Apr
08

When The Sovereign Errs

Imagine being placed in prison for the rest of your life for a crime you did not commit. Suppose the state were forced to admit its error. What would justice require in such a case?

Connecticut once again faces the drama of men released after long, long incarceration for crimes they did not commit. Ronald Taylor and George Gould were released from prison after serving 16 years for a murder a Superior Court judge said they did not commit.

The case is dramatic because the stakes were so high: But the sad fact is that no one really knows how many innocent men and women are sent to prison each year by well-meaning jurors. We celebrate our criminal justice system, and it may well be better than most, but in the celebration we spend too little time counting the cost of the inevitable failures.

A Connecticut Superior Court judge ruled last month that the two men were victims of "manifest injustice." They were convicted killing of a New Haven store owner in 1993. However, the state's star witness recanted, and the men's DNA was not found on key prosecution evidence.

The state's key witness testified at the original trial she saw the defendants leave the store shortly after a gunshot was fired. But last year she admitted that was a lie, and that she was interrogated relentlessly by police as she suffered the effects of heroin withdrawal. A detective told her he would get her heroin if she told them what happened. And what happened, the officer insisted, turned out to be an out and out fabrication.

Sadly, the men cannot sue the state for this miscarriage of justice. That is because the state is immune from suit. The doctrine of sovereign immunity serves to shield the state from responsibility for its errors. It makes a mockery of justice.

In Connecticut, the state can consent to be sued. A party has one year from the time of their injury, in the Taylor and Gould case a cause of action could arguably accrue from the date of their release, to petition the Claims Commission for permission to sue. Sometimes the legislature grants permission through a special act, as was the case in the matter of James Calvin Tillman who was released from prison in 2006 after serving 18 years for rape. He was awarded $5 million for his wrongful conviction by lawmakers.

Those wrongfully convicted of a crime ought not to be required to ask the state for permission to seek justice. They should be able to bring suit as a matter of right, and to press their claim for money damages before a jury. To do otherwise is to value innocence too little, and to let the state off the hook to easily for gravest injustice of all: the imprisonment, often for life, of an innocent person. We need a new tort. How else to hold the State accountable and provide it with incentives to assure that justice is done?

Hat Tip: WD
Comments (3)
Posted on April 10, 2010 at 8:04 am by tsj
I believe we do have some insight into how many fa...
I believe we do have some insight into how many factually innocent people are behind bars. Those numbers are too painful to behold, so we choose to look away rather than to act.

I can estimate the number of wrongfully convicted in several fashions. Here, I will choose "Convicted by Juries, Exonerated by Science." It is a report prepared for the U.S. Department of Justice discussing case histories of the falsely accused. In that report, we learn that in "25 percent of the sexual assault cases referred to the FBI where results could be obtained ... the primary suspect has been excluded by forensic DNA testing."

The 10,0000 cases studied involved individuals who had already been arrested or indicted, and where the evidence against them was eyewitness identification. In the absence of the DNA testing, it is likely that most of these cases would have resulted in guilty verdicts. Juries are loath to dismiss the eyewitness testimony of a woman who has been sexually assaulted.

Assuming only the average state conviction rate of 62% for felony sexual assault cases, the results from the study suggest a wrongful conviction rate in excess of 15%.

Other analyses suggest this number is too high, that the rate of wrongful conviction is closer to 10%.

We have more than 2 million people in prison; 200,000 of them may be factually innocenct. The Innocence Projects, bless them, are picking the low-hanging fruit. Even in those cases, it can take a decade to pluck a single ripe apple.

Posted on April 8, 2010 at 4:47 pm by Norm Pattis
Thank you for the suggestion, Bill.
Thank you for the suggestion, Bill.

Posted on April 8, 2010 at 2:50 pm by William Doriss
Thanks Norm. You hit the nail on the head, and tha...
Thanks Norm. You hit the nail on the head, and thanks for posting this story in response to my private requests for such an essay in the wake of Taylor/Gould. Succinct and to the point. Excellent!
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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