CLOSE ENCOUNTERS of the First Kind

Article excerpt

A first-hand look at wrongful convictions, how they occur, and what they cost.

Editor's note: This article is adapted from remarks delivered at the National Conference on Preventing the Conviction of Innocent Persons held January 16-19, 2003 in Washington, D.C.

More than 20 years ago, when I was a prosecutor during the Carter administration, I personally encountered a case of a wrongfully accused and convicted person. This happened to be a civil rather than a criminal case but it had the same kinds of results.

A man named Frank Walus had come from Poland to the United States. He was the subject of a citizen denaturalization proceeding because he had been a guard at the Nazi prison camp at Czestochowa, Poland. The case was tried before Judge Julius Hoffman of Conspiracy Seven fame, or infamy. Unfortunately for Mr. Walus, it was a bench trial that resulted in Judge Hoffman revoking Mr. Walus' citizenship, which would eventually lead to his deportation. (453 F. Supp. 9 699 (N.D. IL 1978)).

The case went to the Court of Appeals for the Seventh Circuit. The judges there were uneasy about the evidence and sent it back for retrial. (616 F.2d 283 (7th Cir. 1980)). It was then reinvestigated. There was a special unit at the Department of Justice in Washington that handled these cases. They discovered very quickly, by walking down the street in the town that Mr. Walus said he was in at the time of the second World War, that he indeed was working on a farm. He wasn't at this camp.

But the result of suggestive identifications that Nazi hunters had done, showing only his photograph to people 25 and 30 years later and suggesting that he was the person that had abused them in the camp, resulted in a lot of people coming to court in Chicago, many of them from Florida; elderly Jewish people saying, in perfect good faith, "Yes, that was the man, I remember him, I'll never forget him."

When we finally dismissed the case, I brought him into my office and personally apologized and issued a press release explaining what had happened. But by that time he had lost his wife who had divorced him. His children wouldn't speak to him anymore. He'd lost his job. He had no income and no assets, and it was not possible to undue the harm that had been done to Mr. Walus because of that wrongful prosecution. So I have, in Spielberg's terms, close encounters of the first kind with wrongful convictions.

How many more?

In Illinois, less than 2 percent of the felony cases result in a death penalty. We have now had 16 men who were sentenced to death released from prison. This necessarily raises the question, how many more are there in jail in non-death cases that are not guilty of the crimes for which they were convicted?

Unlike the death cases, these other cases don't, get the kind of post-conviction scrutiny that death cases do. They are not publicised. People go to jail and do their time. They write to lawyers like me. I get letters all the time from prisoners asking me to help them. I don't do anything about that anymore. I used to as a young lawyer, but I don't anymore. But the injustice that is visited upon these people is not the penalty itself but the fact that the conviction needs to be remedied.

No right thinking person wants to convict somebody for a crime he didn't commit. I know that in the audience we have not only defense lawyers and prosecutors, but policemen as well. I know that almost all policemen are dedicated, wonderful people who certainly are not in the business of trying to get someone convicted for a crime he didn't commit. But the problem all of us face in the criminal justice system, and this includes defense lawyers, judges, prosecutors, and police, is what's called confirmatory bias. Once we conclude that a particular person is the culprit, we seek evidence to support that conclusion. And we tend to try to explain away evidence that leads away from that conclusion. …