In 1936, a case of three “ignorant negros” who confessed to the murder of Raymond Stewart reached the Supreme Court of the United States. The facts of Brown v. Mississippi (1936) 297 U.S. 278 [56 S.Ct. 461] are grist for the mill of many a first- or second-year law school course on Criminal Procedure.

Well, okay, but that was 1936.

[Aside: The quote “ignorant negros” is not intended by this author to be racist. It is a direct quote from the Supreme Court case and appears a) to have been intended to show that the defendants were not educated and b) to set the stage showing that the horrors to follow were perpetrated on African-Americans by racist whites.]

“Aside from the confessions, there was no evidence sufficient to warrant submission of the case to the jury.” — Brown, supra., at p. 278.

The first of the defendants, “Ellington,” was taken from his home by a number of white men, including a deputy sherriff, and carted off to a murder scene where numerous other white men were collected. Enraged that Ellington denied committing the murder, they strung him up to a tree. Burn marks from the rope would later be seen still to be present at an Australian version of the trial. (Although held in Mississippi, the Supreme Court clearly indicates that this was a true kangaroo court. The court called the trial “a farce” and noted that “in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.”) Even though strung up twice, Mr. Ellington admitted only his complete innocence each time they lowered him. Consequently, he was tied to the tree and whipped. He still refused to confess and for unknown reasons the racist pigs who did this allowed him to limp home, “suffering intense pain and agony.” However, the deputy and others retrieved him from his home later and, en route to jail, took a little side trip where he was again unmercifully beaten and told this would continue until he confessed. (Brown, supra.) Makes you feel like a bit of a weenie for all the times you finally said “Uncle” upon someone else’s insistence as they merely twisted your arm behind your back, doesn’t it?

Two others, Ed Brown (from whom the case gets its name) and Henry Shields, were similarly taken, stripped, and “cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed.” (Brown, supra.)

Whenever any of the defendants got the facts of the murder wrong, they were beaten until they changed their confessions to match the crime scene details provided by the deputy and others. (Brown, supra.) Makes you feel like a bit of a weenie for all the times you finally said “Uncle” upon someone else’s insistence as they merely twisted your arm behind your back, doesn’t it?

It should come as no surprise that these men were convicted at trial and, on the first appeal, this was upheld; Ray Stewart had been avenged by the strong arm of the “Law.”

Well, okay. But that was 1936. Today, we don’t do such things. Racism is a thing of the past. And racism aside, professional police forces and prosecutors simply no longer operate this way, not even in Mississippi.

Yet, on December 25, 2003, 38-year-old (African-American) Darryl Hunt was finally released from an 18-year imprisonment for the murder of Deborah Sykes. Ms. Sykes had been raped in addition to being murdered, although for unknown reasons Mr. Hunt was never even charged with her rape. Nevertheless, he was convicted in not one, but two trials despite the accusations that police and prosecutors railroaded him with questionable witnesses — there was no physical evidence connecting him to the crime. (All references to this case come from a story in the newspaper, The Las Vegas Review-Journal, dated December 25, 2003, page 17A.)

In fact, not only was there no physical evidence connecting him to the crime, it was the physical evidence that finally freed him! DNA testing matched Willard Brown, now 43, not Mr. Hunt. Even the District Attorney was willing to accede in this case — for the moment. Like numerous other innocent men in prison, he’s a model prisoner. And not only hasn’t the DA had time to concoc…oh, let’s rephrase: Not only is there no more evidence against Mr. Hunt yet, Mr. Hunt is eligible for parole in about a year anyway.

Once, the famous legal commentator Blackstone noted that we protect the innocent “only by paying the price of an increased willingness to release the guilty.” (Schauer, “Defamation in Fiction: Liars, Novelists, and the Law of Defamation,” 51 Brooklyn L. Rev. 233, 245.) Farther back than that, Abraham — overwrought at the prospect that his nephew, Lot, will be killed when G-d destroys Sodom and Gomorrah — asks, “Will you destroy the righteous with the wicked?” Throughout history, righteous or honorable men have thought it better to allow some guilty men to go free rather than accidentally punish totally innocent men. In fact, returning to Blackstone, he explicated that it was “better that ten guilty men should go free than that one be falsely convicted.” (Penrod and Cutler, “Witness Confidence and Witness Accuracy: Assessing Their Forensic Relation,” 1 Psych. Pub. Pol. and L. 817 , 827, emphasis mine.) Yet reality shows that police too often work hard for conviction and are not easily dissuaded even in the face of evidence to the contrary.

Well, but these crimes all involve murders and rapes, after all. This is quite serious stuff. It’s understable that there may be a greater tendency to push for conviction on such serious crimes. And most of these guys — the defendants — are scum anyway. Do you really want these people running around free?

First, I have to say, “Yes. If they’re innocent, they should go free.” The law does not rightly lock folks up merely for being “scum.” If it did, the streets, I’m sure, would be much easier to navigate, but taxpayers would be broke feeding the nation’s prisoners.

Second, though, it’s important to stop and realize that police and prosecutors intent on arrest and conviction don’t always stop at alleged murderers and supposed rapists. Saucier v. Katz (2001) 533 U.S. 194 [121 S.Ct. 2151] involved a case of an otherwise peaceful protestor demonstrating his displeasure by placing a banner over a waist-high fence during an appearance by Presidential-hopeful Al Gore. He was subjected to an excessive amount of police force in attempting to stop him from placing the banner. In the 1960s, people were convicted of violating federal laws for refusing to answer questions about which political parties they did or did not belong to. (See Wilkinson v. United States (1961) 365 U.S. 399 [81 S.Ct. 567] refusing to answer questions before the House Un-American Activities Committee.) Other cases have involved anything from indigent mothers losing their children because they could not afford to pay for court transcripts (M.L.B. v. S.L.J. (1996) 519 U.S. 102 [117 S.Ct. 555]) to car thieves being killed by police by means of semi-trucks parked crossways on roads while police lights deliberately blind the driver so that he can’t see the semi (Brower v. County of Inyo (1989) 489 U.S. 593 [109 S.Ct. 1378]). As to the latter case, you might think, “well, he was stealing a car.” Yep, that’s definitely a “death-penalty-without-trial” case if I ever saw one…NOT.

Yes, yes. Fine. But even Darryl Hunt’s conviction was 18 years ago. We’ve really come a long way since then. And these cases you cite are equally old.

Then why, in the face of a lack of evidence as to Hunt’s guilt, and with the statement by the man whose DNA match lead to his being charged that he committed this crime alone (ignore, for the moment, the fact that these sorts of crimes are typically carried out by individuals acting alone and not by more than one) — why does the current District Attorney state,

Mr. Hunt is still convicted. Just because someone says, ‘I did it by myself,’ I want some other information to determine that.” — Las Vegas Review-Journal, supra.

Clearly, this District Attorney, in spite of the lack of evidence of guilt by this man, Mr. Hunt, and in spite of DNA evidence and a confession from one who, after being confronted with the DNA evidence, admits to having acted alone in committing the crime (and, again, although such crimes are nearly always committed by lone criminals and not groups), is not willing to admit to there having been a mistake, a miscarriage of justice, in this instance. After all, the man was arrested and twice convicted, albeit on flimsy, forced, circumstantial evidence.

If ever there was an argument in defense of defense — and, ultimately, of defense attorneys — this is it.