No, he’s not going to jail for convicting an innocent man.

Big news that for the first time ever, a prosecutor will serve jail time (only 10 days, but still) for his role in convicting an innocent man.

I’m celebrating, of course, but I’m concerned that the headlines are wrong in an important way.  So many headlines are like this one, saying that Ken Anderson will go to jail “for wrongfully convicting” Michael Morton, an innocent man who spent 25 years in a Texas prison.

Morton’s loss is impossible to wrap my head around, and I hope it’s the focus of lots of attention, because it reminds us how important all this is.

But we need to keep in our sights that Ken Anderson is not going to jail because of wrongful conviction.  Our system is human-based, and it can make mistakes.  Wrongful convictions can happen honestly, especially in close-call situations.  But a mistake is not what happened here, and not what Anderson is to be punished for.

Anderson is NOT going to jail for convicting an innocent man. Any prosecutor acting in good faith could convict an innocent person.  Anderson is going to jail because he broke the law, behaved in an egregiously unethical manner, and abused the vast power entrusted to every prosecutor.

He’s going to jail for intentionally failing to disclose evidence that Mr. Morton did not kill his wife.

Then, he continued to fail to disclose it for the next 25 years.  After the trial, he woke up every single day and didn’t disclose it.  He was rewarded and became a judge.

Morton, knowing the truth, woke up every day in a prison. So, it’s easy to focus on Morton’s situation.  His wife was murdered, and that would be enough for anyone, but then he was convicted of that murder.  Unimaginable.

And it’s almost as easy to focus on how illegal and unethical Anderson’s actions were.  And they were.

But we need to turn our attention, at least briefly, not to Morton, and not even to Anderson, but to the fact that we have a system that allows and even rewards prosecutors who do this. Most of the “villains” in (true-life) exoneration stories have gone on to better career positions, such as police chief or judge.

Scrupulous prosecutors — the ones who don’t withhold evidence, who offer reasonable plea deals, who charge fairly, who keep their minds open to the possibility that they are capable of human error — they don’t get as many wins, and they don’t get the big cases because the way to get big cases is to win the smaller ones.

I don’t know what the fix is, but it would be a start if we — as a society — could acknowledge that the game is rigged.

Maybe there is no good alternative to vast prosecutorial discretion, but I wish we could find ways to reward the men and women who do the job with honor, dignity, and fairness.


Under the Hood: Full length videos of Guantánamo conversation now available!

OK, what do you REALLY know about Guantánamo?

None of us have time to stay up to speed on all of the forms that injustice takes, even in our own country. But if you have a few minutes, Frank will school you pretty efficiently on this one. You can get a good sense from this Highlights Video (5 min).

It’s a very good thing that people like Frank are out there fighting for the rights of these men.

If you don’t care about the men themselves, consider the effect on the whole criminal justice system when we short-circuit due process this way. It sets precedents that affect those who come afterward. And this is the very same system that someone you care about may one day get caught up in, innocent or not.

We are so thrilled to offer you this chance to look “under the hood.”

The more we know, the better it all works.


Part I: What is Guantánamo? Who are the detainees? Have any been charged? Have any been released?

Under the Hood: An Inside Look at Guantánamo with Attorney Frank Goldsmith. (Part 1 of 4) from Equal Justice Collaborative on Vimeo.


Part II:  How did you get involved? What is it like to represent these men? How is the legal process different? What is it like to visit Guantánamo?

Under the Hood: An Inside Look at Guantánamo with Attorney Frank Goldsmith. (Part 2 of 4) from Equal Justice Collaborative on Vimeo.


Part III: What can you say about these cases? Didn’t WikiLeaks reveal everything that was confidential? What can you say about Khairullah Khairkhwa, who was swapped for Sgt. Bowe Bergdahl? What is the Taliban?

Under the Hood: An Inside Look at Guantánamo with Attorney Frank Goldsmith. (Part 3 of 4) from Equal Justice Collaborative on Vimeo.


Part IV:  What do you think about the swap? Can/should Guantánamo be closed? Would you do it again?

Under the Hood: An Inside Look at Guantánamo with Attorney Frank Goldsmith. (Part 4 of 4) from Equal Justice Collaborative on Vimeo.


- Props to Frank, and to Nate Torrence, who shot and edited the whole thing -

Under the Hood: An Inside Look at Guantánamo

Under the Hood: An Inside Look at Guantánamo from Equal Justice Collaborative on Vimeo.

Attorney Frank Goldsmith has a near-unique perspective on the US military base in Guantanamo and the supposed terrorists who have been detained there, most of them for years without charge. Frank has represented five of these men, most recently Khairullah Khairkhwa, who, along with four others, was exchanged for Sgt. Bowe Bergdahl in late May.

Frank has top-secret security clearance. He’s seen the government’s evidence against his clients, and he’s been to Guantanamo. Which puts him in pretty select company.

We sat down with Frank (full disclosure: Frank is on our board) to hear his perspective. The material was so rich and Frank so articulate, that we put together this brief excerpt video to tempt you into watching the full conversation, which we expect will be available by the end of the week.

Enjoy. We think you’ll learn a thing or two.

Many thanks to Frank, and to Nate Torrence, who shot the video and did all the video editing. –kl

Open Letter to Asheville Citizen-Times Columnist John Boyle

John Boyle’s recent column here.

An Open Letter to John Boyle of the Asheville Citizen-Times:

Thanks, John Boyle, for your willingness to re-think your position about something as important as the death penalty. You made several excellent points. I’d like to add some of mine.


When a person is charged with a crime, it’s the government that brings, prosecutes, and rules on those charges. So many of us don’t trust the government. How is it that we trust the government in this life-and-death arena?

It’s not all about guilt or innocence, either. It’s about getting the worst of the worst. We are trusting the government to identify the most heinous crimes committed by the most heinous criminals, and to do so with integrity. But are we paying attention to whether the government is trustworthy? Or do we simply throw people over the judicial and correctional wall, once the arrest has been made?

Do we know, for example, that the death penalty is only for aggravated murder, but a person involved in some lesser felony can be given the death penalty – even if he doesn’t kill anyone, never intends physical harm, doesn’t know anyone has a gun, and the actual killer gets less/no punishment? Do we know that savvier criminals often “cooperate” with the government, while those who have less criminal experience get the harsher sentences?


When we spend this kind of money on prosecuting and defending death cases, we have to spend less elsewhere. I’d rather see us put our limited government resources into solving other murder cases, helping victims and their families, and preventing the next murder. There are plenty of unsolved crimes out there. There are traumatized victims and family members who can’t afford the help they need to survive and heal. And we know some things about prevention. But we can’t do it all. We have to choose where we put our resources.


The race of the defendant is important, but not as significant as the race of the victim. A black person who kills a white person is statistically much more likely to get the death penalty than a white person who kills a black person, even when the crimes are similar. One study said this was twenty-two times more likely. This doesn’t mean that anyone is doing this on purpose.   I don’t believe most prosecutors are calculating to condemn more black people or more killers of white people. But they bring cases they think they can win, and part of this decision is intuitive and based on what is going to seem more horrific to juries. As a society, we are simply more horrified by a white girl being dead at the hands of a black man than a black girl being dead at anyone’s hand.  That’s racism, even if we’ve never thought about it this way. If there is racism in a community, it’s going to be in every jury.


In capital cases, the selection process removes potential jurors who are opposed to the death penalty. These days, that’s not a few “extremists” – it’s about half the population, depending on how you ask the question, and their removal affects the makeup of the jury. Using “peremptory strikes,” the government regularly keeps minorities off juries even when race is not directly at issue in the case.


It’s wrong to assume that all victims’ family members want the death penalty. Some do, some don’t. There are good reasons for this. Some are clear early on that another death won’t help. Others begin in understandable rage and vengeance, but then work through to a place where they can somehow move on and try to rebuild their shattered lives. They don’t want to keep reliving this in the courts. Some even forgive. It’s wrong to assume that the death penalty is the best thing we can do for victims’ families.


The death penalty begs the question of the purpose of punishment. Is it to protect society? If so, then life without parole will do.

Is it to deter crime? Most of us don’t need any kind of punishment to keep us from killing each other. We have a functional moral compass. Normal, mentally healthy people don’t murder. The ones who are likely to kill people are generally not rational – whether from blind rage, mental illness, drunkenness, or drug abuse – and are therefore not really thinking about the consequences at that moment. The more rational killers don’t believe they will get caught.

Is it something more primal – to somehow give vent to our outrage and attempt to right the wrong? This can never be done. Nothing we can do will right the wrongs when someone we love has been murdered. His life simply doesn’t have the same value to us as the life he took, so there is no way he—or we—can make this right using punishment. And when we try, we invariably give in to our baser, more violent instincts and find ourselves sinking dangerously close to the murderer’s level.

Last thought:

I know many people who support the death penalty from a moral perspective. They believe that some crimes deserve death. They also understand, however, that our system cannot be made to be fair and reliable when it comes to these cases. The many exonerations show us that nothing—not confessions, not eyewitness testimony, not government forensic evidence, not law enforcement testimony—is reliable enough to justify executing people. And even though there are cases where the evidence is so very strong, and the crime is so very horrific, and the defendant seems so very irredeemable, there is no way to design a system that catches only those cases. And even if we could, we can do more good using our resources other ways.


NYT: Justices Return to a Death Penalty Issue

NYT: Justices Return to a Death Penalty Issue

The US Supreme Court has said that it violates the Constitution to execute someone who is mentally retarded.  But the Court has never articulated a definition, leaving that to each individual state.  There has been much litigation over the definitions.  Some states are outliers in terms of their definitions, and Florida is one such state.  The US Supreme Court has just taken a case in which the man convicted has been found to be mentally retarded, but does not meet Florida’s definition.