Today’s word of the day, thanks to the Word Guru blog, is exculpate, a verb which means “to clear from a charge of guilt or fault; free from blame” (https://www.dictionary.com/browse/exculpate). The verb entered the language in the “1650s, from Medieval Latin exculpatus, past participle of exculpare, from Latin ex culpa, from ex ‘out of’ (see ex-) + culpa ablative of culpa ‘blame, fault’” (https://www.etymonline.com/search?q=exculpate).

There is an adjective derived from the noun, exculpatory, that means “’fitted or intended to clear from a charge of fault or guilt; exonerating, excusing,’ 1779” (ibid.).

We’re going to talk about our legal system a little bit. I grew up watching cop shows and legal dramas, as I’m sure many of us did. Why are such shows popular? The fact is that crime fiction is the single most popular form of genre fiction around (https://www.tckpublishing.com/popular-fiction-genres/). It’s a bit harder to tell when it comes to movies because there isn’t a “crime movie” genre, but crime fiction informs “adventure,” “thriller,” and even “comic book/super hero” genres.

When you’re studying fiction, you learn that even as far back as Aristotle it was thought that the essence of any story is conflict. You can have conflict in all kinds of genres, but conflict is pretty much the essence of crime stories. If someone commits a crime, whether it is murder or robbery or fraud or whatever, there is an inherent conflict, and usually that conflict is between or among people.

Most of the time in crime stories, the hero is the person who is solving the crime or prosecuting the criminal. Even when the hero is not a cop or a detective or a prosecutor, the hero often solves the crime. Think of Perry Mason; it was never enough for Perry to get his client off; he went above and beyond to prove who the real murderer was. The antagonist in Perry Mason was usually the prosecutor, usually Hamilton Burger. But while Burger was a bit arrogant (despite losing to Perry every single time), he was honest; he had integrity. He didn’t cheat. And that is true of most of the prosecutors in crime fiction, whether written or filmed.

When it comes to cop shows, there is a bit more variety, but not much. If there is a bad cop in a crime novel or movie, they are usually more than balanced by the good cops, who are usually the heroes.

Real life, however, is rarely so neat.

For instance, in 1976, the Supreme Court considered a murder conviction in a case called United States versus Agurs. Here is a summary of part of that decision: “the Court summarized and expanded the prosecutor’s obligation to disclose exculpatory evidence to the defense, even in the absence of a request by the defendant, or upon a general request. The Agurs Court laid out three due process principles that apply to the use of evidence in criminal cases. First, if the prosecutor knew or should have known that testimony given during the trial was perjured, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. Second, as established in Brady, if the defense specifically requested certain evidence and the prosecutor withheld it, the conviction must be set aside if the suppressed evidence might have affected the outcome of the trial. Third, as the Court held for the first time in Agurs, if the defense did not make a request at all, or simply asked for “all Brady material” or for “anything exculpatory,” the prosecution has a duty to reveal to the defense obviously exculpatory evidence. Under the third prong, if the prosecutor did not reveal relevant information, reversal of a conviction may be required, but only if the undisclosed evidence creates a reasonable doubt as to the defendant’s guilt” (https://www.law.cornell.edu/constitution-conan/amendment-14/evidentiary-requirements-in-criminal-cases).

In other words, if the prosecutor knows of exculpatory evidence, evidence that might exonerate the defendant, they have a Constitutional obligation to share that evidence with the defendant’s counsel.

Noura Jackson was 18 when her mother was murdered in 2005. The police arrested her for the murder, and she spent over three years in jail awaiting trial. There was no physical evidence tying Noura to the murder, though witnesses testified that she partied, used drugs, and did not have a good relationship with her mother. “The only evidence that tied Noura to the murder was the testimony of her friend, Andrew Hammack, who said she called him between 4 a.m. and 5 a.m. and asked him to meet her at her house” ( https://innocenceproject.org/new-dna-testing-may-exonerate-tennessee-woman/). Noura was convicted, largely on the basis of that evidence, but after the trial was over, “a letter that Hammack wrote to police surfaced, in which he admitted to lending his phone to a friend and being under the influence of Ecstasy on the night of the murder” (ibid.). Why did the police and the prosecutor not turn this evidence over to the defense? It was clearly exculpatory. Noura would not have been convicted. Maybe that’s why.

Melissa Lucio’s daughter Mariah died in 2005. Melissa was arrested, interrogated aggressively by the police, and put on trial for murder of the 2 year old. She was convicted in part based on statements she made during that interrogation, and sentenced to die. But the conviction and the sentence are in question: “In a recent disclosure regarding the findings in Lucio’s legal proceedings, both prosecution and defense teams acknowledge that key pieces of suppressed evidence were omitted during the murder trial. This evidence, which includes certain witness statements and a vital report from Child Protective Services, seems to support the defense’s argument that the 2-year-old’s tragic death stemmed from an accidental fall, not abuse” (https://www.msn.com/en-us/news/crime/prosecution-acknowledges-withheld-evidence-in-melissa-lucio-s-texas-death-row-case/ar-BB1llmlA). Again, why was the evidence withheld from the trial if it could have exonerated the defendant.

In 2007, Carl Morton and Alonzo Vaughn allegedly participated in a fight among prisoners. They were accused of beating a guard, and they were put on trial. “Security camera footage was unclear, so prosecutors relied on testimony from Department of Corrections Lieutenant Angelo Childs to identify the participants” (https://alabnews.com/lesser-punishment-handed-down-by-d-c-appeals-court-in-misconduct-case-involving-former-prosecutors-mary-chris-dobbie-and-reagan-taylor/). The problem with using Childs was that an investigation had concluded that Childs had filed false reports in other cases. The prosecutors of Morton and Vaughn knew that Childs had filed false reports in the past, but they withheld that information from the defense. Not only that, they asked the court to seal the evidence and forbid the defendants’ attorneys from cross-examining Childs on issues of credibility. Morton and Vaughn were convicted and had to spend more time in prison. But when the truth came out, the convictions were overturned, and the prosecutors were punished by having their law licenses suspended for six months. Yes, that’s right: they caused to men to spend several years in prison, but they were merely suspended for six months.

Prosecutors in the United States have a great deal of power. They can put people in prison for many years, or they can decide not to prosecute a crime if they don’t want to risk losing a case. Just the decision to prosecute a person can cause that person to lose a lot of money, lose a job, and even spend time in jail if they cannot meet the bail. And yet when they violate the rules, they rarely face any kind of sanction, and even when they do, the sanctions are nothing like the punishment of the people they charge.

William Blackstone, a famous English jurist, wrote what is now known as Blackstone’s Ratio: “It is better that ten guilty persons escape than that one innocent suffer” (https://en.wikipedia.org/wiki/Blackstone’s_ratio). Benjamin Franklin changed that first number to 100. This is the attitude that prosecutors should have. Unfortunately, the game that they play rewards them for winning cases, not for securing justice. And that is why they sometimes withhold evidence that would exculpate defendants.

Today’s image is of Noura Jackson. I found it on Murderpedia, the encyclopedia of murderers, even though Noura has since been exonerated and was only convicted because the prosecutor and the police withheld exculpatory evidence (http://www.murderpedia.org/female.J/j/jackson-noura-photos.htm).