Storytelling, Experience and Prosecutorial Misconduct: A Response to a Reader E-mail

A couple of days ago, I received the following email from a blog reader in response to my blog post about using a Youtube clip of a story from the television series Breaking Bad to help students see good storytelling in action: 

Interesting - Please relate your views of story telling with your recent posts concerning perceived prosecutorial misconduct in criminal proceedings and put all of that in context to the trials you have either prosecuted or defended.  Would also be interested in civil experience.

Please be specific to assist us in assessing your analysis.  Would you agree that experience is the best teacher?  Looking forward to your continued analysis.  

This is an intriguing email. I found it thought-provoking. The author asked me to link some subjects together in a way I hadn't thought of before, and so I've spent the last couple of evenings thinking about how to relate storytelling with my thoughts about perceived prosecutorial misconduct. 

Context

Let me start with the context question. Nearly all of my live courtroom experience (to this point) occurred during my service in the United States Army JAG Corps from 1995 to 2006. During that time, I was a trial counsel (military prosecutor) for about 18 months at 10th Mountain Division and Fort Drum, New York, a defense counsel at Fort Drum for about a year, and a senior trial counsel for a little more than six months at Fort Riley, Kansas. I also served as a part-time military magistrate at Fort Riley for over two years, conducting pretrial confinement hearings and issuing search authorizations. In addition, as the chief of administrative law at Fort Riley, I was a legal advisor to numerous summary court-martial officers.  

As with any young JAG officer with a similar service profile, I had many opportunities to try courts-martial before military court-martial panels (sometimes called military juries, though the term is a bit misleading) and military judges.  I also tried a number of administrative board hearings, both as a "prosecutor" (the Army term for the prosecutor in an administrative board is "recorder") and a defense counsel. I didn't keep track of the numbers of cases I handled in these positions, but I would estimate that I was involved as counsel in several dozen courts-martial (this includes both fully contested cases and guilty pleas--which also contain a contested sentencing phase) and a couple dozen administrative board hearings. 

The last four years of my military career I was stationed at the US Army JAG School in Charlottesville, Virginia. I taught evidence and trial advocacy in the Criminal Law Department there, taking over for Charlie Rose when he left the JAG School to become the Deputy Staff Judge Advocate at Fort Eustis. (As an aside, Charlie and I have been close friends for close to fifteen years now, ever since we first met at a US Army Trial Defense Services conference in 1998.)

During my time in the military, I had the opportunity to receive some of the finest advocacy training available in the United States. I believe the Army's Criminal Law Advocacy Course, which I took as a young captain and taught several times as a young major, is one of the premier advocacy courses available anywhere. In addition, as both a prosecutor and a defense counsel, I had numerous opportunities to participate in additional advocacy training opportunities and conferences. 

As a defense attorney, I was well-supervised, had a manageable workload, and had access to investigative and research resources that were truly top-notch. If I needed something, it was available to me. Sometimes I'd have to file a motion and work hard to get it, but the military takes its criminal justice system seriously, and looking back on it, sometimes I'm amazed at the resources that were available to me.

During my time in the military, I personally faced just one case that, in my opinion, involved prosecutorial and investigative over-reaching. I would not say that case involved misconduct, just a level of obtuseness and indifference that could very well have led to the conviction of an innocent man, physical evidence to the contrary notwithstanding. 

The case involved a false confession to a rape.  As a defense counsel, I was able to hire, at government expense, one of the top three confession experts in the United States to assist me. Because my caseload was manageable, I had the time to research and prepare my case, and I prevailed at trial. A few days after the trial, one of the military jurors approached the chief of military justice at the installation and delivered a reprimand for even bringing the case to trial in the first place. Although there was physical evidence linking someone else to the rape (and no physical evidence linking my client to it), the government steadfastly refused to consider the possibility that anyone else could have committed it. After all, my client had confessed! No one confesses to something they didn't do!

I fervently hope that I never committed prosecutorial misconduct. I do know that I was a much different prosecutor my second time in the position. After serving as a defense attorney, I was much less interested in filing lengthy charge sheets against an accused. I think my case analysis skills and ability to consider justice from different angles improved as a result of my defense experience.

I do not believe my experience in the military was exceptional in any way. For the most part, the military justice system is a fair system in which the rights of the accused are scrupulously protected. There are exceptions to this general rule. I believe the Bradley Manning case, currently being tried, may well be one of them.

Since leaving the military, I've taught evidence, trial advocacy, criminal law, and military law (as well as a few other subjects from time to time) at the Southern Illinois University School of Law. I joined the Illinois bar in 2009. Since then, while trying to do all the things a new professor must do to obtain tenure, I've worked pro bono on the rehearing of  a murder case and a DUI case. Both cases ended in guilty pleas (full disclosure--my co-counsel and I withdrew from the murder case for one of the few reasons one can withdraw from a criminal case shortly before the guilty plea, although we were on the case for nearly two years and several motions hearings). In both cases, in two different jurisdictions, I felt that the prosecutors handling the cases were fair to my clients and represented the interests of justice very well. 

I have never tried a civil case, although I am currently co-counsel on a civil qui tam case that is in its early stages. I have been an expert witness in one civil case, which was settled not long after the parties finished deposing all the experts.

The Innocence Project and My Views on Wrongful Conviction

A couple of years ago, our law school became involved in the Illinois Innocence Project. The Project is headquartered at the University of Illinois at Springfield and also includes all three public law schools in Illinois (Northern Illinois, University of Illinois and Southern Illinois). It is also part of the National Innocence Network. My colleague Bill Schroeder and I are the faculty advisors for the program at SIU. Our students read and evaluate requests for assistance, analyze case transcripts, search for evidence, interview witnesses, file motions and work in all phases of post-conviction relief and the executive clemency process. 

It is impossible to be involved with the innocence movement and not realize that there is a very real, and empirically quantifiable, problem with the criminal justice system in the United States. To learn of these cases and situations has been an eye-opening experience for me, because as I said earlier, I do not personally have any experiences with actual prosecutorial misconduct. At last year's Innocence Network conference in Kansas City, nearly 200 exonerees attended. I had the opportunity to talk to many of them, and I asked them what they thought about their defense attorneys at trial. Not very many positive comments came from those conversations.

Brandon Garrett, a professor at the University of Virginia School of Law, conducted empirical research on 207 cases in which innocent people were convicted and later exonerated by DNA. His book, Convicting the Innocent, does a fantastic job of analyzing the causes of wrongful convictions. Among those causes is prosecutorial misconduct and ineffective defense work. 

I believe that wrongful convictions constitute only a minority of the convictions in the United States. As my friend Bill Schroeder says, "Ninety-five percent of criminal defendants are more or less guilty of ninety-five percent of the charges against them."  Indeed, our students' experience in evaluating wrongful conviction claims for the Project is that most such claims are without merit.

Nonetheless, DNA exonerations have opened many peoples' minds to the fact that innocent people can be--and have been, much more often than we would like to believe--convicted of crimes they did not commit. So, what does storytelling have to do with this?

Storytelling, Prosecutorial Misconduct and Wrongful Convictions

I personally believe that storytelling may be at the root of wrongful convictions resulting from prosecutorial misconduct. When a prosecutor (or any attorney, for that matter) chooses a  story that is not fully supported by the evidence, the investigation, trial, and post-trial process become a series of efforts to validate the story. Justice and the truth take a back seat to the story. 

Stories are powerful. They matter. The wrong story, unsupported by or in spite of the facts, can have a powerful impact nearly impossible to overcome.

As an example, last January, a group of law students and I presented a petition for a posthumous pardon to the Illinois Prisoner Review Board for a man named Grover Thompson (link to stories here and prior blog post on the case here).Grover, who was crippled and walked with a pronounced limp, was convicted in 1982 of aggravated battery of a woman in Mount Vernon, Illinois. She lived in a basement apartment and reported that an intruder came through the window, stabbed her while she was getting out of the shower, leaped back up through the window when a neighbor responded to her cries for help, and escaped. She identified the intruder as a black man. Unfortunately for Grover Thompson, he was the closest black man available. Just minutes after the stabbing, someone remembered seeing a black man sleeping in the lobby of a nearby post office. This was Grover. Despite the fact that he had no blood on his clothing and could not physically have either made it into or out of that basement window, he was convicted of the crime and died in a maximum security prison 16 years into his 40-year sentence. Grover always maintained his innocence, from the first time police approached him to his death in prison.

The defense attorney in the case put on a good defense. He had Grover walk to the witness stand, demonstrating the limp (one leg was considerably shorter than the other), and Grover testified that he didn't do it.  But it didn't matter. The prosecution's story was that a black man had committed the stabbing, and the physical disability of this black man and impossibility of committing the offense was immaterial. The story was what was important.

Many years later, a cold case investigator in Carbondale discovered that Timothy Krajcir, a convicted serial killer and sex offender who committed a string of rapes and murders in a three-state area during this time frame, had actually committed this assault. Krajcir has since confessed to the assault, providing details that were never released to the public and that only the assailant could have known. Krajcir drew, from memory, more than 20 years later, an accurate map of the bathroom and the window.  Krajcir was extremely athletic and could easily have entered and exited the basement as described by the victim. Though he is Caucasian, he was dark-complected and was often described as dark-skinned or black by survivors of some of his sexual assaults.

The initial response of the Mount Vernon police to Krajcir's confession was that Grover Thompson must have boasted about the stabbing to Krajcir while they were both serving time at the same maximum-security prison and that Krajcir was confessing to get attention. The likelihood of Krajcir--who was Caucasian--and Thompson, who grew up in Mississippi during the Jim Crow era--developing such a relationship in a maximum-security prison is slim at best. Krajcir had, by the way, already confessed to a number of other unsolved cases, every one of which was verified by investigators.

The point is that years later--even when confronted with an actual, credible confession to the contrary--the original story still held sway. A black man had assaulted the victim. Residents had seen a black man within walking distance of the crime scene. A black man was at the described location. Therefore, the black man police found must have been the assailant. Never mind the inconvenient facts, the physical impossibility of this black man committing the offense, or the fact that a dark-complected white man actually did it. The initial narrative was--and to the minds of some, remains--all-powerful.

To me, this case and others like it are why stories matter so much and why storytelling is so important at trial. I maintain, however, that the story must be accurate, and it must be supported by the evidence. This is where prosecutorial misconduct in a criminal case--whether it is withholding evidence, ignoring exculpatory evidence, falsifying evidence, or misrepresenting evidence--is so egregious. These prosecutorial sins are used to create powerful stories that have real impact on the lives of others.

Experience as the Best Teacher

I think there is much truth in the adage that experience is the best teacher. In our modern era, however, we must recognize that many of our students will not be able to obtain the volume of experience of past advocacy masters. This is particularly so in the civil arena, where relatively few cases ever make it to trial. 

Furthermore, outside of well-funded governmental agencies, opportunities for training outside of law school are increasingly limited. Law firms aren't paying for training as they once did. Many public agencies have limited training budgets.

As educators, we have to provide training that can meaningfully prepare students to practice law--to tell stories and be good advocates--and that substitutes for experience. One of my recent graduates got a job at a prosecutor's office in the area. She had taken trial advocacy and been on the trial team, which gave her more trial experience than many of the newer members of the office. Within a week or two of starting the job, she had her first jury trial because of the experience level she had obtained in law school. None of the other younger attorneys in the office felt competent to take the case. This is not an uncommon experience; I've heard similar stories from many graduates in the past few years.

I think the era in which lawyers can learn at a client's expense has passed. This creates a tremendous responsibility, and opportunity, for those of us who teach advocacy.