“Any man is liable to make mistakes, but only a fool perseveres in error.” Cicero
The Law is a series of rules governing the conduct of citizens and of those who enact, enforce and uphold the law. Justice is only possible when the law marries the truth.
All true convictions should proceed from a scientific investigation the results of which can be replicated (and which should be shown to be replicable). A particular person should not necessarily have any involvement whatsoever in the investigation into or trial of their offense. The world itself should provide all details and all evidence. If such evidence is lacking, then a crime cannot be proven without a doubt, and a person ought not to be convicted or punished. Jesse Ball, Silence Once Begun (Pantheon, 2014)
It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t true. Mark Twain
I am the director of a small innocence project, Innocence International, founded by the late Dr. Rubin ‘Hurricane’ Carter. Our focus has been on wrongful convictions brought about by false confessions. While much has been written about this phenomenon and how difficult it is for people to believe that someone would falsely confess to having committed a crime, the larger problem is that the convictions are so difficult to overturn. Despite being presented overwhelming evidence of innocence, many police and prosecutors will use the law to block the truth, because the consequences of having manufactured a wrongful conviction can be devastating to the careers of law enforcement officials. Some would prefer that innocent people remain in prison than for them to be publicly exposed and made responsible for a multi-million dollar monetary settlement from the state. The blog on this site will focus primarily on two cases; the first is David McCallum of Brooklyn, New York, who, at the age of sixteen, along with his late friend, Willie Stuckey, were substituted by the police for the likely killers of a twenty year old man from Queens. Another pair of teenagers, Sebastian Burns and Atif Rafay of West Vancouver, British Columbia, were, with the help of of a sting operation by the RCMP, convicted in Washington State of the murders of the Rafay family. These two are prototype cases that exemplify the problem of false confessions as a whole. The blog will also recommend books and articles about wrongful convictions as well as work from the author of the site.
On October 14th, 2014, David McCallum was freed from prison after 29 years by Kings County Supreme Court Judge Matthew D’emic after District Attorney Ken Thompson‘s Conviction Review Unit recommended his release. No evidence ever existed to implicate McCallum or his late friend, Willie Stuckey, beyond a pair of demonstrably false confessions. Innocence International stayed on this case for ten years. We were generously assisted by New York’s Oscar Michelen (Cuomo LLC), Laura Cohen of the Rutgers Legal Clinic, Steve Drizin of Northwestern University’s Bluhm Legal Clinic, Brooklyn Private Investigator Van Padgett and so many other people who were captivated by David McCallum’s extraordinary qualities: his wisdom and compassion and his refusal to quit in the face of a corrupt and inflexible district attorney (Charles Hynes).
Among the other people: Ray Klonsky of New York and Toronto and Marc Lamy of Montreal, young filmmakers who created David & Me (known on Netflix as “Fight for Justice: David & Me), a movie that details Ray’s relationship with David and how they helped each other; Joan and Marty Ustin of Charleston, South Carolina, who helped David with his education, provided emotional support and chaired meetings at Innocence International; Mary Ellen Belfiore of Vancouver, BC, who provided emotional and educational support; Gary Dolin of Bellingham, Washington, a psychiatric social worker who helped prepare David for his life outside of prison and whose generous friendship provided David with an anchor; Andrei Schiller-Chan of Melbourne, Australia, whose generosity with money and whose courage and spirit helped David immeasurably. This wonderful international team is as much a part of the story as any legal assistance. Every one of these people and organizations were inspired by the late Rubin “Hurricane” Carter; every one of these people gave something unique and necessary that allowed David to be freed and to succeed outside of prison after 29 years! This is one of those rare legal stories with a truly happy ending. David is now living a productive and exciting life. His blog can be seen on this site or on david-mccallum-on-the-outside, where you can respond to him.
I have now written a book, Freeing David McCallum: the Last Miracle of Rubin “Hurricane” Carter (Chicago Review Press, 2018) that details the ten year process of getting David out of prison.
Wrongful convictions themselves can be the result of malice by prosecutors and police, but are generally the product of human error; all human systems are as prone to error as those persons who created those systems. The decisions of a jury of twelve women and men, while composed of twelve separate sets of perceptions, are often the product of ‘group think’. Getting to a verdict (a word at the root of which is ‘to speak truth’) is necessary to avoid a hung jury and the large cost to the state that would be entailed by another trial. Right away, that circumstance produces a group pressure to conform. It is extremely difficult for one or two to hold out against ten or eleven. But just as sometimes the one or two will have it right, the twelve will have it wrong; the twelve will have been convinced by a sharp attorney or turned off by a lax defense attorney and come in with the wrong verdict. This situation is inevitable; it must happen every so often. However, overturning a wrongful conviction through the appeals process is extremely difficult, especially for the reasons of loss of stature mentioned above, and generally ends in failure. (Only five percent of cases actually go to trial so many wrongful convictions are the result of plea bargains which are even harder to overturn than verdicts.)
Unless the defendant, who is now guilty until proven innocent beyond the shadow of a doubt, can either supply another murderer or rapist who confesses or be eliminated by DNA evidence, the task is next to impossible, like threading a camel through the eye of a needle. Without DNA, the only other hopes for the wrongly convicted are 1) a wise judge, a man like H. Lee Sarokin, who freed Rubin Carter because Carter’s trial verdicts were the result of a racial bias in the New Jersey justice system and 2) people of good will in a District Attorney’s office, people committed more to the truth than the burnishing of their reputations. A great example of this is the new DA in Brooklyn, Kenneth Thompson, who ran for office and won on a platform that included the righting of wrongful convictions. Thompson created a new Conviction Review Unit, headed by Professor Ron Sullivan of Harvard University. They have, thus far, overturned 13 wrongful convictions and have one hundred more to investigate. The majority of these cases are without merit but the minority is significant. Sullivan spoke to a conference of defense attorneys, outlining the basis for overturning these “unsafe” cases. One of the stipulations was that the Unit had to feel comfortable with the conviction, that there needed to be solid evidence to back up the verdict of the jury. Since McCallums’s case, according to lead investigator Mark Hale, had no evidence tying McCallum to the murder of Nathan Blenner, no evidence beyond a demonstrably false confession, McCallum was released after 29 years of unjust suffering. The moment when Judge Matthew D’Emic vacated the conviction was, next to the birth of my son, the most powerful moment of my life. Sad indeed that it would not have been possible without Thompson’s election.
Almost unbelievably, in October of 2016, Ken Thompson passed away after a struggle with cancer. This was an unmitigated tragedy for the wrongly convicted, on a par with the loss of Rubin Carter. In light of Thompson’s death, David’s release is even more of a miracle. (See posting.) David was the only exoneree to speak at Thompson’s funeral, two years to the day after he was released.