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When Innocence Needs A Champion

Sedley Alley was executed by the State of Tennessee on June 28, 2006. His two children stood with arms stretched across the viewing window attempting to keep onlookers from reveling in their father’s legal murder.

The first person executed in Tennessee in 40 years, Alley had been sentenced to death for the 1985 murder of a 19-year-old marine, Lance Cpl. Suzanne Marie Collins.

Alley confessed to the crime the day of the murder, but later recanted. There was no investigation of the facts by defense; and everyone, with the exception of his family, believed him guilty. However, many believed at the time of his execution 31 years later that he was innocent.

Eighteen years after the murder, an investigator appointed by the federal public defender uncovered compelling evidence that in fact cast doubt on his guilt.

The original confession had been coerced. A witness misidentified Alley. Law enforcement investigation was negligent and perhaps even corrupt by planting evidence, and there was alleged prosecutorial misconduct: The defense investigator uncovered the medical examiner’s autopsy notes regarding a time of death during which Alley had an alibi.

Moreover, the DNA evidence collected from the victim and the crime scene was never tested. The police destroyed the evidence collected by not preserving it properly in the years following the conviction.

The case had never been investigated before trial. Would the new evidence have changed things if it had been brought up at the time? Unfortunately, we’ll never know.

What we do know is that many innocent people have found themselves behind bars. Currently, based on DNA exoneration rates, The Innocence Project estimates that between 2.5 % and 5% of the 2.3 million people currently incarcerated in the United States have been wrongly convicted. It seems a small percentage, but if true, it suggests there are as many as 120,000 people in prison who shouldn’t be there.

Wrongful convictions at such an alarming rate is evidence of flaws in our justice system. Prosecutors are overloaded with cases, and that can lead to unintentional negligence in following all the leads in a case. A former prosecutor once told me she has had as many as seven trials on her schedule in a single day.

Too often, miscarriages of justice occur when overworked prosecutors rely on police, who are also overloaded, for the case facts.

Translated into the reality of our criminal justice system, this means that any individual arrested as a result of what might appear to be incriminating evidence could become ensnared in a cycle of events that lead to a conviction—even if that evidence is questionable.

For example: a witness falsely claims you were involved; you are mistakenly identified; or there are any number of other uninvestigated false facts. Let us also not be naive to the sad reality that human error and corruption exist at all levels of our justice system. Is there a check and balance system in place to inspect and hold accountable law enforcement and prosecution?

Yes, there is: criminal defense counsel.

A good defense attorney is a prerequisite for justice. But even the best defense lawyers depend on a support team that includes trained criminal investigators who can pursue every possible lead that could prove innocence.

And that requires funds which many of the individuals who find themselves at the mercy of the justice system cannot afford. Thankfully, our government provides funds for indigent defendants in most cases; yet funds are limited and the quality of representation can be questionable when a qualified private attorney and investigator cannot be retained.

As a criminal investigator who has practiced since 2001, I have seen too many inadequately defended cases which ended in conviction thanks an attorney’s lack of experience and failure to fully investigate the facts on behalf of the defendant.

Many cases I have worked and read about fail simply because the defendant is not aware that defense investigators exist, and so he or she believes the police have investigated all the facts; and thus, they consider their attorney’s role is to simply argue those facts presented by police that are in favor of defense.

Although they are supposed to serve and protect us, police act more like an extension of the prosecution.

Even some defense attorneys do not understand the value of re-investigating a case to uncover evidence of innocence. Such was the philosophy in the Sedley Alley case. He confessed, so why investigate?

Unfortunately, police, although they are supposed to serve and protect us, act more like an extension of the prosecution. Police punish criminal activity; they do not typically investigate with the goal of uncovering innocence.

Defense attorneys must use all their resources in defense of their client. This includes doing their own investigation and carefully examining the investigation conducted by law enforcement.

I once worked on a case in which an African-American man shot and killed someone in self-defense, but was charged with first-degree murder. The lead police detective listed the victim as “white,” though he was actually Native American. The detective proudly told me he solved the case in six hours and did not need to investigate further. He bragged that he got rid of two “dirtbags” in one fell swoop (the defendant and the victim).

The young defendant’s attorney convinced him to take a plea, explaining he would never get a fair trial in a rural white town. A new attorney later took on the case, hired me to investigate innocence, and won a full acquittal.

We won because our investigation proved it was indeed an act of legal self-defense. The young man fired his weapon to stop a dangerous threat to his life and the lives of two other persons with him that night. It was not a malicious shooting.

When I tell people that I’m a private investigator, they immediately think that I follow cheating spouses around all day. Then I explain that I am a criminal defense investigator. Sadly, most people have no clue that means. Perhaps that’s because the TV detective shows that everyone loves to watch often overlook the role of private investigators for the defense.

A police investigation often focuses on collecting evidence that points to guilt. But an investigator working for the defense is looking for evidence that points to innocence (like the accuser’s history of lying, and the accused’s lack of motive, and other witnesses and facts supporting innocence that the police did not uncover).

The 1963, Gideon v. Wainright ruling by the Supreme Court established the right of every American, regardless of financial ability, to legal defense.

However, the same entitlement has not been extended to the right of having a private investigator assist in a case.

Should that be part of America’s legal canon?

Due process of law is a civil right under the U.S. Constitution and includes the element of competent assistance of counsel when facing criminal charges. Lack of investigation is a major contributing factor to ineffective assistance of counsel and wrongful convictions.

Counsel is far more likely to provide competent advocacy when the services of an experienced defense investigator are enlisted on behalf of the defendant.

Perhaps it’s worth thinking about.

Today there is an entire group of lawyers, legal experts, and law students nationwide who actively investigate wrongful convictions. But it would perhaps be less costly to the system—and a lot less traumatic to the families of accused—if that help were directed to individuals before a trial.

One small crack in the foundation of justice can result in a crevasse so deep the innocent cannot climb out. We must all do “the right thing” and ensure that diligent and comprehensive defense investigation is conducted and a zealous defense attorney is in place in every felony criminal case.

April Higuera

Investigation of the defendant’s innocence is often a missing component in achieving justice.

Guilty people belong in jail. Innocent people do not.

April Higuera is a licensed private investigator in California and Nevada, based in Reno, and the author of “Making a Case for Innocence: True Stories of a Criminal Defense Investigator”

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