2003-09-11 - 8:39 p.m.
MISTAKES WERE MADE
When Atticus Finch of To Kill a Mockingbird comes in to ask his housekeeper, Calpurnia, to accompany him to see Tom Robinson�s wife, the look on his face alarms his sister. She needs to know what is wrong immediately and he informs her that Tom, the innocent black man that he could not convince the jury to acquit, is dead by a prison guard�s bullet. As he leaves his house to go see Helen Robinson, his sister Alexandra comments that she doesn�t approve of everything that Atticus does but she loves him and �[i]t tears him to pieces. He doesn�t show it much but it tears him to pieces. I�ve seen him when�what else do they want from him....?�
I do approve of what Mr. Philately does at work. Like me, he is an appellate criminal defense lawyer. The only difference is that his clients can pay. I know he is a good attorney and I know that he cares about his cases and his clients. I understand his passion and I know many of his frustrations because I share them. And I understand the toll Alexandra was talking about from without and, unlike her, from within.
Sometimes clients and cases haunt you. They creep into your nightmares. They call from the file cabinet or from the storage room. Sometimes they stop you on the road and demand. Then, after you have given your all and your all has not been enough, they hold up the funhouse mirror and mock you. They magnify your flaws and failures and hide your goodness and skill.
The greatest toll comes when you have a client, convicted of a serious crime and serving a long sentence, that you completely believe is innocent. You believe it in your gut. You believe it in your heart. You believe it in your biggest toe and in your pinkie. But he has been convicted (and it usually is a he) and no new evidence or information you can find seems capable of moving the legal system into the slightest bit of doubt. I have been lucky. In each of my cases like these, I ultimately have been able to get convictions vacated. But I know that it largely is luck and that once, with one case, Mr. Philately was not so lucky.
In the mid-1990s, Mr. Philately represented a man who had been convicted of raping a woman on a beach approximately eighteen years ago and had received a 32 year sentence. His family all said that he had been with them pouring cement for a barn. Although he did not meet the initial description the victim gave the police, she picked him out of a lineup. She was very, very sure she had the right man, reportedly saying, �It�s as if I have a photograph in my mind.� He was tried and he was convicted. Direct appeals went nowhere.
Then Mr. Philately got the case. An investigator discovered that scrapings from under the victim�s fingernails were still available and DNA testing was done. While that testing did not exclude his client, they showed that there was DNA from someone else there. The judge denied a motion for a new trial based upon newly discovered evidence because he did not believe the evidence strong enough to conclude that there was a reasonable probability of a different result if the case were retried. The state of the art at the time would not allow for any other DNA testing. The investigator also discovered that the police had identified an alternative suspect who matched the initial description but they did not tell the defense attorney at trial or the defense attorney on direct appeal. The judge denied a motion based upon the state�s failure to turn over this information, again because he could not conclude a reasonable probability of a different result existed. Adding to Mr. Philately�s frustration, six years ago, the Wisconsin Court of Appeals upheld the trial court. Still, Mr. Philately believed�and he agonized and he suffered.
Yesterday, toward the end of the day, I received a telephone call from Mr. Philately. Mr. Philately normally is truly a guy from Iowa. In other words, he rarely parades his emotions right out there to see. Like Atticus, he doesn�t show it much when it tears him to pieces. But there it was�every raw emotion and every frustration of having had this innocent client and not being able to help him. The frustration of not being able to get his client a new trial shimmered in his voice. The pain of his limitations echoed. The anger at the immovability of the system resounded. And, over it all, I heard the relief of, if not a happy ending, at least a better ending.
Because, unlike Tom Robinson, Steven Avery did not die in prison while there for a crime he did not commit. Steven Avery was released today. The Wisconsin Innocence Project, with newer DNA testing and the discovery of a male hair in the evidence, was able to prove his innocence. The DNA matched someone else: a man in prison for a different sexual assault.
And now Steven Avery is free at last but no one is a real winner here. He has lost almost eighteen years, the wife who divorced him, a tight relationship with his older three children, and virtually all contact with the twin sons who were six days old when he was arrested. The victim, who did not intentionally identify the wrong man, has gained the guilt of knowing she was part of imprisoning him and, perhaps, of knowing that a second rape occurred while the wrong man was locked up. The attorneys who believed in him have suffered the pangs of knowing that their skills were not enough for justice to prevail.
And the trial judge who later denied Mr. Philately�s motion for a new trial? Well, I suspect he will be just fine. All he seems to have noticed is that �[m]istakes were made.�
IN CASE YOU MISSED THEM:
Mourning the Store
The Gift of the Little Boy
Blink of an Eye
So Big
Coming to That Confusion
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Copyright 2006 by Ellen |
