Tim Cole was a student at Texas Tech University in 1985.  He was convicted of serial rape and sentenced to 25 years in the penitentiary.  After serving 14 years of his sentence, he died behind bars in 1999 with complications from asthma.  DNA tests, in addition to the confession of another, proved that Mr. Cole was an innocent man who had been wrongfully convicted. Gov. Rick Perry issued a posthumous exoneration and apology to his family this week.  The wheels of justice turn slowly and sometimes, unfortunately, not at all.

This is not the first horrendous miscarriage of justice in our country.  There have been a number of others, which are every bit as egregious as Mr. Cole's.  James Bain, in 2009, was exonerated after spending 35 years in confinement pursuant to a conviction for rape, kidnapping, and burglary.  James Calvin Tillman was imprisoned 18 years for rape before his innocence was finally established in 2007.  The list could go on and on.

Why do these dreadful mistakes occur?  Sometimes it is because a prosecutor with tunnel vision zeroes in on a particular defendant and is determined with a vengeance to obtain a conviction.  The situation may be exacerbated by court-appointed counsel, who cannot afford financially to give the required time to a case.  Or perhaps he is less than enthusiastic about its facts and not motivated to give his best effort to it.

Juries can also pose big problems.  Think of that masterful movie, Twelve Angry Men, and what the outcome might have been in such a situation had there not been that single "not guilty" vote on the first ballot. I myself, as an attorney,  served on two juries, and I can affirm that the statements made by jurors while deliberating are frequently shocking.  "Oh, this s--of a bi--- is guilty; so let's just get it over with.  I've got a business to run!"  There is often a "Dick Tracy" on the panel too, who thinks he knows more than anyone else in the courtroom.  This is the fellow to whom the court's instructions mean little or nothing.  A person like this can lead his fellow jurors down numerous rabbit trails.  It is amazing how persuasive he can be when those serving with him are not of a critical cast of mind.

Then there are the judges.  Heaven help us all!  Once while trying a case, either my opponent or I voiced an objection, only to watch as the bailiff actually shook the judge in the presence of the jury to wake him up so he could rule on the objection.  On another occasion, the judge read a newspaper while we attorneys argued a crucial motion.

Do not misunderstand me.  I have seen the system work, and work well.  The judge, jury, and counsel occasionally hit on all cylinders.  The trial turns like a top.  But, in most cases, it has been my sad experience that someone drops the ball.  Remember California vs. O. J. Simpson?  Jurors often grow tired and disgusted and feel they have more important things to do than to sit for days on end listening to evidence.  Lawyers' egos fill up the courtroom, with the spotlight on their designer clothing.  The judge can fail to expedite the trial and seem intimidated by the situation in which he finds himself.  And a double-murderer is acquitted!

After 20 years practicing civil law in the rough and tumble of South Texas courtrooms, I walked away happily, but disenchanted. Justice is invariably at best an afterthought.  Gamesmanship, political influence, and greed are the dominant factors in the judicial equation.  All this is borne out by the fact that attorneys speak primarily of "how much money a case is worth" and wonder whether the judge will be amenable to their will.  They may ruminate to staff about whether their campaign contributions to the judge's latest election effort will be sufficient to get their case by the opposition's motion for summary judgment.  Then, there is the altogether questionable ethical principle of attorney courtroom conduct that knows only a single word – "winning."

Going to court, my friend, is a crap shoot.  It never helps to feel sure about anything there.  The famous jurist, Mr. Justice Learned Hand, once stated that, next to death or illness, being sued was the worst thing he could imagine.  No kidding!  But at least for parties in a civil action there are only two ways to go broke in the process:  if you lose, or if you win.  There are not many litigants who can still laugh about the price of justice.

Thank God for an Innocence Project, which seeks to right atrocious miscarriages of justice.  Thank God also if you are sufficiently fortunate to get through this life without having to step inside one of our "houses of justice" for any reason whatsoever.

March 3, 2010