The Circle of Empathy We Choose to Inhabit
by Larry Marshall
Defenders of the Innocent Awards Reception, May 18, 2009

The challenge we all face is how to define our own circle. We can make it a very small circle, or we can make it a much wider circle.

Five Options for the Size of that Circle

• There are those of us who define that circle in a very narrow way. The circle is ourselves.
• In fact, there are folks who make it even smaller. Their circle is their pocket. That’s all that matters. That is what makes the call for their concern, their passion, their empathy.
• Most people we know go beyond that. The next biggest circle is the family—our children, our partner, and that is wonderful, but again it is a relatively easy circle to draw. They are part of you. They are connected to you.
• Then there are people—a bit more generous—whose circle reaches into their community, their neighbors, their church, and that’s also wonderful. But it is still a circle of people who look like you, who talk like you, who stay with you, who hang with you.
• And then there are the remarkable folks who actually draw their circle so much broader, who see all humanity falling within that circle, who see the suffering of those who have no connection to them, whom they will never meet, who don’t look like them, who don’t live near them, but about whom they say, “This is my suffering.” These people recognize that this is all one circle that we inhabit.

A Wide Circle Brings Reform

We are here tonight because all of you in this room, recognize that this is your issue, that these are your brothers, that these are your sisters. You have worked steadfastly to try to bring to the public’s attention these cases both because of what these individual cases represent, but also because of the energy and the leverage that each of these cases presents for meaningful reform of the system.

We have seen how each of these cases ends up creating a momentum, a momentum that brings public attention to these issues and generates some real reform.

We have a choice. If that choice is to draw our circle of empathy to include all of our brothers and sisters, and then to scream out with as much passion and intensity, and to sacrifice as much as we would for our very brothers and sisters, to do that is as godly as we on earth can ever come.
The Work of the Innocence Project: Holy Work

So I beg of all of you, as you think in these very tough times how to participate in different endeavors of giving and supporting, to recognize that the work that this Project is doing for those who are so far on the outskirts of that natural circle of empathy, that this work is in fact holy work and by doing it, we are reaching out to make the world so much purer, so much more full of love and care and dedication.

We read about the DNA cases, and we say, “Oh boy, we’ve come so far, and we are succeeding so much in showing these people are innocent.”

But think about it for a moment. In a homicide case, there is only about a 20% chance that there will be biological evidence susceptible to forensic testing. If it’s a sex crime combined with a homicide, yes, there’s a higher chance.

But if, God forbid, someone walks through this door right now with a gun and then runs out after shooting, what are we going to have? Are we going to have that person’s DNA to test, to find out if we got it right or wrong?

No. We are not going to have DNA that will corroborate or confirm the accuracy of our identification.

What DNA Can Actually Do–Its Power

The power of DNA is that it helps expose to us that the answers we used to think were so reliable are after all not that reliable.

• The eyewitnesses whom we used to think were the gold standard are prone to error, particularly when we are talking about cross-racial identification, particularly when we are not using state-of-the-art identification procedures that have been shown in the lab to minimize the risk of wrongful identification without minimizing hardly at all the accuracy of correct identification.
• It is showing us that a system that relies on confessions alone, and particularly confessions that have not been videotaped, is not a system that deserves our trust.
• It is showing us that jailhouse informants lie with great frequency—well, DUH. You are in prison. You have a belief—a right belief often—that if you say that someone confessed to you, you might get out of jail. How many of you can say that you would resist that temptation especially if you are told, “We know the SOB did it. We just need help putting him away.”
• DNA has exposed other junk science—cases where people were on death row because some dentist came in and said, “Yes, I saw a bite mark on the victim and then I looked at the teeth of this suspect, and I can tell you to a medical certainty that this was the same person. These teeth made that bite mark.” With the benefit of DNA, the experts in the cases where it can be tested have seen that there is less than 50-50 accuracy on that. So it has been debunked.

And I could go on and on.

The Defense of the Innocent: A Moral Issue
by Larry Marshall
excerpted from his remarks at the
Defenders of the Innocent Awards Reception
May 18, 2009

When [John Hanlon] asked me take on the Cruz case back in 1991, I wasn’t really very interested. I was trying to earn tenure. I was consulting at a law firm. I was teaching a fulltime teaching load. I had three young children. I was not looking for a big death penalty case.

It was the Jewish High Holy Days—Yom Kippur, the Jewish Day of Atonement. For those of you who know the liturgy, you’ll know that within that holiest of holy days, there is a climactic moment in the liturgy that talks about how it is decided on this day who will live and who will die, who by fire and who by water, who by stoning and who by hanging, and it goes through this litany of different ways of death, and who will prosper as well.

And then at the climactic moment, the congretation yells out: “But repentence and prayer and acts of righteousness can change the evil decree.”

A Personal Epiphany

Until that year, I had always understood from a very simplistic view of God as a white beard sitting on a throne that if we pray and we do charity and we do nice things, God will push a different button, “Okay, I’ll change my mind. I had said he was going to die, but I will let him live.” I really did believe that.

But that day, as I was deliberating whether to take this case, I had an epiphany that the way that our prayer and the way that our repentence and the way—most importantly—that our acts of justice mitigate is because they act out God’s will on this earth.

Acting in Partnership with God

We act in partnership with God, and it is not that God is changing his mind but that we are part of that life force, that Godly force, and that when we act, we are reaching out and grasping God’s hand and acting in accordance with God’s will.

That epiphany is what led me take the Cruz case. How could you understand that and then not take the case?

Since that day, I have become more and more convinced that the epiphany was maybe the truest thing that I have ever come to understand. Watching the impact of your work, Mike, watching the way that you have grasped God’s hand and done this work, watching the work of the Sisters has driven this home to me.

Larry Golden’s Introduction of The Dominican Sisters of Springfield
Recipients of the Defenders of the Innocent Award, May 18, 2009

I began working with the Dominicans on the thorny issue of the location of scattered site housing back in the mid-1990’s. My respect quickly grew for them as they helped lead this community through a very divisive racial issue laden with class and racial conflict.

A couple of years later, they joined with the university and the community in working on the Springfield Project to assist residents living on the east side of Springfield to gain greater control over their lives and their community and to improve the neighborhoods that they lived in.

The Sisters’ Support for the Innocence Project

Not long after, they agreed to assist in the formation of the Downstate Illinois Innocence Project. Their opposition to the death penalty and their compassion for those who are wrongfully convicted led them to take an active role, particularly as we worked on our attempt to exonerate Julie Rea Harper of Lawrenceville, Illinois.

The Sisters Accepting their Award

The Dominican Sisters have quietly fought for social justice in Springfield and throughout the world. They have sisters in Peru. They have sisters in Iraq. They have fought for a better life in those countries and other areas of the world.

A Personal Note

I’ll end this tribute on another personal note. My youngest daughter has had the possibility of going to work for an organization called TransFair USA in Oakland, California. TransFair is an organization that certifies products for fair trade. It is concerned with the working conditions and just compensation of the workers who produce the items.

A couple of years ago, my daughter called me one night and asked, “Do you think the Dominican Sisters of Springfield who are listed as supporters of TransFair is the same group you work with?”

Knowing their commitment to social justice, without even checking, I quickly assured my daughter that they were surely the same group. This is a group that does not shy away from controversy if it benefits people throughout the world in accord with their principles. It is just an incredibly great honor for me to present the 2009 Defenders of the Innocent Organizational Award to the Dominican Sisters of Springfield.

Randy Steidl
Exonerated in 2004
speaking in tribute to Michael B. Metnick
Defender of the Innocent, May 18, 2009

I am here to speak for one particular person who met me at one of my lowest points: Mike Metnick.

In 1992, just after I had lost my direct appeal, Mike and Bill Clutter, his investigator, came to see me. I told him my story, looked him right in the eye, and he looked me in the eye back and said, “I like the case.” He patted me on the back.

I didn’t think much of that until our first appearance in court. Through our post conviction proceedings, many, many years of post-conviction proceedings, Mike Metnick laid the foundation for over nine years of state post-conviction.

He is still after 18 years, my attorney. He told me he would be my attorney for life, and I believe that.

Mike Metnick is a true crusader for justice and the innocent. He is THE defender of the innocent. My family considers him family. Mike, I want to thank you from the bottom of my heart.

Larry Marshall
Stanford Law Professor and Co-Founder of the
Center on Wrongful Convictions
speaking in tribute to Michael B. Metnick
Defender of the Innocent, May 18, 2009

The moment I recall when I think about Mike and all these years of relationship happened in Rock Island, Illinois.

A jury had convicted [Alejandro Hernandez], and then they tried the case to a hung jury, and then they came back again and tried it a third time.

And I remember, this man, somewhat small in stature–but only in the most physical way, because that day the space that he occupied in the courtroom was the stature of a prophet, the stature of a Biblical figure. He stood up there, his voice cracking with passion, talking about the dearth of evidence against this man, against his friend.

Mike went through that evidence methodically as a good lawyer would do, but then Mike recognized that this wasn’t about technicalities of law.

This was, in fact, about morality. It was about justice.

Mike begged the jury to understand that we are in this common circle of life, that we are within each other’s circle of empathy, and that if we don’t cry out, then ultimately the world ends up being one mired by injustice. And not only is that immoral from a deep perspective, but it is obviously dangerous as well.

Tragically, the jury came back with that word guilty, the crush that Mike felt was as crushing as if this had been his own child because that is the extent to which this circle of empathy, so clearly, so centrally included this defendant and so many other defendants.

I tell my students, “This is what lawyers can do. This is how much you can care, and this is how much you can accomplish.” Look at Metnick. Look at the Dominican Sisters. Look at the power that individuals have and recognize that the only obstacle to progress is a misperceived sense of impotence. We all have an opportunity to be partners in this effort.

As part of the reception, two UIS students–both now alumni–received special tributes from the podium: Samantha Gaddy, Larry Golden and Samantha Gaddyrecipient of a special Defenders of the Innocent Award–you can read her remarks below–and Matt Smith.

Larry Golden on Samantha Gaddy

We have been fortunate for the past few years—from what seems like the beginning—to have a young woman of extraordinary qualities working with us. Starting as a volunteer, she became the graduate assistant in our program. We have worked together, cried together, and had the privilege of watching her grow during all this time.

This semester she has been interning at the Attorney General’s office, working on legislative relations, but she is graduating, and she is looking for new opportunities. We will be wishing her success in her next endeavor.

Tonight we want to recognize and honor her work with a 2009 special Defender of the Innocent award to Samantha Gaddy for service and dedication to the Downstate Illinois Innocence Project.

Samantha Gaddy’s Remarks on Receiving A Defenders of the Innocent Award

I have been with the Innocence Project since 2005 and leaving is going to be really bittersweet because they have all become like a family to me. I can’t talk too long because I am going to cry! It has really been great.

I don’t understand how people can sleep at night knowing that innocent people are in prison. As I told ABC not that long ago, if it can happen to them, it can happen to anybody, and it can happen to me. So I feel like I really need to work for those people.

Martin Luther King once said, “In the end we will remember not the words of our enemies, but the silence of our friends.” So I feel like I really need to speak up and try to help people who cannot help themselves.

Thank you!

Larry Golden on Matt Smith

This organization could not exist without the assistance we have received over many years from students working tirelessly for the exoneration of the wrongfully convicted. Keith Harris, who is talks very strongly about the contribution of students is in fact here tonight with one of our earliest students from the Project, Matt Smith.

Matt Smith worked on Keith’s case, and they have been friends ever since. Matt lives down around the St. Louis area and Keith in Bellville, and they stay in touch, and when Keith comes up, he almost always comes up with Matt. In a sense, they are part of a family, and it is just a wonderful thing to see from a student coming out of the university. This was not his career and still is not his career, but it was part of what was in his heart. Matt, we can always be thankful to you, as Keith is, for the work that you have done.