Why Don’t They...

...Make Justice Swift and Sure?

Confession: It may be good for the soul, but it doesn’t make for good justice

By Bryan Zepp Jamieson

6/17/01

The day after the State of Ohio executed a paranoid schizophrenic on charges of murder, the State of Florida released a mentally retarded man who, in 1980, had confessed to the murders and rapes of six women and girls in Florida in the mid to late 1970s.

Jerry Frank Townsend, 49, was serving two concurrent life terms after being convicted on six counts of murder and one count of rape. The prosecution at his trial had demanded the death penalty, but the jury wasn’t quite sure of the man’s guilt. They settled for concurrent life sentences, over the sour complaints from prosecutors and families of the victims. The prosecutor demanded that the jury `have no sympathy for Mr. Townsend. Mr. Townsend may be retarded, but retardation shouldn't give a person the license to kill.'' The jury wasn’t convinced.

In the vicious dog-and-pony show that masquerades as a justice system in America today, he wouldn’t have had even that much chance to live. In Texas, where Justice is swift and certain and often useless, he would have been convicted, sentenced to death, and his lawyers would have had just 90 days to come up with any new evidence sufficient for a retrial.

He would have been long dead.

Instead, he was a poster boy for the pro-death-penalty movement, which sourly noted how much it cost to feed and incarcerate him, and pointed out his utter lack of use to society. Here was a murderer – a confessed killer – living it up in our Mediterranean resort jails and laughing at the taxpayers! Just because some people on the juries were a bunch of McGovern-type liberals!

In the normal course of events, Townsend would have rotted in jail until he died anyway. Getting convictions thrown out twenty years afterward is difficult, verging on impossible. But several unlikely events came to the fore, and saved him.

First, there was the matter of Frank Lee Smith. Smith was on death row for the 1985 murder of an eight year old girl. After five years of fighting over it, Broward County finally decided to do some DNA testing, and discovered that the crime had been committed by a another man, who had been in a psychiatric hospital since 1986. It was too late to help Smith – he had died of an undiagnosed case of pancreatic cancer the month before. Death row inmates don’t get much in the way of medical care. It’s seen as superfluous and a waste of taxpayer money. So Frank wound up as dead as the little girl he didn’t kill, and the subsequent revelation of his innocence substantially embarrassed the Sheriff of Broward County.

There were other factors going on concurrently relating to the conviction and incarceration of Jerry Frank Townsend. As related in a column by the Miami Herald’s Fred Grimm,

"It was some tawdry cops who first planted, then extracted incriminating information in Townsend's pathetic, pliable, child_like mind. But it was some resolute cops who undid the rape and seven murder convictions against Townsend.

"Retired Fort Lauderdale police detective Doug Evans kept insisting that the Broward killings were the likely work of a real serial killer, Eddie Lee Mosley. Detective Kevin Allen voiced similar doubts. Mostly, though, there was John Curcio, the relentless Fort Lauderdale detective who went to extraordinary lengths to retrieve and test the aging DNA evidence.

"And there was Rebecca Marion. She was the mother of Sonja Marion, the 13_year_old girl raped and murdered in 1979, the victim named in the first of Townsend's supposed ``confessions.'' It surely would have been psychologically easier for the mother to accept the police version of her daughter's murder. But Rebecca Marion knew that Jerry Frank Townsend's confession was riddled with inaccuracies. Curcio told The Herald's Dan de Vise that Rebecca Marion made him promise to find the real killer. (She died in January, a few weeks after Curcio linked the DNA extracted from Sonja to Eddie Lee Mosley.)

"Sheriff Ken Jenne demonstrated a bit of courage last week, when he bucked the police culture and made his pilgrimage to the jail and apologized to Townsend for the part the Broward Sheriff's Office played in those unseemly 1980 convictions. And Jenne promised to install policies that would protect the mentally disabled during interrogation. This might have been dismissed as an act of a politician, but it strikes me that mentally retarded murder convicts are a meager constituency."

These are extraordinary circumstances. First, the cops. Most cops are happy when they see a conviction in a major crime story that has caused a public uproar. The pressure is off them to "do something" and they are heroes for having gotten a dangerous monster off the streets. The Sheriff, who holds elective office, is particularly sensitive to the need to assure the public that justice has been done, and is usually loathe to reopen old cases.

Then too, there was the role of Rebecca Marion. Her thirteen year old daughter had been raped and murdered. It would have been the easiest thing in the world for her to silence the faint voices of doubt she had about Townsend’s conviction, and assume she had gotten closure and gone on with her life. Who could have blamed her?

But she had doubts, and added her voice, a rare one indeed when television news is so heavily populated with "relatives of the victim" spitting their resentment and anger and demanding, with dubious moral authority, that "justice be done". Marion died in January, but not before the initial DNA reports conclusively linking two of the murders to another man had been released. She died knowing she was right to have those doubts, right to voice them.

The Broward County Sheriffs also acquitted themselves honorably in this case. Most cops, for obvious reasons, don’t want to have to admit they got the wrong guy. The Sheriff went to Townsend and apologized, a gracious and honest act that, unfortunately, we don’t have cause to expect from our police normally.

It’s gratifying that in the end, justice was done and Townsend is a free man. But it’s disturbing that so many unusual occurrences had to take place for that to be so.

You had cops willing to investigate a mistake in a sensational murder case. That’s not too amazing in and of itself, but the fact that it was a thorough and honest investigation was. Cops don’t like to have to prove themselves wrong.

It was utterly amazing that the push to have the DNA testing done came from a mother of one of the victims. Usually, when the question of whether a convicted criminal’s guilt comes up after the trial, the relatives of the victims are at hand, truculent and implacable, demanding that this liberal mollycoddling of criminals be stopped and justice be done. Rebecca Marion must have been an exceptionally courageous woman. The victim’s movement in America is utterly convinced that it should have final say on the appeals process, it seems, and I doubt very many of the movement’s members were too happy with her.

We have a justice system that, in capital cases, is wrong at least 3% of the time – that’s how often someone on death row is subsequently released after new evidence emerges – and, according to defense attorneys the error rate might be 12%, or even higher. That’s what comes from a justice system where the prosecutor’s office and most judges have to run for office, and other elected officials determine how much money goes to prosecution, and how much to the public defender’s office. In an atmosphere where "quick fixes" are preferred, it’s no surprise that accuracy takes a back seat to crowd-pleasing. And the result is heavily stacked against the accused.

Reforms are needed. An error rate of 3% is unacceptable. If there are 5,000 convictions for murder each year, then that means that 150 men are in prison for a crime they didn’t commit; and more and more frequently, facing execution for it.

Just off the top of my head, here are some of the reforms that are needed:

Accept no police station confessions. As the Townsend case clearly shows, police can coerce confessions out of innocent people, even in a situation where the police are guilty of nothing worse than wanting desperately to get a resolution to a series of crimes that have stirred public outrage. There’s no particular reason to believe the cops broke any laws in the interrogation of Townsend, but rather, merely exploited the willingness of this mentally retarded man, who surely had no concept of the consequences, to please the authority figures. He apparently was convinced he didn’t even need a lawyer present. Given the power they have, and the pressure they are under to use that power for speedy solutions, it’s a mistake to assume that cops are always honest, or even competent. Not when people’s lives are at stake.

Take the relatives of the victims out of the legal process. Their rage and grief are indisputable, and it seems unfair to not make them part of that process. But, except in rare cases, they are not in a position where they can assist in finding truth. They want closure, and lack both training and inclination to observe the rights of the accused, particularly those rights that seem petty and obscure, like having a lawyer present for questioning, or full use of the discovery process, or a fairly lengthy appeals process. Angry people do not make for good justice.

Mandate that funding for the public defenders office be equal to that of the district attorney’s office. The public defenders are under-budgeted, under-staffed, and rarely able to perform the job required by the Constitution. There was a study in California that showed that a public defender only put in about 30 hours on a capital case.

Broaden the appeals process as wide as feasible. Yes, it gets exploited by some jailhouse lawyers who abuse it to incur public expense. And yes, it’s worth it. If we can spend $350 billion a year on the military, we can spend 2% of that on guaranteeing justice to our own citizenry.

Make judges appointed by superior courts, with tenure based on good behavior, as the Constitution demands. The public and the elected legislatures should have no role in appointing judges, and only be able to remove them from office in cases of actual malfeasance. Judges should never have to look over their shoulders to see what the opinion polls say when judging a controversial case, but that’s exactly the position we put them in with our present system.

Depoliticize the district attorney’s office as much as possible. Most such offices are used by wannabee career politicians as launching pads for their careers, and they want to collect as many notches on their belt as they can, to show both that they are competent, and "tough on crime". The temptation to short-circuit justice arises when this type of situation occurs.

And finally, eliminate the death penalty. It does not deter crime, and it does not save money. It does put us in the position where we are executing innocent people for the sake of convenience, and when we reach that juncture, there is no moral difference between ourselves and Charlie Manson.

Do I expect to see any real reform any time soon? Not really. After all, there are people running around who are annoyed that Townsend "got out on a technicality."