Crime

How To Start Your Own Exoneration Project

It's a known fact that thousands of people are wrongly convicted of crimes and spend decades of their lives in jail because of it.

By  
on
Glenn Garber

Glenn Garber

It’s a known fact that thousands of people are wrongly convicted of crimes and spend decades of their lives in jail because of it.

DNA has been a major tool in exonerating the wrongfully convicted. The Innocence Project, for example, specializes in cases where DNA was never checked and where, after the case is reopened, the DNA can prove actual innocence. Since the project was founded in 1992, approximately 341 defendants have been exonerated and 147 of the real perpetrators found, according to its website.

But DNA-exoneration cases are becoming less common precisely because DNA is now taken routinely and used in the first instance, i.e. before trial, to either prove guilt or to get a case thrown out. Taking a defendant’s DNA has become so routine that a buccal (pronounced like “buckle”) swab (swabbing someone’s mouth or cheek with a Q-tip to type his DNA and then keep it in a national data bank) is compulsory in crimes ranging from petit larceny to rape.

But what happens in those cases where defendants were wrongfully convicted and where, because of the nature of the crime, DNA didn’t come into play? Cases where, let’s say, the conviction was based on a false confession, or a one-witness identification, or a cooperator who put the defendant at the scene but was lying. Those are even tougher cases to get overturned.

How do you go about disproving those convictions and who would want to take on such a challenge?

Enter Glenn Garber — a guy with grit, excellent trial and appellate skills, and a heart of gold. (In full disclosure, I’ve known Glenn for many years. We started together at the Legal Aid Society, Manhattan, in the 1990s. I’ve always been impressed by his work ethic and the great results he gets.)

Sponsored

Garber had been doing criminal defense work for some time when his secretary told him a story about her uncle, wrongfully convicted for murder.

Garber was hungry to try something new and took on the case pro bono.

H. Gonzalez, an alleged member of the Latin Kings, had been at a bar when a man was knifed to death. The prosecutor had two major points against Gonzalez — his blood was found on the victim and a witness, another Latin King at the scene, named him as the killer.

Gonzalez went to trial, was convicted and got a sentence of 15 to life.

Garber started looking into the case. He discovered that the eye-witness had been rearrested by the Feds and was cooperating with them to get a lesser sentence. Part of any cooperation involves admitting to federal prosecutors every bad act the cooperator had ever committed — from the trivial, like having a pot habit, to the serious, like being at a murder scene and testifying falsely.

Sponsored

The cooperator told prosecutors that he’d lied about Gonzalez.

With that recantation information, Garber was able to get Gonzalez’s case re-opened and eventually dismissed. He used the money he made on a subsequent civil case to hire an associate and fund his own exoneration project — the Exoneration Initiative, or EXI. To this day it’s going strong.

Exoneration work was a natural fit for Garber. “Any defendant is always the underdog in the criminal justice system, but people who are wrongfully convicted are screwed on all levels way beyond even that,” he says.

Following the Gonzalez exoneration, he and his associate, Angharad Vaughan, wrote a 2008 article in the New York Law Journal about the case and soon letters from thousands of inmates claiming to have been wrongfully convicted started pouring in.

Vetting the numerous pleas of innocence was difficult, but Garber was looking for specific hallmarks before taking on a case — a conviction based on a combination of weak evidence, like a poor ID, cooperator testimony, or bad forensic science — but each piece had to corroborate innocence independently.

He started working with the “Second Look” program at Brooklyn Law School and, with the help of student interns, carefully selected cases to work on.

Through it all he maintained his regular criminal law practice, had four kids, nearly went bankrupt from the upfront investment the exoneration cases needed, and struggled with being targeted by prosecutors because of the work he was doing.

“Nobody, especially prosecutors, wants to admit they’ve made a mistake,” Garber says. The attacks included accusing him of paying off a rape victim to recant. None of it was true.

Since beginning the project, Garber now has full-time associates, an office just for this work, a former Judge, Anne Feldman, by his side, and a lot of credibility. His office has helped win the exoneration of people the website calls, “the actual innocent,” but Garber’s work doesn’t end once an inmate is exonerated.

When the wrongfully convicted get out of jail, it’s often a struggle to survive. Take John Bunn, convicted of homicide when he was only 14. He spent 17 years in jail before EXI got him out.
Now in his mid 30s, he’s got to learn to make a living in a whole new world he never knew as a child.

Garber says that when the people he’s helped get released from jail, he “talks to them constantly.” “Over the holidays I spoke to everyone.” His office helps refer them to psychologists and social workers, many of whom do the work on a pro bono basis.

EXI has evaluated 3,000 cases in six years, over 100 of those they’ve decided to pursue, all involving only homicide convictions and only in New York State.

Imagine how much work there’d be if they had the funding and manpower to investigate all crimes for which people can be wrongfully convicted.

At a recent celebratory dinner to honor the program’s work, several exonerees spoke. Surprisingly, none of them were bitter about what had befallen them, they were just thankful.
Thankful to have had their cases chosen, and thankful to have regained their freedom.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

Topics

, , , , , ,