The Apologist
In the spring of 1987, a man named Calvin Reid was expected to go to prison for a very long time. He'd been arrested on April 15, the day after someone broke into a young couple's house in Somerville with a knife and a gun, tied up and blindfolded them both, and raped the wife, who was four and a half months pregnant. Then the bad guy loaded a TV, a VCR, and a stereo into the couple's car and drove away.
A cop spotted the culprit doing 80 a few minutes later and chased him all the way to Lynn. The rapist bailed out of the car and got away on foot, but the cop saw him well enough to put together a composite sketch. It looked an awful lot like an old mug shot of Calvin Reid. The cop even picked him out of a photo lineup.
Calvin Reid was going to prison. He had a weak alibi. He had a record, though nothing sexual, mostly larcenies. He swore he was innocent, but even the investigator assigned to his case by the public defender's office wondered if he was. An innocent man would have likely been outraged by the accusation, remembers that investigator, Tom Larned, who is now an FBI agent. Calvin seemed quiet and almost resigned.
His case plodded through the system for more than a year–justice is rarely swift–and, in 1989, the file landed on the desk of David Meier, an assistant district attorney in Middlesex County. For ambitious young prosecutors who build their reputations and their careers locking up apparently wicked men like Reid, the case was a lay-up. The victim would take the stand, the police officer would testify, and Calvin would shuffle away to prison.
Except there was one nagging question: When Meier reviewed the evidence, he was troubled by the contents of a Harry the Greek's bag the bad guy had left in the car when he bailed out. There was a leather jacket and some other clothing in the bag, all of it too small to fit a husky fellow like Calvin. Why would he have bothered with a coat he couldn't have worn? It made no sense. With less than three months until the trial, Meier asked his boss, Tom Reilly, then first assistant district attorney, if the clothes could be sent out for a relatively new and maddeningly expensive DNA test. Reilly told Meier to follow his gut.
Calvin Reid, of course, was innocent. The charges were dismissed, and he was sent on his way. But that is not the point of the story nor the reason Meier brings it up almost 15 years later.
“I could've convicted him,” Meier says. Had Meier simply done the job required of him–made a good-faith presentation of the evidence gathered by police detectives–Calvin Reid would still be waiting for parole. He would have had his capable defense, his rights would have been respected, and his appeals duly heard. The system, in other words, would have worked just fine while failing catastrophically.
Which is precisely the point.
It happens, too, innocent men being sent off to prison. Not nearly as often as, say, the general population of any American prison might loudly suggest, but enough to make reasonable people uncomfortable. An eyebrow-raising seven convictions in Suffolk County have been overturned since 1997. In each case, men who were innocent of the charges against them went to prison. Perhaps no one knows this better than Meier, who in the past five years has stood before a half dozen judges and said, in essence, Oops. A mildly rumpled fellow with a shag of dark hair, Meier is the chief of the homicide unit in the Suffolk County District Attorney's office, a position he has held since former DA Ralph Martin hired him away from Middlesex in 1996. He is very good at sending killers to prison. Over the past two years, his unit has won convictions in more than 90 percent of its cases. He is respected by judges and defense attorneys and cops–most of them, anyway.
Yet he has perhaps become most famous–“almost iconic,” says one defense attorney, and he means it in a flattering way–for the convictions he has helped to overturn. In some of the city's most notorious crimes, Meier has argued either that an innocent man was convicted or, at the very least, that a maybe-guilty guy didn't get a fair trial. He has had a remarkable streak: In a business where success is measured by convictions, prosecutors aren't expected to argue against their own victories or to undo police investigations.
“Marlon Passley. Donnell Johnson. Stephan Cowans,” says Meier, ticking off the names of three of the more prominent convicts who have been set free with his assistance. “They weren't the beginning of this for me. Calvin Reid was. I knew I could have convicted him. And that was the scariest part.”
From one perspective, the fact that Suffolk County convictions have lately unraveled at the rate of roughly one a year proves the system is deeply flawed, prone to egregious error if not outright corruption. The fact that a Suffolk County prosecutor has helped do much of that unraveling suggests a more optimistic corollary: There are at least a few people in the legal bureaucracy willing to correct injustices simply–indeed only–because it is the right thing to do. (The Massachusetts District Attorney's Association, reassuringly, seems to agree; last month it gave Meier a 2004 Prosecutor of the Year award.)
This is neither easy nor common. The process of crime and punishment as practiced in urban jurisdictions is not designed for prosecutors to second-guess themselves. Once a suspect is convicted, there are too many forces–emotional, political, practical–standing in the way. Eyewitnesses still believe they pointed at the right person in the courtroom. Police detectives (with whom prosecutors need to get along if they have any hope of doing their jobs) are certain they got a bad guy off the streets. Victims, or their survivors, think they've found closure, whatever that means, when a jury declares a suspect guilty and a judge sends the person to prison. To be told they were wrong, and to be told that by the man who is supposed to be working for them, is devastating–especially after an appeals court has already said that everyone followed the rules and the guilty verdict should stand. Meanwhile, there are 2,000 more cases piling up in the hallway every year.
It would have been easy to let Marlon Passley stay in prison, where he spent four years for the 1995 ride-by murder of Tennyson Drakes. Four witnesses said he did it. A jury believed them. His conviction was upheld all the way to the state Supreme Judicial Court. It would have been easy, too, to leave Donnell Johnson in prison. He was convicted–twice–in the notorious shooting death of Jermaine Goffigan, a nine-year-old boy killed in a spray of gunfire on Halloween night in 1994. There were witnesses who swore they saw Johnson pull the trigger. There was a plausible if pointless motive, a wannabe gangbanger avenging an earlier shooting. And there were the routine appeals, all of which were denied. Both of those men (though Johnson was a boy at the time) had excellent defense attorneys. Both had their due process. Both enjoyed all the proper workings of the justice system.
Except they were convicted, even though they were both completely innocent. And both were eventually freed by the people who put them away. In Passley's case, a suspect in an unrelated crime told police he was driving the motorcycle that sped by Drakes and that the shooter sitting behind him wasn't Passley. Passley was released within weeks. In Johnson's case, a hoodlum facing a massive federal drug sentence named other boys as the shooters, which led to a grand jury investigation and, eventually, Johnson's release.
Johnson and Passley were remarkably gracious, considering. But the victims' families were frustrated, believing guilty men were being freed. The police and prosecutors were criticized for getting the wrong men to begin with. There was little praise, and maybe there should have been, for prosecutors willingly admitting they were wrong, that they stole years from young men's lives. There is no upside to conceding failure.
“It's easy to turn a blind eye,” Meier says. “It's easy to say, 'Twelve people found this guy guilty,' and turn away. There are a million reasons to do that and only one reason why you shouldn't: It's wrong. I mean, what's the great joy or satisfaction in keeping an innocent man in jail?”
There isn't any. But not every prosecutor worries about that years after the fact.
And there is another reason. “David appreciates a fact that should be obvious to most prosecutors but regrettably is not,” says J. W. Carney Jr., a defense attorney, former prosecutor, and friend. “And that's that if the prosecutor is bringing a case against an innocent person, that means the guilty person is still out there.”
The allegedly guilty person, anyway: Carney is representing a newly indicted suspect in the shooting of Goffigan.
Passley and Johnson, to a great extent, are exceptions. They were both convicted in good faith, perverse as that may sound (though Johnson maintains in a current lawsuit that police detectives withheld evidence during his case). Other cases have been less pristine.
Shawn Drumgold, for instance, spent 15 years in prison after being convicted of shooting 12-year-old Tiffany Moore in the summer of 1988. After a hearing last July and August concerning allegations that police had coerced some witnesses and bribed another, and that defense attorneys were never told that another witness suffered from a form of brain cancer that could distort her perceptions and memories–all of which was reported in exceptional detail by the Boston Globe's Dick Lehr–Meier, who inherited the case from the old regime of ex-DA Newman Flanagan, argued in favor of vacating Drumgold's conviction. “The testimony and exhibits,” Meier wrote, “lead to one inescapable conclusion–that justice may not have been done.” He then immediately announced that Drumgold would not be retried–an unsubtle way of saying there was no legitimate case to be prosecuted (though he did write the charges of police coercion were not credible).
More recently, Stephan Cowans was released from prison after serving six and a half years for the 1997 shooting of a Boston Police officer. The cop, who survived, identified him. So did another man who said he saw the shooter before the gunman entered a house, asked for a drink of water, then left a fingerprint on a mug and a sweatshirt in the kitchen. Two fingerprint experts swore the print came from Cowans.
But the DNA collected from the sweatshirt and a baseball cap left at the scene did not come from Cowans. This was discovered late last year by lawyers from the Innocence Project, Barry Scheck's famed organization that has helped free more than 140 innocent people from prison. Still, Meier initially said he would retry Cowans. He had two witnesses, one an extremely credible cop, and a fingerprint.
Meier sent the print to be checked by two independent labs. Both said it didn't come from Cowans. The man was innocent.
But he still had been convicted, just like Calvin Reid would have been all those years ago.
Tom Reilly, who is now the state's attorney general, remembers that case. He remembers authorizing a lab test that might free a guy he had dead to rights. “When David was troubled by questions of whether a guy committed a crime, then I was troubled,” Reilly says. “One of the things I tried to teach prosecutors is that people are fallible, and if people are fallible then the system is fallible. But in the end, it's about justice. It's about finding the truth.”
That's not always so easy, because the system doesn't make it easy. “It can be a very lonely position,” Meier says, remembering all those times witnesses and victims and cops and reporters watched him un-convict the presumably guilty. “But when you put your head on the pillow at night, you know you did the right thing.”