Thy Brother's Keeper: Why Wrongful Convictions Should Matter to You

The United States has 5 percent of the world's population, but 25 percent of the world's prisoners - and clear evidence of a wrongful conviction problem.No one can watch the Oscar-winning 1993 film, "The Fugitive," starring Harrison Ford and Tommy Lee Jones, without rooting for Dr. Richard Kimball. We empathize with this skilled surgeon who lost everything while on the lam from "justice." Falsely accused and wrongfully convicted of the murder of his wife, he finally won the most grueling of battles. He managed to prove his innocence by unraveling the mystery of the one-armed man who really committed the crime. In essence, he conducted the investigation the police didn't while at the same time evading the dogged pursuit of Tommy Lee Jones' Marshall Sam Gerard and his crack team of dogged pursuers.Who could forget Richard Kimball cornered by Sam Gerard at the precipice of that immense dam outside Chicago? Before jumping a hundred feet into its turbulent falls, Dr. Kimball desperately pleaded, "I didn't kill my wife!" to which Sam Gerard responded in exasperation, "I don't care!" In the end, however, it turned out that he did care, though it wasn't in his job description. The Marshal's job was to return to prison a man whom a judge and jury had declared to be guilty, though we all knew that he was not. As Marshal Sam Gerard delved deeper into the case, however, he was transformed before our eyes from The Fugitive's adversary into his advocate.In flashbacks as Richard Kimball evaded the law, the film recounted the investigation by Chicago police detectives locked into a formula. It became clear to viewers that the detectives formed a foregone conclusion and investigated only Dr. Kimball. They hunted for clues that supported their bias and ignored many that did not. Justice was hampered by their tunnel vision, much like that in the cases I wrote of in "The Eighth Commandment" and "Walking Tall: The Justice Behind the Eighth Commandment."Both of those posts describe the cases of men caught up in webs of deceit in the criminal justice system only to be exonerated by irrefutable DNA evidence - often after decades wrongfully imprisoned. It seems that not a month goes by now without a news account of men - it's been almost entirely men - spending a decade or more in prison for crimes they didn't commit and had nothing to do with. The great danger for public perception of such accounts is that these news stories are no longer unique. They have become routine, and, as such, ordinary and less news worthy. That is a tragedy.In September, Robert Wilcoxson, age 32, and Kenneth Kagonyera, 31, both walked as free men out the gates of a Texas prison after serving over a decade behind bars for a crime they had nothing to do with. It turned out that the man who really committed the crime - a man Robert and Kenneth didn't even know - confessed to it after DNA evidence was finally tested and showed him to be the perpetrator of the crime.In a brief news article in USA Today ("Judges free two men in innocence review," Sept. 23, 2011), reporter Jon Ostendorff wrote that Robert Wilcoxson hugged his ten-year-old daughter, born just after he was sent to prison, and said that his immediate plan after more than a decade in prison was simple. He was going home to pray. Kenneth Kagonyera, who was twenty when wrongfully convicted and sent to prison, said he just wanted to "find a job, move on, and put this behind me."That's easier said than done. In today's economy, what chance for gainful employment does a man have when his resume includes a decade in prison? It's a taint not wiped clean by exoneration. And for all the social justice blustering of the political left, we can thank the Clinton Crime Bill for gutting education and other training programs for prisoners - guilty and innocent alike - seeking to leave prison with some education and employable skills.FALSE CONFESSIONS

A problem for this newest exoneration case is that Robert Wilcoxson and Kenneth Kagonyera had also pleaded guilty to the crime for which they were later exonerated. How can such a thing happen? I have come to know the answer to this, but first it needs some context. It's an important context - to me, at least - since it applies to my charges and imprisonment as well. It's a context that I described in "The High Cost of Innocence,” and one you would not readily see in any episode of "Law & Order."The context is this: the American justice system works in favor of the man who stands before it guilty of the crimes charged. The vast majority of criminal cases end with a "plea deal" and not a conviction following a jury trial. The real Catch-22 is that guilty people can often negotiate for lighter sentences in exchange for sparing the state the time and expense of a trial.Innocent men, on the other hand, feel compelled to preserve their Constitutional rights to a fair trial and a presumption of innocence. But innocent defendants also expect the justice system to work so they risk a vastly inflated prison sentence if it fails them, as it sometimes does. Under "A Priest's Story" on These Stone Walls, there is a very interesting    article entitled "Father MacRae" published by the Quarterly Journal of the False Memory Syndrome Foundation (Fall 2008). If you scroll down to Part II of that document, you will see a companion piece entitled "Why would a person confess to a crime he didn't commit?" The point of the brief article is that the person rendered most vulnerable in our justice system is the innocent defendant. He is far more likely to trust police, prosecutors, judges and juries to bring about a just conclusion.But the article also raises another dynamic. It attributes false confessions to the same phenomenon that often results in false accusations of abuse: aggressive interrogation techniques by some people in law enforcement. The article suggests a simple remedy: all interrogations and interviews of witnesses and suspects in a sexual abuse case should be videotaped. In fact, as writer Ryan MacDonald pointed out in a new article, "A Touch of Deja Vu," the detective who choreographed the case against me videotaped and audio-taped interviews in every case he investigated before and after his case against me, but did not create a single recording of any interview with anyone in my case. It's a strange aspect of this story for which there has never been an explanation.It's a shocking statistic, but according to another article In USA Today (“More states are looking to right wrongful convictions,” July 18, 2011)  writer Jon Ostendorff cited that "Twenty-eight percent of exonerations nationally have involved defendants who pleaded guilty.”TSW readers know that prior to being sentenced to sixty-seven years in prison, I three times declined a plea deal offer that would have released me from prison 15 years ago after serving only one to three years. So I speak from experience. Guilty people in this system are Often rewarded with a lighter sentence for being guilty, while innocent defendants can pay a traumatic price for maintaining their Constitutional right to a trial. One Constitutional expert commenting on my own case described this:

"A guilty person is better off being tried in the U.S. system, but an innocent person is better off in the continental [European] systems with their superior ability to get at the truth of the matter [with] 1. the active involvement of the court in pretrial investigation, and 2. the absence of the plea bargaining system with the pressures it creates for innocent persons to plead guilty rather than submit to the vagaries of trial."

LET'S MAKE A DEAL!When accused of a serious crime, the recently exonerated Robert Wilcoxson and Kenneth Kagonyera were two young African-American men facing a criminal justice and prison system in which their own race is grotesquely over-represented. They were 21 and 20 years old, respectively, and their claims of innocence counted for very little. Kenneth had been sitting in a county jail pre-trial for 13 months when he finally caved in. He had been interrogated repeatedly, told he faced life in prison or even a death sentence. "It just kind of wore down on me," he later told a commission investigating the DNA results that exonerated him.One need only look at the prosecutorial tactics of District Attorney Mike Nifong that I wrote of in "Sex, Lies, and Videotape" to comprehend how easily a prosecutor can build and carry out a case against innocent men. It doesn't work this way on "Law & Order," but in real life the pressure on a prosecutor to get a conviction, and the pressure on an innocent man to “take a deal” can be overwhelming.  Again, the Constitutional scholar who cited my own case above described this:

"As studies by leading criminal law scholars have documented, the criminal justice system in the United States is set apart from continental European models in that it is not a system aimed at discovering the truth, but rather a system of "plea bargaining." The overwhelming majority of criminal convictions in the United States are a result of deals made between prosecutors and defendants. The pressure on an accused person to plead guilty . . . is enormous."

I faced such pressure before my 1994 trial, and it was from all sides. I can even now hear all the same dire warnings these two recent exonerees from Texas heard, because I was presented with the same warnings - even from my own lawyers:

"I know you didn't do this, but I'm obligated to tell you that if you don't take this deal you could go to prison for a long, long time - possibly even the rest of your life. Sometimes people have to admit to things they didn’t do to preserve their freedom."

A BETRAYAL OF MERCY AND OF TRUTHThe lawyer was a good man, at heart, but like so many underfunded defense lawyers his pre-trial efforts went into striking the best possible deal instead of preparing for a trial. Refusing the state's deals became even more difficult after my own bishop and diocese - anxious to settle with accusers and their lawyers - issued a devastating press release before jury selection in my trial:

"The Church has been a victim of the actions of Gordon MacRae as well as these individuals . . . It is clear that he will never again function as a priest."

This is incredibly painful to write about, but the context is necessary. My stubbornness is often seen by others as an obstacle to grace - and it sometimes is. But even after being so condemned by my own Diocese, I would not give in. I knew that the goal of my accusers was money - nothing but money - and I refused to enable their greed by playing along. In a sense, my own Church and Diocese had saddled upon me a pre-trial prejudice could not overcome.  The presumption of innocence was demolished by that press release, and a fair trial became impossible. Still, I refused to take the deal.In the end, the prosecutor - who three times offered to release me from prison after just one to three years if I would plead guilty - stood before my judge citing my bishop's own statement and demanded that I be sentenced to the maximum possible sentence: sixty-seven years in prison - more than twenty times the maximum the state had been willing to give me in a "quiet deal."This is what I mean by context. It's how the falsely accused become the wrongfully imprisoned. The tide is against the accused, and in the case of an accused priest it just keeps coming, and coming, and coming. It is relentless.And even after prison commences, it does not stop. Many readers know that after my trial ended, there were other false charges pending. The claims against me had been severed for trial. But, the state prosecutors had won. My attorney resigned in disgust even before my trial ended. I had another trial pending, and another lawyer told me I had a chance to win an appeal of the first but could not survive a second trial and he would not represent me if I insisted on it. The state's prosecutor came up with a new deal: "no trial and no sentence at all" if I plea to remaining charges and end this.I was sitting in a county jail awaiting sentencing to prison. I was cut off from everyone. My Diocese would not even accept my collect calls. My own lawyers told me I had no choice. What meager assets I had were exhausted on the first trial. So, post-trial, I entered into what I called - then and now - "a negotiated lie." It was a lie that was extorted from me, but the lie was not mine alone.If you've read my post, "The High Cost of Innocence," you know that even then the pressure never ended. Prison itself has any number of sanctions to further punish those who do not admit guilt. I spent five years confined to a cell housing seven other prisoners because I would not admit guilt. The notion that men in prison always claim to be innocent is a myth. There are dire consequences for such a claim.Writing for the National Catholic Register in March of this year, Joan Frawley Desmond published a superb two-part article entitled "Priests in Limbo." In it, she wrote of These Stone Walls and cited my case as "perhaps the most publicized case" of a falsely accused priest who maintains his innocence.I was utterly dismayed, however, to read in her article a defensive statement by a spokesman for my diocese who cited as justification for my imprisonment that "he was convicted by a jury of his peers and pleaded guilty to other charges." The very backdrop against which this happened was created by the destruction of my rights to a fair trial and presumption of innocence by my own bishop's press release. When Joan Frawley Desmond raised this fact, the diocesan spokesman had "no comment."It is the greatest tragedy of the U.S. Bishops' Dallas Charter and its "zero tolerance" policy that it has inspired many bishops to cease to be fathers and brothers to their priests, and become prosecutors. The Charter does great harm to the relationship of trust between priests and their bishops. It does great harm to Catholic traditions and beliefs regarding the very nature of priesthood.Please do not misjudge me as a disgruntled priest now taking on legitimate authority in the Church. Far from it, my own position is why I so admire that of Father Frank Pavone from Priests for Life - which is linked to on These Stone Walls. Father Pavone, faced with a penalty he deems unjust for a perceived offense (a rather vague financial one, not a sexual one) that both he and the Board of Directors of Priests for Life deem to be false and misunderstood, has publicly and clearly asserted both his intent to respect Church authority and his intent to preserve and protect his rights and obligations under Church law.I bow to Father Pavone’s example of obedient, faithful, and truthful priestly witness. I bow also to his resolve to protect his rights under the higher authority of the law of the Church, for the Charter makes one thing clear now: some bishops will neither protect nor respect those rights.  I plan to write much more of this in two weeks.  Click Here for Fr Frank Pavone UpdatesI bow also to Robert Wilcoxson and Kenneth Kagonyera who spent over a decade doggedly trying to take back a lie that was extorted from them and the freedom that was stolen from them. A lie cannot live forever. Not even a negotiated one.

“Do not be ashamed then of testifying before our Lord, nor of me, his prisoner, but share in suffering for the Gospel in the power of God.” (St. Paul’s Second Letter to Timothy, 1:8).