Sorry Seems to be the Hardest Word
Our criminal justice systems conveniently presuppose good faith on behalf of the actors in them — that judges will always be even-handed, that prosecutors will always seek to do justice instead of just pushing to win cases, and that law enforcement officials who serve as witnesses will always tell the truth and nothing but the truth. And because we know that no human endeavor is infallible, we teach our children that the genius of our beloved rule of law is an appellate system wherein mistakes by those well-meaning justice actors are identified, and corrected, so that no single bad actor, and no single error, should ever take liberty or life away from an innocent person.
But anyone who has spent any time following criminal justice in America today knows this is mostly just a convenient set of lies we keep recycling. The truth is that there are plenty of actors within our criminal justice systems who do not act in good faith, who allow their biases and prejudices to guide their conduct, who hide their mistakes or, worse, exacerbate them through inaction or obfuscation. This is why it often takes decades for wrongfully convicted men and women to be exonerated, if they ever are, and why we see so many judges and prosecutors fight so stubbornly to resurrect fallen convictions and sentences even after it is plainly clear (from DNA results, from recanting witnesses, etc.) that there is nothing left but ashes from the body of the case.
Occasionally, however, someone stands up and does the right thing and does so in a way that reminds us of what our justice systems are capable of when people own up to their mistakes. Earlier this month, Marty Stroud finally did the right thing. He apologized in the most public way possible for a terrible mistake he had made as a young prosecutor in Louisiana in the mid 1980s — a mistake of judgment and morality that helped to send an innocent man, Glenn Ford, to death row for three decades. Stroud apologized and then tried to explain why he had done what he had done all those years ago — and in so doing helped the rest of us understand how so many innocent people come to be convicted and left to rot in prison for the better part of their lives.
Stroud’s apology flashed like lightning across the criminal justice landscape. Here was a former prosecutor, still operating as a lawyer in the heart of the darkness that is Louisiana’s criminal justice system, publicly acknowledging the lack of good faith that animates so many of these wrongful conviction cases. Some advocates and lawyers blasted Stroud for the timing of his remarks — far too late to have spared Ford a lifetime of misery. But I think Stroud nonetheless performed a remarkably brave and selfless act of service, not just to Ford, who will likely die of cancer before Louisiana compensates him, but to other innocent people on other death rows across the nation whose prosecutors, like Stroud, failed over many years to be either just or fair.
After lightning comes thunder, right? In this instance it was provided by Caddo Parish Assistant District Attorney Dale Cox, who is fighting Ford’s request for compensation from the state. If Stroud’s letter showed us what a justice system could be Cox’s retort reminded us of what justice is — in Louisiana and countless other jurisdictions. Even from a prosecutor who now says he pushed to help exonerate Ford (during months of private deliberations while Ford was dying of cancer left undertreated in prison) we still see a slavish devotion to a failed status quo and the stubborn refusal to acknowledge error. It is human nature, I know, to ignore what it pains us to see. But it is precisely the sort of human nature that our justice systems are supposed to overcome but too often don’t.
For example, Cox even today continues to insist that Glenn Ford received competent trial representation. This is nuts. Ford’s lead attorney at trial was an oil and gas attorney and his second chair was a young attorney a few years out of law school. Neither had ever tried a criminal case before (let alone a capital case) and both were selected at random out of a lawyer’s directory. Neither knew that they could hire experts to challenge Louisiana’s dubious forensic evidence. In these circumstances, there is no way Ford’s right to counsel was vindicated. Cox’s argument to the contrary mirrors the argument we see all over the nation wherein prosecutors and judges justify incompetent indigent defense work rather than help to overturn dubious convictions.
Stroud’s apology to Ford was accompanied by a lament against the injustice of modern capital punishment — a touchy subject given how close Ford came to being executed for a murder we now know he did not commit. Cox? He told a reporter earlier this month that “revenge is a legitimate motive” in implementing the death penalty and that part of the problem with capital punishment today is that we are not executing enough people. “I think we need to kill more people,” Cox said, so that the deterrent impact of the death penalty can be better felt. Lots of people hold those views, of course. But the fact that so many prosecutors like Cox hold them helps explain why so many flawed capital cases are not more quickly overturned and remedied.
The point is not to excoriate Cox. He’s both a cause and an effect of a rule of law whereby actors in the justice system — the good, the bad, and the indifferent-- are protected by the presumption of “good faith.” And the point is not to herald Stroud too loudly. He could have spoken out ten years ago, or 20, or he could have taken a truly courageous stand and spoken his mind before or during Ford’s trial. The point here is to note that these two white men, arguing today over an indigent black man wrongfully convicted of murder and sentenced to death by an all-white jury a generation ago, show us how far our justice system has to go if it is truly to be equal, fair, and just to all.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.