Odds stacked against the wrongly convicted

Imagine living in a 32 sq.ft. room.  Your only furniture is a cot with one blanket, a television set, and a hot plate.  You have one light that you control, but there is another just outside your room that is on 24 hours a day.  The walls are three-foot thick reinforced concrete and there is one small window to let daylight in.  This is your life space for several years to come.

This is prison and, for those who have been wrongfully convicted, it’s a living hell.

After my interview with Melissa Lewkowicz from Investigation Discovery's hit show Reasonable Doubt, I wanted to delve into the legal injustices of Tennessee and Kentucky focusing primarily on Tennessee.  What I found was quite shocking and disturbing. 

There have been 2,045 exonerations throughout the United States accounting for more than 17,770 years served and life lost for those wrongfully convicted, according to the National Registry of Exonerations.  Tennessee and Kentucky combine for 36 exonerations and 376 years served.  However, only 2 exonerations were full-blown exonerations based on Tennessee statutes.

In my research, there were numerous stories detailing alleged police corruption, racial injustices, and even judges who allegedly had sex with defendants.  It's no wonder the Daily Beast ranked Tennessee as the most corrupt state in 2010 and a Harvard study ranked Nashville as one of the most corrupt capitals.  In November 2015, the Center for Public Integrity gave Tennessee an 'F' ranking for judicial accountability and an 'F' ranking for our ethics enforcement agencies not doing their jobs.  No more do these rankings stand out more than in the 2005 “Tennessee Waltz” scandal where four sitting state lawmakers were arrested on bribery charges.  If we can't trust our lawmakers to do the right thing, how can we expect our policing agencies and legal counsel to do what's right?

In the gay community, we have faced legal injustices for decades.  We've been the subject of profiling, harassment, and abuse.  Think back to Stonewall.  The riot began because the police departments decided to raid a known gay bar.  People were subjected to bathroom checks to determine their “true” gender.  This was considered “normal” in the 1960's.  In my research I found numerous stories detailing how the FBI and police departments would keep lists of known homosexuals, the places they frequented, and even kept lists of people who were friends of those who were gay. 

I spoke with Nashville criminal defense attorney David Raybin, one of the only few attorneys to get a full fledged exoneration for a client.  I asked him about his experience with injustices in the Tennessee legal system. “I have had several evidentiary hearings for one of my clients convicted and on death row,” he said. “He was given a new trial by a jury and was acquitted at the second trial, but the parole board decided I didn't put enough proof to show he was innocent and denied it.  In another case, I have clear DNA and the parole board refused to recommend exoneration and the Governor has it under advisement right now.  Exoneration requires a much higher degree of evidence to achieve that million dollar gold ring, so to speak.” 

The exoneration process in Tennessee is simple and complex all at the same time. “Exoneration in Tennessee is a statutory procedure whereby only the Governor can grant you an executive exoneration,” said Raybin. “Whereby he states that you are innocent of the crime and that you are granted an exoneration.  Only the Governor can do that and there really isn't a standard.  The only standard is that the Governor finds the person did not commit the offense.  And the effect of that is twofold.  The first thing is of course once you're granted an exoneration you're immediately eligible for expungement of your conviction.  And secondly, it is a ticket to the Board of Claims of Tennessee and you can go to the Board of Claims and file a claim for wrongful incarceration.  And the Board of Claims can award you up to eight million dollars for wrongful conviction.” 

Now there are always two sides to every story and I tried to speak to a prosecuting attorney, but wasn't able to get one on the phone.  So I gleaned information from a story the Nashville Scene published this year which discussed how overloaded the case load is for the prosecuting attorneys.  This in turn, caused one man, John Hernandez, to make a decision.  Either forfeit his right to a speedy trial or forfeit his right to an attorney.  This is just one of the many injustices in the legal system of Tennessee.

This story also cited The Spangburg standards which state prosecuting attorneys should only be handling 500 misdemeanor cases a year while in actuality they are handling up to 1,000 cases each.   One other story I read had a prosecuting attorney who stated wrongful convictions occurred less than 2% of the time.  Raybin has a different number in mind.  “My estimation as a practitioner, I would say, that it's somewhere in excess of 5-10%,” he said. “But a more realistic assessment is there may be people who have been convicted of more than they've actually done.  In other words, you're speaking of the instance where a person's not even there [at the crime] to do anything.  There may also be instances where people have shot someone, for example, and they actually did it, but they're not guilty of first degree murder which is what perhaps the jury convicted them of.  And so therefore they've been over-charged or over-convicted.  I consider those people still part of the same universe as those who are improperly charged or don't do [the crime] at all.”

To get another perspective to this story, I talked to John Morrison, who was a correctional officer for a maximum security prison in Kentucky.  He views things quite differently.  He says attorneys fight for inmates’ rights to have television with cable, electronics, and even guitars with real guitar strings that can be used as a weapon.  They have access to indoor and outdoor exercise rooms, basketball and hand ball courts, free education, and free healthcare all at the taxpayers’ expense.  When I asked him if he believed any prisoner could be innocent of their convicted crime, he replied, “no.”  He said most prisoners were multiple offense convicts and repeat offenders who didn't want to get out.  He went on to say the best quotation he had ever heard was one stating, “criminals rely on the compassion and understanding of society.”  To him the taxpayers have the real injustices thrust upon them and convicted criminals are right where they belong. 

But why are there so many exonerations in Tennessee and Kentucky?  DNA played a part in a few cases, but a vast majority of injustices were due to false or misleading evidence, perjury or false accusation, false confessions, inadequate legal defense, official misconduct, and mistaken witness identification.  The exonerated individuals were convicted of crimes ranging from conspiracy to rape and sex-trafficking to murder with sentences ranging from one year to death.  Twenty of the individuals were white males, two were white females, thirteen were African-Americans, and one individual was Asian.  As people are not questioned about their sexuality I wasn't able to determine how many of these individuals might be part of the gay community. 

A government survey found that approximately 40% of gay state prisoners were abused sexually by another inmate.  However, this doesn't account for abuse by staff members.  It also doesn't account for those inmates who were raped and did not report the abuse.  Federal estimates show more than 200,000 youths and adults are sexually abused in prison by inmates and staff.  The typical answer to prevent this is to place those who identify as LGBT in solitary confinement violating the inmates’ rights to a safe place.  In solitary confinement there are no windows, according to Morrison.  There is a cell door and another door outside of the cell separating you from the population.  There are lights with bars on them that are on 24/7, and you get no sleep because of the noise and the lights.

My research found that a large percentage of the LGBT youth and transgendered community have been in prison and it's due to police bias, abuse, and profiling.  The National Transgender Discrimination Survey says 16% of transgender adults have been to prison while another study showed that 13-15% of LGBT youths are in juvenile detention centers throughout the United States.  

So how do we as a public stop these injustices?   We watch and support shows like Reasonable Doubt and make our voices heard.  We cry out against the system so new regulations are lined up and enforced.  We ask how are these people charged in the first place and why were they convicted against all odds?  We fight for leadership that recognizes us as a community and recognizes our passionate pleas for justice.  For us, silence means we don't exist at all and that's not good enough. 

President Barack Obama said it best when discussing LGBT rights: “We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still, just as it guided our fore-bearers through Seneca Falls and Selma and Stonewall... Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal as well.”




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