Fugitive Man

by Cromwell, Robert;

  In addition to the expert testimony presented by Dr. Jones at trial that Bain could not have been the depositor of the semen on the victim’s underwear, Bain also had an alibi. He was out with friends earlier in the evening on March 4, 1974, and arrived home around 10:30 p.m. From then until the time police arrived at midnight, Bain was watching TV in the living room with his sister, who verified James presence there. His whereabouts were therefore accounted for during the time of the attack. DNA results now show Bain’s alibi to be credible. It apparently never occurred to anyone that Bain, who is in no way mentally challenged, would have been crazy enough to tell the victim his name was Jimmy.

  James Bain was convicted on all counts and sentenced to life in prison. James recently mentioned to me that at least he didn’t get the death penalty, a potential penalty he had faced at trial.

  Subsequent to his conviction, and working from prison on his own, James submitted handwritten motions on four separate occasions seeking DNA testing. Testing was denied each time. James request for testing was denied the fifth time, too, but an appeals court overturned that denial. The Innocence Project of Florida (IPF) became aware of the case and stepped in to assist James and his attorney, and James Bain was finally able to obtain the DNA testing he’d sought for so many years.

  The state’s attorney agreed to the testing, and it determined that the DNA of the sperm found on the child’s underwear worn during the rape excluded James Bain beyond a shadow of a doubt, confirming that someone other than Bain raped the victim.

  On December 17, 2009, in a joint order, James Bain was declared actually innocent and released from prison. He walked out of the courthouse with members of his family and his legal team. Immediately upon his release, Bain used a cell phone for the first time in his life to call his mother in Tampa, Florida. He had been convicted in 1974 of rape, breaking and entering, and kidnapping and had been sentenced to life in prison. With his December 2009 exoneration, he was released after having spent more than 35 years in prison for a crime he did not commit.

  I’ve come to know James in the past few years through my affiliation as a board member of the Innocence Project of Florida (www.floridainnocence.org). After going to prison a teenager and getting out a 54-year-old man, James Bain started life anew. He’s married, has a child, and is working. He is always cheerful when we meet. Quite frankly, I don’t understand his kind demeanor. To me, the anger from being wrongfully incarcerated for 35 years would be very difficult to hide. But James shares his story with others and demonstrates a forgiveness that speaks volumes about his character and faith. He’s a good person.

  I imagine that telling his story of injustice is good for James on some level, but I know it’s good for the people who hear James speak. If you ever hear that James is speaking at an event near you, go see him. He gives a detailed account of his 35-year ordeal. It’s shocking, and it’s eye opening. Everyone should see it.

  And “Jimmy,” the actual rapist, has never been found, nor, for that matter, was he even sought during the 35 years James Bain was in prison. And everyone should be aware that, for every innocent person in jail, there’s a guilty person out there somewhere who is likely committing more vicious crimes.

  CHAPTER TWENTY-FOUR

  LESSONS LEARNED

  After nearly 30 years in law enforcement, starting as a rookie police officer and ending as the Special Agent in Charge of an FBI Division, I’ve come to recognize some basic truths. While the percentage of innocent people in prison is in the single digits, that “single digit” represents thousands of people. I’ve learned that the criminal justice system does not always offer a “level playing field.” Our system does not feature “Equal Justice for All.” I saw evidence of that everywhere I served.

  As a New Jersey police officer, I saw several examples. One of my first eye openers was when I investigated a woman who ran a stop sign and smashed into a car that clearly had the right of way. As I was issuing the driver a ticket for running the stop sign, the driver told me, “You know, I’m good friends with the Mayor.” That was a hint as to what was to come.

  When I came to court for the driver’s appearance, the judge, after being given a detailed, diagramed description of the collision, which clearly placed the liability on the Mayor’s friend, acquitted the woman and told me that it appeared to him that I should have given the other driver a ticket. The whole thing cried setup. While this is an example from a relatively small community, it is an example of how the system sometimes works.

  As an NCIS agent, I conducted an investigation of a Navy captain who had committed and confessed to a fraud costing the government thousands of dollars. (A captain in the Navy or Coast Guard is the equivalent of a colonel in the Army, Air Force, or Marines. It’s a senior position.) The captain was given an “admiral’s mast.” That’s what they called his non-judicial punishment, which is usually referred to in the Navy as a “captain’s mast” and in the Army as “office hours.” The captain was given a slap on the wrist, with a letter in his personnel file and the requirement that he pay back the government. If the offender had been a junior officer or enlisted man, the crime would have been a slam-dunk court-martial, and the offender would have likely received jail time. In this case, rank really did have its privileges.

  While in the FBI, it seemed the political party affiliation of the U.S. Attorney and subject sometimes impacted justice. I once oversaw an investigation into bank fraud on the part of an elected county official. The official bragged to his friend, “the FBI can’t touch me,” and bragged of his political connections. He was almost correct. The U.S. Attorney’s Office declined the investigation with no rational explanation, even after personal appeal all the way to the U.S. Attorney.

  Ultimately, a couple of dedicated agents took the case into the offices of the state’s attorney, who reviewed the case and agreed to prosecute. The subject escaped trial in federal court, but if he had been a man off the street with no powerful “friends,” or had he been a member of the “wrong” political party, the U.S. Attorney’s Office would have jumped all over the case. U.S. Attorneys love cases they can take to court with little or no chance of losing, but clearly, in this case, the local politician really did have significant “connections.”

  But while I’ve seen many people escaping trouble because of whom they know, what about the innocent people convicted and imprisoned? How many are there?

  CHAPTER TWENTY-FIVE

  INNOCENCE PROJECTIONS

  Ever since I was a police officer and worked that sexual assault case in New Jersey where we were pretty much sold on the guilt of an innocent man, I’ve wondered how many innocent people were in prison.

  The National Registry of Exonerations, a project of the University of Michigan Law School, maintains an ongoing count of those exonerated since 1989. When I say exonerated, I’m referring to individuals who were convicted of a crime they did not commit and were imprisoned. In other words, these are not “technically innocent” people freed because of some mistake in the trial or investigation. These are actual innocent people, people convicted of a crime they did not commit. The exoneration freed them from their prison cell. As of the beginning of February 2016, one thousand, seven hundred, and thirty-three (1,733) exonerations were listed. (http://www.law.umich.edu/special/exoneration)

  (I say “the exoneration freed them from their prison cell.” That’s usually true. One exoneration in Florida doesn’t fit that description. Frank Lee Smith was convicted of Murder and Rape in 1986. He spent 14 years on Death Row, before dying of cancer. Six months after his death, DNA testing proved Frank Lee Smith was innocent and identified the actual Murderer and Rapist.)

  The list of exonerations is not all-inclusive and relies on voluntary reporting by attorneys and other interested parties. Therefore, it’s a reasonable assumption that the actual number of exonerations is higher.

  Of the 1,733 exonerated, 689 are Caucasian, 807
are Black, and 200 are Hispanic.

  Per the registry’s review of exonerations, 424 innocent people were sentenced to life or life without parole. Other sentences include 90, 95, and 99 years. One innocent person was sentenced to 100 years. One was sentenced to 148 years. One was sentenced to 172 years. And 117 were sentenced to death. Makes you wonder how many innocent people have been executed, doesn’t it? There’s probably no way we will ever know, but I’m sure it’s happened more times than most of us care to think about.

  So, does anyone know a good approximation of how many innocent people have been sent to jail? I have spoken to criminal justice experts from all over the country, and no one can say for sure. Some believe it could be as much as two and a half percent of convicts are innocent. Some say it’s likely less than a half of one percent. An official at the Bureau of Justice Statistics for the U.S. Department of Justice told me that they have not conducted research to attempt to determine how many innocent people might be in jail and have no plans to do so. They directed me to the National Institute of Justice (NIJ) where I found that research had been conducted on what causes the wrongful conviction of innocent people, but the NIJ has no estimate of the percentage or number of innocent people likely in jail or prison.

  According to the latest statistics offered by the Bureau of Justice Statistics, at the end of 2013, there was an estimated 6,899,000 offenders supervised by the adult correctional system in the United States. That includes offenders in prison, on parole, or on probation.

  The International Centre for Prison Studies, a research center at the University of Essex in the United Kingdom, reports that the United States is the world leader in incarceration per capita. “Incarceration per capita” refers only to the number of people actually in prison.

  As of 2013, the US held 716 prisoners per 100,000 people. For comparison, Russia imprisons 490 per 100,000 people, Australia 133, China 124, France 103, United Kingdom 103, Germany 78, Netherlands 75, and India 30. See the latest list for yourself at www.prisonstudies.org.

  None of our allies, or our adversaries, comes even close to the U.S. when it comes to putting people in prison. Any way you look at it, we’re doing something wrong.

  Regarding private prisons: as more and more “private” prisons come on line, it must be remembered that these prisons make money based on the number of inmates in custody: the head count. I’m told some of their contracts even guarantee minimum head counts. Clearly, the private prisons need prisoners to make money. Those private prisons employ lobbyists in each state capital and in Washington, DC. Millions and millions of dollars are spent in those lobbying efforts. What do you think they’re lobbying for? You can bet they’re lobbying for more prisoners to house. The number of prisoners incarcerated in private prisons in the US has increased more than 1,600 percent since 1990. Google “political donations made by private prison industry” and see for yourself. It is disturbing and not the way our justice system should function, but that should be the subject of another book.

  Getting back to the issue of innocence, if two and a half percent of those in custody are innocent, the number of innocent people in some form of custody at the end of 2013, be it imprisonment, parole, or probation, would be in excess of 172,000. If the number of innocent is just one half of one percent of those in some form of custody, the total number of innocent people in the system at the end of 2013 is over 34,000.

  I believe the number of innocent people in prison, jail, probation, or parole in the U.S. might be well over two and a half percent and could easily represent more than 200,000 innocent people in some form of custody.

  “Post-Conviction DNA Testing and Wrongful Conviction,” is a 2012 study funded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice (DOJ Contract Number 2008F-08165), conducted by John Roman, Ph.D., Kelly Walsh, Ph.D., Pamela Lachman, and Jennifer Yahner. All are associated with the Urban Institute’s Justice Policy Center in Washington, DC. (www.urban.org)

  In their study, which included a review of over half a million cases in the state of Virginia, 422 sexual assault convictions were identified between 1973 and 1987 in which evidence containing DNA was retained by the Virginia Division of Forensic Science. (Some of those sexual assaults also included murder.) Following DOJ-accepted procedures, the evidence was tested, and some startling data emerged.

  In 40 out of those 422 convictions, the convicted offender was eliminated as the source of the questioned evidence. That’s in excess of nine percent.

  In 33 out of those same 422 convictions, the convicted offender was not only eliminated as the source of the questioned evidence, but that elimination could be shown to support exoneration. That’s almost eight percent of that 422.

  While this study does not claim to project the percentage of innocent people in jail throughout the nation, it certainly suggests that many, many thousands of innocent people are in prison.

  In the April 2014 landmark study “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,” published in the Proceedings of the National Academy of Sciences by Samuel R. Gross, Professor at the University of Michigan Law School; Barbara O’Brien, an Associate Professor at Michigan State University College of Law; Chen Hu, of the American College of Radiology Clinical Research Center; and Edward H. Kennedy, of the Department of Biostatistics and Epidemiology, University of Pennsylvania School of Medicine, the authors conclude, “The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely at least 4.1% would be exonerated. We conclude that this is a conservative estimate of the proportion of false convictions among death sentences in the United States.” (www.pnas.org)

  Law enforcement agencies are overworked and underfunded. They can’t afford to devote the personnel and expertise used in a capital murder investigation to every felony they investigate. They don’t have the resources. Corners are sometimes cut. Shortcuts are sometimes taken. Mistakes occur. Therefore, since it’s argued that 4.1% of those tried for capital crimes are innocent, wouldn’t a similar percentage of those convicted of non-capital cases be innocent? Or would it be a higher percentage?

  Crimes having the potential of a death sentence receive more scrutiny than other crimes, much more scrutiny. Those capital crime cases, the ones studied by Professor Gross, Professor O’Brien, and their colleagues, are held to a higher standard of investigative and judicial review. Further, statistically, a person known to the victim commits most murders, thus making smaller the suspect pool. That is not necessarily the case in other violent crimes. So, in most murders, with the field of potential perpetrators usually smaller and more manageable, and with the added scrutiny accompanying capital crime cases, there’s less room for error. Additionally, detectives go to great lengths to clear homicides, leaving no stone unturned. It seems those death penalty cases should produce fewer errors resulting in wrongful convictions.

  With that thought in mind, isn’t it logical that “lesser,” non-capital cases, the cases that do not always receive the same attention to detail, the same expenditure of the law enforcement agency’s resources, the benefit of the law enforcement agency’s best investigators, and the in-depth scrutiny of the prosecutor, would produce more errors and result in more wrongful convictions? It certainly makes sense to me. However, it is certainly possible that death penalty cases are more likely to result in false convictions than other crimes, as there is so much pressure on the investigators and prosecutors to win those cases.

  Either way, if over four percent of inmates sentenced to death are innocent, it is logical to believe non-death penalty cases would at least approach that same rate of error, resulting in the conviction of innocent people at a rate approaching four percent. If that’s true, well over 200,000 innocent people in the U
nited States are in prison or some form of custody.

  And finally, my old friend Dr. Patrick McManimon, Criminal Justice Program Coordinator at Kean University, New Jersey, provided me with his perspective: “Wrongful conviction has more to do with plea bargaining than exhaustive investigation. Ninety percent of all criminal cases are resolved by plea-bargaining, and the trial tax is really the tool that entices confessions. cases rarely see the light of day, and as a result, the justice meted out is compromised.” (Those plea bargains by innocent people are not counted when figuring wrongful conviction estimates, they are in addition to those convictions and, if factored in, would add many thousand to the wrongfully convicted estimates.)

  The fact that the vast majority of Cases are plea-bargained does not lessen the number of innocent people going to prison. When faced with false eyewitness identification, many a defendant will succumb to the prosecutor’s (and defense attorney’s) offer for a far lesser sentence than rolling the dice, going to trial, losing, and spending many more years behind bars. It’s a lose-lose scenario. Unfortunately, it happens all the time.

  The existing research pointing to innocent people going to jail certainly justifies an examination of how wrongful convictions occur and mandates appropriate changes to correct the system producing those wrongful convictions.

  CHAPTER TWENTY-SIX

  CAUSES OF WRONGFUL CONVICTIONS

  The Innocence Project (http://www.innocenceproject.org) identifies the causes of wrongful convictions as:

  Eyewitness Misidentification

  Not Validated or Improper Forensic Science

  False Confessions/Admissions

  Government Misconduct