Muskrat News Legal Briefs

Some people feel my most recent writings have shown an unnecessary amount of bile directed at my hard-working, over-achieving classmates. In order to clarify that my bile is directed at all law school activity, here is a fake memo from something I am actually involved in.

To: Innocence Project Case Review Volunteers
From: Tom McCudden, Acting Staff Aide to the Interim Deputy Under Secretary
Subject: Review criteria

We have had a little confusion lately over what exactly the criteria are for recommending further Innocence Project review of inmate appeals. I just want to clarify a few points:

- Our goal is to focus on issues of actual innocence, not of procedural shortfalls, poor representation, etc. Although the issues obviously intertwine, the fact that a defense lawyer, e.g., slept through the trial, was boinking the prosecutor during trial breaks, or repeatedly referred to the inmate as “my guilty-ass client” in closing statements is not enough to merit review.

- Positive versus negative evidence is a tough one: Do we investigate cases merely because the evidence for conviction was weak, as with Franky “Two Chins” d’Annunzio, who was convicted in rural Splinter County for “Lookin’ foreign’ and talkin’ funny”? Or do we require some positive proof of innocence, as when Timothy Fulton – a paraplegic – was convicted of kicking his neighbor to death? This is a tough call, and as my professors can tell you, I can barely handle the easy questions, so you are on your own.

- No repeat business. We get a lot of letters from inmates, so we’ve decided to make a rule that we won’t take the case of any inmate more than once. This is a tough rule – what if they were framed twice? – but after the “Bonesaw Billy” episode, we need to be wary of adverse media exposure. Kudos to all who worked on his first case, but someone should have realized something was amiss when his entire post-release statement was a list of people he was going to “take down.”

- Don’t forget to check newspaper files, court records, and other sources of evidence beyond prisoner letters. Many North Carolina police are, well, less than brilliant, and a flawed understanding of the double-jeopardy rule can produce statements like, “Sure I shot the old woman, but now that Cletus was sent up for it, they can’t do a thang to me.”

- Use your own judgment, but be realistic. When Katherine O’Flynn wrote in that “they never shoulda convicted me ’cause they never found more than 50 percent of the parts of my stinkin’ husband’s no-good corpse,” that should have been a red flag. Similarly, arguments such as Morgus Washington’s that “none of the heads in my duffel bag matched the torso in the closet” are unlikely to be winners.

- Don’t be put off by honesty. Many inmates will tell the unvarnished truth, and their willingness to do so should not be counted against them. When Hepzibah Hamilton wrote, “In retrospect, shooting out that unfaithful whore’s windows was not an appropriate way to handle my anger,” he should be given credit for his honesty and not consigned to the “reject” file because of his admission. Moreover, he has a cousin who has promised to “go inappropriate on your lazy white ass” unless we reinstate his case.

- Beware of classic signs of problematic convictions such as tainted witness identifications, especially cross-racial identifications. Pay close attention to the manner of the ID – live lineup, photo arrays, etc. The best ID, studies show, comes from sequential double-blind photo presentations. The worst come when a white witness is shown a black teenager handcuffed to the bumper of a police car and asked, “That look close enough for you?” The correct phrasing is, of course, “He sure looks guilty, doesn’t he? Hmm? Blink once for yes.”

- As noted above, race plays a factor in many of our cases. At the same time, the Northerners among us need to realize that race is not the sole factor driving injustice here in the South. Laziness, poor training, resource constraints among police and prosecutors, borderline illiteracy, inbreeding, rickets, overzealous application of Occam’s Razor, and addiction to Jerry Springer all contribute to the Southern way of life. Be polite to our Southern hosts, and avoid using words like “hillbilly,” “toothless yokel,” and “Tarheel Taliban” when referring to local officials in your memo. Remember that copies are shared with the gomers over at UNC.
(Tom McCudden is a 2L who, shortly after publication of this article, will be defending himself in the Innocence Project against the charge of “not from around here, are ya boy?”)

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