Legal and social exoneration: the consequences of Michael Toney's wrongful conviction.

• Author: Vartkessian, Elizabeth S.

1. INTRODUCTION

   In the last twenty years increasing scholarly attention has been devoted to understanding the causes and consequences of wrongful convictions. (1) This research has added enormously to our collective understanding of how the criminal justice system can sometimes fail to detect, convict, and punish the responsible party and instead focus its limited resources on securing the conviction and sentence of an innocent person. (2) Our ability to identify some wrongful convictions has been greatly assisted by advances made in DNA technology. (3)

   The use of DNA evidence has been pivotal to the discovery and release of numerous innocent men and women from prison. (4) Yet, as other commentators have pointed out, reliance on DNA evidence to designate innocence has confused our understanding of what it means to be innocent, wrongfully convicted, and exonerated. (5) The use of DNA evidence to prove innocence has likely given some members of the public pause when considering whether an accused is guilty. (6) However, it has also made society increasingly expectant of such proof in relation to claims of innocence. (7) This is concerning since most criminal cases do not actually involve DNA evidence. (8) Moreover, the emphasis on DNA has, in some cases, made it more difficult for those who have been wrongfully convicted and eventually exonerated without the benefit of such evidence to obtain social acceptance of their innocence. (9) For those who have been released due to other factors such as the use of junk science, eye witness misidentification, or prosecutorial misconduct, (10) members of the communities to which they return may continue to call into question their innocence in spite of their exoneration. (11)

   Researchers are just beginning to investigate the unique set of challenges facing the exonerated as they attempt to rebuild their lives after release. (12) In particular, pioneering research has identified similarities in the experiences of the exonerated and victims of state harm. (13) Such a comparison helps to clarify how the state can play a central role in creating and intensifying the problems faced by the wrongfully convicted (14) in the aftermath of release. Conceptualizing exonerees as victims of state harm helps to capture the array of challenges faced by those who have been wrongfully convicted and imprisoned. (15) In addition, it enables a broader discussion about the responsibility of the state to protect the welfare of the exonerated by taking steps to ease their transition back into the free world. This article expands on this growing area of research into exonerees as victims of state harm by providing a case study of statements by public officials in the aftermath of exoneration. Through an analysis of public comments in the aftermath of the exoneration of Michael Roy Toney, the 134th person exonerated from death row in the United States, (16) we discuss how public statements made by the state may impact public perceptions of the exoneree as wrongfully convicted, thus potentially increasing the challenges they face after exoneration and release.

   In 1999, Mr. Toney was convicted and sentenced to death for killing three people in what was at that time "the longest-running unsolved bombing investigation in the [nation]." (17) Nine years later, his conviction was vacated due to numerous Brady violations. (18) The Attorney General of Texas subsequently dismissed the indictment and Mr. Toney was released from custody. (19) As discussed in the next section of this article, although the indictment was dismissed because there was no credible evidence of Mr. Toney's guilt, the nature of his exoneration and the reaction by public officials cultivated unwarranted doubt about Mr. Toney's factual innocence even after the charges against him had been dismissed. (20)

   Section two discusses how public statements made by state officials served to impede Mr. Toney's reintegration into society, providing an opportunity to examine what it means to be "exonerated." Interestingly, another individual was exonerated from Texas death row shortly after Mr. Toney on the basis of similar prosecutorial misconduct. (21) However, the public statements made by officials in Anthony Graves' case were very different. The statements provided by public officials in Mr. Graves' case serve as a sharp contrast to those made in Mr. Toney's case, which called into question the exoneree's innocence. (22) They also serve as a good example of how, in an exoneration that does not involve DNA evidence, favorable public comments by the state and the victim's family, and positive treatment by the media is needed to persuade the community of the exoneree's factual innocence. (23) This is in contrast to exonerations that involve DNA, in which factual innocence is often not called into question.

   Throughout the article, we take a closer look at the tension that exists in defining factual innocence in light of a non-DNA exoneration. We argue that in addition to the need for terms such as exoneration and innocence to be more precisely--and perhaps institutionally--defined in order to better understand the extent of wrongful convictions within the criminal justice system, we must also ensure that those who have been exonerated do not continue to be victims of their wrongful conviction. With the increasing privileges given to exonerations linked to DNA evidence, practical steps should be taken to protect exonerees who have no such evidentiary support. Thus, in section three we suggest that after exoneration state officials have an obligation to abide by the same ethical rules which regulate their conduct during a criminal investigation. When an indictment has been dismissed and a person released from prison, the state should not be free to invite undue speculation about an exoneree's innocence, but instead should have the same obligation to respect the constitutional presumption of innocence as it applies in any other criminal case. (24) Accordingly, we suggest that while the use of state bar grievances and the pursuit of defamation claims against state officials and media outlets who have failed to protect the social aspect of exoneration might be useful tools in curbing the continued victimization of exonerees by the state in individual cases, states should afford affirmative protections to the exonerated. We also suggest that given the growing number of known wrongful convictions, additional empirical research into the responses of the state and coverage of media in the aftermath of exoneration ought to be conducted in order to better understand the nature and extent of the harm caused to the exonerated in the aftermath of release.

2. WRONGFULLY CONVICTED AND EXONERATED

   What does it mean to be exonerated? At its most basic level exonerate means to unload. (25) The concept of unloading or unburdening is related to the concept of responsibility. A person who is released from carrying a burden can no longer be said to be responsible or accountable for it. (26) Likewise, in the law a person who is exonerated can no longer be said to be responsible for the act they were once accused of committing. (27) While there are variations of the definition, we suggest that given the etymology of the term, the definition set forth by the Death Penalty Information Center ("DPIC") is most closely related to the principal meaning of the word--the removal of responsibility for an act that a person was once accountable for. (28) DPIC includes cases in which a person has either: (a) been acquitted of all charges related to the crime that placed them on death row, (b) had all charges related to the crime that placed them on death row dismissed by the prosecution, or (c) been granted a complete pardon based on evidence of innocence. (29)

   Critically, the criteria outlined above only speak to the legal aspects of exoneration. However, as the origins of the word indicate, to become unburdened is to leave liability behind. Thus, while current conceptions of exoneration revolve around how best to classify whether a wrongfully convicted person can rightly be viewed as an exoneree, there is a social element to exoneration which is not codified and often forgotten.

   1. From Suspect to Wrongfully Convicted

      On Thanksgiving Day in 1985, a briefcase containing a pipe bomb was left on the porch of a trailer home near Lake Worth, Texas. (30) The residents of the trailer home opened the briefcase, resulting in an explosion that killed three family members. (31) The Bureau of Alcohol, Tobacco, and Firearms ("ATF"), who had jurisdiction over the case, surmised the bomb had been placed at the trailer by mistake and was perhaps intended for a different trailer. (32) After briefly focusing on a troubled teenage suspect who was rumored to have boasted about delivering the bomb, the investigation ran out of leads and tapered off in 1987. (33)

      At the time the bombing occurred, Michael Toney, who was not a suspect during the initial investigation, (34) was then aged nineteen and living with his girlfriend, Kim, twenty-five miles away. Mr. Toney worked construction jobs and committed petty thefts with his then good friend Chris. (35) Chris and Mr. Toney subsequently had a falling out and parted ways, not seeing each other again until Mr. Toney was being tried for capital murder fourteen years later. Mr. Toney and Kim married in early 1986, but were divorced within three years. (36)

      After the Oklahoma City bombing in 1995, (37) the ATF redoubled its efforts on solving outstanding bombing cases. (38) It put together a task force consisting of investigators from the ATF, the Texas Department of Public Safety, and the Tarrant County District Attorney's Office. The renewed investigation offered a reward for information, and soon began receiving tips pointing them back to the original suspect the ATF had investigated in 1986-87. In 1997, the Tarrant County District Attorney began...