Thoughts on the Fourth of July

[Note: Friends of Justice is a personal blog. I speak only for myself.]

Dear Friend of Justice,

I have slept very badly since last Wednesday, the day I heard the awful news about Ohio’s continuing persecution of Joseph Allen — a sweet and gentle man I’m privileged to call a friend.

And now it is Independence Day, a day upon which we are supposed to celebrate our freedom. But it is hard for me to celebrate, knowing that the state has the power to snatch away the freedom of any (non-privileged) citizen. While I don’t support the Tea Party movement, I share the anger of many who do.

Sixteen years ago, Joseph and his co-defendant, Nancy Smith, of Lorain, Ohio, were convicted of committing crimes that never happened. The “evidence” against them was unreliable: the coerced testimony of small children who had been pressured to claim that Smith and Allen had done terrible things to them. The techniques used to interview these children have since been thoroughly discredited. No reasonable person could look at this case and conclude that either person was guilty.

Nevertheless, Smith and Allen rotted in prison for fifteen years. But over a year ago, they were back in court because of an error in their sentencing. At that time, Judge James Burge saw an opportunity to right a terrible wrong: he acquitted them because there was insufficient evidence to convict them. There matters should have stood.

But the District Attorney and Ohio Attorney General immediately appealed the judge’s decision.

I once heard a prosecutor say that his worst nightmare was convicting an innocent person. That is true for some prosecutors. For others, their worst nightmare is convicting an innocent person and not getting away with it.

Last Wednesday, the Ohio Appeals Court decided to let Smith’s acquittal stand but to send Allen back to prison. Their reason: in 1994, Smith’s attorney had filed a motion for acquittal but Allen’s (incompetent) attorney had not. So Joseph, who spent 15 years in prison for crimes he didn’t commit, faces the prospect, after over a year of freedom, of spending the remainder of his days behind bars.

I must concur with Dickens’ Mr. Bumble: “If that is the law, then the law is a ass.”

One of the Appellate Justices — Donna Carr — dissented from the decision. She wanted to send both Smith and Allen back to prison. She believed that allowing either to go free would cause the public to “lose confidence in the criminal justice system.”

Such Alice-in-Wonderland reasoning boggles my mind. It was the same “logic” that was used by the Massachusetts Supreme Judicial Court when it reinstated the convictions of Cheryl and Violet Amirault. The reasoning seems to be: we must retain public confidence by refusing, regardless of the facts, to admit that innocent people get sent to prison.

But it is the obstinacy and callousness of people such as Carr and the members of the Massachusetts Supreme Judicial Court that cause reasonable people to lose confidence.

I fear that America has become a nation containing two kinds of people: those who count and those who don’t. I’m happy to number myself among the people who don’t count because I don’t crave the company of the other sort.

Prime examples of people who don’t count are Joseph Allen, Bernard Baran, Victor Rosario and many others I could name. Poor people lack the resources to defend themselves against the powers of the state. And once thrown into prison, it is next to impossible to free them.

When David battles Goliath, in the vast majority of cases Goliath beats the crap out of David.

On occasion, David will get off a lucky shot.

This, fortunately, happened with Bernard Baran. Several extremely improbable events occurred that made his freedom possible. Some of these improbable events: (1) He attracted the support of Katha Pollitt, who wrote two compelling columns in The Nation; (2) his web site attracted the support of a businessman who paid a large portion of the necessary legal expenses and (3) the District Attorney who was withholding vital exculpatory evidence had a fatal heart attack while shoveling snow. Had any one of these improbable events not occurred, Baran would almost certainly have died in prison. His odds of winning megabucks were greater than his odds of winning freedom.

The cost of Baran’s freedom, by the way, was about $600,000. (Justice is a most expensive commodity.) And Baran’s efforts to obtain some compensation from the state are vigorously opposed by Massachusetts Attorney General Martha Coakley.

When a poor but innocent person has a better chance of winning the lottery than of winning freedom, then something is very wrong with the system.

I accept the fact that injustice will always be with us. Evil people will always seek power and use any means necessary to get it. And good people — if and when they achieve power — will too often be corrupted by it. Such is human nature. The bullies will always rule the schoolyard.

But even the most powerless among us still have choices, if only choices about basic values. The individual can still choose whether to go along with injustice or to resolve to resist it. And if we lack the power to resist it, we can at least bear witness to its existence, in hope that others can and will act. Those who believe we already have a just society will not strive to create one.

Happy Fourth of July.

-Bob Chatelle