I Am Ahab: October 2008

Guest columnist Joel Newmiller
September 30, 2008

Two years, five months, and fourteen days ago, my brother Todd was wrongfully convicted of second-degree murder and sentenced to serve 31 years in prison. A year and a half before that, my brother and I were celebrating his thirty-first birthday. It was the night that Anthony Madril suffered a fatal stab wound to his heart during a confrontation that took place a couple of blocks away from a local bar—a confrontation in which none of the six witnesses (myself included) identified Todd as ever being in a conflict with Anthony, and in which all six witnesses identified another member of our group as being in a brutal fight with Anthony across the street and out of their view. This was the event that set the gears of the machine in motion and led my family to where we are today.

After Todd’s conviction, we immediately began the search for an appellate attorney to initiate the appeal process. We found an attorney in Denver who was interested in our case and who, upon reviewing Todd’s case, was as outraged at the miscarriage of justice as we were. The appeals process, surprisingly, does not focus on the veracity of a conviction, but rather on procedural errors. Therefore, a person’s guilt or innocence isn’t reevaluated during the appeal process, but bureaucratic failures of the system are (at least in theory). Our appeal focused on a destruction of evidence issue, an issue that we had raised during the trial and had been central to the prosecution’s case (the details of our appeal including all of the briefs filed can be found at www.bearingfalsewitness.com). After several months of filing various briefs to the court of appeals, receiving a reply brief from the state, and attending oral arguments in a special public session of the Colorado Court of Appeals at Denver University’s Sturm College of Law, the Court of Appeals finally reached a decision about our case. Our appeal had been denied, and Todd’s wrongful conviction would be upheld. Our last path for relief was to file a request for a writ of certiorari to the Colorado Supreme Court, a plea to the Colorado Supreme Court to review the erroneous decision of the lower-level courts in Todd’s case.

On Saturday, September 27, we received a letter from our appellate attorney informing us that the Colorado Supreme Court had denied certiorari. It had been four months since we had lost our appeal in the Appellate Court, so this final plea to the higher courts was our last chance to exonerate Todd before moving to post-conviction avenues for relief. The Supreme Court’s decision not to review our case meant that every level of court in the state had upheld and reaffirmed Todd’s wrongful conviction.

Now we must begin the process of finding post conviction relief, by filing a 35(c) motion and/or petitioning for habeas corpus. A 35(c) motion is a state-level motion in a criminal appeal to remand to the trial court. A 35(c) motion would examine the issue of ineffective assistance of counsel during the trial and appeal, and also examine the constitutional propriety of Todd’s conviction. Our other option, petitioning for habeas corpus, is essentially equivalent to filing a 35(c) motion in that both seek to evaluate whether or not by brother’s incarceration is lawful, but takes place at the federal rather than the state level. Pursuing either avenue will require that my family hire new counsel to represent Todd in finding post-conviction relief. So, we will continue to fight to exonerate Todd, while he sits in prison for a crime he didn’t commit. Todd’s situation is far from unique, and for those engulfed by the system, finding relief can feel impossible at times.

According to the American Bar Association, the rate of wrongful convictions for index crimes is 0.5 percent per year (the lowest estimate I was able to find). Index crimes are statistics developed by corroboration between law enforcement agencies and the F.B.I that determine the number of arrests for heinous offenses annually—including murder, robbery, rape, and arson. A 0.5 percent rate of wrongful convictions may seem acceptably low to some, but when cast against the total number of index crime arrests in our country the magnitude of this problem unfolds. According to the American Bar association’s website, there were 2.2 million index crime arrests in 2000 (the year that the published statistics for wrongful conviction rates were evaluated), and they estimate that 70 percent of those arrested will ultimately be convicted. If 0.5 percent of those arrested for index crimes are innocent, then 7,500 people were wrongfully convicted of serious crimes in 2000 alone. These statistics fail to take into account lesser crimes such as drug offenses, vandalism, or even traffic violations, where those charged are more likely to accept a plea bargain rather then maintaining their innocence, so it is safe to assume that the actual number of wrongful convictions is much higher. Furthermore, for every person that is wrongfully convicted, the criminals who actually committed the crime remain free.

Injustice manifests itself in many forms, and to the victims of injustice, it matters little if your pain is caused by a random member of the community or is sanctioned by the government. I suspect that the friends and families of those who have suffered injustice begin to experience life in much of the same way – survivor’s remorse, crippling retrospection, an infinite collection of what-ifs floating inside a mind riddled with anger and confusion. The shadow cast over your life after suffering injustice ends up influencing everything you do. So you do what can. Try to remain positive. The importance of your family and friends is reinforced through your shared struggle. And you continue to fight injustice even when your present circumstances are worse than fearful imaginings.

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