrote in Some Fruits of Solitude: “To delay justice is injustice.” For survivors and victims of unsolved serious crimes, there is neither closure nor trust in future safety when a criminal goes free while the victims wait for justice. For the many people wrongfully convicted of serious crimes, their lives are destroyed one day at a time, often for decades, while waiting for justice. The lost time will never return. But in some ways justice delayed gets a bum rap. Justice denied is a whole lot worse.
The obligation of the state to provide information helpful to the defense is known as the Brady requirement, from the name of the U.S. Supreme Court case that requires disclosure. Prosecutors also have a special obligation to reach out to local police for any information that could help the defendant, even if it is not yet known to the prosecutor. Obviously, this is needed so constitutionally required disclosure doesn’t become a shell game. But Brady violations are just one reason why prosecutors’ offices need robust conviction integrity units.
The history of exonerations, especially those where the innocence of the exoneree is considered scientifically certain based upon DNA evidence or other factors, instructs on the pressures and motivations for prosecutors to do wrong. Exonerations of innocent people frequently involve the most serious criminal matters, especially ones that are hard to prove, where cheating may be the only way for a prosecutor to secure a conviction. Exonerations of the innocent also frequently occur in cases that were heavily covered in the press when they were tried, most followed by the public, and therefore are cases of the most political significance for ambitious chief prosecutors and the ambitious trial prosecutors they promote. In these important cases, a trial prosecutor who is convinced a defendant committed the crime, or who doesn’t much care, feels pressure to win by any means from within the office.
In a traditional prosecutor’s office, it’s the most aggressive and winningest trial attorneys who get the promotions, the raises, and the offers to handle the most serious cases. Many become supervisors, trainers, mentors, and recruiters for the generations of young prosecutors who follow. Awards and promotions and raises are seldom given for dropping prosecutions where a prosecutor’s careful review of evidence and further investigations show serious doubt that a charged defendant’s guilt exists but there is no other, identifiable perpetrator to blame.
&n
bsp; But the pressure to win every case, no matter its validity, comes from outside the office as well. Victims’ and survivors’ trauma in these cases can be overwhelming and understandably affect the prosecutor. Victims and survivors who are convinced of a defendant’s guilt—and who are energized by their grief, loss, and trauma, which historically have been inadequately addressed—can become a separate form of pressure to win. The groups that support victims and survivors can play a similar role as well. Even prosecutors who repeatedly handle terrible crimes, peering at crime scene photographs and blood-soaked evidence, dwelling on extraordinarily cruel details as they formulate their arguments, experience trauma that can cloud their judgment.
With all these pressures and incentives to win, what happens then when new evidence arrives that calls into question the prosecutors’ initial certainty of the defendant’s guilt? New information will be judged as either helpful to the prosecutor’s theory, and therefore accurate, or unhelpful and therefore unreliable, inaccurate, and worthy of concealment or the shredder. No one likes to admit they were wrong, or even accept it. At times, prosecutors are so attached to their theory of the defendant’s guilt that contrary information looks false to them or barely registers. Such bias, often called confirmation bias, can take over a prosecutor’s judgment with disastrous results if the prosecutor considers strict rules on disclosing evidence to the defense to be flexible or non-binding when the prosecutor thinks they are an impediment.
Which lands us on the biggest problem of all. Our society’s ethics are mostly utilitarian, and so are our prosecutors’ in a system requiring strict adherence to rigid rules—procedures—that we call due process and that guarantee fair trials capable of separating the innocent from the guilty. Utilitarian ethics are flexible, bendy even: The end justifies the means. Sure, we as a society claim to be rule followers. And we follow rules when we feel like it, like the ones you’ll find in the Bible or the Koran. But what about when we don’t feel like following the rules? The highest rule most Americans actually follow is that the end justifies the means, so we should do what’s necessary to get the result that is right, or at least that we think is right. No wonder we love the Dirty Harry films and the ubiquitous crime fiction narrative of bad guys caught by good guys who don’t let absolute rules get in their way. It’s Dirty Harry and the fascist ideal rolled into one. Dirty Harry has another calling—in a courtroom, at the prosecutor’s table, wearing a suit. Such prosecutors think they’re fighting fire with fire, failing to understand that justice is a tinderbox.
Even before I ran for DA, I knew the DAO had what it called a Conviction Review Unit for a few years. It consisted of a chief attorney, an assistant attorney, and an occasional administrator. Rather than try to fix past injustices, the DAO’s Conviction Review Unit merely existed. One iteration of the unit was so underachieving, that appeared to be its purpose. Word among the defense bar was that the single exoneration that occurred during its existence was not the unit’s work. That exoneration came from another prosecutor in another unit in the office, who unearthed overwhelming evidence of a defendant’s innocence. That prosecutor’s supervisor didn’t want his unit to be stained by actually exonerating anyone, so the Conviction Review Unit was made to go to court and carry out the exoneration. After the Conviction Review Unit’s chief was given other work in the office, he left behind hundreds of unopened letters written by inmates claiming their innocence in a filing cabinet. Some of the postmarks were years old. The outgoing chief blandly commented that it wasn’t his job to read the letters.
We know that establishing innocence or guilt to a scientific certainty is often an impossible task, especially in a city like Philly that has chronically underused forensics. Scientific certainty via DNA or other compelling forensics is ideal, but is not available in most criminal cases.
The system recognizes that uncertainty is real in criminal justice and even dictates the conviction of people when there is some doubt, so long as that doubt is slight and does not rise to the level of reasonable doubt. The existence or absence of reasonable doubt is the key to the jailhouse door: Reasonable doubt means the defendant gets to go home.
But what if a reasonable doubt or maybe a whole lot more than a reasonable doubt shows up long after a seemingly accurate conviction at trial, even if there is no scientific certainty of innocence? What if, due to new developments—new evidence, old evidence that was hidden at trial, new scientific methods that were unavailable before, or new information that undermines witnesses—the conviction cannot stand because it now lacks integrity and always will? The answer must be that the conviction is reversed and the person who was convicted goes home. Integrity and a just system require it.
It can be overwhelming to handle current and future cases while simultaneously reconsidering cases that are unsolved and past cases where the conviction may lack integrity. But it is a prosecutor’s timeless oath to pursue justice in a way that is also timeless. And going backward and forward in time to do justice is crucial for a system badly in need of restoring trust.
CHAPTER 9
Lisa Taught Me Politics
But I still haven’t found what I’m looking for
But I still haven’t found what I’m looking for
—U2, “I Still Haven’t Found What I’m Looking For”
Long before I tried politics, I gave up on it. Growing up during the Vietnam War, Watergate, and the assassinations of almost every single leader who made us hopeful, I viewed most politicians as mediocre narcissists, less capable of leading than most people I knew. The corollary theory of my harsh view of politicians was that their one truly extraordinary skill must have been getting themselves elected in the locked-up clubhouse of politics. They must have had some keys we weren’t issued. How else could we explain the democratic elections of such uninspiring people? How else could we explain democratic government at the service of power and money rather than people? From the day I met Lisa through the first decade of our careers, I never imagined either one of us would run for anything. Lisa and I followed the news and voted habitually, but we viewed politics like the weather: Politics happened and we adapted. And then Lisa showed me how to change the weather.
Twelve years into our careers, Lisa told me that she wanted to run for judge in Philadelphia. She had been working as a civil rights lawyer representing individuals in employment discrimination lawsuits. I didn’t expect the news and was not very supportive at first. By then, I had spent twelve years in courtrooms with Pennsylvania state court judges of that era who had little in common with her or her values. I believed they might hold her accomplishments, work ethic, independence, and idealism against her. We knew nothing about getting elected, and we had kids in grade school, had just finished paying our student loans and had no real savings, and had no obvious political contacts. The idea of a novice taking on the seemingly all-powerful party in Philadelphia felt to me like a long shot.
But Lisa had her reasons. Even in law school, she’d read cases to figure out whether a judge had made the right decision. She viewed the law around employment discrimination as being pretty good, but often found the judges applying it were unfair and reluctant to see discrimination even when the facts showed it. She said all she and her clients wanted was a fair shot. They wanted a judge who was balanced and open-minded, who listened to both sides before making a decision. If she won, she could make sure that, at least in her courtroom, the scales were even.
She lost that campaign—in a close election with the full force of the dominant party pushing against her. But she had cracked the code of Philly politics. She ran a second time two years later and won easily. To understand how that is possible, you have to understand Lisa—which is to say, you have to understand how the seeming redoubt of political power can fall to a good idea with an ardent, crafty, principled messenger.
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In May 1987, Lisa and I skipped ou
r Stanford Law School graduation ceremonies. We had to get to the East Coast in a hurry, where we could make a few bucks proctoring the Pennsylvania bar exam course that was about to start in our new home, Philadelphia. I had sold my motorcycle a week earlier for a few hundred dollars, a sputtering, oil-burning Honda 550 Super Sport that I’d bought from a San Francisco junkyard and, with the help of a friend, fixed up enough to get around. Lisa and I needed the money to pay the bills. The day before we left, Lisa packed up what we hadn’t already sold or put on the curb as I sat on my toolbox disassembling a floor lamp we had bought a year earlier at a secondhand store and had rewired together. I stuffed the lamp’s glass shade with clothing and wrapped the outside in a blanket. At least when we got to Philadelphia, we wouldn’t need to buy a lamp.
The next morning, we loaded up as the sun rose and the fog burned away. The long lamp parts went on the floor of the back seat of Lisa’s two-door econobox Mazda hatchback. We flattened the rear seat, which turned the car’s trunk into one big moving box. The lamp base went under piles of stuff in the trunk. We covered the pile with blankets, got in the car, closed the doors, and left the home we’d made together as law students.
Our first turn was out of the parking lot of the run-down, two-story stucco apartment building where we had been living in East Palo Alto. Our neighborhood was the epicenter of murder and heroin dealing in the Bay Area at that time, a sandy grid of little one-story houses covered in peeling, light-colored paint, with grassless yards. It was the rent we could afford. We crossed the bridge over the 101—as always littered with blown trash—which separated East Palo Alto from Palo Alto. On the Palo Alto side of the bridge, where the techie millionaires had already begun to dig in, the road we were driving was immaculate. We headed up University Avenue through the taller palms and past manicured yards, the semi-arid landscaping and small mansions maintained by our mostly Mexican neighbors back on the east side. University Avenue led straight to Stanford. With the California sun above the palms, we detoured to take one last lap of the school’s iconic oval drive, lined with towering palms, before Lisa would steer us back east, toward Philadelphia.
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