Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

April 13, 2015

The Long Arc of Injustice

By David K. Shipler

            Earlier this month, a black man named Anthony Ray Hinton, convicted of murder thirty years ago, finally walked free in Alabama, out of death row. The finger of guilt now points to many others: not just the real killer, who may still roam the land, but also hasty police officers, blinkered prosecutors, careless ballistic examiners, politicians who won’t adequately fund criminal defense for the poor, and judges up and down the hierarchy from trial courts to appellate courts. The case is such a cold window on the dangers of the death penalty, which if carried out cuts off all possibility of revision and reversal, that it seems worth posting excerpts here of the detailed examination in my book Rights at Risk:

The law is a labyrinth, best comprehended by the high priesthood of attorneys who fashion and interpret its abstruse language. No unschooled layman, standing nakedly unrepresented before the terrible engine of the criminal justice system, can possibly fathom the hidden dangers of error—or the invisible shields that offer unnoticed protection.
Hinton’s court-appointed lawyer, Sheldon Perhacs, was given too little money to hire a reputable firearms expert to dispute the questionable findings of a police lab, and was still bitter about it decades later. The “expert” he could get for the $500 the court provided, a one-eyed retired engineer who couldn’t operate a comparison microscope, had jurors laughing in ridicule. Perhacs needed $10,000 for a qualified toolmarks examiner from New Orleans, because the case against Hinton for two murders rested entirely on a dubious lab report. It purportedly matched Hinton’s gun with bullets from the bodies, but the results were more ambiguous than prosecutors let on. Perhacs could not mount a persuasive rebuttal without a true expert.
Hinton was arrested after a string of three late-night robberies of fast-food restaurants just after closing time. Each had the same modus operandi: The manager was accosted, forced to the cooler, and shot twice. The first two were killed. The third, Sidney Smotherman, was wounded but survived after his car was hit behind as he was leaving, and he was forced at gunpoint to return to the restaurant.
Smotherman was white, Hinton black, and the old racist line, “They all look alike,” has some bearing on the unreliability of eyewitness identifications across racial boundaries. Smotherman’s description, converted into a sketch, led the police to Hinton, despite significant differences in appearance. Smotherman had described the attacker as shorter than Hinton, thinner than Hinton, and without Hinton’s scar across the bridge of his nose. The car he was allegedly driving, a dark sedan, did not resemble the red Nissan owned by Hinton, whose green Chevrolet had been repossessed three months earlier. Nevertheless, shown Hinton’s picture in a photo lineup, Smotherman picked him out. Executing a search warrant, the police found a .38 in Hinton’s mother’s house, the same caliber that had fired the bullets in the three crimes.
 Oddly, Hinton was not charged in the Smotherman assault, perhaps because he had a solid alibi. At the time of the crime, he had clocked into the locked warehouse where he worked, fifteen miles away, and didn’t leave, according his supervisor and fellow employees. As his appellate lawyers argued, he could hardly have slipped out of the monitored warehouse, switched cars, driven fifteen miles in four minutes, and then returned without anyone noticing his absence.
But the clincher for the jury came in that realm of pseudo-precision known as forensics, as easily corrupted in this case as in the FBI’s handling of a fingerprint from the 2004 Madrid train bombings, when a sloppy mismatch sent Brandon Mayfield, an innocent American lawyer, to the brink of prosecution. Here, two examiners at the Alabama Department of Forensic Science testified that all six bullets recovered from the three victims showed striations consistent with those test-fired by Hinton’s weapon. The experts did not disclose (and Perhacs did not know to request) their worksheets, which were pockmarked with gaps. In the columns where examiners are supposed to record the widths and the numbers of lands and grooves—the telltale signatures that a barrel’s rifling makes on the twisting lead—no numbers appeared: only dashes and question marks.
This is one reason that you need a real defense expert, Perhacs explained: to tell you what to ask for. “I didn’t know the existence of the worksheets until years and years and years later,” he said, despite the Brady requirement, named after the case in which the Supreme Court ruled that if prosecutors have exculpatory evidence, they must provide it to the defense.
Under the law, the trial judge could have eased the defense attorney’s workload by granting Perhacs’s requests to divide the two murder charges into separate trials, by assigning a co-counsel on each as authorized in capital cases, and by approving additional funds for an expert, which Perhacs requested. The judge, James Garrett, seemed unbothered by the obvious handicaps of the defense. He remembered the trial as fair, noting that Payne had been an expert witness in numerous product liability cases. “I thought his testimony was sufficient, and it set forth the issues that the defense wished to raise,” he told me. “Obviously the state’s witnesses prevailed, because the jury came back with a guilty verdict.” And it took them less than two hours of deliberation.
Hinton’s case seemed so extreme that it was taken up on appeal by the Equal Justice Initiative of Alabama, which used charitable contributions to hire three respected toolmarks experts at a cost of about $30,000. Each concluded independently that the six bullets from the three crimes could not be matched to a single weapon, and that none had discernible characteristics that could link them to Hinton’s gun.
When experts disagree, professional ethics require the state’s examiners to meet with the challengers to explain how they came to the original conclusion. But Hinton’s lawyer, Bryan Stevenson, said the Alabama specialists refused to do so; nor did they try to rebut the three defense examiners’ assessments.
Nevertheless, the Alabama courts kept denying Hinton a new trial until the state Supreme Court in 2008 sent the case back down for a hearing to determine whether Payne was, in fact, a qualified expert. In the lower court, the judge punted, saying she couldn’t make an independent finding different from that of the original trial judge. So the case began its long journey back up the judicial hierarchy on appeal while Hinton sat on death row, waiting.
Bryan Stevenson was able, at last, to get the U.S. Supreme Court to hear the appeal, and in 2014 the nine justices ruled unanimously that Hinton had had ineffective assistance of counsel, a violation of the Sixth Amendment. His conviction was thrown out and the case sent back to the state, where a judge granted him a new trial. After months of further delay, District Attorney Brandon Falls’s office did the testing that Stevenson had urged for fifteen years and found that the bullets couldn’t be matched. The state moved to dismiss the charges.

When Hinton walked outside, he said, “The sun does shine.”


  1. It's so INFURIATING reading cases like this! - And we KNOW there are so many more! I don't understand why there are not SEVERE PENALTIES for prosecutors who behave in this sloppy, prejudiced, dishonest way that results in innocent people being locked away for years!! Nothing is going to change until there are SEVERE PENALTIES for such heinous dishonesty!! In the meantime, it is SICKENING!!! A SHAME on this country on so many levels. It's depressing...

  2. P.S. I also believe that attorneys and judges who deal with criminal court cases should be required to spend 36 hours in a REAL PRISON to qualify to participate in the justice system. That - plus severe financial penalties for imprisoning someone based on false information or testimony - should learn 'em well! Would improve our justice system immensely!!!

  3. P.P.S. I forgot to add: And THANK YOU, DAVE! - for bringing these important subjects to the fore. You are surely doing "God's work" - as they say...

  4. Thanks for sharing this very interesting article with us. I enjoy reading your posts and hope to see more from you in the future. Have a great upcoming weekend.
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