Saturday, January 10, 2015

Charlie Hebdo We Are Most Certainly Not

One of the more predictable consequences of the recent and senseless shootings in Paris is the sudden proliferation of folks around the world claiming “Je Suis Charlie” in solidarity with the fallen cartoonists at the French weekly Charlie Hebdo. In the immediate aftermath of the tragedy, Facebook, Twitter, Instagram, and other social media were all abuzz with folks proudly asserting that they were Charlie Hebdo. I was one of those folks. The statement “I am Charlie” is meant to serve as both a condemnation of the cowardly acts and mindset of those who claim the need to avenge perceived insults to a surprisingly sensitive prophet, and a poke in the eye to the numerous adversaries of free expression through the message that “although you can you murder the messenger, you can never murder the message.”

Initially, I was heartened by the belief that my fellow countrymen and countrywomen were so fervently supportive of freedom of expression that they would elevate that right over another’s “right” to not be offended.  Whether they were aware of it or not, all of these new “Charlies” I surmised, must subscribe to the idea embedded in the quote commonly misattributed to Voltaire that "I disapprove of what you say, but I will defend to the death your right to say it."

Upon further reflection, however, I think there are probably far fewer Charlie Hebdos in the United States than perhaps the reaction to the terrorist attacks in Paris would suggest. I’ve never been a huge fan of David Brooks, but as he rightly points out in “I Am Not Charlie Hebdo,” his most recent Op-Ed column in the New York Times:

“The journalists at Charlie Hebdo are now rightly being celebrated as martyrs on behalf of freedom of expression, but let's face it: If they had tried to publish their satirical newspaper on any American university campus over the last two decades it wouldn't have lasted 30 seconds. Student and faculty groups would have accused them of hate speech. The administration would have cut financing and shut them down.  

Public reaction to the attack in Paris has revealed that there are a lot of people who are quick to lionize those who offend the views of Islamist terrorists in France but who are a lot less tolerant toward those who offend their own views at home.
You really don’t need to look that far and wide to find concrete examples of what David Brooks is talking about. Just this morning I read that the Federal Trade Commission is now getting involved in the kerfuffle over the naming of the NFL’s Washington Redskins. Seems despite its use by the team since 1933, the name is suddenly so inappropriate that we’re going to leverage the considerable power and resources of the federal government to quiet the team owners (or at least force them to change the team name to something more acceptably benign). But instead of being aghast at this development, a good number of us are cheering it. The name “Redskins” is offensive after all. That ought to tell you something about how dissimilar we in this country are to Charlie Hebdo.
But that’s really not the same thing you might be telling yourself.  Really? Then how about the Westboro Baptist “Church” and its merry band of idiots? You know, the inbreds from Kansas that routinely show up to protest soldier funerals with signs proclaiming “God Hates Fags” and “Thank God for Dead Soldiers.” Despite the patent offensiveness of these backwards-ass fucktards, do the collective “we” defend their right to publicly express their misguided and delusional ideas? Hardly. There have been massive efforts supported by most of the population to quiet these folks because, well, they are offensive. And we find being offensive so offensive that we have passed a number of federal and state laws, the ultimate objective of which is to silence these fools.  When Westboro was sued by the family of a soldier whose funeral they picketed, and the case reached the United States Supreme Court, forty-three (43) U.S. Senators (or 86% of the senate chamber) and forty-eight states plus the District of Columbia (an astonishing 96% of the states) filed amicus briefs which opposed Westboro. In an 8-1 decision, and much to our collective dismay, the Supreme Court ultimately vindicated Westboro’s right to offend, but the message from society at large was clear: we are not Charlie Hebdo. 
And while we’re on the subject of “fags,” try using that term for any purpose or in any context other than self-identification. If we’re really so immune to offense and supportive of free expression, publicly invoke the phrase “that’s so gay” to describe something that is lame and gauge the reaction. How about the “n-word.” Again, unless you’re self-identifying and thus get a free pass, we collectively find the term so outrageously offensive that we can’t even say or write the word regardless of context. In fact, humorously but sadly, the word is so objectionable that we attribute guilt by association to other words that sound suspiciously like the “n-word” but have absolutely no connection to it or its meaning (for example, the word “niggardly” which means “cheap” or “chintzy”). That, of course, is not to say that the n-term is inoffensive. It is, but that really isn’t the issue.  
There are so many examples of society (the collective “we”) wanting to stifle and/or punish speech or ideas that we, or some of us, find insulting or offensive that I could fill a number of pages discussing them. We routinely still ban books (including such subversive titles as Captain Underpants) because they are sexually explicit, contain offensive language, contain violence, involve homosexuality, pertain to the occult or explore satanic themes, are “anti-family,” and/or are otherwise “unsuitable.” We attempt to squash artistic pieces like “Piss Christ” because while it is perfectly acceptable and even fun to offend Islam, it is most certainly not acceptable to offend Christianity or any of its adherents. Music, particularly rap and metal, is a regular target of government and societal censors. The banning of speakers on college campuses, gleefully supported by supposedly free-minded students and faculty, is pervasive. And then some of those faculty members and students are themselves punished for expressing views or publishing content that our societal minders find inappropriate. Karma’s a bitch ain’t it? 
Yeah, yeah, I realize that we generally do not share the point of view held by the now dead fanatical gunmen in Paris that offensive speech is punishable by death. But no matter how you rationalize it, we generally do share the belief that offensive speech should be punished and subverted. It’s just a matter of degree. I’m not suggesting that difference in degree is an invalid basis upon which to make distinctions. But on a certain level, it is a distinction without a difference here that ultimately compels the inconvenient and uncomfortable conclusion that the Paris terrorist are certainly not Charlie Hebdo and neither are we.

Sunday, January 4, 2015

Learning from Nick Yarris

This essay was originally published by the California Innocence Project on its blog here.

Last Saturday night, I jumped on the Metro Red Line in North Hollywood to make my way down to the
CIP vigil at Los Angeles City Hall the purpose of which was to urge Governor Jerry Brown to grant clemency to the California 12. I didn’t have anyone to go with, so I went it alone because I thought it important to be there in both body and spirit for the families whose sons and daughters have been rotting away in prison for far too many years. It’s easy to be lazy about folks like the California 12 when you have no connection to them other than through newspaper articles, online blogs, media reports, and other abstract sources. That apathy is even more pronounced during the holiday season when the traditional focus is on one’s own family and friends. But I’d been following the story of the California 12, and was encouraged by CIP’s recent success in gaining freedom for Michael Hanline, so I mustered up the energy and headed for downtown.

When I arrived at City Hall about thirty minutes early, there were a bunch of folks milling about in anticipation of the event to come. Half of these folks were obviously associated as students or otherwise with CIP and were clustered about in groups of blue and yellow XONR8 t-shirts idly chit-chatting with one another. The rest of the folks appeared to be primarily the family and friends of the California 12. They were easily identifiable by the over-sized photographs, posters, and banners that they had brought to the vigil. There were the parents of
Kimberly Long. The family of Dolores Macias. The family of Quintin Morris. The spouse and supporters of Alan Gimenez. The family and friends of Guy Miles. They were all there to support their wrongfully incarcerated loved ones. Looking around, I realized that I knew absolutely no one. So I stood there in the faint glow of City Hall’s lights waiting for the festivities to begin while LAPD helicopters and muni buses competed for obnoxious noise supremacy. 

Then an energetic and intense guy with a clean-shaven head and steely eyes walked in front of me and suddenly stopped. I had observed this guy making the rounds and mingling with all the groups clad in XONR8 t-shirts since I arrived, so I figured he was a CIP mucky-muck who was in charge of insuring the event went off smoothly. He offered his hand in greeting and I reciprocated. As I did, he said something entirely unexpected. Instead of introducing himself, he asked if I was an exoneree. Instinctively and immediately I chuckled out loud at the notion and then demurred, telling him that I was just some guy who supported the cause. Although I wasn’t thinking it at the time, subconsciously I must have found the idea of being an exoneree so patently preposterous that I actually laughed out loud. Me, an exoneree? I don’t even fit the profile!

Almost immediately, however, my conscious self understood what my subconscious self had just done but it was too late. The bald-headed fellow understood too, but he was too much a gentleman to call me on it. So he offered some words of encouragement about future exonerations, thanked me for showing up, and then slipped away.

Later that evening, as Justin Brooks was introducing the families of the California 12 as well as some notable dignitaries, I realized the severity of my gaffe. For I learned then that the closely-shorn fellow whom I had probably insulted earlier in the evening was none other than
Nick Yarris. As you probably know, Nick Yarris is himself an exoneree who was wrongly accused, convicted, and incarcerated for a brutal rape and murder committed in Pennsylvania in December of 1981. 

It was a moment of utter embarrassment. I had dismissively, although unconsciously, laughed in the face of a guy who was compelled to sacrifice 20+ years of his life behind bars for a crime he didn’t commit. But it was also a moment of profound enlightenment. For at that moment, the scales fell from my eyes, and I came to the realization that what happened to Nick Yarris and Michael Hanline and
Rodney McNeal and Kiera Newsome and Ed Contreras could very easily happen to me. It could happen to any of us. I had often preached the gospel of “there but for the grace of God go I,” but that was obviously something that I just said. Mere window dressing to impress and present myself as concerned and understanding to the outside world. But as I stood there looking around at the photographs of the California 12 and listening to their stories as told by their supporters, reality, conjured up by Nick Yarris, stepped up and slapped me hard. No matter how comfortably convinced I had been that wrongful convictions are something that only happens to abstract “others,” anyone regardless of race, gender, or economic status can conceivably end up as fodder for the criminal justice meat grinder. Injustice does not discriminate. Even against me.

So that was my moment of clarity as I stood on the darkened south lawn of Los Angles City Hall last Saturday evening. Although he has hopefully forgotten the encounter, I suppose I owe Nick Yarris an apology for being such a Neanderthal. But I also owe him a debt of gratitude for forcing me to see what was right in front of me but was otherwise invisible. Because of my humiliating encounter with Nick, I now have a greater understanding and appreciation of the really important, in-the-trenches work that the good folks at CIP do on a daily basis. I also more deeply feel the despair and the urgency of the families who seek the release of their unjustly imprisoned loved ones. In a country that holds itself out to the rest of the world as a beacon of fairness and justice, the fact that the California 12 are still sitting behind bars is an egregious perversion of the worst kind.

Let’s Just Kill Michelle, Anyway

This essay was originally published by the California Innocence Project on its blog here.

People should be rioting in the streets all over America right now in seething anger over the disgusting farce that is and was the Michelle Byrom case. Although wrongful conviction cases have become so common these days that they often evoke nothing more than a disbelieving shake-of-the-head from society-at-large, what sets this particular case far apart from most others is the prosecuting state’s insistence on executing Michelle Byrom despite overwhelming evidence that she is probably innocent. It is the most morally repugnant, egregiously unfair, and constitutionally suspect case that I can recall reading about in a long, long time.
The underlying facts of the case are somewhat convoluted, but Ronni Mott, a reporter with the Jackson Free Press does an admirable job summarizing them in her eye-popping article “An Innocent Woman? Michelle Byrom v. Mississippi.” The case involves the murder of Michelle Byrom’s husband, Edward Byrom, Sr. (“Ed”), on June 4, 1999 at the hands of his own son Edward Byrom, Jr. (“Junior”). 

By all accounts, Ed was a despicable character. At age 31, he married 15 year old Michelle when she fled her family home to escape from a sexually abusive step-father who doubled as her pimp. Unfortunately for Michelle, however, Ed was not her knight in shining armor. Far from it, he was just another jerk who verbally and physically abused Michelle at every opportunity. He even forced her to have sex with other men which he videotaped. Michelle tried to leave Ed, but predictably he threatened violence which kept her in check. As Andrew Cohen at The Atlantic points out, “He was plainly savage with her.” In fact, Ed and the step-father were so savagely abusive of Michelle that she became mentally ill.
Eventually, the unhappy union between Ed and Michelle produced son Junior. For most folks, the birth of a child is an amazing and transformative life event. Not Ed. He simply viewed his son Junior as another family member who he could berate and abuse right along with Michelle. Thus, Ed would regularly strike Junior and subject him to unfathomable verbal abuse, routinely telling him “You were a fucking mistake to begin with!”

On the day Ed was killed, he drove Michelle to the hospital because she had double-pneumonia. He then returned home. In a letter he penned to Michelle, Junior described what happened next:
"I sit in my room for a good 1½ hours, and dad comes in my room, and goes off on me, calling me a bastard, nogood (sic), mistake and telling me I’m inconciderate (sic), and just care about my self, and he slaps me, then goes back in his room. As I sat on my bed, tears of rage flowing, remembering my childhood, my anger kept building and building, and I went to my car, got the 9mm, and walked in his room, peeked in, and he was asleep. I walked about 2 steps in the door, and screamed, and shut my eyes, when I heard him move, I started firing.
When I opened my eyes again, I freaked! I grabbed what casings (sic) I saw, and threw them into the bushes, grabbed the gun, and went to town. I saw Joey, told him to hide the gun, and he said he’d take it to his spot, which I knew from when I’d sell him stuff, and went and told mom that dad was dead, and before her terry (sic) eyes could let loose I ran out of the hospital, and headed for the house, I was so confused."
Although Junior confessed to killing Ed, led police to the murder weapon, and was the only person with gunpowder residue on his hands, Tishomingo County prosecutors saw the killing as a murder-for-hire conspiracy between Junior, his friend Joey Gillis (“Gillis”) as the shooter, and Michelle as the mastermind determined to rid herself of an abusive husband. This cockamamie theory was derived from one of the many “bullshit stories” Junior told to police after they promised him a reduced sentence in exchange for testimony against his mother. It was bolstered by “admissions” Michelle made to police when they questioned her in the hospital while she was under the influence of a number of powerful drugs. Those “admissions” involved nothing more than Michelle parroting back what investigators had told her in order to protect Junior from being left “hanging out there to bite the big bullet.”

So with that evidence, Michelle was charged, prosecuted, convicted of capital murder, and sentenced to die. But that is only half of this three-ringed circus of a story. The attorneys assigned to represent Michelle at trial were shamefully incompetent. They had never tried a capital case before. They presented no witnesses in Michelle’s defense. They advised Michelle to waive her right to have a jury determine sentencing, and then when it came time to present the judge with evidence to mitigate her sentence, they presented nothing in support of her cause, naively believing that this would provide constitutional grounds for an appeal.
Predictably, they were wrong. On appeal, the Mississippi Supreme Court upheld her conviction by a 5-3 vote. In dissent, Justice Jess H. Dickinson, although concurring with majority on the issue of Michelle’s guilt, observed: “I have attempted to conjure up in my imagination a more egregious case of ineffective assistance of counsel during the sentencing phase of a capital case. I cannot. In recommending that Byrom waive her so-called right to have a jury hear the mitigating circumstances, and in presenting to the court little in mitigation of the death penalty, I believe Byrom’s counsel were certainly ineffective. I further believe justice was subverted in this case.”

So exactly how was justice subverted aside from the fact that Michelle Byrom’s trial was flagrantly flawed and unfair? To start, the trial judge who sent Michelle to the execution chamber because she was a “schemer” whose sole concern was profiting from her husband’s death, knew that Junior had confessed to killing Ed even though the prosecutor claimed that Gillis was the triggerman. The judge knew this because he had been previously informed of this fact by the forensic psychologist that he appointed to evaluate Michelle, Junior, and Gillis. The judge also knew from the psychologist that Gillis had admitted helping Junior after the fact, but denied pulling the trigger, pointing the finger instead at the admitted shooter Junior. Despite all of this, the trial judge disallowed the jury from hearing this evidence as a sanction against Michelle’s defense attorneys for not timely sharing the information with the prosecution.
Beyond that, Michelle suffered from a host of conditions brought on by her long history of abuse, including depression, alcohol dependence, Borderline Personality Disorder, and Munchausen’s Syndrome. As the psychiatrist retained by her defense team explained, these conditions rendered Michelle psychologically incapable of leaving her abusive husband. But the jury never heard this because Michelle’s trial counsel bumbled her defense so badly. Thus, prosecutors were able to play the “blame-the-victim” card without any push-back whatsoever.

Finally, and most disturbingly, prosecutors know that their whole theory underlying Michelle’s prosecution is total bunk. They admit that they were wrong about Gillis being the shooter. They know that Junior confessed to the crime on more than one occasion. And they certainly know that the side-show that was Michelle’s trial is constitutionally dubious at best. And yet, their whole attitude is “Let’s just kill Michelle, anyway.”
So while Junior, the self-admitted killer, and Gillis, the guy prosecutors insisted was the killer, both now freely roam the streets having served short prison sentences, Michelle Byrom is headed to the death chamber, gleefully being pushed along by the State of Mississippi and its top law enforcement officers.

 ’John Grisham couldn’t write this story,’ said Warren Yoder, executive director of the Public Policy Center of Mississippi. ‘In any reasonable world, this would be a short story by Flannery O’Connor,’ Yoder continued. ‘Instead, it is happening right now in our Mississippi.’”
As Dan Moshenberg over at Women In and Beyond the Global has appropriately noted, “The details of Michelle Byrom’s life are hard and disturbing, but the substance, and stench, of Mississippi’s burning is far worse.”

Is Justice on the Horizon for the Central Park Five?

This essay was originally published by the California Innocence Project on its blog here.

According to documentary film-maker Ken Burns, the city of New York will finally settle a $250 Million wrongful conviction lawsuit brought in 2002 by three members of the infamous “Central Park Five” after ten long years of avoidance and delay by the administration of Mayor Michael Bloomberg. During a November 12 discussion on HuffPost Live, Burns told host Josh Zepps that “Bill de Blasio, the mayor-elect, has agreed to settle this case, and though this is justice delayed way too long, and that is justice denied, [they] will not only be exonerated…but they will have justice, they will see some closure, they will be able to be made whole.”

The ugly story of the “Central Park Five” represents one of the darker moments in our recent history. It lays bare for all to see our shameful fears, prejudices, and preconceptions about young men of color and the unbelievably dangerous and tragic consequences that are their direct, yet predicable result.

On the night April 19, 1989, Trisha Melli, a white Phi Beta Kappa economics major from Wellesley College and the daughter of a Westinghouse executive, was brutally beaten and raped while jogging in Manhattan’s Central Park. The attack left Melli with a fractured skull, internal bleeding, and other injuries from which she was not expected to recover. The heinousness and boldness of the crime sparked outrage in New York and across the nation and was seen
as emblematic of New York’s escalating crime problem

Shortly after the crime was committed, five juveniles from Harlem were arrested and charged with the assault and rape of Melli—
Yusef Salaam (15), Korey Wise (16), Kevin Richardson (14), Antron McCray (15), and Raymond Santana (14). Four of the youths were black, one was Latino. Their faces were immediately splattered on the front page of every newspaper in the country. We were told they were part of a violent gang of youths who were roaming the park on the night of the assault engaged in what became known as “wilding.” We were told they were the demons who savagely assaulted and raped Melli on the night of April 19. We were told that justice would be done. And we believed like we are apt to do. Because we desperately wanted to believe.

And so, the “Central Park Five” as they became to be known were promptly charged, tried, convicted by a jury of their peers, and sentenced to long prison terms. And we congratulated ourselves because justice had been done. 

Except justice hadn’t been done. The Central Park Five were innocent. In 2002, a convicted rapist by the name of Matias Reyes
confessed to perpetrating the crime. Independent testing of DNA samples taken from the original crime scene confirmed. As a result, on December 19, 2002, upon the recommendation of the Manhattan District Attorney, the convictions against the Central Park Five were overturned and they were freed. By that time, Yusef Salaam had served 5 ½ years in prison; Korey Wise had served 11 ½ years behind bars; Kevin Richardson had spent 5 ½ years in prison; Antron McCray had been incarcerated for 6 years; and Raymond Santana had been in prison for 5 years.

In 2003, Richardson, Santana, and McCray sued the City of New York for malicious prosecution, racial discrimination, and emotional distress. It is this lawsuit, that has been squatting on the court’s docket for over a decade now, that Mayor-elect de Blasio has committed to finally settle according to Burns.

Representatives for the Mayor-elect have not specifically confirmed Burns’ comments, although they have referred all recent inquiries about the matter to the following
January statement which is entirely consistent with Burns’ comments: “As a city, we have a moral obligation to right this injustice. It is in our collective interest—the wrongly accused, their families and the taxpayer—to settle this case and not let another year slip by without action.” Time will tell if the Mayor-elect has the courage and the moral compass to follow through on his campaign promises. 

Asked about the prospect of closure that would result from settlement of the case, Yusef Salaam was philosophical. “I always say, ‘Positive history is still being written.’ And this is where we are right now. We’re definitely waiting for this case to be finished. The Central Park Five doesn’t just represent the Central Park Five. It actually represents the greater reality of what’s happening in our community—and how it happens. People always ask us, ‘Can something like this happen again?’
The reality is that it’s happening right now.

The tale of Central Park Five is the subject of Burns’ 2012 documentary film “
The Central Park Five.”

A Good Day for Michael Morton

This essay was originally published by the California Innocence Project on its blog here.

November 8, 2013 was a good day and a step in the right direction for the criminal justice system in this country. On that day, Ken Anderson, former Williamson County District Attorney and District Court judge, pled no contest to criminal contempt charges for deliberately withholding exculpatory evidence during his 1986 prosecution of Michael Morton for the murder of his wife Christine. As a result of Mr. Anderson’s prosecutorial zeal, Mr. Morton was convicted of a crime he did not commit and spent nearly 25 years behind bars until he was exonerated by DNA evidence in 2011.

The exculpatory evidence withheld by Mr. Anderson came to light during a rare Court of Inquiry that was convened at the request of
The Innocence Project after Mr. Morton’s exoneration. The judge presiding over that inquiry found that Mr. Anderson had concealed two critical pieces of evidence that supported Mr. Morton’s innocence, deliberately disobeyed the trial judge’s order to turn over all exculpatory evidence to Mr. Morton’s defense team, and lied about the existence of evidence in his possession that was favorable to Mr. Morton. That withheld evidence consisted of (i) statements by Mr. Morton’s young son (who was present at the time of the murder) that the “monster” that killed his mother was not Mr. Morton, and (ii) statements by neighbors who described seeing a man in a green van parked nearby the Morton home just before the murder.

Based upon these findings, the Court of Inquiry ordered Mr. Anderson arrested. Faced with a potential 10 year prison terms for evidence tampering, he agreed Friday to plead no contest to criminal contempt charges. His punishment: 10 days in Williamson County Jail, a $500 fine, 500 hours of community service, and the loss of his license to practice law. 

Although the punishment seems disproportionately lenient given the egregiousness of Mr. Anderson’s crime, Mr. Morton was pleased that he had achieved his twin objectives: removing Mr. Anderson from the bench and ensuring that he could never practice law again. “It was one of those necessary evils, or distasteful requirements that you have to do in life,” Morton said, calling it
“a good day.”

Unfortunately, it was an extremely unusual day as well. Prosecutors are rarely, if ever, held to account for deliberate misdeeds that result in the long-term incarceration of the innocent. In fact, according to Barry Scheck, co-director of The Innocence Project who partnered with attorney John Raley on Mr. Morton’s case, Mr. Anderson’s conviction and disbarment are
“historic,” perhaps the first time that a prosecutor has ever been criminally punished for failing to disclose potentially exculpatory evidence. That sad and breath-taking reality is what makes this story all the more remarkable.

The Innocence Project in conjunction with the
Texas Criminal Defense Lawyers Association will now conduct an independent review of all cases that Mr. Anderson prosecuted during his tenure as District Attorney. They will also review select files of John Bradley who fought Mr. Morton’s attempts to secure the DNA testing that ultimately proved him innocent. As Mr. Scheck has noted, “The number of prosecutors who deliberately break the rules is small, but history shows they tend to be repeat offenders.” The Williamson County District Attorney has pledged to cooperate with this review.