In 1989 New York City was rife with crack houses, crime was at an all-time high that didn't peak and then subside until four years later, and Ed Koch, the three-term mayor who ran on a law and order platform, was serving his last year in office.
It was a time of public outcry about crime, political posturing over a losing drug war, and media hyperbole. Which is cause and which is effect is debatable. Maybe it doesn't matter, because in the end, when the sweep is over and the outrage subsides, stasis sets in with the belief that justice has been done.
By the time William Lopez was released from prison on January 23, 2013, he had already spent 23 1/2 years locked up for a crime he didn't commit. Knowing he was innocent was hardly comforting, but he tried to make the best of a rotten situation. He earned a paralegal certificate through a correspondence course and became a law clerk in the prison facilities where served.
The months stretched to years as he worked on proving his innocence, a Sisyphean task designed to be difficult and burdensome, but Lopez refused to give up. Eventually, Lopez was able to get a judge to look at his case again ... and again ... and then again, each time meeting another barrier. And while his uphill battle continued, he remained in prison,
The first breakthrough came in 2003. In an extremely unusual ruling, the federal judge who previously had dismissed his case procedurally because it was late, reversed himself and agreed to give Lopez an opportunity to prove his innocence. The judge assigned Lopez a court-appointed attorney and an investigator, and the investigation continued on. Seven years later Lopez contacted The Jeffrey Deskovic Foundation for Justice for investigative assistance. The not-for-profit organization, founded by exoneree Jeffrey Deskovic , was established to help free the wrongfully imprisoned. But it was still a long shot.
Lopez's conviction was based on the testimony of two eyewitnesses. One could not identify Lopez in court and the other was a crack addict who changed her story several times but at trial claimed that she saw Lopez commit the murder. Truth was the latter witness had been given leniency for her testimony and walked out of prison two weeks later. That detail had been withheld from both defendant and jury. But there was another witness, one who had not testified and had since been deported to the Dominican Republic. The Deskovic Foundation utilized its ties to a law firm in the Dominican Republic as a starting point and ultimately was able to locate the witness and obtain a sworn statement from him. The witness also testified in court via Skype at an evidentiary hearing.
The judge reviewing the case agreed that Lopez had been denied effective legal counsel, that there was sufficient evidence of innocence, and that he should be exonerated "with apology." You would think that would be the end of the nightmare. But it's not.
When you're accused of murder and linked to drugs, prosecutors and the cops are more than happy to add each case to the statistics that imply their success. No matter the thin evidence, the lack of competent counsel or the prosecutorial misconduct. They got their man, and if you ask, they'll tell you there's no doubt that the defendant is guilty.
But most people don't ask. They assume justice is done because someone has been locked up. Case closed.
The Law & Order TV series piloted the year of Lopez's arrest. The time was ripe to portray the prosecution as the hero, helping to solve the crime problem, working hand-in-hand with the police to clean up the streets. One of the longest running prime-time shows, both the original and its offshoots remain popular. But neither the headlines from which the series is ripped nor the script itself portrays the flaws of a shockingly broken system.
The Lopez case is a prime example. From collaring Lopez for the crime with no physical evidence to his assigned attorney who neglected to call witnesses who would vouch for Lopez's presence elsewhere during the time of the crime, followed by additional inadequate and incompetent counsel throughout the trial period, to the trial judge who is rated by her peers 2.3 out of 10 and is said to stand by her decisions "regardless of new evidence presented to her"--what could go wrong?
The idea that defendants are being convicted may make the public breathe easier, but it shouldn't: for every wrongfully imprisoned defendant, the actual perpetrator remains free to strike again. It's a disturbing picture, and one that is greatly underreported--there are few major headlines to rip.
Lopez was unusually persistent, and lucky, in finally getting a fair judge to scrutinize his case. Lucky, that is, if you consider it lucky to spend a generation behind bars for a crime you didn't commit. Exonerations are hard to extract even though they are far more pervasive than is generally recognized. Wrongful convictions are not rare--they amount to somewhere between 8 and 15 percent of the prison population, which translates into over 150,000 people even if we use the low average of 10 percent to calculate the number. That's a lot of people, surely not a mere imperfection of the system or a couple of bad apples.
What's worse, no one knows the real number; the wrongful conviction rate estimate is based only on DNA evidence, and it is available only in 5 to 12 percent of all serious felony cases. Cases that do not have any DNA to test are far more difficult--and sometimes impossible to disprove. The Deskovic Foundation has its eye on both non-DNA and DNA cases, distinguishing it from most similar organizations that limit their cases to those that have DNA evidence. It's a tough job but somebody needs to do it.
But even with these extraordinary efforts and victories, the Lopez nightmare is not over. For the final episode, the script is still being written. The prosecutor who brought the case is so invested in being right that he continues to doubt the exoneration.
The Brooklyn DA's office--the same Charles Hynes who was in office in 1989--announced it is appealing Lopez's exoneration, in spite of the district judge's ruling that opened with, "the case was rotten from day one" and concluded with a litany of the problems of the case that ran from "an overzealous and deceitful trial prosecutor; to a series of indolent and ill-prepared defense attorneys; to a bewildering jury verdict; and to the incomprehensible Justice Demarest, who so regrettably failed time and time again to give meaningful consideration to the host of powerful arguments Lopez presented to her. The result is that a likely innocent man has been in prison for over twenty-three years. He should be released with the State's apology."
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