When will we ever learn?

Two news stories reported in today’s L.A. Times should be linked to appreciate their full import.

First, well hidden on page A12, is a report of “2 Innocent men freed in ‘79 rape and killing.” In yet another revelation triggered by DNA testing spurred by The Innocence Project, two men who served 30 years for crimes they did not commit were exonerated by a Mississippi court.

Since many of our Draconian laws have responded to anecdotal evidence, you have to wonder what it will take to change the public’s attitude about rape. The true incident of "The Scottsboro Boys“ and the dramatized fame of "To Kill A Mockingbird” wasn’t enough to raise skeptical eyebrows when black men are accused of rape, especially (but not exclusively) in the south.

I’ve reported several of these cases before:
A death row inmate cleared.
A personal acquaintance was freed after serving years in prison.
Alaska justice.
Post Mortem.

The second report involves the ongoing saga of Bruce Lisker, whose ironic connection to my own life I have previously observed. Lisker was released after a lengthy hearing by a federal judge who determined that he was wrongly convicted of the murder of his adopted mother in 1983. She ruled that his lawyer failed to adequately investigate evidence that pointed to a different suspect and noted that the police detective apparently committed misconduct in the investigation. Lisker was freed after 26 years in prison, while the prosecution decided whether to dismiss the case.

Now, the L.A. District Attorney’s office, which is notorious for its refusal to admit its own errors, is urging the Attorney General to seek his re-incarceration, by appealing to the 9th Circuit. The legal grounds for the appeal would be the hyper technical one that Lisker missed a deadline in one of his habeas corpus writs over the many years of his efforts to gain a retrial.

The law relating to habeas corpus writs, the traditional last resort of prisoners claiming injustice, has been stiffened to severely restrict access to the courts. The purpose was to assure "finality" in the system and to bring an end to multiple appeals and writs, in other words, to encourage speedier justice.

The nagging question that has been argued ever since is what about the inmate who isn’t just complaining that his or her conviction was wrongful because a perceived “technicality” i.e., a violation of some ephemeral constitutional right, but is strongly asserting his or her actual innocence, willing to accept the burden of proving it, as by DNA evidence or other convincing proof?

The 9th Circuit (claimed by conservatives to be the most liberal appellate court) recently denied release of a prisoner whose child molesting conviction was overturned by a district court, ruling that he was in fact innocent, on the ground that his habeas writ was “untimely” because he had failed to meet the stringent deadlines for filing his papers.

Will the California Attorney General try to apply that ruling to Lisker’s case? The A.G. has decided to delay deciding, to study the issues more fully. Lisker’s lawyer suspects the decision might have something to do with Attorney General Jerry Brown’s run for governor (and L.A. D.A. Steve Cooley’s run for the A.G. job).

That crime is a political football is no shock. In our democracy, politicians gain no benefit by asserting the rights of convicted criminals. This is particularly true this year of the tea party, the neo neo John Birch Society.

DOA: Post mortem DNA

In 1985, a Texas Tech co-ed, Michele Mallin, was raped.

Eventually, police arrested a suspect, an African American named Timothy Cole. They put his polaroid photo with five mug shots. Mallin now claims that his photo stood out like a sore thumb and police told her that he was a violent criminal. She identified him again in a live line-up.

Cole claimed innocence, turned down a plea bargain for probation. After his conviction and sentence of 25 years in prison, he was told that his release on parole depended on his expressing remorse, which meant admitting his guilt. He refused.

In 1999, Cole died in prison, from respiratory illness. He was then 39 years old.

In 2008, The Texas Innocence Project tested DNA in the Mallin case. It was matched to Jerry Wayne Johnson, who is serving life in prison for other rapes. Johnson then confessed in the Mallin case.

In a court hearing, Johnson apologized to Cole’s family. So did Mallin. The Lubbock County D.A.’s office did not participate in the hearing.

The state judge expunged Cole’s record.

Source: Los Angeles Times, 2/7/09.