CRIMINAL JURISDICTION

Tunnel Vision By Investigators and Prosecutors Convicts, Imprisons the Innocent

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Last year we blogged about the tragic wrongful convictions of three innocent Texas inmates, Ricardo Rachel, Timothy Cole (here and here), and Ernest Sonnier. This year has proven just as tragic. We have thus far blogged about the wrongful convictions of four more innocent Texas inmates: Donald Wayne Good, Anthony Robinson, Allen Wayne Porter, and Michael Anthony Green. The wrongful conviction emblem seems to have been deeply etched on the face of Texas justice. But convicting innocent people is not a phenomenon unique to this state.

Fourteen years ago three authors, C. Ronal Huff, Arye Rattner and Edward Sargarin, published a book titled Convicted But Innocent: Wrongful Conviction and Public Policy (Sage Publications. Inc. 1996). The book was based on ten years of measured, conservative research which outlined not only the frequency and causes for wrongful convictions of innocent people but the tragic consequences that inevitably flow from them. The authors interviewed 188 judges, prosecutors, public defenders, sheriffs, and police chiefs in the state of Ohio to draw the conclusion that as many as 10,000 innocent people are wrongfully convicted each year in this country. The authors found, and the New York-based Innocent Project has long since confirmed, that mistaken identification is the leading factor for most wrongful convictions.

This was the overriding factor in the seven wrongful convictions of the innocent Texas inmates mentioned above. But underlying the mistaken identification syndrome is an even more troubling phenomenon discussed by Huff/Rattner/Sargarin. “If we had to isolate single ‘system dynamic’ that pervades a large number of these cases, we would probably describe it as police and prosecutorial overzealousness: the anxiety to solve a case; the ease with which having such anxiety is willing to believe, on the slightest evidence of the negligible nature, that the culprits in hand; the willingness to use improper, unethical and illegal means to obtain a conviction, when one believes that the person at the bar is guilty.”

We tackled this subject earlier this year. The practice is called “tunnel vision”—law enforcement and prosecutors locking in on one theory or one suspect at the exclusion of all others. It was law enforcement “tunnel vision” that led to the mistaken identification of Michael Green and caused him to serve 27 wrongful years in prison—more than any other wrongfully convicted inmate in Texas. And it was both law enforcement and prosecutorial “tunnel vision” that led to the wrongful conviction of Clarence Elkins, Sr. who spent seven years in the Ohio prison system for a murder and rapes he did not commit. Elkins was arrested for the June 6, 1998 murder/rape of his mother-in-law, Judith Johnson, and for assaulting and raping Johnson’s six-year-old granddaughter, Brooke Sutton (Elkins’ niece). The arrest came after the granddaughter went to a neighbor shortly after the crime was committed and said, “Uncle Clarence killed grandma.” But the child later that same day expressed doubt about her identification, telling a friend of her grandmother that “I think it sounded like [Uncle Clarence].” Homicide detectives were aware of the doubts expressed by their chief witness.

Elkins’ wife, Melinda (who was Johnson’s daughter), knew her husband was innocent. He had been with her forty miles from the scene of the crime when her mother was brutally murdered. Other witnesses also said they had spent time with Elkins on the evening of the murder, all the way up to the time just before the murder was committed. Homicide detectives interviewed these witnesses during their investigation. It was pretty tight alibi. Even the evidence gathered by investigators at the crime scene and forensically tested did not implicate Elkins in the crime.

Still, the homicide detectives were not impressed. The prosecution was even less impressed with Johnson’s friend who tried to testify in court about the “doubts” the granddaughter had expressed to her concerning the child’s identification of “Uncle Clarence.” But the woman’s testimony carried no weight. The prosecution had secured its own expert witness, a psychologist, who, along with the homicide detectives, had convinced Brooke that her “Uncle Clarence” had committed the crime. We have frequently discussed, and will continue to do so, the “pitfalls of expert testimony” in child sexual abuse cases. The Elkins case exemplifies why. The psychologist and the homicide detectives in that case had effectively “brainwashed” Brooke into believing her “Uncle Clarence” had actually committed the crimes against her and her grandmother. It was certainly enough to convince a jury to convict Elkins in June of 1999—a conviction that resulted in a life imprisonment with the earliest possible parole date being in 2054.

Elkins’ wife refused to accept her husband’s guilt. She launched a herculean effort to establish her husband’s innocence—an effort that would ultimately be joined by the Ohio Innocence Project. She contacted her sister, Brooke’s mother, with whom she had been estranged since the crime was committed. Melinda learned that Brooke’s mother also had doubts about the child’s identification of “Uncle Clarence.” Other family members had also become convinced of Elkins’ innocence. They joined in the effort to give, as well as raise, money to establish Clarence’s innocence. This family effort led to Brooke recanting her identification in May 2002, but the family support proved damaging in court. In a 54-page ruling on the issue of whether to accept Brooke’s recantation and grant Elkins a new trial, Summit County Judge John Adams discounted the recantation, saying it was tainted because it had been brought about by “family pressure.” He denied Elkins’ motion for a new trial.

A couple weeks before the court hearing on Brooke’s recantation Melinda read a piece in the Akron Beacon Journal about Earl Eugene Mann facing trial for raping three young girls. While the Johnson murder investigation was still in progress, Mann, who had a long history of violence, was arrested for two “strong arm robberies.” He told one of the arresting patrol officers, “why don’t you charge me with the Judy Johnson murder.” As he was required to do, the patrol officer sent a memo to the Homicide Division advising detectives about Mann’s statement. It has never been determined whether the detectives working the Johnson murder case ever saw the memo, but what is certain is that they had by that time become convinced Clarence Elkins was the killer and rapist. They did not want or need another suspect. They were blinded by a “tunnel vision” which had focused exclusively on Elkins.

Melinda was not aware of the Mann incriminating statement at the time but she was aware that homicide detectives and crime scene investigators had recovered pubic and head hairs from her mother’s anus and Brooke’s nightgown. Shortly after Brooke recanted her identification, Melinda and the Innocence Project turned to prosecutors in an effort to have the hairs subjected to DNA testing. Prosecutor Michael Carroll resisted their efforts for the testing. By this time Melinda had lost her home, job, and all her savings fighting to prove her husband’s innocence. Then she had to face Carroll telling her that she would have to pay for the DNA tests. She discovered that such tests cost between $20 and $40 thousand dollars. With the help of the Innocence Project and family members, she raised the money and the DNA testing revealed that the hairs did not belong to Elkins. But that was not enough for either prosecutor Carroll or Judge Judy Hunter, who had been assigned to the case, to grant relief to Elkins. Judge Hunter ruled in July 2005 that the new DNA evidence was not enough to warrant a new trial; that, in effect, the exclusion of Elkins’ DNA at the crime scene did not establish his “actual innocence.”

During the massive post-conviction effort to establish Elkins’ innocence, Melinda and Clarence had become convinced Mann was the actual killer. In a twist of ironic fate, Mann just so happen to be in the same prison with Elkins, the Mansfield Correctional Institution This stroke of incredible luck provided Elkins with an opportunity to secure a cigarette butt he saw Mann discard in a makeshift ashtray. Just days after Elkins got the cigarette butt Mann was transferred out of the prison after he assaulted a fellow prisoner with a lock in a sock. Clarence sent the cigarette butt to Melinda through an Innocence Project attorney. His wife once again managed to raise the money to have the cigarette butt subjected to DNA testing. The results strongly indicated the hairs at the crime scene belonged to Mann.

This time Melinda and Innocence Project attorneys did not turn to prosecutor Carroll for help. They no longer trusted the prosecutor with this new DNA evidence which implicated Mann.  Instead they turned to an unlikely ally: then Ohio Attorney General, Jim Petro, who was running for the Republican nomination for governor. The state attorney general immediately went to the media to put pressure on Summit County officials to re-open the case. “Our experience with Summit County is they didn’t know what DNA meant,” Petro told the Dayton Daily News. “They didn’t think of it as conclusive as we did. And I was kind of surprised at that.”

Melinda and the Innocence Project had been right. Carroll refused to capitulate, even to the pressure brought to bear by Petro. He didn’t think the DNA match to Mann was convincing enough. Carroll, however, did agree to investigate Mann, although he would not agree to the Elkins’ release while that investigation was underway. With Mann being investigated, Petro and the Innocence Project managed to secure more sophisticated DNA testing of yet another pubic hair which had been recovered from Brooke’s nightgown. This test proved a perfect match to Mann. In fact, the test put the odds of 19 million to one that the hair did not belong to Mann. Faced with this overwhelming evidence, Mann confessed to killing Johnson and sexually assaulting Brooke.

Finally, the nightmare was over. Melinda, Clarence’s parents, other family members, and the Innocence Project had spent more than $250,000 bringing that nightmare to an end. It came to an official end when a Summit County judge in December 2005 ordered Elkins released from custody and the State of Ohio agreed to pay him nearly $1.1 million for the seven years he had been wrongfully imprisoned.

But Elkins and his family felt the wrong done to him demanded more. He filed a civil rights lawsuit against the City of Barberton, Summit County, Ohio and a number of law enforcement officials involved in the Johnson murder investigation. City officials and law enforcement officials moved to have the lawsuit dismissed on the basis of sovereign immunity and qualified immunity. The U.S. District Court for the Northern District of Ohio dismissed the entire lawsuit against city officials and dismissed all claims against the law enforcement officials except for important two claims: 1) Elkins’ Brady v. Maryland violation claim arising from the fact that homicide detectives failed to turn over to his defense the memo sent to them by the patrol officer who arrested Mann and reported Mann’s inculpatory statements the Homicide Division; and 2) Elkins’ state law malicious prosecution and loss of consortium claims.

Attorneys for the law enforcement officials appealed this part of the district court’s ruling to the Sixth Circuit Court of Appeals. That court on August 10, 2010 upheld the district court’s ruling, paving the way for a jury to determine whether Elkins is entitled to recover additional damages for the wrong done to him by the homicide detectives.

The Sixth Circuit ruling is just one of many effects the Elkins case has had on the Ohio criminal justice system, especially in shaping the “wrongful conviction” debate raging in the state. For example, in 2008 the Columbus Dispatch teamed up with the Innocence Project to investigate the state’s DNA post-conviction testing process.  Researchers for the newspaper and the Project reviewed 300 cases and found 30 of them to be “prime candidates” for testing. In an article titled “Test of Convictions,” The Dispatch reported that the results the investigation exonerated three inmates—all of whom had served a combined 72 years for rapes they did not convict—and reaffirmed the guilt of four others. And on August 4, 2010 The Dispatch once again reported that prosecutors (like Michael Carroll in the Elkins case) have resisted calls from Ohio Gov. Ted Strickland and current Attorney General Richard Cordray to permit DNA testing in seven controversial cases. Since Ohio does not have a mandatory post-conviction DNA testing law, judges in all seven of the cases exercised their broad discretion to deny requests by these individuals or their attorneys for such testing.

One of the cases being sought for review involves Arthur Swanson, who was convicted of robbing an Amish family and who died in prison in 2006. Left behind in his cell was a stack of legal papers describing his determined but unsuccessful effort to have physical evidence in his case DNA tested. Another case involves a condemned inmate currently awaiting execution and two others involve inmates serving long prison terms. The remaining three cases involve former inmates who have been released but still want their names cleared.

The governor and the attorney general both feel that DNA testing in cases where there are serious questions about the inmate’s guilt should be undertaken “as a matter of public policy.”

“I really think it’s irrational not to take advantage of methods that could establish either guilt or innocence when those technologies are available to us,” Strickland told The Dispatch. “I can think of no good argument why anyone would be denied DNA testing if, in fact, there is a reasonable or relevant opportunity to bring clarity to whether or not someone is guilty of a crime.”

Unfortunately, there is an entrenched prosecutorial and judicial mindset against DNA testing in Ohio. These public officials don’t see the issue with the same “clarity” as Gov. Strickland and Attorney General Cordray. Still, it is encouraging, and even extraordinary, to see two high ranking state officials advocating justice over injustice. Cordray put it this way to The Dispatch: “We think certainty and accuracy are something we want in our justice system. We are urging them to allow testing, but we have told (prosecutors) that we will work to make sure the results are not taken the wrong way. Testing could be conclusive with guilt or innocence, but many results can be inconclusive as well.”

Strickland and Cordray’s actions are also important because over the last two years the State of Ohio was second only to Texas in the number of executions it carried out. But Ohio lawmakers, Democrats and Republican alike, have grown increasingly wary about the state’s death penalty system because of cases like Elkins. Many of these lawmakers have called for an independent review of that system. The lawmakers have been joined by two former directors of the Ohio prison system, Reginald Wilkinson and Terry Collins, both of whom have presided over dozens of executions, who want the death penalty system to be reviewed to insure that it exist only for the “worst of the worst.”

We hope the lessons currently being learned in Ohio from the Clarence Elkins case will be instructive to Texas officials, particularly to judges and prosecutors who hear requests by inmates seeking DNA testing. Dallas County District Attorney Craig Watkins and Harris County District Attorney Pat Lykos have both demonstrated remarkable courage in freeing inmates found to have been wrongfully convicted. But we have not been as impressed with the Texas Legislature dominated by lawmakers more concerned with political slogans and reelection efforts than with doing the right thing for the people of the state. So we once again call upon them to summon up enough political will and moral courage to implement uniform reforms in the way the state law enforcement agencies conduct their lineup and identification procedures. Such reforms are critical because 82 percent of the DNA exonerations in this state involved mistaken identifications. The efforts by Watkins and Lykos are merely a stopgap measures absent significant legislative reforms in the way the more than 1,000 police departments in this state seek to identify criminal suspects.

It is admirable that prosecutors like Watkins and Lykos are working to find and correct “Michael Anthony Green-like” wrongful conviction in the Texas prison system but our legislators have an even greater responsibility to make sure our justice system does not produce any more Michael Green tragedies. This lofty but easily achievable goal can be done by reforming photographic and live eyewitness identification procedures, as well as making other minor adjustments that are known to enhance the integrity of law enforcement investigations. Our system must be committed to protecting the innocent and punishing the guilty. There is no middle ground on this constitutional guarantee.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair