The Exoneration Hustle Are radical prosecutors freeing guilty murderers? Thomas Hogan
https://www.city-journal.org/the-exoneration-hustle
The headline is becoming more common: “Innocent Man Freed After Decades in Jail for Murder!” As a matter of statistical probabilities, it must be true that some innocent defendants are convicted. But experienced law enforcement officials are growing concerned that progressive prosecutors are freeing guilty murderers in their rush to enforce their own politics of decarceration and equity. A close look at how this exoneration hustle works is worth reviewing because the pattern becomes clear.
The homicide facts usually look something like the following. Two drug crews in Big City, USA are having a territorial dispute about who controls a certain street corner. Sam “Bam” Suber sees rival drug crew member Mark “Shark” Trowbridge dealing drugs on the disputed corner. Bam drives up in a car and shoots Shark, killing him. The murder is witnessed by a drug addict, a sex worker, and another member of Shark’s crew. Bam borrowed the car from his cousin and has been seen with a 9 mm handgun by multiple other individuals on the criminal fringe. Because Bam simply drove up, shot Shark, and drove off, police have not recovered the gun, and they don’t have DNA or fingerprints. At trial, the drug addict and sex worker identify Bam as the shooter, with both of them facing unrelated criminal charges for drug possession and prostitution. Shark’s buddy, facing a ten-year mandatory sentence in an unrelated drug case, also identifies Bam as the shooter. Various witnesses link Bam to the car and the gun. Bam is convicted of first-degree murder and sentenced to life imprisonment. This scenario describes a typical drug-related murder conviction in the United States.
Flash forward 20 years. Bam loses every direct appeal of his conviction. He is now into collateral appeals in federal court, the endless habeas proceedings of a convicted murderer serving life. But suddenly, a progressive prosecutor is elected in Bam’s hometown. This prosecutor is a former criminal-defense lawyer who believes that no one should do more than ten years in prison and that all eye-witness identifications are flawed. How does this progressive prosecutor go about exonerating Bam, burnishing her progressive credentials?
First, get the witnesses to recant. This is fairly easy. The sex worker, drug addict, and Shark’s friend all were facing their own charges 20 years ago; they had an incentive to cooperate with the police back then. Now that incentive is gone. Moreover, these witnesses often live in the same neighborhood as the defendant, know his family and friends, and are much more inclined to be sympathetic to the living-but-incarcerated Bam than the long-dead Shark. So the progressive prosecutor simply sends investigators out to ask the eyewitnesses if it is possible that they misidentified Bam as the shooter. The eye-witnesses are happy to state that yes, it could have been somebody else. Now the progressive prosecutor can yell about witnesses recanting their statements and how unreliable eyewitnesses are.
Sound farfetched? Radical St. Louis prosecutor Kim Gardner relied on alleged witness recantations in trying to reverse a 25-year-old murder conviction, an attempt thwarted by the Missouri Supreme Court.
Of course, the progressive prosecutor still needs a legal hook to justify reversing a murder conviction. This is also fairly easy to do. Simply concede that the police or prior prosecutors from Bam’s case engaged in some sort of misconduct, or that Bam’s defense counsel was ineffective. If the prosecutor is admitting that there was police/prosecutorial misconduct or ineffective assistance of counsel, who will challenge her judgment? Bam’s current defense lawyer will happily accept the concession. The prior prosecutors and police are either long gone or not in a position to argue. Bam’s original defense counsel does not object to being deemed ineffective and may even admit to ineffectiveness to get a one-time client out of jail.
Examples? Baltimore State’s Attorney Marilyn Mosby has used the concession of police or prosecutorial misconduct to exonerate murderers. Philadelphia DA Larry Krasner brags that almost every exoneration supported by his office has been based on this tactic of admitting to prior police or prosecutorial misconduct. In one of those murder exonerations relying on alleged prior prosecutorial misconduct, the judge openly questioned whether the defendant was actually innocent and criticized Krasner’s office for a shoddy investigation but conceded that she could not stop Krasner from freeing the defendant. More recently, when Krasner attempted to reverse a death penalty conviction by admitting that the original defense counsel was ineffective, a federal judge called into question the credibility of the district attorney’s office and demanded a hearing for the DA to explain himself.
The final step in the exoneration hustle is to find a supposedly impartial outside authority to support the progressive prosecutor’s claim of innocence. It is helpful for somebody with a title to claim that they reviewed Bam’s case and declare that he is factually innocent. For instance, Chesa Boudin, the recently recalled San Francisco District Attorney, exonerated a convicted murderer after three decades “based on false witness testimony and police misconduct,” neatly fitting the patterns described above. Boudin crowed that the exoneration was supported by his Innocence Commission, chaired by law professor Lara Bazelon. What Boudin did not publicize is that Bazelon is not an experienced prosecutor or former judge giving a critical and unbiased view of potential exonerations. Instead, Bazelon is former federal defender, head of an innocence project, and persistent critic of what she views as a systemically racist criminal justice system. Bazelon has a sister who works as an aide to Krasner in Philadelphia and another sister who has been described as “the most high-profile journalist today who criticizes the broken U.S. justice system and points at unethical prosecutors as the source of its dysfunction.” Boudin’s decision to exonerate a convicted murderer was supported by an echo chamber of his own making, not a rigorous and independent review of the facts and the law.
The motivation of progressive prosecutors for falsely exonerating criminals is the same motivation that might drive an overly aggressive prosecutor to convict defendants falsely: electoral pressures. A gung-ho prosecutor may be responding to her law-and-order base, especially when she promised to “lock up the bad guys.” A progressive prosecutor may be responding to her reform-minded electoral base, particularly when she promised on the campaign trail to free scores of defendants allegedly wrongfully convicted by her predecessors or the police. In fact, Boudin widely publicized such an exoneration even as he was fighting for his political life in the months leading up to his eventual recall. Politics can taint an exoneration as easily as they can taint a prosecution.
A good prosecutor can and will exonerate a wrongfully convicted murderer. But the public needs to understand that a bad prosecutor is capable of falsely exonerating a truly guilty and lawfully convicted murderer. The next time you read about a murder exoneration, check to see if the telltale signs that I have described exist. If they do, a guilty murderer may have been released by a gullible or unscrupulous prosecutor. That is not justice.
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