However, misconduct sometimes occurs. Investigators conveying improper suggestions to witnesses while conducting eyewitness identifications occasionally happen. False confessions are sometimes solicited through coercion, especially from the vulnerable and mentally challenged. Unreliable and/or untested informants are sometimes employed and given credibility that has not been earned. Rarely, officers take the stand and intentionally mislead jurors.
And, occasionally, prosecutors don’t provide the defense with information that might actually clear or cast doubt on the guilt of the defendant. That’s called a Brady Violation.
In the 1963 Supreme Court case of Brady v. Maryland (373 U.S. 83), the court held that the withholding of exculpatory evidence violates due process. Basically, if the prosecution has evidence that tends to show the innocence of the defendant or information that might mitigate the punishment for the defendant, such information must be provided to the defense. “Brady Violations” occur when the defense is not provided exculpatory information. In my experience, it happens far too often. I recently exchanged emails with Professor Samuel Gross, one of the founders of the National Registry of Exonerations, about quantifying Brady Violations in the National Registry’s database, and Professor Gross advised they have recently started a project to do just that. It’s important to see the scope of Brady Violations, but it’s more important to do something about it.
As it stands now, Brady Violations are routinely ignored, as the prosecutor normally enjoys some form of immunity. In reality, intentionally withholding exculpatory evidence should result in dire consequences. Again, it’s a matter of fundamental fairness to the sometimes-innocent defendant. Seems logical to me, but of course, I’m not an attorney.
Ultimately, there needs to be appropriate reforms to check government misconduct. Some of the solutions/suggestions I’ve mentioned in this book, such as recording interviews, would be a good start.
INFORMANTS
In 963 of the 1,733 exonerations recorded by the National Registry of Exonerations, perjury or false accusations were a factor. That represents more than 55 percent of the total exonerations reported. The number of those who were informants providing false information is not specified, but you can be sure that unscrupulous “jailhouse informants” have put a lot of innocent people in jail. Those jailhouse informants are criminals, after all, and they often have much to gain by lying about what they heard or were told, and feel they owe no allegiance to the person on whom they’re falsely informing.
As an NCIS agent and FBI agent, informants were essential to my success. I focused on finding them from the start of my law enforcement career, and they treated me well. My favorites were ones who would provide me information as to the whereabouts of people I was hunting and those who got close to individuals committing crimes and were able to provide verbatim testimony or recordings of the suspect. They were, for the most part, quid pro quo informants, who were paid cash on verifiable delivery of useful information. There was little room for the informant to provide false information and still get paid.
As a new agent in the FBI, I quickly learned that the FBI had rules and regulations you had to follow in order to operate informants, and that FBI supervisors were responsible for verifying that informants functioned correctly. Strict records were maintained, and the supervisors were mandated to ensure the government was getting its “bang for the buck,” as informants were paid. Supervisors also had to occasionally meet informants face to face to ensure the informant was being handled appropriately. Detailed documentation of information provided by the informant was thoroughly reviewed, and each informant was evaluated on a regular basis to make a determination if the informant was still appropriate for use. I’m aware of instances of informants gone wild in the FBI, but those are aberrations and not reflective of the in-depth oversight normally provided informants by FBI management.
Jailhouse informants require particularly strict oversight. Their motivation must be acknowledged and their information independently verified to be useful. After all, the fact that they are in jail does not lend much to their credibility. As I mentioned earlier, while in Houston, I obtained an unlawful flight warrant for a suspect who had shot and nearly killed two Houston police officers. After the fugitive was taken into custody, his cellmate was able to record him bragging that he was “not going to do any serious time” because his father was very wealthy. The cellmate/informant was able to record that information, and it was played for the judge and jury. If I recall correctly, that wealthy young man was sentenced to 99 years in prison.
So, a jailhouse informant capable of recording conversations is a potent informant. Problem is, how do you record conversations while in jail? With today’s technology and miniaturization of recording devices, it’s not that hard to do. And it is certainly the best evidence.
Otherwise, how credible is a guy who’s in jail when he testifies? Since jailhouse informants are known to frequently lie under oath, several factors must be weighed. Has the informant been paid to testify? Is the testimony being offered to lessen his sentence or get him out of jail altogether? Has he testified multiple times, and does he always seem to be in the right place to capture a defendant offering incriminating statements? Basically, jailhouse informants shouldn’t be trusted without independent corroboration, such as a recording of the subject’s incriminating statements.
Informants on the street must also be frequently evaluated; their reliability must be documented and the informants subjected to regular supervisory oversight. Every law enforcement agency should adhere to standard practices for the operation of informants to insure their information is properly evaluated and their veracity substantiated. Those standards should be fashioned after models established by respected law enforcement organizations, such as CALEA (The Commission on Accreditation for Law Enforcement Agencies) and the IACP (International Association of Chiefs of Police.)
BAD LAWYERING
In 403 of the 1,733 exonerations reported by the National Registry of Exonerations, inadequate legal defense was a factor in the defendant being found guilty. The Innocence Project reports on a review of convictions overturned by DNA testing and found some pretty disturbing behaviors by defense attorneys who have:
Slept in the courtroom during trial
Been disbarred shortly after finishing a death penalty case
Failed to investigate alibis
Failed to call or consult experts on forensic issues
Failed to show up for hearings
Anecdotally, I’ve heard some pretty outrageous stories. One innocent individual I know was convicted of murder and spent over 25 years in prison before being exonerated through DNA testing. During trial, he was represented by an attorney who knew his client’s girlfriend was sleeping with one of the homicide investigators on the case, but didn’t see fit to bring that up in trial.
While the state must prove “beyond a reasonable doubt” that the defendant is guilty, the state has great advantages. For starters, many jurors believe from the start of a trial that the defendant must be guilty or the state wouldn’t have charged him. Additionally, in cases handled by public defenders, the state has far more investigative and legal resources than the defense.
Sometimes, the defense attorney is simply overwhelmed and without the experience or resources to provide a proper defense as guaranteed by the 6th Amendment. The 6th Amendment includes the statement, “the accused shall...have the assistance of counsel for his defense.” I bet George Mason and John Locke, the authors of the 6th Amendment, were assuming “counsel” would be “competent” when penning that amendment. Likely, from their perspective, they could assume that any attorney passing the bar would be competent. Of course, in the 18th century, the United States was not home to over a million attorneys. It was a much simpler time.
Problem:
Tight state budgets for public defenders sometimes result in inadequate defen
se.
The result:
Frequently, clients plead to crimes not committed to avoid “rolling the dice” in court, resulting in substantially longer sentences. Occasionally innocent people are convicted and sent to prison because of inadequate legal representation. Occasionally innocent people are sent to death row.
The fix:
Nationwide legislative reform to make our criminal justice system operate on a more level playing field, with adequate funding for defense attorneys to provide constitutionally-mandated assistance of counsel for the defendant’s defense. (In those cases, felony and misdemeanor, which could result in prison time.)
With government finances so tight, that’s not an easy fix. One way to address that is to focus our criminal justice system on crimes that matter and get out of spending so much money and time on drug investigations. Prisons shouldn’t be filled with drug offenders integrated with violent offenders. The long-term result is incredibly taxing on our resources and can’t help but produce an influx of new violent offenders. Possession of user quantities of illegal drugs should result in a civil citation or ticket to clear those thousands and thousands of cases out of our criminal courts. Reform is needed. Additionally, plea-bargaining should be closely examined. In an effort to provide the best service to the maximum number of clients, overworked public defenders sometimes consider a good plea bargain a win for their client and sell it as such. Problem is, it’s not a win if the client is innocent.
For a detailed look at reasons why the innocent are convicted, I recommend, “False Justice: Eight Myths that Convict the Innocent,” by Jim and Nancy Petro.
CHAPTER TWENTY-SEVEN
THE BOTTOM LINE
The vast majority of people convicted and sent to prison are guilty, but thousands aren’t.
Can we stand idly by and allow thousands of innocent people to languish in prison for crimes they did not commit?
Should we tolerate a certain percentage of innocent people being executed?
The answer to both questions is a resounding NO. Innocent people must not be written off as an unavoidable by-product of our criminal justice system. We’re better than that. We can and must make our criminal justice system a more level playing field.
We must set standards for eyewitness identification and require law enforcement to stick to them.
We must recognize that invalidated and improper forensic science exists and set appropriate nationwide scientific oversight to address and correct those issues.
We must record all subject interviews, in their entirety, so the judge and jury can understand the circumstances when confessions occur.
We must address, through appropriate oversight, the issues of government misconduct and take appropriate action to correct/discourage such behavior.
We must ensure the validity of informant’s information with appropriate oversight, making certain it is in accordance with recognized acceptable standards.
We must address the issue of bad lawyering. Sufficient funds must be made available to provide competent defense for defendants unable to pay for legal representation in felony and serious misdemeanor cases. The prosecution should not enjoy economic and personnel advantages over the defense attorneys they face.
We must overhaul the plea bargaining process to avoid sending innocent people to prison.
We must examine the issue of whom we’re sending to jail and stop incarcerating non-violent offenders.
The recommendations I endorse are not difficult to implement. They will have an economic impact, but that is necessary if we’re to be a just nation. They are the right things to do, not only for the innocent, but also for the victims.
For every time an innocent person goes to jail for a crime of violence, it’s likely a guilty, violent and dangerous person walks free.
THANKS
My experiences in the criminal justice arena have been greatly influenced by many people I’ve met along the way. The late Montgomery Township Police Chief Mike Szoke was an innovative, professional police officer who gave me my first law enforcement position. He was a good, forward thinking man who passed on to me many important lessons.
While with NIS, I worked with some great people, including Ed Scully, the Security Director at the Portsmouth Naval Shipyard, and William Mortimer, the Chief of Detectives and later the Police Commissioner for the Portsmouth, NH, Police Department. Ed and Mort were two of the nicest and most professional people with whom I’ve worked.
In the FBI, there have been too many people to count who have helped me along the way. However, I mention a few. Ken Neu was my first supervisor in the FBI. He was tough, smart, demanding and probably the best supervisor a new agent could have. Jack Hunt was my boss in Phoenix and during one of my FBIHQ assignments. He had a vision of intelligence-driven investigation that, while not quickly adapted, was exactly what the Bureau needed. Sheri Farrar and Mark Bullock were Assistant Directors I worked for and learned from. Both were excellent at their jobs, demanding, fair, and results oriented. And, I thank the late Merrill Parks, my ASAC in Houston and my friend thereafter. He always provided good advice, had a wonderful sense of humor, and was a great man.
And to Seth Miller and the staff of the Innocence Project of Florida who, for minimal renumeration, do tremendous work to aid the innocent.
And to James Bain and William Dillon, two innocent men, freed from life sentences, who have taught me much about foregiveness and dignity.
And thanks to my friend of over 50 years, Dr. Patrick McManimon, who conducted the first edit of this manuscript.
And thanks to Frankie and the late Joe Thomas for always being there for the Cromwell’s.
And I thank my sister, Kim Cromwell, who has been my friend, counselor and confidant throughout most my life.
And to my three sons, Michael, Daniel and Johnny. I know it was tough making all those moves, but you guys sure turned out well and I’m very proud of each of you.
And to my three grandchildren, Spiro, Sofia and Joe. You make me smile, make me proud, and make me really appreciate being a grandparent.
I’ve been a witness to the American system of justice at the local, state, and federal level for over 30 years. Our country was founded on a vision of equal justice for all. We haven’t attained that vision. It is something that should be of concern to all who believe that truth and justice go hand in hand. The simple recommendations I present in this book can help us along that road to a more level playing field for everyone who finds him/herself subjected to our criminal justice system.
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