Justice and the presumption of innocence

The high-profile overturning of a 40-year-old conviction reinforces the need to closely examine the evidence, writes Morry Bailes.

https://indaily.com.au/opinion/2021/12/09/justice-and-the-presumption-of-innocence/?utm_medium=email&utm_campaign=InDaily%20Lunchtime%20%209%20December%202021&utm_content=InDaily%20Lunchtime%20%209%20December%202021+CID_f99f0b414b3a2e832b019b9c3d93385d&utm_source=EDM&utm_term=READ%20MORE

One of the most disturbing examples of wrongful conviction recently came to light.

The man wrongly accused, convicted and sentenced for a vicious rape was Anthony Broadwater. The accuser and victim of the rape was American novelist Alice Sebold. Her original projection into literary stardom was on the back of her recount of the rape and identification of Mr Broadwater in her first successful novel, Lucky.

She did not use his name. Not only did the book contain a confronting description of her rape, but details her subsequent identifying of her attacker. We now understand that identification to have been false.

The story began in 1981 with Alice Sebold at university in Syracuse, New York State. There was nothing imagined about her rape, which was brutal and violent. It occurred near her campus accommodation and no doubt shaped her life forever thereafter. Both her successful books, Lucky and The Lovely Bones, described or drew from her experience of sexual assault and rape.

How that tragedy reached out to entangle Anthony Broadwater is only now fully understood. It occurred after the two briefly and randomly encountered one another on a street five months after Sebold was raped. Broadwater was a Marine who had returned home to visit his parents. Sebold was convinced she recognised her attacker in that fleeting encounter.

There followed a police line-up, however Sebold was unable to identify Broadwater. He also did not look like the police sketch of the suspect. Nonetheless he was charged, tried, convicted and sentenced to 16 years imprisonment. He proclaimed his innocence throughout.

Five applications for parole were denied, because he refused to admit to what he was said to have done. It makes one question the wisdom of a parole system that demands of an innocent person a final confession to gain freedom. To reward the guilty, but not the innocent. How many, one wonders, have broken to attain their early liberty? But not Broadwater.

When, after 16 years he was released, society was closed to him because he was on the sex offender register. He couldn’t get jobs, other people did not welcome him into their homes, and although he married he refused to have children lest they bear the shame of his stigma. However he did not commit the crime for which he was convicted.

Australia too has a long list of people who were wrongly convicted of crimes. Even after their exoneration people still wonder about their guilt. Who can forget Lindy Chamberlain, who spent three years imprisoned after her wrongful conviction. There was Andrew Mallard in Western Australia, wrongly convicted of murder who served 12 years before his release. Colin Campbell Ross was executed in 1922 for the rape and murder of a child in Melbourne, the Gun Alley murder, a crime he never committed. He was pardoned 86 years later in 2008.

What is common in these cases is that often the facts don’t add up and there is an over reliance on expert forensic evidence. In the Broadwater case, the inability of Sebold to identify him at line-up and instead to identify another man led to the Deputy District-Attorney prosecuting the case to tell Sebold that she had fallen for a trick. He asserted Broadwater had brought a similar looking friend to the line-up and had done that before, and that during the process he looked down while his friend looked directly at her. She had thus identified the friend.

In fact this was untrue. Broadwater had never been in a line-up before, and the other man was completely unknown to him. Other evidence revealed the crime was committed by a man with a dominant right hand but Broadwater used his left hand to write. Hair samples on Sebold were compared to Broadwater’s who volunteered a sample expecting it would clear him. Instead an expert said it inculpated him; that it was his hair. The Broadwater trial that relied on that expert forensic evidence was in 1982. The accuracy of such a forensic technique has since been shown to be completely unreliable and is discredited.

The only positive identification of Broadwater was in the trial, when of course he was the only man standing in the dock. In America racial overtones are never far away. This was a black man being accused by a white woman.

In the past few days the New York State Supreme Court overturned Broadwater’s rape conviction and other charges. The current District Attorney said: “I’m not going to sully this proceeding by saying, ‘I’m sorry.’ That doesn’t cut it. This never should have happened.”

What is common in these cases is that often the facts don’t add up and there is an over reliance on expert forensic evidence.

Mention must be made of Tony Mucciante, variously a lawyer and journalist, who was also an executive producer in what was intended to be a film adaptation of the novel Lucky. It was his suspicions that led to a re-examination of the case. He was troubled by the inconsistency of the evidence and said “I started having some doubts—not about the story that Alice told about her assault, which was tragic, but the second part of her book about the trial, which didn’t hang together.”

A generation of readers, particularly women, captured by the power of Sebold’s narrative as it tackled the truths of sexual assault and rape, now have another chapter to cope with in this difficult story, as does the author, that the criminal justice system that tried this man was not only fallible – it engaged in a travesty of justice.

In the Chamberlain case, the evidence was at best circumstantial and the forensic evidence which led to her conviction wrong. Evidence of blood in the boot of the Chamberlain car later turned out to be a false positive. It was caused by an ore from the Chamberlain’s home town in Queensland. Lindy Chamberlain-Creighton had been convicted of murdering her own child without a confession, without a body and with no known cause of death. Yet at the time Australians rejoiced. We might ask, how did we get it so wrong?

For Mallard, important forensic evidence potentially exculpating him of the murder was not given to the defence. That related to the alleged murder weapon. His confession was also to be regarded with suspicion. It was unrecorded and the Court of Appeal described it as being of ‘very unusual nature’, ‘peculiar’ and ‘to say the least, odd’. There is much unanswered about the Mallard case, but there was enough about its conduct to lead the High Court to order a re-trial. The re-trial was never proceeded with by the WA DPP.

In the case of Ross, his conviction rode on hair samples said to be his taken from a jail blanket and argued by a forensic expert to be the same as those on the body of the deceased. When modern DNA techniques were used it became clear the evidence relied on was completely wrong. His final words on the scaffold before he hanged were:

“I am now face to face with my Maker, and I swear by Almighty God that I am an innocent man. I never saw the child. I never committed the crime, and I don’t know who did. I never confessed to anyone. I ask God to forgive those who have sworn my life away, and I pray God to have mercy on my poor darling mother, and my family.”

It is a clue as to the reach of the harm a wrongful conviction of a person can have.

In three out of four of these cases, the victim was murdered so could not identify their killer. In Mr Broadwater’s case Alice Sebold has apologised and acknowledged that there were two victims of this crime and two lives irreparably damaged. And because of the nature of the investigation and prosecution, a rapist is out there who was never found and will likely never be tried. She is not to be blamed for her part in the destruction of Mr Broadwater’s life, yet she was a central player in it.

In her apology Sebold said that her  “own misfortune resulted in . . . not only 16 years behind bars but in ways that further serve to wound and stigmatise, nearly a full life sentence” for Broadwater. It had been 40 years.

These cases that highlight the failings of the criminal justice system may make riveting if distressing reading. But they are much much more. They underscore the critical importance of the presumption of innocence. In all of these cases that principle was not adequately observed. In the haste to prove wrongdoing and to secure a conviction the investigators sometimes, and the prosecutors other times, lost sight of the whole basis of our criminal justice system, an impartial gathering and presentation of the evidence against a person so that a jury may make a fully informed evidence based decision.

Cases like this also draw attention to the fact that allegations must be fairly proved. Much of the complaint about the Me Too movement is not to deny past wrongs, but the way in which allegations have been made with insufficient regard for the need for legal process and procedural fairness. Allegations can be made for all types of reasons. Rather than allowing ourselves to be carried along with the tide, this ought to cause us to re-double our efforts to recognise the central role in our justice system played by the presumption of innocence and requirement, in the case of alleged crime, for proof beyond reasonable doubt. In lesser cases, the affording of procedural fairness.

The profoundly disturbing circumstances of Broadwater, with the false nature of the allegations made, and the conduct of the prosecution riding roughshod over what they ought to have recognised was a paucity of the evidence, is gut wrenching. Two lives were devastated by one crime for which no one was ultimately found to be responsible, perhaps for the reason Middle Ages French humanist Marie de Gournay proffered, that “ignorance is the mother of presumption”.

Yet from the tragedy of what occurred we are reminded of the inviolate thread that holds our criminal justice system together, the presumption of innocence.

The last words ought to go to Mr Broadwater, who is now not only free in body but free of taint before the eyes of the world. On learning of the Sebold apology he said,  “It comes sincerely from her heart. She knowingly admits what happened. I accept her apology’.

He then wept.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

Originally published InDaily 9/12/2021