Transcriber: Anna Sobota Reviewer: Sebastian Betti
Imagine you’re 18 years old.
You’re a single mother and it’s really hard.
But you´re doing OK.
And you adore your baby boy.
And then, one day, the unthinkable happens.
Your baby stops breathing.
You do everything you can:
you do CPR and then, you take your baby to the hospital
where medical personnel do everything they can to revive him.
But nothing works.
And your baby dies.
Imagine the unspeakable grief, the choking sorrow.
And then, imagine, instead of being treated
as the grieving mother you are
the police come and they bring you to the precinct.
They take you into an interrogation room.
They question you and they scream at you.
And they tell you that your baby died of internal injuries.
[They accuse you of causing] internal injuries to your baby.
You have no idea what they’re talking about.
You’re frightened.
You’re scared.
You’re grieving.
You’re alone.
You don’t have a lawyer.
You don't have a parent present.
And no matter what you say,
the police tell you that you caused your baby’s death.
Eventually, sick of the entire ordeal,
you sign a statement because you think it’s the only way
you can get out of that interrogation room.
And when you get out of the room, you tell everyone,
“I had nothing to do with this”.
But no one listens.
And you are charged with murder for your baby’s death.
Not only are you charged with murder,
but you are prosecuted, convicted and sentenced to die.
Imagine that.
You don't even get to go to your baby's funeral.
Well, that's what happened to Sabrina Butler.
She became the only woman on Mississippi’s death row,
where she sat for five long years, until she was eventually exonerated.
Because it turns out that those internal injuries
were caused by Miss Butler when she tried to do CPR,
and by her neighbors efforts to help the baby,
and by the medical personnel at that hospital.
The baby’s death was no murder.
The baby died of an undiagnosed medical illness.
Miss Butler had been convicted of a crime that never happened.
Now, how many of you have heard about wrongful convictions?
And the popular narrative of a wrongful conviction
is that of an innocent person who’s convicted of a crime
that was committed by someone else.
But what if I told you
that over one-third of all exonerations
involve innocent people wrongly convicted of crimes that never happened?
It is one-third.
Now, I've been thinking about the criminal legal system
for over 30 years.
I was a public defender in New York City for 10 years
where I saw firsthand just how rigged the system really is
against poor people and against people of color.
And when I joined the academic field,
I knew that I would spent the rest of my career
thinking about, writing and researching about the criminal legal system
and about wrongful convictions.
And I have to tell you
that there is something profoundly disturbing about the idea
that people are wrongly convicted for crimes that just didn’t happen,
because it causes so much harm for nothing at all.
And that’s what I want to talk with you about today.
Our criminal legal system is deeply broken.
And that’s a huge topic.
If you know me,
I could keep you here all afternoon, but I won’t.
So I just want to talk about a couple of small aspects in our criminal legal system
that, if we focused on,
might make a big difference in terms of no crime wrongful convictions.
And I want to start with the idea of official misconduct.
There is a huge national conversation happening right now around policing
and that’s an important conversation.
And I bet all of us here can think of a circumstance
where you’ve heard a story about a police officer or a police precinct
that is engaged in such widespread corruption,
outrageous behavior where cops became robbers with badges
and innocent people suffered,
whether it’s in Brooklyn, Los Angeles, Dallas or Camden, New Jersey.
We all have heard the stories.
But what I don’t think we’ve spent enough time really thinking about
is that the very way police do their policing,
they can cause no crime wrongful convictions to occur.
Imagine that every time you step out of your house,
you are stopped.
Not because of anything you've done,
but because you’re poor, or because you live in a poor community,
or because of your skin color.
Well, when I worked in the South Bronx,
which is one of the poorest urban communities of color in the entire nation,
the police were engaged in what was called Broken Windows Policing.
The idea was that they would go into poor communities
to identify broken windows; “quality of life” offenses;
and to arrest people,
and that was somehow going to make the community safer.
So what the police would do is they’d routinely go
into these high-rise buildings, these low-income housing projects,
and they would basically arrest everybody in the lobby.
And if you’re visiting a friend or a relative,
or if you live in the building, you’re not trespassing
but these folks would get arrested anyway.
They would be brought to the precinct,
they’d be booked, they’d be dragged to the courthouse
and then, because they were often poor as well,
they’d be assigned a public defender, me.
I would look at the charges and I would say,
“Oh, please come back to court.
This is not trespass. Let’s fight this case.
This is ridiculous.”
Now what would you do?
I bet most of you were thinking, “well, I’d fight that charge,
I’m not going to plead guilty to something I didn’t do.”
But my clients didn’t have that luxury.
They couldn't miss a day of work and risk losing their jobs.
They had childcare issues or they had transportation issues,
and they needed the case to end.
And so they pled guilty.
Can you imagine a legal system where it makes more sense
for innocent people to plead guilty to crimes they didn’t commit;
crimes that didn’t even happen; rather than fight for justice
because justice cost too much in every way that matters?
And maybe some of you are thinking,
whatever, it’s just trespass, it’s just a misdemeanor.
But misdemeanors matter, they have tremendous consequences.
One man pled guilty to a misdemeanor and he lost his housing.
Another man pled guilty to a misdemeanor and he lost his job.
And poor people, get saddled with fines and fees,
will never be able to afford to pay;
enmeshing them in the criminal justice system for years
not because of anything they did, but because they're too poor to fight.
But let's not just focus on the police.
I want to turn our attention to prosecutors.
I don't think we talk about prosecutors near enough.
Prosecutors have a lofty title, they are called Ministers of Justice.
They represent the people; that’s you and me.
And yet prosecutors routinely get caught up in a culture
where winning means getting convictions, not doing justice.
Some prosecutor offices literally keep a scoreboard like a batting average
about how many convictions they get.
And some prosecutors get so caught up in their own invincibility
that they forget that an arrest doesn’t mean you’re guilty.
They assume anyone who’s been brought into court must have done something,
so they will do whatever it takes.
The ends justify the means.
And so prosecutors will routinely hide evidence they’re required to turn over,
rubber stamp police arrests even when there’s no evidence,
lie to defense lawyers, hide issues from the court
and then, act like nothing ever happened.
And police and prosecutors do this
because they know they won’t be held accountable.
There's a complete lack of accountability.
Now, police have something called qualified immunity.
How many of you have heard of that?
I love asking this question,
because today so many people have heard about qualified immunity.
It’s a really high legal standard and it makes it incredibly hard
to hold police civilly accountable for their wrongdoing.
But I bet what none of you know,
is that prosecutors have an absolute immunity
from anything that they’ve done in their role as prosecutor.
They are absolutely shielded from intentional and deliberate misconduct,
even if it costs someone decades of their lives.
Now, the Supreme Court has said, absolute immunity is fine for prosecutors
because they can be held responsible by their bar associations.
And that’s true.
But it never happens.
The Innocence Project and some of its partners did a study.
They looked at five states over a five-year period,
and they focused in on cases where the judge actually said,
“Oh, this prosecutor did something wrong”.
They found 660 cases where the court made that somewhat extraordinary statement.
Out of those 660 cases, only one involved a prosecutor
who received any kind of sanction by a bar association at all.
Now, the other way a prosecutor can be held responsible
is through a criminal prosecution.
Now, in the event
that a prosecutor is going to be prosecuted by a prosecutor,
things rarely happen.
I want to give you an example, it's not a no crime wrongful conviction,
but these cases are so rare and I think you’ll get the idea.
There was a prosecutor named Ken Anderson who charged
a man named Michael Morton with the murder of his wife.
Mr. Morton denied having anything to do with it.
He was innocent.
He just wanted to get out of jail to tend to his two-year-old baby,
who had lost a mother and now, was going to lose a father to jail.
And he was nonetheless charged by prosecutor Anderson.
They went to trial,
and while Mr. Morton was striving to prove his innocence,
prosecutor Anderson had evidence in his file
that showed Mr. Morton was innocent,
but he never turned it over.
Mr. Morton was convicted and spent the next 25 years in prison.
And while he was in prison,
prosecutor Anderson rose to become judge Anderson.
Well, Mr. Morton was eventually exonerated.
DNA showed that he absolutely had nothing to do with the crime.
And somewhat surprisingly Anderson was prosecuted.
And you know what? He was found guilty.
And you know what his sentence was?
Ten days in jail, community service and a loss of his law license.
And you know how many days prosecutor Anderson spent in jail?
Five.
He was released for good behavior.
We clearly need better systems of accountability.
And accountability doesn’t just need to turn on ideas of immunity.
I mean, we, the civilian population, can play a role.
We can have community oversight.
We can push for civilian complaint review boards and independent commissions
that can examine allegations of official misconduct.
Because the truth is,
we can’t look to the police to police themselves,
and we can’t look to the prosecutors to prosecute themselves.
I want to talk about one more thing briefly.
It is about funding for defense lawyers.
Because the truth is, poor people don’t get the same justice
that people with money have. They just don’t.
And one way we see this most clearly is in the assignment of counsel.
Sometimes public defenders,
people who represent the poor, are so overworked
and so under-resourced that it´s representation in name only.
In Louisiana,
some public defenders are so overwhelmed
that they have seven minutes to meet a client
and resolve a misdemeanor case.
Seven minutes, from start to finish.
That’s shorter than this talk.
There’s no discussion about an investigation.
There’s no discussion about any possible defenses.
There’s barely time to get through introductions.
And yet that passes as justice.
Can we imagine a world where we actually dedicate funds
to defense lawyers at the same level as prosecutors?
Where defense lawyers have access to investigators and experts?
Because the truth is,
no innocent person should ever be found guilty
simply because they’re too poor to mount a defense.
Now, I’ve hit you with a lot of stuff,
and I never like to leave without some action items.
So a few things you can do:
One, support projects
that advocate for the rights of the wrongly convicted
or that advocate for the rights of the poor
who are charged with criminal offenses.
But there’s even a more simple thing you can do.
And that’s vote.
Vote with an eye to people
who have a progressive criminal justice reform agenda.
Because it matters.
In New Mexico and Colorado,
they’ve elected legislators who have passed laws
that change state qualified immunity standards for police.
They make it easier to now sue the police for their wrongdoing.
If you live in a jurisdiction where you elect prosecutors,
elect progressive prosecutors, like they’ve done in San Francisco,
or Travis County, Texas, or Philadelphia.
Because those prosecutors are changing justice on the ground.
They know that an arrest because of a Broken Windows Policy
doesn’t mean that a poor person has done something wrong.
They don’t equate doing justice with getting convictions.
Because here’s the thing,
no crime wrongful convictions are the canary in the coal mine.
They are the absolute worst idea about what our criminal legal system does.
And we need to do better.
Sabrina Butler should never have been charged with murdering her child,
let alone convicted and sentenced to die.
You ever hear the expression, “where there’s smoke, there must be fire”?
Well, that’s just wrong.
Sometimes, there’s really just smoke.
And that’s the truth and the tragedy of no crime wrongful convictions.
We spend so much time, so much money,
so much energy and human lives chasing smoke,
prosecuting and convicting and incarcerating people
for crimes that never happened.
We can and we must do better.
Thank you.