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Opinion When public officials can’t be bothered with innocence

Back on my old blog, I ran an annual “Worst Prosecutor of the Year” poll. It’s a tradition I’ll revive here at The Watch later this year. Two of the perennial nominees are Mississippi Attorney General Jim Hood and Cook County (Ill.) State’s Attorney Anita Alvarez. They’re both worthy contenders.

For just about his entire time in the AG’s office, Hood has done all he can to paper over the massive damage done to Mississippi’s criminal justice system by longtime medical examiner Steven Hayne and his bite mark analyst sidekick, Michael West. Alvarez’s sins include, among other things, charging people who record police officers with felonies, including one woman who tried to record cops who intimidated her when she tried to report another cop for assaulting her; fighting like mad to preserve a patently unjust civil asset forfeiture law; and working to keep convicts in prison after DNA had excluded them as the perpetrator of the crimes for which they were convicted.

Both Hood and Alvarez are back in the news this week in stories about cases involving likely innocence. And both are acting as their careers thus far might predict.

With Hood, it’s an old case that he actually prosecuted back when he was a district attorney. In 2001, Marlon Howell was convicted of shooting and killing New Albany, Miss., resident Hugh David Pernell. There was no biological evidence linking Howell to the crime. The only real evidence against him was from eyewitnesses — two men who confessed to involvement in the shooting and were spared the death penalty, and from an uninvolved eyewitness named Charles Rice, who claimed to have seen the killing. Rice’s testimony is obviously the most compelling. But it was problematic, and not just because he claimed to have seen the pre-dawn shooting from his window, which was more than 70 feet away. Over at Vice, Spencer Woodman explains:

Hood had no physical evidence linking Howell to the crime. And Charles Rice, the man who’d seen the shooting from his home, was the only eyewitness not facing execution. He became the sturdiest pillar of Hood’s case.
To buttress Rice’s identification, police chief David Grisham told the jury that although the sun had not yet risen at the time of Pernell’s shooting, “the sky was lighting up” and street lights and car lights would “greatly enhance your vision.” A medical examiner told the court that the bullet traveled through Pernell’s body in a manner consistent with what Rice claimed to have seen. Other forensic experts explained how common it is to lack physical evidence, like fingerprints or gunshot residue, linking a murderer to his crime. Grisham also told the court that Howell had a defense attorney present at the lineup, which generally would be required by state law to ensure that the process is fair.

Except that wasn’t true.

Mississippi state law generally grants criminal suspects the right to have an attorney present when facing a lineup. In 2001, Grisham, New Albany’s police chief, told the court that Reagan Russell, a local defense attorney, had represented Howell at the lineup. After Richardson discovered this to be false in 2005, Grisham filed a sworn statement asserting that a different attorney, Thomas McDonough, had been present. This also turned out to be untrue, which both defense lawyers asserted in affidavits for Richardson and confirmed to VICE. Howell had no representation at the lineup. (Grisham declined to comment on this matter.)

You’d think that Hood would be troubled that a police chief would swear that a particular defense attorney was present at the lineup who clearly wasn’t there. You’d think he’d be really troubled when that same police chief would then swear that a different defense attorney was present . . . and be wrong about that too. Instead, Hood threatened perjury charges against the girlfriend of one of the men who implicated Howell, because her testimony supported Howell’s defense.

Despite assertions from state authorities that Howell had representation, they never found a defense attorney who could confirm he was there. Why does that matter? Because these lineups can be rigged. And it appears Howell’s was. Howell was easily the tallest person in the lineup, and he was the only person wearing shoes — the others were wearing identical pairs of sandals. (You can view a photo of the lineup here.) You really don’t need to know anything about the case to look at that photo and know that he’s the guy the cops suspected.

There’s lots more to the story, which I recommend reading in full. Howell has an alibi. Rice has since recanted. And then un-recanted after pressure from Hood’s office. Howell is black, the victim was white. Howell was convicted by an all-white jury.

The bottom line? A man was convicted and sentenced to death based on a ridiculous lineup and testimony from two admitted criminals who had a whole lot to gain. He’s still on death row. And the attorney general of Mississippi is doing all he can to ensure that the man will be executed.

The story involving Alvarez comes from Buzzfeed. It’s a doozy, too.

Four men who were convicted of murder but who maintained they had been framed by a Chicago police detective are all probably innocent, an official investigation has found. The investigation, which was commissioned by Mayor Rahm Emanuel and obtained by BuzzFeed News, has not been made public.
Despite its findings, the Cook County State’s Attorney’s Office will not reopen any of the men’s cases. In a written statement to BuzzFeed News, Sally Daly, the director of communications, said that the report “made credibility determinations that are contrary to the opinions of the Office of the State’s Attorney, contrary to those made by the triers of fact in each of these cases, and contrary to those made by the Judges that have presided over these cases for decades.” She continued, “[W]e have no new credible evidence or information to suggest that these convictions should be vacated.”
The city’s investigation — currently under a court-ordered seal — says that Roberto Almodovar, 40, Robert Bouto, 39, Jose Montanez, 48, and Armando Serrano, 43, were most likely innocent. Almodovar received a life sentence, while Bouto, Montanez, and Serrano are serving 45 years. All four men are still appealing their convictions.
Cook County prosecutors are slated to return to court on Tuesday to fight Almodovar’s appeal. In previous hearings they have argued that the contents of the investigation should be kept secret.
The inquiry, led by a former U.S. attorney, centered on a retired police detective named Reynaldo Guevara.
For more than three decades, residents of Chicago’s predominantly Latino Humboldt Park neighborhood have alleged that Guevara manipulated lineups and witnesses, beat suspects, coerced confessions, and purposely mistranslated statements from witnesses and suspects in order to frame at least 40 people.

I’ve made the argument before that convicting an innocent person of murder ought to be treated like a doctor who amputates the wrong limb. If it wasn’t intentional, perhaps it shouldn’t be a criminal offense. But it should end that person’s career. Yet to actively work to preserve bad convictions, and to work to keep information about those cases from becoming public, is another matter entirely. Both Hood and Alvarez have done it throughout their careers. That they have yet to be sanctioned or disciplined by a court or state bar speaks volumes about the legal profession’s ability to police itself. That they continue to be reelected is more evidence that the criminal justice reform movement should get more directly involved in electoral politics.