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“The Wrong Man” by Michael Mello University of Minnesota Press 586 pages, $29.95 Of all the defense attorneys writing about the incarceration of innocent men and women, Michael Mello is probably the most intemperate. Yet his latest offering, “The Wrong Man,” which appears at first to truck in exaggerations, holds up factually for the most part and, thus, is an important corrective to the conventional wisdom. For decades, the conventional wisdom has sounded like this: Men and women are almost never wrongly accused in the U.S. criminal justice system. Law enforcement officers, prosecutors, expert witnesses, lay witnesses, jurors and judges do the best they can, and their best is pretty good. Wrongful convictions are rare, executions of innocent prisoners don’t happen because so many safeguards are in place in capital cases. And when an error does occur, it results from honest people making honest mistakes, not from incompetence or malice. Furthermore, the eventual release of innocent prisoners shows that the system does indeed work. That conventional wisdom has been retailed by almost everybody inside the criminal justice system, as well as by most academics and journalists who speak and write about such matters. Until recently, it has been retailed by most books about the phenomenon, books that considered as a body of work could be called “the literature of wrongful conviction.” The conventional wisdom is beginning to crumble, and none too soon. The proof is irrefutable that thousands of innocent men and women have been convicted in the United States. Not technically innocent because of some procedural glitch at trial or because of ineffective defense counsel. No. Innocent. As in: They had nothing at all to do with the crime. Let’s get something straight here, to counter the inevitable charges of knee-jerk liberalism, of law-enforcement bashing. Are most inmates guilty of the crimes for which they are incarcerated? Yes. Are most law enforcement officers, prosecutors, witnesses, jurors and judges doing the best they can to sort out guilt from innocence? Yes. But is the number of wrongful convictions tolerable? Absolutely not. Four years ago, Mello published “Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment” (University of Wisconsin Press). The title and subtitle seem unfortunate in retrospect. Because they emphasize Mello’s anti-death penalty position, the book probably seemed easy to dismiss by readers who believe the death penalty is not unwarranted. Those who passed up “Dead Wrong” as a result of its cover never learned that Mello’s position is based not so much on ideology as on the near certainty that innocent defendants have been executed by the state. Mello believes the only sure way to halt mistaken executions is to abolish the death penalty. “The Wrong Man” has no hint of Mello’s anti-death penalty position in the title or on the cover, which means it stands a better chance of attracting philosophically diverse readers. After all, who can oppose fixing a system that convicts innocent people? Mello, who teaches at the Vermont Law School while representing clients from time to time, builds his book on one case he is still handling, a case mentioned frequently in “Dead Wrong” — but not the centerpiece of that book. It is the case of Joe Spaziano, convicted of murder and rape in two Florida trials and sent to death row. Mello entered the case in 1983, not long after graduating from law school. Idealistic, Mello decided he could help society most by becoming a public defender handling capital cases. By then, Spaziano had spent seven years on death row. After reviewing the evidence, Mello, not experienced enough to spot the telltale signs, believed his client was indeed guilty. But the more Mello learned about how to find flaws in the prosecution’s case, the more suspicious he became. As in many wrongful conviction cases, police lacked physical evidence linking the accused to the crime — no DNA, no fingerprints, no blood, no fibers. Police also lacked eyewitnesses and possessed no confession. It appears that police investigators at some point decided Spaziano must be the perpetrator. Once that decision was made, they rationalized away information that pointed to at least two other viable suspects. The so-called evidence allowed at trial consisted of hearsay testimony from individuals who had no direct knowledge of the murder and reasons to dislike Spaziano. As Mello learned the tricks of the trade, his skepticism about Spaziano’s guilt grew. Then, in 1985, Mello became dead certain about Spaziano’s innocence. Why? An investigator working with Mello discovered audiotapes in the attic of a police detective who had worked the 1976 rape and murder of Laura Lynn Harberts, whose body had turned up near a trash dump adjacent to Spaziano’s trailer. The tapes had been made by police during sessions in which they hypnotized and coached Anthony DeLisio, a troubled teen-ager with a criminal record and plenty of reasons to help frame Spaziano. Law enforcement officers had told Spaziano’s legal team that the hypnosis tapes had been destroyed. Not true. So, tape in hand, Mello located a juror from the trial. She signed an affidavit saying the jury had not trusted DeLisio’s testimony in the first place, would never have convicted Spaziano had they known about DeLisio’s hypnosis, and, in fact, harbored grave doubts about Spaziano’s guilt all along. Those doubts explained why the jury recommended against the death penalty. Spaziano ended up on death row when the judge ignored the jury’s recommendation. Mello figured anybody listening to the tapes would immediately want to free Spaziano from prison, then shift gears to search for the actual killer of Harberts. What Mello failed to understand in 1985 is the importance of finality and face-saving in the criminal justice system. Once a defendant is deemed guilty, the case is almost always considered closed in the minds of the only people legally empowered to right a wrong — the prosecutor, the trial judge, and appellate judges. The word “finality” gets mentioned a lot during an actual innocence challenge, as in “finality is important to the victims and their families,” as in “finality is vital if the public is going to maintain trust in the system.” What the evangelists of finality ignore is that victims and their families want to see the correct person punished, that trust is eroded by innocent men and women in prison while the actual perpetrator is at liberty. As for face-saving, it is almost unheard of for police, prosecutors, and judges to say publicly that they made a mistake. So Mello should not have been surprised when appellate courts refused to consider the new evidence. As Mello says, “They ignored the tapes by relying upon a legal technicality — in essence, the judges said we should have found the tapes earlier. Because the state succeeded in hiding the tapes for a decade, we could not convince the courts to consider them at all.” To anybody without Mello’s inside knowledge, Spaziano probably seemed like an obvious choice for a murder conviction. He belonged to the Orlando Outlaws motorcycle brotherhood. He had not been right in the head since an automobile nearly killed him as he crossed a street in his hometown of Rochester, N.Y. After recovering from the accident, he accumulated a criminal record almost surely because of a personality-altering brain malfunction. Convinced that Spaziano was not a murderer, Mello kept finding ways to get back into court. But he kept running into Judge Robert McGregor, the judge who had presided over the original murder trial. McGregor was in no frame of mind to rule favorably on Spaziano’s post-conviction motions, especially not after overriding the jury’s recommendation for a life sentence and placing the defendant on death row. So, in mid-1995, after losing appeal after appeal, after reading decision after decision that said finality trumps considering evidence of actual innocence, after studying the U.S. Supreme Court decision in Herrera v. Texas, in which a majority seems to say actual innocence is not sufficient to erase a previously rendered death sentence, Mello gave up on the criminal justice system and “became, in a way, an outlaw lawyer.” Mello took his information to Gene Miller, a Miami Herald editor who, as a reporter two decades earlier, had helped free two innocent men from prison. Mello knew that Miller, nearing age 70, rarely even considered getting involved anymore. Furthermore, Mello knew the Herald frequently supports the death penalty on its editorial page. Mello hoped to turn such apparent hurdles into an advantage — Miller and the Herald would exude credibility in a case like Spaziano’s. But how to get Miller and his newspaper to make such a commitment of time, money, and psychic energy? Mello begged Miller: Please look at the evidence; unless a powerful force outside the legal system intervenes, Spaziano will be executed in less than a month. Miller paid attention. He handed off the assignment to reporter Lori Rozsa. Her independent reporting led to stories suggesting Spaziano’s innocence and to the recantation of a key witness who had either lied knowingly or unknowingly while hypnotized. While Rozsa was investigating, Mello burned many of his bridges to the system, publicly castigating individual cops as rogues; prosecutors as rabid; defense lawyers on the case other than himself as inept; the governor as playing the politics of death with perfect pitch; judges as cowardly and having tunnel-vision. All that commotion won Spaziano a reprieve from state-sanctioned death. It did not, however, win Spaziano freedom from prison — even after Judge McGregor had to recuse himself from post-conviction relief motions and a judge taking a fresh look at the evidence ordered a new trial. Instead of police and prosecutors admitting any weaknesses in their performance, they found a way to indict Spaziano anew. Then a state appellate court refused to grant post-conviction relief to Spaziano in a rape case that occurred prior to the murder, a case in which the same teen-aged witness, DeLisio, had perjured himself, then recanted his testimony. Given all that, when prosecutors offered Spaziano a chance to plead no contest to second-degree murder in exchange for an end to the death sentence, Spaziano said yes. Mello had mixed feelings — pleased his client would not be executed, angry at the continuing miscarriage of justice. “The death penalty warps our legal system. … Perhaps the ultimate deformity is an innocent man pleading no contest to avoid execution for crimes he did not commit,” Mello writes. For now, Spaziano remains in prison because of the prior rape conviction, however tainted it is. If future cases like Spaziano’s lead to executions, Mello will not be surprised. “Innocent people are sentenced to death and executed in the United States,” Mello writes. “It’s as inevitable as the law of averages and the fallibility of legal institutions devised and administered by humans.” Steve Weinberg is leading a team under the auspices of the Washington, D.C.-based Center for Public Integrity that is investigating prosecutorial misconduct across the nation. He can be reached at [email protected]

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