The Mississippi Innocence Project, Part 2

Following up on my post yesterday, here is a link to an article in the Jackson Clarion-Ledger about last night's Mississippi Innocence Project fundraiser. The article provides additional information about the dinner and the Innocence Project, and it reports that John Grisham and Scott Turow will be speaking on Wednesday, October 24, at my alma mater, Northwestern University School of Law in Chicago. (See link to event notice here.) It's also worth noting that my former Professor Larry Marshall, now at Stanford, was also involved (along with Scott Turow) in the Jeanine Nicarico case (see my previous post). Marshall served as counsel for defendant Rolando Cruz.

With high profile scholars, practitioners and celebrities involved in the Innocence Project nationwide, and with dedicated personnel and supporters on the ground here in Mississippi, I sincerely hope that leverage can be brought to bear in Mississippi on the subject of wrongful convictions. Historically, the subject has not been a high profile issue here.

For a striking recent image from Mississippi's sole maximum security prison, Parchman Penitentiary, see this link. For more information about Parchman, which is a work farm, see here. Parchman is where wrongfully convicted Cedric Willis (see my last post) served time.

The Mississippi Innocence Project

Tonight I attended the inaugural fundraising dinner for the newly-established Mississippi Innocence Project. Originally a branch of the Innocence Project in New Orleans, the MIP is now housed at the University of Mississippi School of Law in Oxford, Mississippi. (The national Innocence Project's website is located here.) I have not had much time to reflect on the event as of yet, so this post is essentially a recounting of my observations from the evening. Not a news report per se, but also not an opinion piece. Something in between, I suppose.

I attended the dinner for two reasons. First, as I have stated before on this blog, I am the faculty adviser for the Mississippi College School of Law's student-run Public Interest Law Group (PILG). Second, I attended because Mississippi is badly in need of public interest law support. It's a poor state with a relatively high crime rate and a wide gulf between the haves and the have-nots. So organizations like the MIP need support and assistance from entities like PILG and my law school.

Tonight's keynote speakers were Mississippi author John Grisham and Chicago author Scott Turow. They were eloquent, witty and passionate, which is no surprise--but the evening's most moving speakers were Dennis Fritz of Oklahoma and Cedric Willis of Mississippi, two men wrongfully convicted of separate crimes. Fritz and Willis each served 12 years in prison before being exonerated and released. Willis's mother also was there, sitting at a table near me.

Grisham and Turow related how they became involved in Innocence Project activities--Grisham through his writing and Turow through his law practice. Grisham's 2004 nonfiction book The Innocent Man details the story of one man's wrongful conviction. Turow, who continues to practice with the Chicago law firm of Sonnenschein, Nath & Rosenthal, represented defendant Alejandro Hernandez in the infamous Jeanine Nicarico case. Grisham and Turow spoke of wrongful convictions and the dangers of certain types of scientific evidence (junk science), eyewitness testimony, and use of informants for testimony. Nothing new there, perhaps, but after all the purpose of the evening was not to present cutting-edge testimony, but rather to raise money and garner support for the cause. And given that there was a crowd of about 500 paying guests, that goal was accomplished. Not bad for an organization that is only 2 months old.

I was particularly struck by the contrast between Willis and Fritz. Willis, who is now about 32, was 19 when he was arrested and convicted. His overwhelming emotion on display was joy--joy at being free, at being proven right, at seeing something like the Innocence Project take hold in his home state. Fritz was a more conflicted figure, with compassion, anger, and sorrow on display, sometimes all at once. And who could blame him, really. It does make you ask yourself how you might react to--and indeed how you might survive--12 years of incarceration. It is one thing to hear about wrongful convictions, or to concede the logic that a system based on reasonable doubt can make egregrious errors. It is quite another to meet people who have been wrongfully convicted and hear their stories.

For me, one occurrence put tonight's event in perfect perspective: I said hello to Scott Turow and had no idea who he was. Didn't recognize him. Now, I know what Scott Turow looks like. I've seen the man before, and I have seen his picture scores of times. And I went to law school in Chicago, where he is a bit of a celebrity. To be fair, he had a beard tonight, which he did not use to have. (Check out his website, on which he is cleanshaven.) But still. There I am, holding the door for famous author Scott Turow, and instead of introducing myself and trying to make a connection I just say, "Hey, how's it going?"

So much for my big moment. And so much for eyewitness testimony.

Clyde Kennard Finally Exonerated

Breaking news today--in the very same courtroom where Clyde Kennard was wrongly convicted of burglary in 1960, Judge Bob Helfrich of the Forrest (MS) Circuit Court declared Kennard innocent. The Jackson, MS Clarion-Ledger article on Kennard's exoneration is located here. This is a good--if belated--day for the state of Mississippi and the nation.

What strikes me about cases like Kennard's is how difficult they are to resolve, and how the value of their resolution gets reduced when they are not quickly resolved. (Quickly, that is, once they are finally brought up.) First, there's an egregious wrong committed years ago in the name of racism. Second, we belatedly acknowledge the wrong, but we only decide to correct the wrong when enough people play squeaky wheel. And third, even when popular support for corrective justice grows, there is not always a clear legal mechanism in place for achieving it. I addressed the procedural matters involved Kennard's case in a previous post here. It seemed that everyone agreed that Kennard was innocent, but people did not agree how to exonerate his name.

What also strikes me is that while I have only lived in Mississippi for 2 years, I already have seen more than one case of delayed justice play out in the state court system. One might say that this in itself is some sort of progress: justice delayed is better than justice denied. But the fact that such cases are still around highlights how important they are. They are a means to acknowledge and apologize for past wrongs that hold Mississippi and other US states back. And not resolving them--or finding them difficult to resolve--prevents racial reconciliation.

What do I mean? Let me put it this way. In my posts about the Kennard matter, I have not meant to suggest that people opposed to the pardon of Kennard (which was never granted) were racist. That would be a gross--and inaccurate--oversimplication. Some of the people who supported the exoneration of Kennard, including Governor Barbour, had opposed the granting of a pardon. (See the Clarion-Ledger article linked to above). Governor Barbour is of course white, as is the Chairman of the MS Parole Board, who also opposed the pardon but supported Kennard's exoneration.

Rather, what I do mean to suggest is that racial wrongs committed in the past are such important matters that they have to be handled very conscientiously and with enormous consideration. Saying, "I'm sorry, but so-and-so can't get a pardon because he is dead" may sound to one person like an objective statement of the law--but to another person this very statement may be a reaffirmation of racial bias, since fewer whites were wrongfully convicted on falsified charges. Stated differently, if we were concerned about righting such wrongs, wouldn't the legal system have better procedures in place to do so?

So perhaps it would be useful if the following steps were taken to provide a clear means of redress for wrongs such as the one done to Kennard. I have to qualify these observations by saying that I am not an expert in Mississippi law or in criminal law generally, but they seem like reasonable steps.

• First, if it has not already been done, the MS Attorney General's office should provide an official opinion regarding the legality of pardons for dead people. In this case, an opinion concluding that a pardon was legal would have allowed Governor Barbour to act within the law to clear Kennard's name. An opinion that a pardon could not be granted would have spared Governor Barbour some criticism when he stated that he opposed a pardon, since denying a pardon would not have appeared as a discretionary act. (An example of such criticism--a CBS News story--can be found here.)
• Second, if pardons were found to not be available for dead people, the Mississippi legislature should then take up the matter--either to change the rule for use of pardons or to provide other avenues for expedient exoneration as necessary.

I am glad the Kennard case has finally been resolved, but the delay in his exoneration has undercut its societal value. This could have been at least partially avoided if Mississippi had a better process in place for dealing with such cases.

More on Clyde Kennard

Following up on my May 11, 2006 post on Clyde Kennard and efforts to secure him a posthumous pardon, my colleague Professor Pat Bennett was quoted about the case in the Jackson, Mississippi Clarion-Ledger (the largest newspaper in Mississippi). That article appears here. Professor Bennett's comments respond to the Mississippi Parole Board Chairman's suggestion that a pardon is insufficient to rectify the wrong done to Kennard, and that Mississippi's lower courts should instead set aside the conviction. Bennett, who teaches criminal law and is a member of the Mississippi Bar, notes that "Procedurally, I don't see how that could happen."

So what we have here, folks, is a classic case of governmental left hand-right hand injustice. Governor Barbour opposes a pardon not because Kennard doesn't deserve one, but rather because he is dead. The Parole Board opposes a pardon because a pardon does not go far enough to right the wrong done. And according to Professor Bennett, the lower state courts cannot set aside the conviction because they lack the procedural means or authority to do so. It's like when you call a government agency and get passed from bureaucrat to bureaucrat, with each one saying, "Yes, we made a mistake on your taxes [or whatever], but I really can't help. Let me forward you to someone who might be able to." And then the next person does the same--over and over again.

So in other words, it seems that the administrative remedies in question have been exhausted here--if indeed that is a requirement for pardon in Mississippi. I do not know the precise answer to that question, and I have not researched it yet. But if either (a) the remedies have been exhausted, or (b) that is not a requirement for pardon, then I am really at a loss here. Governor Barbour likes to take strong stands, and I will concede that pardons should not be handed out willy-nilly. But this is most certainly not a willy-nilly case. There is a lot of pent-up societal pressure involved here. And pardons are by design a sort of release valve--a way to right (or avoid) wrongs by executive fiat.

Take another look at the Clarion-Ledger newspaper article linked to above. Note how it mentions that the Parole Board Chairman is white and the lone Parole Board dissenter in this case is black. This is a hot-button subject, and it is being characterized as a race issue. Some people might say that it is not a race issue, but it is hard to defend that position when it is seen as dividing people along racial lines. And frankly, if Kennard had been white he never would have been convicted. No one wins if there is no pardon or other resolution to clear Kennard's name. So what's the problem?

We Americans pardon a turkey--a bird, mind you--every Thanksgiving holiday. Can't we also pardon an upstanding and innocent man after his death?

Clyde Kennard

There are many good things about living in the Deep South. The pace of life is slower. People are generally more polite. Practically all the food is comfort food. But there are bad aspects to the Deep South, too, and the shadow of slavery and racism still looms large.

So when it was reported in the news yesterday that the Mississippi Parole Board had declined to recommend a posthumous pardon for Clyde Kennard, I just had to groan. The local newspaper article can be linked to here. Kennard, for those who don't know, was a Korean war vet who was falsely accused and convicted of burglary in 1960. His real crime? Trying--repeatedly but unsuccessfully--to enroll in Mississippi Southern College (now the University of Southern Mississippi in Hattiesburg), which at the time was all-white. More information on Kennard is available here. Parole Board Chairman Glenn Hamilton justified the board's decision by explaining that "a more appropriate and satisfying remedy may be available to exonerate the name of Mr. Clyde Kennard." In other words, the wrong done to Mr. Kennard was so egregious that a pardon is not a big enough gesture--so let's deny the pardon.

Perhaps not surprisingly, the board's recommendation against a pardon came after public statements by Mississippi Governor Haley Barbour that he would not grant a pardon, since pardons are for the living, not the dead. (Mr. Kennard died of colon cancer in 1963.) So you have to wonder whether the Parole Board caved to executive pressure. The board makes its pardon recommendations to the governor, so it could be that the board did not want to put the governor in the awkward position of denying a recommended pardon--which I understand has never before happened in this state.

I don't know. But whatever the logic, the decision is astounding. And shameful.

For the sake of argument, let's take Parole Board Chairman Hamilton at his word. Saying that the wrong was so great that pardon doesn't rectify it is like saying a crime we commit is so terrible that apologizing cannot make amends for that criminal act--so we refuse to apologize. That's ludicrous. And as for Governor Barbour's logic, it doesn't explain why President Ford pardoned Confederate General Robert E. Lee, or why other state governors have issued posthumous pardons.

I am not saying that we should not hew to rules. In the field of law, adherence to the rule of law sometimes generates unpopular results, and anyone who has been to law school understands this. The law is in many ways an imperfect proxy for morality, as is well-illustrated by the term "loophole": there is an intent behind a provision of law, but there is a way around it--a way to obey the letter of the law but violate its spirit. Yet underlying much of the law is the notion of morality. That's why we outlaw things like murder, but allow for insanity defenses. And it drives the current national debate about abortion.

The upshot here, as I see it, is that the Parole Board had discretion to recommend pardon and take a least a small step toward reconciliation between the white and black communities of Mississippi, which still remain deeply separated from one another in many ways. And the governor is not bound by law to oppose the pardon. So the pardon clearly can happen. Don't we teach our kids to say they are sorry when they do something wrong? And to put it bluntly, would we teach them differently if the person wronged were dead? Would we tell them not to apologize to their relatives or friends?

This turn of events troubles me even more deeply because this debate is all so unnecessary. Kennard should be pardoned--and other avenues of redress can be explored too. You can be sure that tonight, when I attend my law school's annual BLSA luncheon, this will be a topic of conversation--which illustrates how significant an event this parole denial is.

P.S.--At least I can say that I am proud that Mr. Kennard's case is being championed by the Center on Wrongful Convictions at my alma mater, Northwestern University School of Law. Lawyers get a lot of criticism, but in this case I am glad to be affiliated with an institution that is doing the right thing for the sake of doing the right thing.

Holocaust Survivor Gilbert Metz Visits Mississippi College School of Law

On Monday 4/24/06, Mississippi's only Holocaust survivor, Mr. Gilbert Metz, spoke to students and faculty at Mississippi College School of Law. Mr. Metz, a native of France who settled in Mississippi after World War II, talked about his experiences as a prisoner in the Auschwitz and Dachau concentration camps. His visit to the law school was, appropriately, on the eve of Yom HaShoah, or Holocaust Remembrance Day.

I first met Mr. Metz in a local cafe about a year ago. He happened to be buying a baguette (appropriately enough), and I was just getting coffee. He said hello, and we started talking. Two hours later, we were still talking--or rather, I was listening as he recounted his experiences. It stupefies me to think of the things he witnessed and the number of times he dodged death between 1943 and 1945; looking out at the law school audience on Monday as he spoke, I could see that many people had the same reaction as I did as he spoke of his family's executions and his own brushes with disease and death.

Mr. Metz is in his late seventies now, and not always in good health. I am glad he was able to visit the law school. His visit made an immediate impact. The very next day in my International Law class we were discussing International Human Rights, and it was the best class discussion we've had all semester. Passionate, thoughtful, provocative. It just goes to show that if you keep your nose in a book during law school you can master the material--but if you attend some of your school's extracurricular events like this one, you may really learn something. Mr. Metz's visit put the law in a more urgent and human context.

Other articles about Mr. Metz are available online here (a Mississippi teenager's interview of him) and here (a local newspaper article). A book about post-World War II Jewish emigres to America includes a story about Mr. Metz's early encounter with segregation. And a 1997 Mississippi House of Representatives' resolution honoring Mr. Metz can be linked to here. Sadly, and perhaps all too appropriately, the resolution died in committee.

Martin Luther King, Jr. Day

Today is Martin Luther King, Jr. Day. There is an enormous amount of commentary about Dr. King in the news right now, and rightfully so. His legacy of equality and peaceful opposition to injustice is something that has changed our nation for the better.

For my part, let me make one small but telling observation about Dr. King's legacy. What strikes me is how deeply entrenched MLK Day is in our societal fabric for such a new holiday. The federal holiday honoring Dr. King was only established in 1983, and it was not observed in all fifty states until 1999--only seven short years ago. Seven!

So just a few years ago we were debating whether there should be a full-fledged, nationwide holiday or not. Does anyone remember the song "By the Time I Get to Arizona" by Public Enemy that criticized Arizona's refusal to observe MLK Day? (PE is one of my favorite groups ever, by the way--intelligent and passionate political music.) And when I was in law school in the early 1990s, even major law schools (which are almost all liberal in outlook) did not all officially cancel classes. But today, here in Mississippi, my law school is officially closed today. And I think that is just wonderful.

So all the recent furor over whether a holiday was deserved or not has quickly faded, and rightly so. While we still have a long way to go, in an odd way that is a sort of progress.