[Sidebar] October 14 - 21, 1999

[Features]

Down by law

Some innocent people are convicted for crimes they didn't commit.Is Derick Hazard one of them?

by Ian Donnis

[Derick Hazard] Some people view the conviction of any accused criminal in a courtroom as conclusive proof that the person is guilty. I once worked at a newspaper in Massachusetts where my supervisor, a Brown alumnus who was fond of quoting Herodotus, exemplified this outlook. And so, it was hard not to notice whenever there was another story about the exoneration of someone like Anthony Porter, who spent 17 years in an Illinois prison for two murders he didn't commit -- and came within two days of being executed in September 1998.

Although some observers may still maintain images of a flawless judicial system, it's increasingly difficult to ignore the reality that innocent people are sometimes found guilty of crimes they didn't commit. Just how often this occurs is virtually impossible to say. But thanks in particular to the growing use of DNA evidence, it's clear that wrongful convictions happen more frequently than most people would like to believe.

The Innocence Project at the Cardozo School of Law in New York City, which reexamines dubious convictions, has documented more than 60 cases since 1988 in which the use of DNA has resulted in overturned convictions. In Illinois, where 11 death row inmates have been exonerated -- and 11 executed -- since 1977, the situation has prompted lawyers' groups, a state supreme court justice and others to call for a moratorium in the use of capital punishment.

Prosecutors describe wrongful convictions as extreme rarities. And some conservatives contend that the criminal justice system is weighted toward freeing the guilty to ensure that innocents are not mistakenly convicted. But in a country where 1.8 million people are incarcerated in state and federal prisons, even a minute percentage of wrongful convictions translates into a lot of people. If just 0.5 percent of convictions for serious crimes are mistaken -- as was suggested in a 1996 Ohio State University study that polled judges, prosecutors, police and public defenders -- it would mean that some 10,000 people are wrongfully convicted in the United States each year.

"It's a major public policy problem," says David Protess, the Northwestern University journalism professor who has played a role in the exoneration of Porter and seven other people. If the percentage of wrongly convicted defendants is 1 percent -- a figure that Protess believes to be low -- "it still means that there are more wrongly incarcerated people in America's jails and prisons than are incarcerated in most countries of the world."

DERICK HAZARD'S CONVICTION for a drive-by slaying in South Providence on July 18, 1996, remains incomprehensible to Hazard, his mother, Trenda Hazard, and his girlfriend, Toni Fortes. One day, they say, he was in Columbus, Ohio for a family get-together, relaxing, fishing and having fun. And then the word came in a telephone call from Fortes that Derick was on television back in Rhode Island, a suspect in the shooting death of 17-year-old David Andrews.

During Hazard's Superior Court trial in July 1998, the state's case rested on one eyewitness, Andre "Bucky" Williams, who testified that Hazard, 27, was one of the shooters who opened fire on Andrews from a maroon Ford Taurus as he walked near Lockwood Plaza. Hazard, who did not testify, was backed by a small group of people who testified that he was in Ohio when the shooting occurred. After two days of deliberations, a jury found Hazard guilty, and he was sentenced to spend the rest of his days at the Adult Correctional Institutions in Cranston.

Spurred by protests staged by Hazard's supporters outside the State House and attorney general's office, the Providence Journal examined the case and turned up about a dozen additional people who supported his alibi. Reporter Tracy Breton also partially corroborated another part of Hazard's alibi, which was not introduced during his trial: a southbound car rented by Toni Fortes, which Hazard said he was driving in, was stopped in New Jersey by a state trooper on the morning of the day that Andrews was killed.

These findings prompted Providence Mayor Vincent A. "Buddy" Cianci Jr. to order Providence police to reopen their investigation of the case. The revelations sparked other unusual developments -- former Governor Bruce Sundlun sought out Trenda Hazard at her home, and a former state assistant attorney general, J. Richard Ratcliffe, volunteered to represent Derick Hazard on a pro bono basis. For their part, state prosecutors maintain that they got the right man (of two other defendants in the case, Troy Lassiter was also convicted, while David Roberts was acquitted).

The state's case hangs on the testimony of Williams, who initially told police that he couldn't see who gunned Andrews down. He later testified that he recognized three of the four occupants of the Taurus, identifying them as Hazard, Lassiter and Roberts. Although Williams has indicated he came forward because his grandmother told him to do so, his action may have been something other than an act of conscience; Williams was arrested and held without bail for failing to answer a subpoena to appear at Hazard's trial, and a parole violation against him was dismissed after he decided to testify. Ratcliffe describes Williams as "an alleged eyewitness who, at best, could have seen very little," on the night when Andrews was gunned down.

There's also the fact that eyewitness identifications -- which can appear authentic to jurors because of the seeming confidence of a witness -- are often mistaken. Eyewitness misidentification was the main cause in 52 percent of 205 wrongful convictions reviewed by the three academics who wrote Convicted But Innocent: Wrongful Conviction and Public Policy (Sage Publications, 1996). But while the fallibility of eyewitness identification is well known among lawyers, lay people are largely uninformed about it and judges are disinclined to allow expert testimony on the subject.

The question of whether Hazard deserves a new trial will be decided in the coming weeks by Judge Dominic F. Cresto, who presided over his original trial and a three-day hearing last month during which new evidence was presented.

Among six new witnesses who testified, Edward E. Stuart, an Ohio state auditor, said he spoke with Hazard by telephone at a friend's house in Columbus on the night that Andrews was slain. Trooper Kevin Vieldhouse of the New Jersey State Police was unable to confirm that Hazard was in the car that he stopped in Hackensack, New Jersey, on the morning of the day that Andrews was killed. But part of Vieldhouse's testimony -- that he stopped a car occupied by three black men and gave a written warning to Kyle Hazard, Derick's brother -- rebutted the prosecution's argument that the Hazard family left Providence the morning after Andrews' slaying to create an alibi for Derick.

Winning a new trial is difficult, particularly through the use of new evidence, in a system that prioritizes finality of judgment. But Ratcliffe believes that Hazard would have been found innocent if the additional information presented during the hearing was introduced during his trial. Like Hazard's family, Ratcliffe is perplexed by why the jury voted to convict.

It remains unclear why information about the traffic stop and the additional alibi witnesses was not presented during Hazard's trial. Lawyer Vincent J. Oddo Jr., who represented Hazard at the time, offered conflicting information to the Journal about when the Hazards told him about the traffic stop, and he says they never told him which state it occurred in. Oddo did not return calls from the Phoenix seeking comment.

Other than alluding to bad blood between different groups of young men from South Providence, Mount Hope and the West End, prosecutors didn't specify a motive during Hazard's trial for why he would want to kill Andrews. They also argued that the witnesses who buttressed Hazard's alibi, including his mother and brother, Kyle, were not credible.

Hazard grew up in the Hartford Park housing project as one of six children of Trenda Hazard, a single mother. Although he once served time for a burglary in Connecticut, his family and Ratcliffe say there's nothing in Hazard's background to indicate a likelihood to commit a violent crime. Fortes, the mother of Hazard's two children, says in the time before his arrest he had a job cleaning restaurants and was coming to grips with his responsibilities as an adult.

In a 1998 interview at the ACI with the Journal, Hazard acknowledged that he was good friends with Troy Lassiter and David Roberts, the two men he was charged with. But he said he was framed because a good friend of his, the late Michael P. "T-Bone" Franks, implicated two men who were charged (and later acquitted) in a 1996 murder in South Providence.

In defending their case during last month's hearing, prosecutors Randall White and Stephen DeLuca challenged the credibility of some of the new witnesses, suggesting their memories were less than reliable. Asked why the state opposes a new trial for Hazard, given the doubts that have been raised about his guilt, Jim Martin, spokesman for Attorney General Sheldon Whitehouse, said, "You're talking about media reports, and it's a media report that questions that. And I think we answered that very thoroughly in court."

IT'S RARE FOR A FEW WEEKS to elapse these days without a startling revelation in the New York Times or other newspapers about a person who has been exonerated, often after serving years in prison, for a crime they didn't commit. The Boston Globe, for example, reported last month that authorities are pursuing new evidence that might clear Donnell Johnson, a borderline gang member, who has spent five years in prison since being accused and convicted in the fatal shooting of a 9-year-old boy in Boston's Roxbury section on Halloween 1994. It's the third murder case in Massachusetts this year in which new information has come to light that could reverse a conviction.

In Rhode Island, Martin says veterans of the AG's office tried to determine whether a person has ever been wrongly convicted in a capital case. The closest instance anyone could recall was one in which a murder conviction was overturned by a Superior Court judge before being reaffirmed by the state Supreme Court. "I think the fact that there has been no capital case overturned for conviction speaks for itself," Martin says.

Other observers are less sanguine about the outlook. Harvey Silverglate, the criminal-defense lawyer in Boston (and occasional contributor to the Boston Phoenix) who is seeking a new trial for Jeffrey MacDonald, the former Green Beret doctor convicted in the Fatal Vision case, says wrongful convictions are frighteningly common. Silverglate points to the 69 people released from death row in the last 26 years -- about 1 percent of the 6000 people sentenced to death during that time -- as evidence of deep flaws in the criminal justice system.

If these kinds of errors are made in death penalty cases, where the system is presumably more careful, Silverglate says, "You can imagine then the percentage of wrongful convictions in other cases." And since more than 90 percent of criminal cases are plea-bargained, "There's obviously a higher percentage of innocent defendants than from the entire group of those who go to trial," he says.

In recent years, the advent of DNA evidence has increasingly enabled science to confirm or dismiss claims of innocence. Most typically used in rape cases, forensic DNA can determine with a staggering likelihood whether trace amounts of blood, semen or skin came from a particular individual.

The number of innocents exonerated through DNA "tells us that our system is generating more mistakes than anybody really wants to believe," criminal-defense lawyer and DNA expert Barry Scheck told the WGBH-TV program Frontline in 1998. "It's not that surprising. When you have a criminal justice system where most of the people charged are indigent, and the resources that the state gives them to fight their cases are meager, where public defenders are overburdened, where court-appointed lawyers get $500 for a felony case or $1000 for a death penalty case, why is it such a shock when things go wrong?"

But Stephen P. Nugent, director of the state Office of the Public Defender, says public defenders for poor defendants in Rhode Island are in no way handicapped by a lack of money. Citing a recent $1 million increase in the agency's budget, to $5.1 million, Nugent says he "can't think of a case, frankly, in this office -- whether it's a case of a psychiatric expert or a DNA expert -- where we have not been able to retain the services of an expert because of a lack of resources."

Staffed by 29 trial lawyers, the public defender's office has what could be an onerous caseload of more than18,000 defendants a year. But Nugent says the public defenders -- "the best defense lawyers in the state" -- are experienced, dedicated lawyers who offer high-quality representation for their clients. He noted that David Roberts, the only defendant who was acquitted in the murder of David Andrews, was represented by a public defender (Derick Hazard and Troy Lassiter were represented by private counsel).

"I do think the justice system operates well in this state, and there really haven't been any cases where, years later, there's been some kind of DNA testing which has shown someone has been in jail for many, many years for a crime they did not commit," Nugent says. He describes state appeal rights as part of a robust system of "checks and balances that allows for convictions to be challenged."

But despite growing awareness about the extent of wrongful convictions, some observers feel the national situation is deteriorating because of unchecked misconduct by police and prosecutors, diminishing state and federal appeals rights, the weakening through privitization of public defender services in many states, and the bulking up of what some refer to as the prison-industrial complex.

In a 1997 report, the Death Penalty Information Center of Washington, D.C., found that the danger that innocent people will be executed is getting worse. While the annual number of exonerations of people on death row has increased to 4.8, up from an average of 2.5 from 1973-93, efforts to speed the use of the death penalty mean that the average innocent death row inmate would be executed before his innocence is established, according to the center. Meanwhile, federal funding for 20 death penalty resource centers, which helped to clear some of those freed from death row, was eliminated by Congress in 1996.

Even the use of DNA faces sharp opposition in some cases. Only two states, New York and Illinois, have laws which require prosecutors to reopen cases in which DNA might overturn a conviction. The New York Times recently reported that a high-level commission appointed by Attorney General Janet Reno urged prosecutors to be more willing to reconsider cases where DNA evidence might make a difference.

Todd Gaziano, a senior fellow in legal studies at the Heritage Foundation in Washington, D.C., contends that our criminal justice system lets even more than 10 guilty people go free to guard against the possibility of one innocent person being convicted. Gaziano cites the involvement of citizens in grand juries, the right to trial by jury, the requirement that guilt be proven beyond a reasonable doubt -- usually with unanimous agreement among jurors -- in criminal cases, and the right of defendants to remain silent as just some of the factors that give an edge to the accused.

If only a few dozen people have been exonerated in a country where 1.8 million people are imprisoned, "It shows that the system is working fairly well," Gaziano says. "Maybe that is an argument that it is an overwhelming success. The numbers . . . don't necessarily suggest that the system is broken."

Defenders of the status quo also cite exonerations of the wrongfully convicted as evidence that the system works. But of the 69 people freed from death row since the mid-'70s, most were not discovered because of the normal appeals process, according to the Death Penalty Information Center. Rather, the cases came about because of new scientific techniques, investigations by reporters, and the work of expert lawyers who are not available to the typical death row inmate. Critics suspect that many other instances of wrongful conviction have gone undetected.

Observers like Silverglate and Stephen Brown, executive director of the Rhode Island chapter of the American Civil Liberties Union, say misconduct by police and prosecutors is common. Their view that prosecutorial misconduct goes largely unpunished was backed by a Chicago Tribune report in January, billed as the first study of its kind, which found that at least 381 defendants nationally have had a homicide conviction thrown out since 1963 because prosecutors concealed evidence suggesting innocence or presented evidence they knew to be false. Although the US Supreme Court has declared such misconduct to be so reprehensible that it warrants criminal charges and disbarment, none of the prosecutors was convicted of a crime or barred from practicing law.

Paul Logli, a prosecutor in Rockford, Illinois, and a board member of the National District Attorney's Association, contends that prosecutorial misconduct is rare, and that when it does occur, it usually does not constitute a crime. "I would say that any time a prosecutor would cut corners like that or violate his obligation, there all kinds of disincentives -- a conviction can be reversed and trying a case is never easier the second time," Logli says. He maintains that disciplinary action, disbarment and criminal prosecution are real threats for prosecutors who engage in misconduct.

Logli says his office and many prosecutors are putting more scrutiny on the early part of the process -- police investigations and the development of criminal charges -- to try to ensure the integrity of the process. He also has high hopes for the ability of national fingerprint and DNA databases to identify criminals. "No one wants to look back on a case in their career and say, `We convicted the wrong person,' " Logli says.

But he adds, "I am not sure how we are ever going to avoid every possibility of a wrongful conviction, given the human nature of our system."

STORIES ABOUT BEING wrongly accused form a small subgenre of American popular culture. Think: The Fugitive, To Kill a Mockingbird, Anatomy of a Murder, Twelve Angry Men, the Rashomon-like Courage Under Fire, and The Thin Blue Line, which began as a documentary about an overly zealous Texas prosecutor and wound up freeing Randall Dale Adams, a death row inmate who had been wrongly convicted. In a nation where so much importance is placed on the rights of the individual, these narratives appeal to our ability to identify with a person wronged by the system. Implicit is the notion that if it can happen to someone, it can happen to anyone.

But although crime has dropped precipitously throughout the '90s in a host of major American cities, our society remains saturated by reports of the latest in a seemingly ceaseless string of horrors -- the serial killer on the train, the schoolyard shooter -- sparking an exaggerated sense that violent crime is pervasive and none of us are really safe. In such an atmosphere, it's easy for people to be callous and unconcerned when it comes to the treatment of criminals, even those who are actually innocent.

The death penalty is somewhat different. The finality of capital punishment, and growing awareness of the system's fallibility, have prompted calls for moratoriums in some states (although, as The Associated Press recently reported, 18 states have executed 76 inmates, making 1999 the most lethal year on America's death rows since 1951, and there are still three months to go). And the case of Mumia Abu-Jamal, convicted of killing a Philadelphia police officer in what critics call an unfair trial, shows how capital punishment can bring together a coalition of protesters representing diverse interests.

In Providence, grassroots support for Hazard has led to the development of a new group, the Campaign Against Wrongful Convictions, which hopes to become involved in similar cases. "I really think the action on the streets -- the protests, the rallies -- have been what is central to this," says John Osmand, a member of the International Socialist Organization, who helped to establish the campaign after learning about Hazard's case. "Where we are today has been from the actions of taking it to the community."

Liberals and conservatives each blame fear and panic for a national wave of dubious cases in the '80s involving purported sexual abuse at day care centers. But for the most part, the issue of wrongful conviction and the plight of people who claim to be wrongly convicted resonate only with a relatively small band of academics, reporters, activists, defense lawyers and civil libertarians, who tend to identify as left-leaning.

C. Ronald Huff, a professor of criminology, law and society at the University of California at Irvine who co-authored Convicted But Innocent, thinks the ideological divide on wrongful conviction is harmful and stems from public misunderstanding. "The average person thinks, if we got the wrong guy, he probably did other things, and I'd rather take the trade-off and [put him away]," Huff says. "What they don't realize is that when they convict an innocent person, the real offender is still out there and victimizing people. It's been labeled a liberal issue, when it's really a public safety issue. Most people don't stop to think about that."

It was my perceived leftish impertinence in writing about Benjamin La Guer, who has maintained his innocence since being charged in a 1983 rape in Leominster, Massachusetts, that used to unnerve my dogmatic former supervisor -- the one who believes everyone and anyone convicted of a crime is absolutely guilty. Never mind that the case against La Guer was weak, and evidence of ethnic slurs being uttered during jury deliberations emerged after his conviction. Never mind that La Guer would have likely been freed years ago had he chosen to accept a plea bargain. Never mind that a broad coalition -- which includes minister Don Muhammed of the Nation of Islam, the American Jewish Congress, Boston University chancellor John Silber, and various gay and lesbian groups -- has supported La Guer in his effort to receive a new trial.

In the same way, Derick Hazard's plight has attracted support because people are concerned not with ideological labels, but questions of justice.

"You like to think the system always works," says Ratcliffe, the former state assistant attorney general who is representing Hazard. "I worked within the system for a number of years. It's frightening when someone is convicted who may well be innocent. It's obviously the exception, rather than the rule, but it does happen."

Ian Donnis can be reached at idonnis@phx.com.

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