THE MAYHEM OF WRONGFUL LIBERTY: DOCUMENTING THE CRIMES OF TRUE PERPETRATORS IN CASES OF WRONGFUL INCARCERATION.

• Author: Baumgartner, Frank R.
• Position: ARTICLES

1. BLACKSTONE'S PRINCIPLE AND WRONGFUL LIBERTY

   Writing in the Eighteenth century, English jurist William Blackstone argued that "it is better that ten guilty persons escape, than that one innocent suffer." (3) The Blackstone principle went on to become the basis for many of our criminal justice system's strict procedural rules including the beyond-a-reasonable-doubt standard required to secure a criminal conviction. (4) For many years its benefits were assumed. However, in recent years there have been renewed debates about the value of Blackstone's principle. (5) Many defenders of the principle have emphasized the harms that wrongful convictions inflict on the wrongfully convicted. (6) Debates over Blackstone would benefit from a consideration of less well-documented harms associated with wrongful liberty. Evidence of crimes of wrongful liberty thus demonstrates that the harms of wrongful conviction are greater than previously thought.

   Many arguments in favor of the Blackstone principle posit that the costs associated with false convictions are much higher than those associated with false acquittals, thus encouraging us to err on the side of acquittals. (7) Ronald Dworkin has argued that false convictions constitute a unique moral harm and criticized utilitarian perspectives on Blackstone for failing to attend to this harm. (8) Similarly, Harvard Law Professor Richard Fallon has argued that false convictions are more morally disturbing than false acquittals because the former involve the violation of fundamental rights. (9) Utilitarian defenders of Blackstone focus on the balance of harms, arguing that convicting an innocent person involves more harms than falsely acquitting a guilty person. (10) In these accounts, harms of wrongful conviction include the loss of liberty, stigma, and long-term psychological harms, all echoed by the innocence movement and increasingly well-documented by scholars. (11)

   The most common critique of the Blackstone principle is that the theory is "insufficiently sensitive to the cost of false acquittals." (12) Some critics highlight the damage false acquittals cause to victims of crimes, comparing the harms of criminal victimization to the harm experienced by someone wrongfully convicted. For example, in their paper titled "Deadly Dilemmas," Larry Laudan and Ronald Allen ask:

   In what sense can it be worse to be wrongfully convicted of murder than to be murdered?... We doubt many would share these apparent implications of the position that wrongful conviction is a worse harm than criminal victimization, at least where serious violent crimes are concerned. (13) Laudan and Allen go on to explain, "when balancing, one must decide to what extent he or she prefers false convictions to victimization." (14) These arguments present the risk of increased victimization as independent of the risk of increased false convictions. Under this view, victimization and acquittals are linked, but victimization and false convictions are discrete and in conflict. Similarly, many other critics of the Blackstone principle highlight its potential to minimize deterrence and create more crime victims. (15)

   Another line of Blackstone critique focuses on the harms false acquittals inflict on victims of crime. Considering the Blackstone principle, R.L. Lippke argues that we must also factor into our evaluation the "additional anguish experienced by crime victims whose victimizers escape all punishment." (16) As he argues, victims and loved ones who must cope with a false acquittal experience "profound disappointment and despair." (17) In the aforementioned work by Laudan and Allen, they note that acquittals result in a "failure to satisfy victims' retributive feelings [and] lack of closure." (18)

   What much of this conversation misses is that false convictions and false acquittals often have similar consequences in terms of future victimization and harms to original victims. (19) Specifically, false convictions resulting in wrongful liberty constitute a form of false acquittal. In both cases, a guilty person is allowed to go free through failures of the criminal justice system. In wrongful liberty cases, the failure is not an unsuccessful attempt to convict a true perpetrator, but the wrongful conviction of an innocent person in the true perpetrator's place. Particularly relevant to debates over the Blackstone principle, this means that when a false conviction results in a period of wrongful liberty for a true perpetrator, the harms of false conviction include many of the harms of false acquittal.

   As has been well-documented by victims themselves, wrongful conviction also harms original crime victims. Many victims face guilt and shaming for their involvement in a wrongful conviction, and those whose true perpetrators are identified can face a second, emotionally draining trial. (20) Original crime survivors are often asked to serve as key eyewitnesses in police line-up and identification procedures that are later seen to be leading and inaccurate, making them participants in a process they do not control, but which leads to a miscarriage of justice. (21) This compounds the harm of their original crime victimization, extends the harm to an innocent defendant, and leaves the true perpetrator free to commit more crimes. Original crime victims suffer re-traumatization of the original crime and trial during litigation of the innocent prisoner's post-conviction claim of innocence and exoneration process. Even without finding the true perpetrator, the process leading to possible legal recognition of error presents a severely traumatic event for the original crime survivor. (22) They are forced to confront the fact that an innocent may have paid the price for their crime. All too often, they find that the true perpetrator was never apprehended or brought to justice. (23) As documented here for the first time, criminalization of additional victims is a meaningful consequence of false convictions.

2. PROMINENT EXAMPLES OF WRONGFUL LIBERTY

   A. David Harris

   Many are familiar with the case of David Harris, whose killing of a Dallas police officer and framing of Randall Dale Adams were documented in the film The Thin Blue Line. (24) In November of 1976, at just sixteen years old, Harris stole his neighbor's car and his father's gun and drove from his small home town of Vidor, Texas, to Dallas. (25) While there, Harris offered a ride to a man he saw walking along the side of the road. (26) The man, Randall Dale Adams, had just arrived in Dallas in search of work. (27) After dropping Adams off at his hotel, Harris was stopped by police for a routine traffic violation. (28) During the stop he shot Dallas police officer Robert Wood six times with the stolen, .22 caliber pistol, continuing to shoot after the officer had fallen to the ground. (29) Harris was eventually arrested in his hometown of Vidor for driving the vehicle involved in the murder. (30) Harris framed Randall Dale Adams for the crime. (31) Though the evidence pointed overwhelmingly to Harris, he made a far less appealing defendant than the twenty-eight-year-old Adams, particularly because Harris was too young to be eligible for the death penalty. (32)

   Adams was convicted and sentenced to death. (33) He spent twelve years in prison before being released in 1989, in large part due to the publicity garnered by the now-famous documentary film about the case. (34) Though Harris admitted to the murder during the filming of the documentary, he never formally confessed to it and was never charged. (35) After this early brush with police, Harris went on to commit a number of crimes before joining the army. (36) In 1978, while stationed in Germany, Harris committed a series of burglaries, an armed robbery, and violently assaulted his commanding officer. (37) He was court-martialed and served eight months in Ft. Leavenworth Military Prison. (38) Following his release on June 29, 1979, Harris stole a car and drove to California. (39) Harris and an accomplice picked up a hitchhiker named James Filaan in San Bernardino County. (40) In the ensuing "twenty-four hours, Harris and his accomplice forced Filaan to [take part] in a series of thefts and robberies." (41) When police confronted the three during a robbery, Harris aimed his gun at one of the police officers and pulled the trigger, which misfired. (42) The three men were taken into custody and Harris was charged with armed robbery and kidnapping. (43) He was sentenced to six years in San Quentin prison. (44) While incarcerated, "[Harris] was convicted of possession of a deadly weapon by a prisoner... and was sentenced to an additional two years." (45)

   Harris was released from San Quentin in 1984 and was permitted to return to Vidor through a special arrangement. (46) In the early morning hours of September 1, 1985, armed with a .38 caliber revolver, Harris broke into the apartment of Mark Mays and his girlfriend, Roxanne Lockhard. (47) While entering their bedroom, Harris woke the couple up and ordered Mays to lock himself in the bathroom. (48) He led Lockhard out of the home at gunpoint and told her to get into his pickup truck. (49) Mays freed himself, and followed Harris and Lockhard with a 9 mm pistol. (50) At trial, Lockhard testified that after hearing gunfire, she got out of the truck to find Mays bent over, wounded. (51) She ran back into the house to call the police, and a shootout ensued. (52) Harris was hit twice before killing Mays and fleeing the scene. (53) Forensic pathologists testified at trial that the muzzle of Harris' gun was within two feet of Mays' body when the fatal shot was fired. (54) Some accounts suggest that Harris shot Mays three times at close range while he lay on the ground wounded. (55) Four days later, Harris was arrested after being pulled over on suspicion of drunk driving. (56) During interrogation, Harris attempted to blame Mays for the gunfight, telling police that nothing...