International Wrongful Conviction Day on October 2 is an initiative from the Canadian Association in Defence of the Wrongly Convicted. They launched the initiative in 2014.
The AIDWYC is “a non-profit organization dedicated to identifying, advocating for, and exonerating individuals convicted of a crime that they did not commit and to preventing such injustices in the future through legal education and justice system reform.”
The goal is to raise awareness. Issues to be discussed at the Law Society of Upper Canada center on identifying who is at risk and why.
- Is it just that the poor cannot afford a good lawyer?
- Is it corruption which makes some prosecutors withhold evidence?
- Is it because we do not have a uniform post-conviction right of access to pre-trial evidence for DNA testing?
- Is it because we do not uniformly apply actual innocence exceptions?
One of the biggest wrongful convictions for me remains the case of William Thomas Zeigler. I have blogged about him extensively here. There are about 60 posts about this case in a separate category. For this day, I made a summary of the most important legal arguments.
Mr. Hadley started the Zeigler defense based on the assumption that the documents he had received were correct. His private investigator, Gene Anan, who checked the facts in the case could not find a Mr. Robert Foster who was mentioned in the police reports. Detective Frye told the defense that he did not know a Mr. Robert Foster and even stated so on the stand. It was just a typo in the arrest report. Therefore, Hadley and the rest of the Zeigler defense team relied on the state’s assertions that
- Robert Foster did not exist, that
- Frye had not spoken to a man named Robert Foster and, that
- there was no involvement of a man named Robert Foster in the Zeigler case.
Frye later signed a new arrest report leaving out any information about a man called Robert Foster.
If Hadley had evidence that Robert Foster did exist, he would have undermined the credibility of one of the state’s own witnesses. The state has an obligation under Brady v. Maryland to disclose any favourable evidence even if that meant it could impeach their own witnesses.
Aside from this we have a string of unexplained issues in this case. The most important ones:
A: The prosecution contended that only one man e.g. Zeigler killed the four victims. After investigating the crime scene police found that 28 shots were fired with eight revolvers. However, no gunshot residue was found on Zeigler’s pants. How is that possible?
B: Three people were shot by a killer who did not care whether they left traces behind, while around one dead body someone partially cleaned up. If one person was responsible for all four killings, why would that person bother to clean up around one dead body but not around the other three?
C: The prosecution’s theory was that Mrs. Zeigler’s body remained undisturbed after she was shot. The position of her left hand in her left coat pocket was the sole basis for that theory. We now know that her hand was placed in her left pocket to hide that her diamond rings were stolen. The rings that she always wore were never found at the crime scene or at the Zeigler house. However, decades later these rings showed up in the belonging of her brother and his family. How did they get those rings?
The prosecution withheld various crucial pieces of evidence that all undermined their theory.
I: Chief Thompson’s police report as first officer at the scene was not given to the defense before trial or during discovery. In 1987, after Florida passed its Public Records Act, Zeigler’s appellate attorneys were granted access to the state attorney’s files of the case. That is when the Thompson report was discovered. In that report the Chief wrote that blood around Zeigler’s gunshot wound was dry and dark. But on the stand, he lied and claimed it was fresh. Fresh fitted the state’s theory. Dry did not.
II: The prosecution said that the shootings took place between 7:00-8:00 p.m. on Christmas Eve, 1975. Four witnesses, whose testimony the state suppressed and hid from the defense for more than a decade, said that the shootings took place after 9:00 p.m. This is the Jellison Tape that was discovered at the same time as the Thompson Report.
Zeigler’s attorneys raised the issue that the Jellison tape contradicts the State’s version of the events, as well as that the State hid the tape from, (1) the trial court, (2) from discovery during the trial, and (3) from all the appeals.
The Court of Appeals held that this issue should have been raised before January 1, 1987, which was the time period for Zeigler’s state claims for relief. Zeigler’s lawyers pointed out that the State had kept the tape hidden until April of 1987. The Court denied relief anyway, and the Florida Supreme Court affirmed that denial.
On this day, we should remember that the Zeigler case is based on prosecutorial misconduct, withheld evidence, and forensic evidence pointing to other explanations than what the state offered when it charged William Thomas Zeigler with quadruple murder that sent him to death row.
Each time the consequences of the misconduct were dismissed as either procedurally barred or that the complaint was filed too late or that on its own this one single complaint would not have changed the opinion of the jury. However, if the jury in 1976 had been shown all the evidence at once, it is unbelievable that it would not have created reasonable doubt.
It is time that a judge looks at this case and all the misconduct in its entirety. This case is so puzzling that forensic science students at Penn State took a look at it. Read what they have to say about it: “The vast majority of the students asserted that Mr. Zeigler’s case should be reviewed and that the on-going appeal is warranted. They felt that DNA testing on relevant items of evidence, such as the victims’ and suspect’s clothing, could shed informative light on the investigation. Some speculated that upon closer inspection of the evidence, Tommy Zeigler may be exonerated from the crime he was convicted of committing.”
A review in its entirety is key in wrongful convictions and why we need actual innocence exceptions. “The Supreme Court agreed that actual innocence is a special circumstance, but the exception is narrow. The Court set a high bar for a showing of innocence, holding that petitioners must prove that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”
In 2009, Justice John Cataldo of State Supreme Court in Manhattan spoke about actual innocence in the case of Bermudez v. City of New York. “An “actual innocence” statute, experts said, would give judges the leeway to excuse procedural violations, missed deadlines and other mistakes if the evidence is strong enough.”
But even if a state does not have an exception for actual innocence it could still use a successor collateral relief petition as was done in the U.S. Supreme Court’s decision in Schlup v. Delo, 513 U.S. 298 (1995). In that case, Lloyd Schlup (death row prisoner) filed a second federal habeas corpus petition based on the following:
- ineffective assistance of trial council
- failure to check alibi witness testimony
- prosecutorial misconduct based on withheld evidence
We have options to prevent wrongful convictions but the best one is mentioned by Scott Greenfield:
“As much as I have no answer to the conundrum, the problems recognized by this bill, and its opponents, could be significantly reduced if judges were to take their responsibility far more seriously prior to conviction. My preferred resolution to the problem of innocent people in prison is to stop convicting innocent people. While this is hardly a complete solution, it’s a good start. And it won’t even require passage of a new law.”
We can do better and it doesn’t require new laws. It just requires integrity.
Please share this post by using the social media share buttons below to make sure that on this Wrongful Conviction Day we remember that Tommy Zeigler and so many others are still incarcerated for crimes they didn’t commit.