Here's another bad idea

As I was heading to traffic court on Friday afternoon I was listening to BBC World Have Your Say on the radio. The show led off with a discussion of the gang rape on a bus in India the other day. The guests spoke about how we needed to stop blaming the victim and that women should be able to walk the streets free from fear of sexual assault.

But one of the guests, a counselor in Toronto, stated that in order to protect women the justice system needed to support survivors of sexual assault. While there was much discussed that I agreed with, I could only glare at the radio when she uttered those words.

Our criminal laws are designed to protect the victims of crime. Our criminal (in)justice system is supposed to protect the rights of the accused. The due process provisions of the Bill of Rights were included because the Founders of the Republic thought the greatest injustice was sending an innocent man to prison. Therefore, they set out to make it hard for the state to obtain a conviction. Yes, it means that folks who did bad things sometimes walk away free, but it's better for that to happen than to imprison an innocent man (which we seem to do plenty of).

If the justice system is going to do more to protect the alleged victims of sexual assault then it must come at the expense of the rights of the accused. This is simply unacceptable. Once you take away a defendant's rights because of the crime of which he's accused, it's easier to expand that forfeiture to other crimes.

The state always seeks to limit the rights of the accused because it makes it easier to obtain a conviction. That is precisely why we must constantly fight to preserve those rights we have, because even though we call them the rights of the accused, they protect all of us. We all have the right to be left alone by the state and we all have the right to keep our mouths shut. We all have the right to hold the state to its burden of proof. So if we're going to take that right away from one person - we are taking it away from all of us.

The way our courts treat motorists accused of driving while intoxicated is shameful - but it happened because no one wanted to appear to be in favor of drunk driving. The result is judges now volunteer to sign warrants for officers to jab needles in people's arms for committing a misdemeanor.

So what would our counselor have us to do to modify our criminal (in)justice system? Take away the accused's right to keep his mouth shut? Take away his right to cross examine the witnesses for the state? Take away his ability to defend himself?  She never did say  because no one pressed her on the stupidity of her statement.

I get it. No one wants to be accused of being in favor of sexual assault. But depriving a defendant accused of rape of his due process rights isn't the way to go.

For one you walk down that path you weaken the piece of paper that is our last line of defense against tyranny in this country.

DNA testing clears Texas man who died behind bars

Travis County District Judge Charles Baird has ordered the posthumous expunction of Timothy Cole's record. Mr. Cole died in prison while serving a sentence for a rape he did not commit. Judge Baird called the exoneration the "saddest case" he'd ever handled.

Mr. Cole, a student at Texas Tech with no criminal record, was charged with and convicted for the rape of fellow Texas Tech student Michele Mallin in 1985. Mr. Cole rejected the state's offer of probation in exchange for a guilty plea and refused to confess to the crime before the parole board. He died behind bars in 1999 as the result of complications from asthma.

Assuming that Mr. Cole received a fair trial, fairness does not equate to correctness. Juries get things wrong. It's yet another reason to question elected officials who have toiled to limit the right of inmates to seek post-conviction relief.

DNA tests conducted in 2008 linked inmate Jerry Wayne Johnson to the crime. Mr. Johnson testified in court on Friday that he was the rapist. He apologized to Ms. Mallin and to Mr. Cole's family. Mr. Johnson's attempted confession in 2001 was discarded because the court required physical proof of his involvement in the crime before anyone would consider the exoneration of Mr. Cole.

Ms. Mallin picked Mr. Cole out of a photo array. Of the six photos in the array, five were mug shots and one was a polaroid of Mr. Cole.

Mr. Cole's family, The Innocence Project and Ms. Mallin have all asked that Mr. Cole's name be cleared.

"No person deserves what that man got. He could have been a father, he could have been a grandfather right now." -- Michele Mallin

This tragic case brings up so many questions. Why wasn't the rape kit tested before Mr. Cole was tried? How reliable is eyewitness testimony? How much influence does the make-up of a photo array or lineup exert on the eyewitness or complaining witness? And, biggest of all, how many other innocent men and women are there locked behind bars in Texas?

See also:

• National Public Radio's coverage (Feb. 5, 2009)


• Grits for Breakfast (July 1, 2008)


• StandDown Texas Project (Feb. 4, 2009)


• Houston Chronicle (Feb. 6, 2009)


• Interview given by Judge Baird to PBS Frontline about the Roy Criner case