Criminal Defense Lawyers Must Never Give up, Never Lose Faith That Justice Will Ultimately Prevail
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
There have been at least 254 DNA exonerations in this country, according to the Innocence Project of New York. Each new DNA exoneration cast a dark shadow over the nation’s criminal justice system, particularly its judicial system. These exonerations are not only a barometer for measuring the imperfections of our system of justice but the failings of its adversarial nature either through law enforcement misconduct or “tunnel vision,” prosecutorial zeal or ineffective defense representation. It is a shame each of us involved the justice system must endure, a constant reminder that we can all do better; that we must do better.
The latest two DNA exonerations—one in New York, the other in Ohio—really underscore that point. In November 1988, Viola Manville, a 74-year-old grandmother, was bludgeoned to death in Monroe County, New York. The elderly woman was attacked as she walked near her home in Hilton, a Rochester suburb.
In July 1991 Frank Sterling, a truck driver, was questioned about the Manville murder. After an all-night interrogation session (which had been preceded by a 36-hour work shift), Sterling confessed to the brutal murder. He later recanted the confession, claiming he slipped into a “hypnotic state” and simply recounted details about the crime given to him by the police. He was convicted and sentenced to 25 years to life in the New York prison system.
In 1994 Mark Christie was imprisoned for the strangulation death of a four year old neighbor, Kali Ann Poulton. It would prove to be a significant development in the Sterling case.
Sterling’s attorney, Donald Thompson, had worked since the mid-1990s to establish his client’s innocence. In 2004 he managed to enlist the support of the Innocence Project to help him. The project obtained DNA evidence from Manville’s clothes, and while it was not a definitive match, the match was sufficient to identify Mark Christie as the potential murderer. After two interview sessions with John G. Reid & Associates, a private investigation firm that specializes in interrogation techniques and hired by the Innocence Project, Christie confessed, providing details only the killer would know.
Armed with the information provided by the Innocence Project, Monroe County District Attorney Michael Green had his staff interview Christie. The imprisoned killer confessed to them as well. While Green said Christie’s confession and the DNA evidence convinced him that Sterling should be set free, the district attorney would not unequivocally tell the court Sterling was innocent. He told the press that the police work in Sterling’s case had been “solid” and that he was “very uncomfortable going back and second-guessing what people did 19 years ago.”
The police work in Sterling case is called “tunnel vision” – a law enforcement practice of zeroing in on one suspect as the exclusion of all others. The police made Sterling their prime suspect in the Manville murder because his brother, Glen, had been convicted of attempting to rape the grandmother in 1985 just a few hundred feet from where she had been slain. But Frank Sterling had a alibi—he was at home the afternoon Manville was murdered.
Still, the police kept Sterling in their sights, and in July 1991 decided to call him in for another interview. The suspect agreed to take a polygraph test which, according to the police, showed deception. That was enough for them to embark upon the 12-hour interrogation during which Sterling admitted he had confronted Manville and killed her because he believed she had falsely accused his brother of the attempted rape. The police also put Sterling through a hypnosis session during which he supposedly said he remembered seeing Manville, getting angry at her, and saying she wore a “purple top”—a fact prosecutors would place a great deal of emphasis on in their case against him.
By the time the case went to trial in September 1992, Sterling had recanted his confession, claiming it was the product of exhaustion. The prosecution and the defense presented “experts” who offered differing views about the reliability of hypnotic admissions. The defense presented evidence that Sterling had never been arrested for a crime and probably made reference to Manville’s “purple top” because she wore it all the time.
The defense failed. The jury convicted. The tragedy of this case is that the police had ample indications that Christie was Manville’s killer before and shortly after Sterling was convicted. The police knew Manville had been shot twice with a pellet gun. They were given information that Christie owned a pellet gun, that he frequented the rural trail where Manville was killed, and he was under investigation for an assault at the high school he attended. A simple check of school records—something that was done years later—would have revealed Christie did not arrive at school until late in the day on the day Manville had been killed.
Before Sterling was sentenced, four teenage friends of Christie told the police that Christie had boasted to them that he shot Manville with his pellet gun and then beat her to death. Christie was interviewed by the police and he told them he had lied to the other teens in order to impress them for friendship. The District Attorney’s Office said it believed Christie and a local judge agreed, saying there was “insufficient evidence” against him to warrant re-opening the Sterling case.
Then in May 1994 little Kali Ann Poulton disappeared from a town house complex. The case generated national media attention. Her disappearance was featured on America’s Most Wanted and the child’s mother appeared on The Oprah Winfrey Show. Two years later Christie once again boasted about killing someone. This time he told his wife about killing young Kali. She called the police. They arrested Christie. He confessed, and showed them where he had placed Kali’s body, in a cooling water tank at a local business where he had been employed.
The lead investigator in the Christie case was also one of the officers who had worked the Sterling case in 1991. And current U.S. District Court Judge Charles Siragusa was the assistant district attorney who prosecuted Sterling and was the state district court judge who accepted Christie’s guilty plea. And even after all this, former State Supreme Court Justice Donald Wisher ruled there was “insufficient evidence” to re-open the Sterling case and investigate Christie for the Manville murder.
It was only after attorney Thompson and the Innocence Project matched Christie’s DNA to the Manville murder did New York Supreme Court Justice Thomas Van Strydonck agree to reverse Sterling’s conviction and conclude: “Our justice system’s goal is to assure that only the guilty are convicted. This case and others demonstrate that our remains an imperfect system.”
It only took New York officials nearly two decades to reach that conclusion.
The case of Raymond Towler is even more egregious. The Ohio man spent nearly 30 years in that state’s prison system for the rape of an 11-year-old girl that he did not commit. His family members were in a Cleveland courtroom earlier this month when a state district court judge vacated the 52-year-old man’s wrongful conviction. “It finally happened, I’ve been waiting,” he said as he hugged his jubilant but crying family members.
While Towler felt the cool winds of Lake Erie hitting his face, he side-stepped questions from the media about the State owing him an apology. “Just take a deep breath and just enjoy life right now,” he told reporters, adding that he understood the wheels of justice turn slowly. He then said he was off to a “pizza party” where a pizza with “everything on it” awaited him.
Towler is free because of the diligent efforts of another innocence project, this one the Ohio Innocence Project. The group pointed out that he was “among the longest incarcerated people to be exonerated in U.S. history,” as Thomas J. Sheeran wrote for the Huffington Post. Towler was convicted in 1981 and sentenced to life imprisonment for the rape of a child that occurred in a Cleveland park. He was arrested several weeks after the crime following a routine traffic stop by one of the park’s rangers. The officer thought Towler resembled a sketch of the rape suspect. The victim and other witnesses identified him after being shown his photo.
Carrie Wood, a staff attorney for the Innocence Project, was quoted by Huffington Post as saying the identifications were “questionable.” The New York Innocence Project reports that 75 percent of all DNA exonerations involved mistaken identifications. Wood and other attorneys with the Ohio Innocence Project, a program funded by the University of Cincinnati, took Towler’s case in 2004. Wood noted that current technology permits DNA testing of separate semen samples—a technology that did not exist when Towler was convicted and only recently became available. It proved to be Towler’s godsend.
“That’s how I’ve been living these last years, I’ve just been keeping hope,” Towler said in the courtroom.
The Huffington Post reported that quietly sitting in the back of the courtroom when Towler’s conviction was set aside was Clarence Elkins who spent seven years in prison before DNA evidence exonerated him for the rape of a 6-year-old relative. Elkins won a $1.075 million settlement from Ohio officials. “Today is a great day,” Elkins told reporters. “Once again, justice is served a little late, but better late than never. Almost 30 years is a very long time. One day is too long.”
Yes, one day under a wrongful conviction is too long. Over the past 18 months we have won acquittals for several clients wrongfully accused in sexual assault cases. While the jury accepted our defenses over the prosecution’s theories, we understood all too well that the cases could go either way. Juries are mercurial, whimsical – they are as unpredictable as a West Texas tornado.
Frank Sterling was fortunate. He had an attorney with the stamina of a pit bull who simply refused to accept the repeated attempts by the justice system to cover up his client’s wrongful conviction. Wrongful convictions should be an attorney’s worst nightmare. Unfortunately, that’s not always the case. The New York Innocence Project reports that “bad lawyering” contribute to a significant number of wrongful convictions. In some of the worst instances discovered by the project, bad lawyers:
- Slept in the courtroom during trial
- Had been disbarred shortly after finishing a death penalty case
- Failed to investigate alibis
- Failed to call or consult experts on forensic issues
- Failed to show up for hearings
Fortunately, these are the exception, not the rule. Most criminal defense attorney take their representation of clients very seriously. It is easy to criticize lawyers until you need one. We represented a client charged with several counts of aggravated sexual assault of child in 2008 and 2009. His case was recently featured in the Houston Press. We won three acquittals in that case. There were other client acquittals during the same period. While these cases were instructive and provided valuable trial experience, they were a stark reminder to us of just how fragile our justice system, especially during those long hours we awaited the jury verdicts. You know in your gut that your client is innocent, but you question yourself a thousand times during jury deliberations about whether you did everything possible to convince the jury of his/her innocence.
But regardless of the self-doubt that gnawed away at our insides. we never lost faith in our jury system. Juries make mistakes, sometimes they get it wrong, just as they did in the Sterling and Towler cases. Neither jury set out to wrongfully convict either of those innocent men. Their convictions were virtually assured by both law enforcement and prosecutorial tunnel vision and through faulty identification procedures. The jury can only act on the evidence, or the lack thereof, presented before it. Our job as criminal defense attorneys is to do exactly what Donald Thompson did for Frank Sterling—if you know your client is innocent, never give up. Do not walk away. Stay the course, and, most of all, never lose faith in the belief that justice will ultimately prevail.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair