Wrongfully Convicted In America: Failed Justice And Lost Years

ACROSS AMERICA — Instead of starting his senior year in high school on Sept. 7, 1988, 17-year-old Marty Tankleff of Long Island sat in a police interrogation room answering a barrage of unfathomable questions that boiled down to this:

Had he savagely killed his wealthy parents as they slept?

Police hammered at the teen for hours. He eventually was tried and convicted as an adult, and spent more than 17 years in prison, a majority of the time in the Clinton County Correctional Facility in New York.

But he didn't commit the crime.

Then there's Michael Austin, who was at work on April 29, 1974. That’s when Roy Kellam, a security guard at a Baltimore grocery store, was killed during a robbery. But a witness swore under oath that Austin was the killer, and the 24-year-old Baltimore man was convicted of murder and sent to prison for life.

He didn’t do it, either.

Tankleff and Austin are two of 2,674 people who have been freed from prison and cleared of any wrongdoing since 1989. That equates to 23,950 years lost, according to the National Registry of Exonerations.

In a criminal justice system centered on the principle that defendants are innocent until proven guilty, that’s thousands of lives ruined, dreams crushed and reputations tarnished. In some cases, the person who did commit the heinous crime went roaming free.

“It’s easier to put an innocent person in prison than to exonerate an innocent person,” Tankleff, now a lawyer who represents others who were wrongfully convicted, told Patch.

Reasons vary for why such miscarriages of justice have happened. Some contend that the criminal justice system is "racist" or "classist." Others cite official misconduct or corruption. Still others say it's more often a case of human error or faulty science.

Whatever the case, organizations and individual lawyers such as Tankleff have taken up legal battles that require years to win.

Kathleen Zellner has dedicated her law career to freeing people who claim innocence, gathering the evidence to prove it.

She represents Steven Avery, the Wisconsin man whose story was profiled as part of the Netflix documentary “Making A Murderer,” and others seeking freedom such as Melissa Calusinski.

Calusinski was working at a day care center in a Chicago suburb on Jan. 14, 2009, when 15-month-old Benjamin Kingan died in her care. The cause of the toddler's death has been ruled “undetermined” by the local coroner’s office, but Calusinski still sits in an Illinois prison serving a 31-year sentence for murder.

She told investigators 79 times she didn’t do it.

After several hours of intense pressure by detectives and without a lawyer, she confessed to throwing the boy on the ground “really hard.” It was a confession her lawyers, from that point on, have said was coerced.

“We just want our daughter home,” Paul Calusinski, Melissa Calusinski’s father, told Patch. “It was just her birthday, and birthdays are hard. So are the holidays. Her favorite is Halloween because we would all decorate together.”

Readable X-rays that weren’t publicly available until three years after Calusinski’s conviction suggest Benjamin did not suffer a skull fracture, a claim that was central to the prosecution at trial.

The new evidence shows Benjamin suffered from a previous injury that led to his death, attorneys for Calusinski have said.

But six years after the new evidence surfaced, there is still no new trial for Calusinski.

Read More On Patch: Protesters Call For Release Of Melissa Calusinski

As estimates show that thousands of people remain behind bars on wrongful convictions, it’s not just bits and pieces of the criminal justice system that need changing, Tankleff said — it’s an entire mindset.

“There’s one aspect of litigation which we often fail to discuss. We focus on the back end of that litigation, after someone is wrongfully convicted, but we really need to be focused on the front end,” Tankleff said. “Our goal should really be to prevent wrongful convictions, and to do that there needs to be a retraining in the prosecutors' office, in law enforcement and even in the judiciary.”

“When the police say someone has been arrested, we need to stop assuming that they are guilty.”

Austin's 1974 grocery store murder conviction was thrown out by Baltimore Circuit Judge John Carroll, who said it was "plagued by errors," and the Baltimore state’s attorney never retried him. He later received a full pardon from then-Maryland Gov. Robert Ehrlich.

It was ineffective counsel, perjury, violation of due process, prosecutorial misconduct and improper jury instruction that led to Austin’s wrongful conviction, according to Centurion, an innocence organization whose work since 1983 has led to the freedom for Austin and 62 others who were serving life or death sentences for crimes they did not commit.

“The lawyer I had was supposed to obtain the information that substantiated that I was at work while the crime was committed,” Austin told Patch. “Everything that was supposed to have happened in terms of providing a new trial based on the facts didn’t happen.”

Since he was freed in 2007, Tankleff has earned his law degree and works in the Metcalf & Metcalf law office in New York City.

Work by students of Tankleff and Prof. Marc Howard at Georgetown University, where Tankleff co-teaches a class on wrongful convictions and exonerations as an adjunct professor, led to the 2018 prison release of Valentino Dixon. Dixon spent 27 years in prison for a murder he did not commit.

Tankleff said there would be far fewer wrongful convictions if more judges would “use their gut.”

“I agree that it does start with that re-education, though,” he said. “We need to re-educate society. When a crime is committed in your back yard and police say someone was arrested, most people will be satisfied. Let’s retrain our thinking, so we don’t always just accept it when law enforcement tells us something.”

Jarrett Adams was wrongfully convicted of sexual assault in Wisconsin and spent seven years in prison until the verdict was overturned on appeal in 2007. He’s now a lawyer assisting anywhere from seven to 10 post-conviction clients at a time on a pro bono basis.

“We’ve been made to believe that if a suspect walks across the screen in handcuffs, that they did something bad,” Adams told Patch. “That’s not always the case.”

The mindset change Tankleff mentions “doesn’t happen without the entire branches of society,” Adams said.

“The criminal justice system is classist and racist. And if it runs out of Black people, it will start eating up all colors.”

Black people make up 47 percent of the wrongful convictions listed on the National Registry of Exonerations, even though they only account for 13 percent of the American population.

The “great majority” of the more than 1,800 innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals are Black, according to research from the registry.

“I was poor,” Adams said of his life at the time of his conviction. “I couldn’t afford an attorney, there was an all-white jury, a white accuser and this notion that the Black man is the boogeyman.”

The Wisconsin Innocence Project that worked to free Adams is one of 68 innocence organizations in the United States and Canada under the umbrella of the Innocence Network, which recently celebrated the 600th case exoneration since the organization’s inception in 2005.

Meredith Kennedy, executive director of the Innocence Network, told Patch Tankleff is a “perfect example of someone who went through literal hell.”

“And instead of being bitter and letting it destroy him, it turned him around so that he could use his emotion to fuel him and make a huge difference.”

Kennedy points to academic work by Sam Gross, one of the founders of the National Registry of Exonerations, that says about 4 percent of people in prison are there for crimes they did not commit.

Four percent of the some 1.26 million American prisoners equates to more than 50,000 people who are potentially innocent in prison right now.

“Imagine a football stadium full of people,” Kennedy said.

More than 150 people spent at least 25 years in prison before they were exonerated. Richard Phillips, imprisoned in Michigan from 1971 to 2017, is the person who has spent the longest amount of time in the American prison system on a wrongful conviction.

Kennedy says while official misconduct happens every so often, it’s the “human system” of criminal justice that’s to blame for so many miscarriages of justice.

“In any kind of system involving human beings, you are going to have errors,” Kennedy said.

“Not all the misconduct is necessarily intentional, and there are a number of wrongful convictions that didn’t involve misconduct at all, like a mistaken eyewitness or faulty science.”

In Austin’s case, it was a mistaken eyewitness. For Tankleff, it was a false confession.

Both exonerees point to misconduct by police and in the prosecutor’s office for why so many people are locked up for crimes they didn’t commit.

In Suffolk County, New York, where Tankleff was arrested and convicted, the system could take a good part of a generation to change, he said.

The long history of corruption on Long Island has been well documented. It includes recent convictions of former Suffolk County District Attorney Thomas Spota and former Suffolk Police Chief James Burke on allegations they led the cover-up of a police beating. Spota was the district attorney and Burke the police chief during Tankleff’s post-conviction appeals.

It’s that corruption, Tankleff said, that played a major role in his wrongful conviction.

New leadership would need “at least eight to 12 years to fully restore the long history of nepotism, corruption and scandals,” Tankleff said.

Austin, a Black man, said racial inequalities were another factor leading to a zealous Baltimore police force zeroing in on him for a killing he wasn’t even aware of.

“To understand the landscape in the Black community in the 1970s, you had a whole host of police coming into our community and wreaking havoc for no reason,” he said. “Often, they would come into the Black community to eradicate murder cases and implement laws that facilitate that process.”

That’s exactly what he said happened to him.

When Austin showed up at the police station for questioning, he was told to empty his pockets and turn over his watch, glasses and wallet.

“They (the detectives) told me the sooner I would cooperate, the sooner I would get out of there,” Austin said. “I was very naive and foolish. I gave them what they asked for.”

Later, during his interrogation, Austin was told he had a calling card in his wallet for a person who was identified as another man involved in the killing.

“The detective said initially they had their doubts on whether I was involved, but the calling card was found,” Austin remembers.

“I knew he was lying. I knew, at that point, the fix was in.”

When he was told he’d be charged with murder, Austin said he was “stunned.”

“It was like the world was snatched from under me,” he said. “When you have no control over the circumstances, you have a real sense of hopelessness.”

Still, Austin was confident heading into his trial because the witness’s description of the killer was notably different from Austin’s own appearance. But the witness still pointed him out in court, and that’s all the jury needed.

Austin was freed in 2001, at age 53, when a judge in the Baltimore City Circuit Court granted a new trial and said no reasonable juror would have convicted him knowing all the facts.

“A few of us guys went in when we were young, and came out in our 50s and our 60s,” Austin said. “It’s wrong.”

Tankleff’s conviction was overturned in 2007, when a judge in a New York appellate court vacated it. A few days later, the district attorney announced they would not re-try Tankleff for the murders of his parents, and their deaths remain officially unsolved to this day. A special prosecutor appointed in the case, after several months of investigations, then announced they would not re-try Tankleff.

But not all who were wrongfully convicted are free.

Zellner, whose work has led to more exonerations than any other private attorney in the United States, hopes to add Calusinski to the list.

The Calusinski case has gone through the local appellate process and is now in the federal court system, where a writ of habeas corpus, an act demanding a public official show a valid reason for that person's detention, has been filed.

Her long wait for freedom is indicative of the system that moves far too slowly for the innocent.

“My appeals process took 7 years by itself,” Adams said. “You can be found guilty in the blink of an eye, have your life taken away from you like that, and then there’s no sense of urgency in the same way to get you out.”

For Tankleff, his case had to be heard through local, state and federal courts before the conviction was vacated in the same courtroom where he was convicted 17 years earlier.

“It was frustrating,” Tankleff said, “especially when the first appeal went against me by a 3-2 vote.”

Kennedy said the process to free an innocent person takes “a terribly long time.”

“The average time it takes just to get back in court is seven years, then another three years for post-conviction,” she said. “That’s a decade lost, and it’s heartbreaking.”

Steve Metcalf, an attorney who works in the same New York office with Tankleff, said it takes “easily” more than 10,000 legal hours, and millions of dollars, to prove a client’s innocence through the current post-conviction process.

It’s a process that has been completed for the likes of Tankleff, Austin and Adams. While Tankleff and Adams are practicing law, Austin is a musician performing in Baltimore-area jazz clubs.

For Calusinski, it is still a fight for freedom.

“We want her home, and that day will come,” Paul Calusinski said. “And if it is during the spring or summer, you can bet her and I are going out fishing when it does.”

Adams hopes for freedom for Calusinski, and others who have shown evidence of no wrongdoing.

“It happened to me, and I’ve become able to contribute to society the way I am … so how do we know right now we aren’t blowing out the candle for someone else’s contribution to the world?” he said.

Many times, lawsuits filed on behalf of those wrongfully imprisoned for several years will result in multimillion-dollar settlements.

Juan Rivera, a man imprisoned for 20 years after a wrongful conviction in the same Illinois county where Calusinski was convicted, received $20 million in 2015, a million for every year taken away from him.

Tankleff received $10 million in 2018, and Austin was awarded $1.4 million in 2005.

But there’s no amount of money that can make right what happened to them, they have said.

“The money only puts you in a comfortable position financially — it does nothing for you emotionally,” Austin said. “It can give you security, make you worry less about getting a job. But it cannot provide comfort in a real way after what has happened psychologically.”