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 Not Guilty Isn't the Same as Innocent One DA's crusade to point out the fatal flaw in Court TV's The Exonerated. No one believes any longer that the innocent have nothing to fear from the death penalty. A contrary idea now seems like the audacious one -- that some of the prisoners set free actually committed the crimes they were convicted of. The idea is advanced by prosecutors, who don't enjoy being painted as incompetent at best, corrupt at worst. And they have a standard-bearer, Joshua Marquis, district attorney of Clatsop County, Oregon, and an officer in the National District Attorneys Association. When Marquis' blood is up there's no one I know who's more accessible. Last week he was instant messaging me at 2 AM. I hear from Marquis whenever the Tribune runs a series about the failures of the criminal justice system. He reads what the Tribune writes as carefully as any editor and waggles a finger at every small hole in the reporting. In 2000, after Governor George Ryan, inspired by Tribune reporting, declared a moratorium on executions in Illinois, Marquis told me the idea that innocent people were being sentenced to die was "the new urban myth." He said that of the 13 condemned convicts who'd been freed in Illinois, "my understanding is four or five of them didn't do it." His "understanding" was what prosecutors must have been telling each other, and it struck me as a sign that they were in a state of denial. On January 22 Marquis e-mailed me. "I'm on the warpath again," he announced, "and this time it's not the Tribune but it is media. I am writing you to hopefully stir your interest in a purported 'true story' that Court TV will air next week." He meant The Exonerated, a ballyhooed TV presentation of a play that claimed to tell the true stories of six innocent people sentenced to death for murder. Jessica Blank and Erik Jensen constructed the play entirely from documentary materials. "Of the six people 'exonerated,'" Marquis went on, "two -- Sonia Jacobs, played by Susan Sarandon, and Kerry Cook, played by Aidan Quinn, are both factually and legally GUILTY. Both served more than 15 years and were released only after they pled GUILTY to murder . . . "I have watched the play, read the play. I have also read the actual transcripts of the trial and even have [Jacobs's] actual recorded audio interrogations. They vary wildly with the play." He FedExed me the transcripts and a tape of the interrogation. I was far from the only journalist Marquis contacted. Two others he had long conversations with -- Adam Liptak of the New York Times and Richard Willing of USA Today -- wrote articles before The Exonerated aired on January 27 that reflected his skepticism. Marquis also got a sympathetic hearing from James Curtis, a Court TV anchor who was assigned to interview the six freed prisoners for the show's Web site. But Marquis struck out with TV critics. The friendliest response came from Peter Carlin of the Portland Oregonian, who blew off Marquis but told him, "If it's any consolation, whatever shows up on Court TV will be dwarfed by the seven weekly hours of 'Law & Order' that show up on NBC. Because producer Dick Wolf makes no secret of his loathing for defense attorneys, nor of his enthusiasm for trashing them on his popular shows, which usually portray prosecutors in the most heroic terms." It was no consolation. Marquis worked himself into such a lather that e-mail he sent on January 26 was all but unreadable. "With all due immodesty . . . this has been a crusade that looks like my obsession ith the TRIB a junior high crush." The night The Exonerated debuted on Court TV, which aired it three days in a row, Marquis took part in a panel discussion on MSNBC. Host Dan Abrams had also rounded up Sonia Jacobs's attorney, former prisoner Kerry Cook (on the phone), and Barry Scheck, a founder of the Innocence Project, which has championed the use of DNA evidence to identify and release innocent prisoners. Abrams allowed that he wasn't certain whether Cook or Jacobs was innocent, and Marquis insisted that they couldn't be called "exonerated" because they hadn't been. Each had gone free on an "Alford plea," a legal device that allows a prisoner to plead no contest to charges without admitting guilt. The Alford plea lets prosecutors dispose of troublesome old cases without the bother of another trial and the risk of an acquittal. Critics like Scheck see it as a sadistic tool that offers freedom to innocent prisoners only if they stop fighting to clear their names. But if Marquis' point is narrow, it's correct. Their records haven't been expunged. They aren't, in a legal sense, exonerated. "Mr. Cook was tried four times," said Scheck on MSNBC, "and they were reversed for prosecutorial misconduct. In ringing terms -- " "What does that have to do with innocence?" said Marquis. "Oh, it has a lot to do with innocence in this case," said Scheck. Later, the conversation deteriorated. Scheck: "You have no shame to take a man like -- " Marquis: "He's talking about a client of his -- " Scheck: " -- Kerry Max Cook and drag him through -- " Marquis: " -- committed the crime after he was exonerated -- " Scheck: " -- the mud with misrepresentations like this." Abrams: "The bottom line -- " Scheck: "You have no shame. He suffered too much." Abrams: "All right." Scheck: "Stop this. You have no shame, sir." |
