By Melissa O’Connell
Melissa O’Connell received J.D. from Santa Clara University School of Law in 2003. She was one of the early practitioners with FLY, a non-profit working with at-risk youth. She was a public defender and then joined a boutique criminal defense firm practicing in multiple jurisdictions throughout Northern California. In 2010, Melissa returned to SCU and serves as a Staff Attorney and Policy Liaison for the Northern California Innocence Project, where she litigates innocence cases, supervises law students, and lobbies and testifies in Sacramento for reforms inspired by Innocence work. Melissa is also a Lecturer in Law.
“It’s like drowning. You sipped the water and then you came back up. Your body keeps going back under, but you keep fighting to rise back up. Your body hurts, but the reality is you either keep fighting and come back up out of the water or you give up and you drown.” — Zavion Johnson*, Innocent man
Imagine being a teenager; not just the awkward moments, but the moments we live to reminisce about. Now imagine being a teenager arrested, accused, convicted, and sentenced to life imprisonment for a murder you did not commit. That was the reality of Zavion, and Franky, Arturo, Obie, Armando, and countless others. We have all seen the articles celebrating an innocent person’s homecoming after decades of wrongful incarceration. These articles celebrate freedom but often fail to consider the reality of our client’s lives once they leave the cement walls. When an innocent person is freed, our society and our system think that everything is fine because justice was eventually served. But our clients are not fine. This article is an attorney’s narrative describing what I have seen our clients and their families experience and heard them say about the reality of the devastating and lasting impact of a wrongful conviction.
Lawyers who work in the criminal system, like us, do so to ensure justice is carried out for the accused and for the victims and survivors of crime. Of course justice is never served when an innocent person is convicted of a crime they did not commit. From the perspective and experience of a lawyer working to free the wrongfully convicted, it is my hope that our system and those practicing within it never become complacent in the search for justice.
The reality is that our system does not always get it right. Since 1989, there have been 2,650 exonerations in the United States. I am a lawyer with the Northern California Innocence Project (NCIP), one of three innocence organizations in the state of California, and one of 68 worldwide. We work to protect the rights of the innocent and advocate for reform in our criminal justice system. Since we opened our doors in 2001, we have helped free 31 innocent men and women who have collectively served 453 years of wrongful incarceration. Our work exposes the many injustices throughout the system.
Our cases often epitomize the problems of racial injustice and police misconduct. Black Americans are only 13% of the population, but represent 47% of those exonerated from a wrongful conviction.
These are not just statistics. This inequity and injustice in our system has devastating and lasting effects on those wrongfully convicted, their family members, and their communities. And, we have a front row seat, watching these effects play out in daily life, and seeing the struggles our clients face rebuilding their lives. The years-long battles for our innocent clients do not end when they walk free; these battles extend beyond their years of physical confinement to their years imprisoned by the psychological and emotional impact of their wrongful incarceration.
THE SYSTEM CAN GET IT WRONG
If you ask most of our clients, they will tell you that because they were innocent, they believed they would be vindicated at trial. Their loved ones shared this hope and believed the legal system would get it right. The guilty verdicts were a nightmare, an inaudible scream, that would last for decades. For our clients, the system that got it wrong is the same system that would need to acknowledge its mistake and help free them.
Innocent men and women spend years challenging their convictions, pursuing brief after brief on their own, and never losing faith that the system corrects its grave errors. They become experts in the facts of their case, savvy with running down legal research, and reliant on the best “jailhouse lawyers” to assist with the crafting of a compelling argument. And as they meet obstacle after obstacle in their legal battles, they never surrender the hope that one day they will be free.
FREEDOM VS. ACTUAL INNOCENCE
In California there are several legal habeas claims that can result in a reversal of an innocent person’s conviction, including that: the jury relied on material false testimony; counsel was ineffective for failing to investigate evidence of innocence; the prosecution or law enforcement withheld exculpatory evidence; the prosecution presented inherently unreliable evidence; or newly discovered evidence exists that, had the jury known, it more likely than not would have reached a different result.
NCIP has been successful in securing the freedom of our innocent clients based on these legal challenges. But rarely in our work does a court reverse a conviction because the client has presented evidence “that points unerringly to innocence” — the standard required to establish actual innocence in California. (In re Lawley (2008) 42 Cal.4th 1231.) In our experience, prosecutors and courts often interpret this to require that we actually identify an alternative perpetrator for our clients to be considered actually innocent. While a person lives the rest of their lives “guilty” of a crime based on proof beyond a reasonable doubt, to be considered “innocent” they must prove that they are “unerringly” so. As a result, few of our exonerated clients are viewed as truly innocent by the system or society. It sounds like semantics, but it is not. When our clients get released from prison after years of wrongful incarceration, few feel truly free without recognition that they are actually innocent.
THE REALITY OF FREEDOM
Innocent men and women come home facing similar challenges to other formerly incarcerated people. In prison they must survive the most dangerous environment, always looking over their shoulders, terrified for their lives, and stripped of their dignity. They are released with little access to resources to rebuild themselves and must explain large gaps in their work and financial history. They re-enter a world where the injustices that contributed to their wrongful conviction persist, but which have rapidly evolved in other ways while time stood still in prison. A recently exonerated client said, “my past is my present.” Despite being free, our clients are encumbered by their past. “Inside” everything was familiar — there was routine, community, discipline, and basic needs were met. But the harsh reality of living in prison is that there are life or death challenges every day. On the “outside” little is familiar. The place they once called home looks nothing like what they left. Loved ones are often gone — the family that believed in their innocence, never saw them come home. They must rebuild family and community ties, while many struggle to accept the love and affection of which they were deprived during their incarceration. Young children left behind are now adults. These lives are fractured and devastated by injustice.
However, there are also unique challenges. Our clients live the rest of their free lives struggling with PTSD, tensing at the sound of a police or fire siren, paranoid that they could be wrongfully arrested, prosecuted, convicted, and incarcerated again. There is no sense of settling in. They can spend days, and even years “incarcerated” by their own minds, trying to find answers to questions like “why did law enforcement go after me?”; “will they be accountable?”; and “how can I prevent this from happening to my own child?”
Often the greatest impediment to our clients’ complete freedom is their not knowing whose sentence they served and wondering if the actual perpetrator will ever be held accountable. Too often, once an innocent person is set free, the state chooses to simply let the matter lie, making no effort to find the actual perpetrator, thus leaving the exonerated person forever under a cloud of doubt.
COMPENSATING THE INNOCENT
Nothing can truly make our clients whole after years wrongfully incarcerated. But for those who succeed in convincing our system that they are innocent, our state does recognize an obligation to assist them in reentering the community. California is one of 35 states to have a statute that provides for compensation for the innocent. (Pen. Code, § 4900.) In California, an innocent person is entitled to $140 per day for every day of wrongful incarceration, amounting to approximately $51,000 per year. However, this does not come without additional battles for our clients. Despite years of litigation, a court’s reversal of our client’s conviction, and the state’s decision to not retry or a jury’s verdict acquitting them, to be compensated our clients still need to litigate their cases all over again to prove that they are factually innocent by a preponderance of the evidence. (Pen. Code, §§ 4903, subd. (a), 4904.) The process can be arbitrary, frustrating, and unjust. It takes as little as one year to as many as ten to get compensated and sometimes the process results in no compensation at all. Nearly 30% of innocent men and women have not been compensated by our state. For those who succeed, the financial support is vital to their ability to rebuild a life.
Despite all the loss, obstacles, and the reality of never truly being viewed as innocent, our client Zavion vows that he and other exonerees will not, in his words, be “stagnant”; that they will continue moving forward and not become irrelevant in the eyes of the system. They fight for equality and to effect change. Innocent men and women travel to the Capitol to advocate for reform to prevent wrongful convictions and support the innocent in their journey. Our clients have hosted summits for members of our state Legislature, showing our government the faces of wrongful conviction. Wrongfully convicted men and women in California have successfully advocated for laws to create transitional services for the innocent, including the nation’s first legislation that provides a stipend and reimbursement for housing for their first four years of freedom. (Pen. Code, § 3007.05, subd. (d)(2).) Innocent men and women advocate to prevent their reality from becoming another’s. In doing so, they give meaning to their tragic experience.
Our clients selflessly retell their stories and relive their trauma to fix the very system that almost broke them. We all owe it to them to hear their voices and see their faces. If we close our eyes and ears to the wrongfully convicted, we stop serving justice for all.
Join us in our fight for justice, www.ncip.org.
*Zavion Johnson was convicted of murder and sentenced to life in prison at the age of 18. Based on faulty forensic science, his conviction was reversed and he was exonerated in January 2018 after serving nearly 17 years wrongfully incarcerated.