There are over 2 million men and women currently incarcerated in America’s state, federal and private prison systems. That’s over a quarter of world’s prisoners. Compared with the rest of the country, California has almost a quarter of a million inmates; the largest amount of incarcerated men and women per capita. The problem is that many of them shouldn’t be there at all.
If even 1% of U.S. prisoners are wrongfully convicted, it means tens of thousands of individuals are languishing behind bars unjustly. Academics still struggle to get the final numbers, but they are convinced that the real totals are, undoubtedly, much greater. Figures are one thing, but behind each statistic there is a human being whose life has been irrevocably altered due to error, corruption, incompetence, or a mixture of all three.
For a lucky few, however, there is hope. Across America there are teams of small professional groups who put a superhuman amount of time and effort into freeing the innocent.
To gain further insight, I spoke with the founders of the California Innocence Project, an organization who specialize in tirelessly fighting to exonerate the wrongfully convicted. I also interviewed Timothy Atkins, a man whose youth was taken away by a flawed justice system, and who the Innocence Project successfully freed after he spent over two decades behind bars.
The truth is that the U.S. prison system is a hugely profitable business. The private prison industry in the USA is now listed on the stock market, with an estimated worth of over $70 billion. Coincidentally, a 1600% rise of inmates sent to private prisons (which exist in 33 states, including California) occurred during 1990-2009. They operate like factories, with prisoners receive anything from 17-50 cents an hour for manual labour; the latter being for ‘highly skilled positions’.
The two biggest American private prison companies are CCA and GEO Group, who constantly lobby congress for higher bail charges and longer sentences, ensuring that their prisoners stay where they want them. Private prisons now account for approximately 7% of the total state prison population and 19% of the federal prison population.
Simply put, there is no impetus for a system like this to keep people out of jail. It’s also incredibly easy to be wrongfully convicted of a crime in the US, but almost impossible to have a sentence turned around.
It’s a terrifying prospect. A Kafkaesque nightmare in which someone’s entire life can be taken from them and they face spending the rest of their life behind bars. For many Americans that is the struggle they wake up to every day in their cells.
Timothy Atkins was one such individual.
New Year’s Evil
In the early hours of New Year’s Day 1985, flower shop owners Vincente and Maria Gonzalez were on their way to pick up their kids following a party. As they drove through Venice, California, two armed men appeared out of nowhere and Vicente found himself staring down the barrel of a gun. The jackers wanted money and the vehicle. The Gonzalez couple didn’t respond quickly enough to the demands.
In a moment of frustration, impatient rage or panic, Vincente was fired upon at close range with a shotgun, dying immediately from the blast. A necklace was torn from Maria and the men absconded. A flurry of sirens emerged from surrounding streets. A crowd gathered as news spread.
One of the onlookers was a 17-year-old boy named Timothy Atkins, who had been with friends in a nearby apartment when the murder took place. He would be the one who would be charged for the crime, despite a lack of any evidence. In a few days Atkins would be in a prison cell.
He would be 40 years old before he saw freedom again.
Eye For An Eye
American justice is brutal, reactionary and seeped in both emotion and politics. As one of the few countries in the world to still insist on capital punishment, there are currently around 3,000 inmates waiting to die on any given day in the US, with California leading the way. There have also been at least 150 prisoners exonerated and walked off death row in the last 40 years. 150 people condemned to have their lives ended for crimes they never committed.
It was one of these cases which changed the course of Justin Brooks’ career. Recognised as one of the top lawyers in California, Brooks has devoted his life to fighting for justice, and it’s not been an easy road.
During the 1990s, while working as a law Professor, he became aware of the case of Marilyn Mulero, a young woman placed on death row as the result of a plea bargain (and so without trial). According to National Geographic’s Virginia Hughes; In the US “95% of felony convictions are the result of plea bargains, with no formal evidence ever presented, and most never bother with an appeal.” But to have someone sentenced to death as a result of one is a rare and startling occurrence. Brooks began investigating the case further.
Mulero was arrested in 1992 after two members of the Latino Kings were killed in Humboldt Park, Chicago. She was interrogated at length in a language that was not her own, without counsel (which she was denied) or sleep. A pre-prepared statement was thrust in front of her. She was confused, exhausted and frightened, completely unaware she was signing her life away.
To the police, it didn’t matter if they had the right person or not. They could draw a line under the investigation. To Brooks, it mattered more than anything in the world. “It made no sense to me how anyone could be sentenced to death without a trial,” he explains, “I went to visit her in prison and discovered what happened. She told me she was innocent.” Brooks began a campaign which would eventually get her taken off death row.
Fight The Power
Brooks continued to operate a Death Row Clinic in Michigan for some time, representing condemned inmates. “That kind of work is very unique,” he explains, “as you’re trying to save a person’s life. I’ve always been opposed to the death penalty. I find it fundamentally immoral, very expensive and it simply doesn’t work”
“It’s a thing that’s uniquely American;” elaborates Brooks on America’s obsession with the death penalty, “we’re not afraid to be completely out of whack with the rest of the world. It’s the same with our Second Amendment rights; there’s no country that allows guns the way we do. Criminal justice is not only unique in the U.S. but by state. That means that each state is allowed to run their criminal justice system the way they want. The disparity is incredible.”
Such disparity allows for certain states to maintain a higher rate of executions than others, with the top ranking being California, Florida, Texas and Alabama. Unsurprisingly to some, the South remains the greatest advocate of the capital punishment. Brooks believes that this will alter in time.
“You’ll see individual states defeating the death penalty and, ultimately, the Supreme Court will step in,” says Brooks of the imminent change, “It matters a lot who’s on the Court and that’s why it’s a huge deal that Justice Scalia died recently. He was a staunch supporter of it.”
California Innocence Project
Working alongside the students who helped him on the Mulero case inspired Brooks. He loved the idea of being able to utilize them in the assistance of wrongfully convicted prisoners and, as a result, moved west and founded the California Innocence Project.
“The idea was to put lawyers and law students together,” says Brooks, “as students can put in hundreds of thousands of hours as part of their education. If we put together a good enough case, we can get people out of prison.”
Founded in 1999, the Project has grown from being just Brooks and an assistant to approximately 10 full-time lawyers and around 30 students. With up to 2,000 applications from prisoners and their families coming in every year, this relatively small team are constantly busy. Michael Semanchik, Staff Attorney at the organization, explained how the process operates;
“We have clinic students and interns. The interns do the initial screenings, contact the inmates and collect their legal documents. They tell us if it’s a good case or not. Clinic students are typically second year law students at California Western who are assigned 8-10 cases each. They go out in the field and investigate the claims, go to the prison and talk to the client, interview witnesses and track down evidence for DNA testing.”
With such a constant influx of applications, and thousands of prisoners protesting their innocence, it can be a challenge to select the cases they think can be followed through. As part of the screening criteria, applicants are sent a questionnaire.
“When they meet our basic criteria, we request their legal documents, which provides us with the statement of facts about the case,” continues Semanchik, “A lot of the inmates in California prisons don’t have the best level of education, especially in the legal or criminal justice system. Many don’t realise how they got convicted or what evidence was used. If you can get the appellant’s opening brief it tells us what happened at trial and whether or not there’s something we can do to overturn their conviction.”
The Ongoing Trials of Timothy Atkins
Timothy Atkins, the man who was charged with the murder of Vincente Gonzalez, was convicted on a false testimony, one of the most common causes of wrongful conviction. Denise Powell, a heavy drug user who knew Atkins through friends, fabricated a story about hearing him confess to the crime. Word got back to the police and Powell was brought in for questioning. Knowing her story was fake, but threatened with prison time as she was intensely interrogated, she caved and gave them two names; Timothy Atkins and Ricky Evans. Both were subsequently arrested.
For Atkins, the most shocking part of the process was how, as a young black man, no-one would listen to his side of the story.
“For a kid to be picked up off the streets at 17 years old and be charged with a first degree murder rap like that was like a nightmare,” recalls Atkins. “In court, people talk about how you killed somebody, but you can’t open your mouth. You’re in complete disbelief, because you know in your heart that you’re innocent.”
In the years running up to the incident, Atkins had been in minor trouble for common teenage activity such as playing hooky from school and stealing the occasional car stereo. Nothing he did throughout his entire life ever showed any predilection towards violence. “I was a juvenile delinquent,” recalls Atkins, “but I wasn’t a bad kid. I mean, I ran the streets doing petty stuff; being a knucklehead.”
The probation department were already looking for Atkins when he was arrested, due to a violation because he didn’t go to school for two weeks. “For them to say that I went from that to murder; I didn’t get it,” he adds, the disbelief still remnant, “I didn’t even know what I was being arrested for. It wasn’t until they handcuffed me to the bench, I saw an officer who used to be chasing me all the time and he said ‘They got you in here for murder, but I know you didn’t do that, I know what you do.’” Atkins immediately protested. He’d never been involved in any kind of violent activity. “Any crime that I had committed, I never committed against a person.” he adds.
The first sign that things were going bad for Atkins was when they offered him a deal which would see him serve 15 years to life. He refused, for it would be an admission of guilt. The second major development was when they moved his case from the juvenile court, meaning he would be tried as an adult.
During questioning Maria Gonzalez told police that the people that robbed her and shot her husband were 5 foot 4 and 5 foot 6 and weighed about 125-130 pounds. At the time of Atkins’ arrest, he was 6 feet tall and 175-180 pounds. “I just didn’t fit the description,” explains Atkins, “When I first went to court, they brought out Ms Gonzalez and put her on the stand. They asked her a simple question; “Do you see the individual who robbed you and shot your husband in this room?” Mrs. Gonzalez looked around the courtroom, but she couldn’t give an answer. ”They immediately took a recess,” continues Atkins, “They took her out in the hallway, brought her back and asked her the question again. She said ‘Yeah, he’s sitting right there’ and pointed to me. I never understood how they could get away with that.”
Timothy Atkins was sentenced to 32 years to life. Ricky Evans never made it that far. While the two men were incarcerated in the county jail, gang members attacked them in their cells, afraid that they would provide police with information on the real killers. After making the pair fight each other, they were jumped; Atkins was brutally injured, Evans was beaten to death.
“It was all a hellish nightmare,” confirms Atkins. “You feel helpless; there’s nothing you can do. All this chaos is going on around you, because being in prison is like being in a human zoo. You don’t know from day to day if you’re gonna make it up in there. You walk out of that cell everyday around a bunch of killers or whatever. That’s how I had to live 23 years of my life. Every day I had to be on high alert…..to live like that (he sighs heavily) it’s unreal.”
Weeks became months which became years, which became decades. Hope diminished. “The first ten years was rough,” admits Atkins, “I felt that, if they weren’t going to let me out, then I was gonna make them do something to me, because I wasn’t going to spend the rest of my life in jail for something I didn’t do.”
Thankfully, Atkins met a childhood friend who suggested that he start writing letters to different organizations and try and find some help. One of those letters landed on the desk of the California Innocence Project in 2001.
Wendy Koen, a second year law student at the time, took on the case. She spent years tracking her down, but eventually managed to get a written witness retraction from Denise Powell, only shortly before she died. This set Atkins on the road to freedom. “Sitting down with Wendy gave me hope,” recalls Atkins, “but I knew after they filed the writ, the ultimate decision would be up to the judge. The same judge that sent me to prison was the same judge let me out. After all those years he was still on the bench.” He was sent home with an apology and not much else.
When a standard prisoner is discharged, they are released with a few hundred dollars so they can get a bus, get a room for the night and so on. When an exonerated prisoner is released, they are sent out the door with nothing.
Incidentally, Timothy Atkins imprisonment cost the taxpayer $1,035,000. US law states that for every day a prisoner is wrongfully incarcerated, they should receive a certain amount of money (between $100-200 for each day of imprisonment). In Atkins’ case he is owed somewhere in the region of $800,000.
He hopes to use the funds to start a centre for gang awareness programmes, to show young people in the locality that there are other options. “I like to get the word out,” he explains of his community work, “Young people especially need to know, because it’s easy for them to follow suit in the wrong direction and there’s not enough information to help them put their life on the right track. Everything is so negative and young people need to hear positive stuff. They also need to be taken out of these environments and shown that the world is bigger than just the community they live in.”
After years of working in similar schemes, it would be an admirable and worthy step, had the State actually paid him. “California is not in the business of compensating anybody,” says Atkins “Out of 150 something people, only 11 or so actually got their compensation.” In a lengthy and ongoing case and no money in sight after years of fighting, the struggle still isn’t over for Timothy Atkins.
It Couldn’t Happen To Me, Right?
So, how does someone get wrongfully convicted? To be from a socially disadvantaged area seems to be a common factor, as does being from a minority, but the truth is that it can happen to anyone if the circumstances allow. Most of this is due to failures in the current legal system.
Inadequate representation, prosecutorial and police misconduct, perjured testimonies, false informant testimonies, erroneous jury instructions and ineffective assistance of counsel have all been cited as prominent reasons why wrongful incarceration occurs. The California Innocence Project sees several recurring factors, with false confessions being a major factor.
”The first fallacy that people have about confessions is that the police are trained to get the truth,” confirms Brooks, “They’re trained by a method that teaches someone to agree with them. That whole process doesn’t work. If the suspect is a kid, has a low IQ or just wants to please the police, they might go along with it. These people think they’ll never be convicted because they didn’t do it, but then the police drum up a snitch, or do a bad ID and that person goes to prison for the rest of their lives.”
Innocence Project Staff Attorney Semanchik adds that witness identification remains one of the leading factors of wrongful conviction in the U.S.. “Our brains don’t operate like a video recorder,” he explains, “We think that we’re really good at making identifications of others, and what we’ve found is that we’re just not.”
This would have been particularly prevalent to the Timothy Atkins case. “Research has shown,” continues Semanchik, “that this is especially bad where it’s a situation where there’s a weapon involved or a heightened, intense moment. If someone pulls a gun on you, it’s less likely that you’re going to be able to memorise that person’s face. It only gets worse if you’re trying to identify someone who’s not your race.”
One of the other major developments within recent years has been the debunking of junk science, which may have been used in a conviction. Certain areas, which would have been considered gospel only a few decades ago, are now being considered more carefully before being utilized within the courtroom. In February 2016, the Texas Forensic Science Commission put a ban on the use of bite mark evidence in criminal trials when making identification.
“We have relied on this bite mark evidence for years in the US,” Semanchik adds, “We have a case; William Richards from San Bernardino, which went to trial three times and he didn’t get convicted. They had hung juries and at the fourth trial he got convicted. The only difference was that bite mark evidence put forward in that one.”
Years later the expert who testified in the Richards case recanted his testimony, saying that not only was it not William Richards’ bite mark, but that it didn’t look like a bite mark at all. Despite this, Richards remains in prison to this day, where he is currently suffering from cancer. He may not live to see his exoneration.
Changes and discoveries within the fields of forensic science, hair analysis, shaken baby syndrome and fire investigation are just some examples of the areas in which many innocent people may have been incarcerated. “The lead bullet analysis has changed,” continues Semanchik, “but even things like fingerprint evidence and hair or fibre comparison is not nearly as good as we once thought.”
Brooks agrees with Semanchik’s main examples; “We’ve also had big problems with snitch testimonies, when guys are willing to say anything to get out from under their own charges, or get a lesser charge. I see bad investigation done by the defence, the prosecution and the police all the time, where people just didn’t look at the facts.” Brooks also cites cynical District Attorney’s as problematic; “The client says they’re innocent and they don’t really believe them. So they don’t follow up on their alibi out to see if it checks out.”
Life Beyond Bars
Aside from the PTSD, financial and integration issues which exonerees face, there can still be problems once they make it out, simply because of the time they have spent in prison. “Some people will think ‘Maybe they did it.’ or ‘He’s probably a bad guy from all the time he spent in there.’ – There’s still stigma.” confirms Brooks.
But what of Marilyn Mulero, who woman who started all of this for Brooks? “The sad part of that story is, while I was able to get her off death row, I’m actually still representing her, trying to get that guilty plea withdrawn,” he says forlornly, “I’ve been to the Supreme Court with it and lost. The latest thing is that I filed a petition with the United Nations saying it was a Human Rights violation to sentence someone to death on a plea bargain. I’ve never been able to get that plea withdrawn so I can get her a trial. It’s sad because she’s seen me walk a lot of people out of prison since I began her case and that was the one which got me started in this work.”
It begs the question of what can be done to change things, if anything?
Brooks and his team have made many proposals throughout the years including a best practices for IDs that the procedures can be improved. “Studies have shown that six pack photo arrays for example don’t work,” he explains, “You need to have people look at photos one at a time. The biggest reform is that you can’t have anyone in the room who knows who the suspect is when an ID is going on, as you’ll always have tells that indicate.”
Brooks also suggests mandatory video recording of all procedures to ensure that they are properly done. “We need to record all confessions and all statements so later on we can review them for threats, context and content, and to reform snitch testimonies to make sure that everything is disclosed to the other side. We need to fund experts and investigators for the defence. There’s a remedy for every single cause of wrongful conviction. Nothing will make the system perfect, but we can greatly reduce the number of mistakes. We all should have the same goal which is get the right person.”
When the subject of Timothy Atkins arises, it’s clear that it still plays heavy on his soul. “Tim Atkins has been so screwed over so many times. He just keeps struggling on and doing the best that he can. It breaks my heart every time I see him, but we are still fighting for his compensation.”
One of Brooks’ final comments hits hard; “These guys aren’t heroes. These guys aren’t villains. These are just regular people who got caught up in these extraordinary circumstances. There was a white police officer in Connecticut who was wrongfully convicted and when I saw that it happened to him, I knew it could happen to anyone.
This story originally appeared in HUSTLER Magazine.