Recently, there has been a surge in true-crime TV series and blockbusters which, during our COVID-19 isolation, we are particularly grateful for. After all, we are criminal lawyers, we can’t get enough of content like the film Just Mercy, Netflix series When They See Us and two-part mini-series Informer 3838. They are not only bingeworthy, but they also send a pretty powerful message – our criminal justice has destroyed the lives of those who fell victim to its fallibility.
If you have never been in trouble with the law, you may have great faith in the criminal justice system. It is only when you are exposed to the system, through personal experience, movies, or media, that you begin to see the big flaws in our system that need reforming.
We became criminal lawyers to not only assist our clients, but to educate the public about the cracks in the system. At the end of the day, our juries in Australia consist of 12 lay people. Twelve people who may never have been exposed to these issues before; who have never had reason to question the long standing but flawed institution that is our criminal justice system, yet must decide the fate of our clients, some of whom may be innocent.
While there are many causes of wrongful conviction (and believe us, we could talk for days about them), we decided to delve into a few below.
Let’s start with the movie, Just Mercy, starring Michael B. Jordan and Jamie Foxx.
The film is based on a true story of a passionate young lawyer, Bryan Stevenson, who heads to Alabama to defend the wrongfully convicted. Stevenson takes on the case of Walter McMillian, an African-American sentenced to death in the 1980’s for a crime he did not commit. The murder of a young white woman had caused outrage amongst locals. After months without any progress in their investigation, police arrested McMillian. He had no criminal record, a strong work history and was involved in his community. The police pursued McMillian, despite a lack of evidence, because of his interracial affair with a white woman and his son’s interracial marriage (which were, sadly, outrageous concepts in Alabama at that time). Despite numerous witnesses providing alibi evidence, a jury comprising of 11 white people convicted him after just one and a half days of trial. This film is a poignant reminder of the over-representation of people of colour in criminal justice systems across the world. Australia is no exception. Whilst decades have passed, racial bias remains a significant contributor to wrongful convictions.
Thanks to the hard work of Bryan Stevenson and the Equal Justice Initiative (“EJI”), evidence that proved McMillian’s innocence was brought to light and, in 1993, his conviction was overturned, and he was released from death row.
Law enforcement had withheld exculpatory and impeachment evidence, for example the original statement provided by key witness, Myers, which directly contradicted his evidence at trial and the statement of a witness who saw the victim alive the morning of the murder, throwing the Prosecution’s case theory into question. You may be thinking “sure, that happened in the 80’s, in Alabama, but something like that would never happen here”. If so, unfortunately, you’re wrong.
In 2019, we acted for a white man in Queensland charged with sex offences against his young stepdaughter. Just like McMillian, he had no criminal record, a strong work history and was heavily involved in his local community. His stepdaughter made the allegations at school, it was immediately reported to police, who picked her up from school to take her statement. Our client was arrested and placed on bail, with a condition that he cease contact his family. His original lawyers sought disclosure of all the evidence from police and were preparing to proceed to the District Court, without yet contesting the allegations. We took over, interviewed the child’s mother and discovered that the child had provided another statement just days after the initial report. We raised our concerns with the prosecution (after all, the law requires police to give us ALL the evidence, not just that which favours their case) and next thing, we received a recording – a full confession from the child that she had made it all up. The prosecution eventually dropped all charges.
Viewers were shocked as Just Mercy revealed the recordings proving that witness, Myers, was pressured by police to give false evidence against McMillian. It is common for those who provide assistance to law enforcement leading to the conviction of others to be rewarded for their assistance – a significant incentive for someone facing murder charges like Myers was. Informant evidence is fraught with danger and is another cause of wrongful convictions in Australia – just turn your mind to the highly publicised Nicola Gobbo (aka Lawyer X) debacle that happened in our own backyard (sidenote: if you’re looking for a new show to consume, check out Channel 9’s mini-series Informant 3838). Last year a convicted murderer walked free after serving 12 years in prison, with his conviction overturned following shocking revelations that his barrister, Lawyer X, had provided information to police that led to his conviction (see another blog post we wrote about this).
Many of you have seen, heard or read about the 2019 Netflix series When They See Us. Set in 1989, it follows the nightmare five teenage boys faced after being falsely accused and subsequently convicted of a brutal attack in Central Park, New York City. Racial profiling was no doubt a massive factor in this case – the five boys (known as the Central Park Five) were African American and Hispanic, and the victim was white.
The series was an exposé on the overzealous police work at the time. As the DNA evidence from semen found at the scene didn’t match any of the boys, the prosecution relied solely on the initial confessions that the coercive and harrowing interrogations had produced.
The boys, aged between 14 and 16 at the time, were all sentenced to lengthy terms of imprisonment. They were eventually exonerated when the true perpetrator confessed to the crime, and a DNA match all those years later corroborated that.
Confessions are often an integral piece in a police investigation puzzle, used to secure a conviction. The main objective of questioning a suspect is to elicit a confession. We always warn our clients that police are trained investigators who will utilise interrogation strategies and other interview techniques to encourage a confession. The problem is, though, that “confessions” are made by both the guilty and innocent. Recent data tells us that over a quarter of cases where someone was exonerated post-conviction with DNA evidence involved some form of false confession.
For many of us, it can be hard to appreciate why someone would admit to a crime that they did not commit. Some factors that contribute to or cause false confessions include:
- intimidation by law enforcement;
- use (or threatened use) of force by law enforcement;
- sneaky interrogation techniques;
- the suspect’s compromised reasoning ability (e.g. stress, exhaustion, or lack of understating of their rights);
- threats to charge someone else (usually a loved one); or
- a suspect’s fear that, if they do not confess, they will receive a harsher punishment.
You may again be saying to yourself that the Central Park Five case occurred decades ago – surely our policing standards have improved since then. In our relatively short careers, we are sorry to say that we have experienced clients who have been in almost all the above situations. For example, last year, we acted for a young man charged with stealing from his employer.
He was tasked with closing the store, which was captured fully on CCTV footage. Within an hour of our client leaving the store, a person entered the shop and approached the safe where the money was said to have been stolen from. This person was wearing a hoodie and, while their face could not be seen from the footage, their body shape was notably different to our client’s. The police questioned our client some four hours after taking him into the station. He made admissions to the crime after being told by police that if he confessed and paid the money back, he would not be convicted of the offence and the matter would “just go away”. As a result of stress and lack of knowledge of his rights, he did what the police asked. Yet he was still charged with the offence, despite their promises otherwise.
We were able to assist this client by writing to the prosecution to outline our significant concerns about the police’s conduct. The charge was dropped. Remarkably, the police had not investigated who this hooded person in the CCTV was, even though his entry into the store was entirely suspicious.
You see, we aren’t even a decade into our careers, and we’ve already seen some near misses of the innocent being wrongly convicted. We hope that in binging these shows and having discussions like this one, we’re all alive to the dangers of our criminal justice system and playing our part in preventing wrongful convictions.
Meet the authors
Erin Mitchell (Class of 2011) and Danielle Hanson (Class of 2015)
Erin and Danielle both left university to become criminal lawyers at Potts Lawyers, and their love for their work has meant that neither of them have left (Erin is now a Director of the firm and Danielle is a Senior Criminal Lawyer). During their studies they both worked with the Innocence Project and have since returned as volunteer lawyers as social justice and preventing wrongful convictions are huge motivators for what they do. They now run a social media account, Lady.Crim.Lawyers, to give the public insight into their lives as criminal lawyers, case studies about matters they have worked on, and useful information relating to the criminal law space.
