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A Prosecutor Saying You’re Innocent is Apparently Not Enough

Jack Daniel McCullough was convicted in 2012 of the 1957 abduction of a young girl in Illinois.  It was a sensational unsolved mystery and cold case that appeared to have been closed successfully in 2012, against all odds. Few cold cases are ever successfully prosecuted.    Now a new District Attorney, the successor to the one who prosecuted McCullough, says he believes “clear and convincing evidence” exists that McCullough was wrongly convicted.  In the criminal justice system, the DA has to prove a defendant is guilty beyond a reasonable doubt.  This District Attorney is saying he is strongly convinced that McCullough is factually innocent.  Not that there is not enough evidence to convict him beyond a reasonable doubt, not that there is some technicality which should make McCullough go free, but that he is strongly convinced McCullough is, in fact, innocent of the charges that put him prison.

Most non-lawyers would think that the DA could then just call the prison and have this innocent man released.  Nope, this is just the beginning of post-conviction proceedings that could last a very long time.  It’s astonishing, and shows the stubborn, frustrating formality of the system, that Mr. McCullough will likely spend much longer in prison as this issue is litigated.   One would understand additional process and procedure were it an interest group, or family members of the Defendant, or lawyers from other jurisdictions saying the conviction was mistaken.  But this is the DA, a person naturally, institutionally biased to see guilt and favor protection of the community in close calls, saying his own office made a mistake.  Now, there is a wrinkle, in that it is a successor DA saying the previous DA made a mistake, and I’m not aware if there’s more of a story there than it at first seems.  But this new District Attorney, Richard Schmack, isn’t just saying that there wasn’t enough evidence, he’s saying he’s strongly convinced that McCullough is innocent.  In my experience on both sides of the criminal justice system, it’s much more likely that a DA would zealously prosecute a weak case because of a gut feeling of a defendant’s guilt, than an elected District Attorney would stick his neck out to free a (hypothetically) dangerous and hated criminal to score a point against a former rival, for example.    And so when Schmack came out and said that McCullough was innocent, that has power and credibility.    And so it must deeply hurt Mr. McCullough hear the court simply take a deep breath and ask for more (months? years? of) litigation.

But I’m not a post-conviction lawyer, and I do not practice in Illinois.  Even as a Colorado criminal defense lawyer, however, this story has clear takeaways.

First, being innocent is not enough.  Innocent people are regularly convicted.

Second, the evidence of the facts matter more than the facts.  And it’s not just what evidence exists, it’s what evidence is admitted at trial.    There are numerous complex rules of evidence, and they have many related purposes, such as limiting the scope and complexity of litigation, and ensuring the reliability of the evidence that is considered at trial.  But in the context of a criminal case, the most important purpose of the rules of evidence is to safeguard the due process rights of a defendant.  And so it’s frustrating where, as it appears here, that the rules of evidence keep out apparently credible and relevant evidence of innocence.  In the McCullough case, it appears volumes of evidence were kept out by the prosecution and judge because they were inadmissible hearsay.  But these were investigative reports by the FBI that seemed to support McCullough’s defense.  A defendant has a right to confront witnesses against him, so hearsay reports shouldn’t be admissible against him unless the underlying fact-witnesses are available for cross-examination.  But it is a curious situation where publicly-trusted bodies like the FBI create reports for the state, but the state prevents the defendant from using them at trial.  The devil is in the details, and there may have been some legitimate reason for this, but it is always fishy anytime a prosecutor objects to exculpatory evidence that was collected or produced by its own side (whether state agents or their star witnesses).  And yet it happens all the time, at levels high and low.  Prosecutors are tasked with seeking justice, not winning at all costs, which may be the approach that McCullough’s prosecutor took.  It is refreshing to see a District Attorney like Richard Schmack take a close look at this evidence, even if it points to a serious error by his office.

Third, with very rare exceptions, trials by judge are not better than trials by jury.   McCullough was convicted in a trial to the court (a judge, rather than jury decides guilt or innocence). And there are a lot of reasons for preferring a jury.   A jaded career prosecutor would argue that it’s easier for a defense lawyer to pull the wool over a juror’s eyes, than it is to do smoke and mirrors with a judge.  But I think the reality is that there are many more reasons why a judge is no better than a juror at deciding a case.   For starters, some judges get jaded, like prosecutors, to the constant parade of guilty people in their courtrooms, and can have an institutional bias favoring the state.   A judge may also fear the public opinion fallout should he acquit a hated defendant accused of a heinous crime.  Jurors have lots of biases, too of course, but their biases can be screened somewhat, and are further diversified by having 6 or 12 of them on a panel.  Few jurors are ever targeted personally or professionally for their decisions in major cases, unlike judges.  Jurors may feel the passions of the community and instinctively side with the prosecution, but often enough the judge is subject to that same, or worse, pressure.

The story of Jack McCullough is a cautionary tale.  The most important of which is that, when you’re charged with a crime, being innocent is not enough.  Get the best lawyer you can and prepare for a tough battle.

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