The joke for criminal defense lawyers, such as it is, is the response to the question “how do you represent guilty people?” The answer/punchline is “that’s easy; it’s representing someone who is actually innocent that causes nightmares.” You may ‘lose the case,’ but your client loses freedom.
As the original trial lawyer for Willie Veasy, the man freed in a Philadelphia courtroom on October 9 (the Jewish day of atonement) after 27 years of imprisonment for a crime he did not commit, the punchline is all too real. But the lessons from his case are not about the impact on the lawyer who, nightmare-troubled or not, went home at the end of the day. The lessons are what went wrong, and how do we respond systematically to reduce the risk of this happening again.
Mr. Veasy was convicted on a confession, a confession now acknowledged to have been coerced. The coercion was subtle, hidden from view, and denied by the interrogators. This was not the rubber hose, the third degree, the extreme isolation that is easily recognized as coercive. This was being taken from your home at 6 in the morning, hustled to a police station, placed in a small locked room handcuffed to a chair bolted to the floor, and questioned relentlessly and with complete disregard for any denials the suspect made. The decision had been made that Mr. Veasy was guilty – the questioning would go on until he confirmed it.
What was missing? Video – happily, a tool now adopted to show what transpires during questioning. Training to not presume guilt, sadly still incomplete. Also missing was the public awareness that false confessions do happen, an awareness that has somewhat emerged but where Pennsylvania still bars expert testimony on how a false confession might occur.
What made it harder? Veasy was tried capitally, meaning the jurors selected had to favor the death penalty. It is unquestioned that such jurors are more conviction prone, and more prosecution/police oriented. Why was that important? Because two police untruths were proved at trial; but that had little effect when arrayed against the confession.
What were the untruths? To make it seem that Willie knew he was guilty, police claimed that when his family home was raided he ran to the bathroom and laid down, prone, in the bathtub. The untruth? Mr. Veasy is well over 6 feet tall; the bathtub, proved by measuring it and showing photos, was barely over 4 feet long.
The second untruth was more pernicious. The murder happened in January, but the arrest months later. The interviewing detective denied under oath that Mr. Veasy ever proclaimed his innocence and said that he would have been at work; yet strangely the police had the restaurant fax Mr. Veasy’s time card to them that same day.
And what did the time card show? He was washing dishes at a restaurant in Jenkintown, miles from the murder scene. What went wrong here? Instead of being willing to reexamine the presumption of guilt, police doubled-down to try and discredit the alibi. This is what is often dubbed “tunnel vision,” a focus narrowed to only admit what fits the theory.
With all this, the jury deliberated for four days; but the obstacles were too high, the power of the confession to strong, the belief systems of death-qualified jurors too great. And the appellate process was no remedy – because innocence, or the risk of the wrong person having been convicted, is almost never a ground for appeal.
For an innocent person like Mr. Veasy, the suffering is immense and the wait is long; the path to freedom was a maze with dead ends and obstacles; and the luck of the draw was having committed lawyers and a prosecutor’s office willing to think and acknowledge that mistakes get made and need correcting.
Some systems have improved; some problems remain. But if we don’t take the lessons of Mr. Veasy and those like him, someone else will spend years in jail for a crime committed by another; and the real perpetrator will remain on the street. Those are two nightmares we need to avoid.