I vaguely remember getting the letter and reading the opening paragraph. It was from a prisoner whose name sounded somewhat familiar, Martin Tankleff. I remembered it from the newspapers, a kid convicted of killing his parents. Years later, he would be exonerated for the murder, and I would think about how I tossed the letter in the garbage rather than reply.
Criminal defense lawyers get letters from random prisoners all the time. They’re often long letters. They occasionally come with papers or transcripts, sometimes hundreds of pages. They proclaim their innocence and beg for a lawyer to save them. Pro bono, of course.
It takes time to read these letters from unknown prisoners, and after reading the first few, you realize they are largely incomprehensible, replete with gushing words about justice and devoid of any substantive basis for action, other than the prisoner’s denial of guilt. You become inured to the protestations of innocence. They all say so. Few are. Almost none can prove it.
But we also know that “almost none” doesn’t mean none.
There was no physical evidence for the crime I was accused of — only one witness manufactured by detectives, detectives who wrote a script for the fake witness to perform at trial. And when the prosecutor’s office was approached by several attorneys with credible evidence that this was a common police practice, the prosecutor’s office simply forged ahead. I was convicted and sentenced to 52 to 80 years. They just threw me away, like I was garbage.
This is the sort of argument made in the letters, that it’s a common police practice to manufacture a case based on jailhouse snitches against an innocent person. It’s not that anyone doubts it, but it’s not going to win. No matter how often you say it, how loud you say it, how passionately you say it, the “common practice” doesn’t disprove guilt in this one, individual case.
Once someone is convicted, the burdens shift. He’s no longer presumed innocent, but guilty. It’s no longer the prosecution’s job to prove guilt beyond a reasonable doubt, but the convicted defendant’s to prove innocence. With the advent of DNA, that’s become possible in some cases. In others, the effort that wasn’t expended before trial may manage to come up with evidence long after the appeals are exhausted. Alibi. Recantation. Physical proof that it was impossible to do. Or a dirty lying cop.
But these are still outliers, and demand substantial effort, time and luck. It’s great that there are organizations out there willing to do it, like the Innocence Project, but they can’t do it for everyone and have to carefully pick their cases, choose where to allocate their scarce resources. Individual lawyers don’t necessarily have that opportunity. Once in a while, a lawyer, for whatever reason, will decide to take on a lost cause and end up winning it. More often, we spend a few hundred hours only to end up nowhere, with no chance of changing an outcome no matter how strongly we feel it was wrong.
Perhaps this is why after writing over 7,500 letters to lawyers, law schools, innocence projects, television producers, magazines and newspapers, celebrities and public figures — and despite having provided secret prosecutor memorandums acknowledging the practice of detectives creating fake witnesses and brokering illegal deals and favors, as well as proof of prosecutorial complicity — there has been no outcry. Perhaps this is why I did not receive every benefit of the doubt, why I did not receive a thorough investigation when accused of a crime, or an opportunity to be heard in court and in public the way rich and powerful people are.
More than 7500 is a lot of letters. It’s expensive to send out that many letters. And much as you might question the bitterness, it’s entirely understandable why a person who is innocent would be bitter. And yet, it wasn’t that the recipients of those letters, the “lawyers, law schools, innocence projects, television producers, magazines and newspapers, celebrities and public figures” were callous or uncaring, but that there are too many letters, too many people proclaiming innocence when there is nothing we can do.
Lacino Hamilton wrote the Truthout post, as well as the 7500 letters, to no avail. I have no reason to doubt that he’s innocent. He’s served 24 years of his sentence, and he’s still at Marquette Branch Prison in Michigan. Regardless of what happens, he’s not “garbage,” but that doesn’t mean the law can provide him with any relief.
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One reason that criminal defense lawyers occasionally jump in and not only credit a prisoner’s claims of innocence but also do something about it, is because any defense lawyer worth his or her salt knows how easy it is for police, FBI agents, or state and federal prosecutors to frame an innocent person, and knows the various motives behind such frame-ups. I’ve had several such cases where I’ve been able to prove a frame-up. In one case, the dirty prosecutor had by then become a judge. One can imagine crafting a system that would make frame-ups much more difficult for cops, agents and prosecutors to pull-off, but the hopes of getting such reforms adopted will remain vanishingly small unless and until many more legislators are the victims of frame-ups.
The “why” doesn’t seem controversial, but the “which” isn’t as easy. Out of every thousand letters, which one is worth pursuing? One rarely knows for sure until you reach the end, thousands of hours and dollars later, only to find out whether you choose well or poorly.
The problem you describe is strikingly similar to one I somewhat regularly confront when assessing cases of potential asylum seekers. There too, one rarely knows which cases are potential winners until after spending plenty of time and resources.
My question to you is this: how do you assess these letters before deciding to devote more time and resources? Do you look for any particular things?
Is it “strikingly similar”? Given that no one knows who you are, what you do, if you’re a lawyer, or what, let’s assume, arguendo, that you’re an immigration lawyer who assesses asylum cases for clients. That’s how you earn a living. You get retained to do so. Then you get to work trying to make it happen.
So what part of this is “strikingly similar” to random unsolicited letters and packages from prisons seeking pro bono representation after the conviction and appeals exhausted? As for your question, feel free to retain me and I will be happy to provide a memo on the issue.
Yes, I am an attorney who primarily works on immigration cases. I mostly do removal defense. I also try to take on one or two pro bono asylum cases per year. But choosing which cases to take is difficult.
I get unsolicited letters and packages from very poor asylum seekers asking for pro bono representation. These letters and packages frequently include some aspects that may support an asylum claim. But the burden of proof is on the asylum seeker that he or she was persecuted by the right people for the right reasons. Gathering the right evidence to assess a case, some of which may be half way around the world and usually in a foreign language, is hard and expensive.
Making a good decision with incomplete information is never easy; doing it knowing that you won’t be able to assess your initial decision until months later is scary.
Thanks for writing this. I appreciate the thoughtful post.
Well, that helps. Remember, just because you know who you are and what you do doesn’t mean anyone else does. So now to your question, I have no magic trick. If I read them at all, it’s usually the first line/paragraph. If it’s short and substantive, I’ll read further. If I have to read a ten page story, I won’t. I get a lot of letters, emails and phone calls, and it would be a full time job to read them all. It’s just not possible.
What happens in the situation when someone does take one of these cases, and does succeed? What then?
How many *more* letters will that attorney receive…and how can they answer them all?
I don’t blame attorneys for eventually just discarding those letters, sometimes unread, sometimes just unanswered, because there isn’t enough…Enough time, energy, money…
It’s easy to throw away the letters. The phone calls are harder, as it’s usually the wife or mother, and you feel sincerely bad for them. The problem is when you have to say no, and they get angry with you, occasionally screaming about how “all you lawyers are alike, all you want is money.” That’s when you stop taking phone calls, too.
https://i.imgur.com/5Rc9d.jpg
People with leaky pipes generally don’t expect a plumber to come out for free. People with broken down cars generally don’t expect an auto mechanic to come work for free. Yet, people who believe they are wrongly imprisoned see that as a reason lawyers should come help them for free. It is odd.
I don’t think it’s odd at all. People can live with a leaky pipe or a broken car; they can rationalize a choice based on cost and effort. There’s a prospect of working hard, making enough money and eventually fixing the problem. You don’t have those luxuries in prison.
Which goes to their need for the service, but not the premise that lawyers should be expected to provide it gratis.
The expectations of professionals don’t necessarily align well with plumbers. While your point is well-taken, there’s nothing wrong per se with people seeking pro bono help, provided we aren’t required to provide it. That’s where it becomes a problem, as a condition of licensure we’re obliged to provide free services rather than doing so because we choose to help people.