The Kickham Comment - Boston Criminal Attorney Blog
A lot of people ask me why it’s so crucially important that all criminal defendants be presumed innocent until proven guilty, especially when the evidence against the defendant at the time of the arrest and trial and trial seems so convincing. Usually, I answer that question with “What if you were the person accused? Would you think it right that you be presumed guilty?”
While this kind of hypothetical question usually silences the skeptic, it is real-life stories of people wrongfully convicted of crimes that they did not commit, which always brings home the point best. Exhibit “A” on this subject today is Anthony Powell, a man who spent 12 years of his life in prison for a Massachusetts rape that he did not commit. Powell was arrested in 1991 and charged with raping an 18 year-old woman in the Roxbury section of Boston. Based largely on the testimony of the victim, who identified Powell in court as her assailant, Powell was convicted and sentenced to twenty years in state prison. After serving 12 years for a crime he did not commit, Powell was released in 2004 after DNA evidence established that he could not have been the rapist. During those 12 years in prison, Powell never wavered in his claims that he was innocent, though who’s going to believe a convicted rapist, right?
Well, ironically enough, it was the prosecutor’s office that convicted Powell, the Suffolk County District Attorney’s Office, who eventually listened. In the 2-3 months after the March 1991 rape that Powell had been arrested and convicted on, two additional rapes and sexual assaults had occurred in nearby neighborhoods in Boston, but the assailant in those cases was never found. Years later, a man by the name of Jerry Dixon was convicted of several Massachusetts motor vehicle offenses, and was sentenced to nine months in jail for those offenses. Prior to Dixon’s release, corrections officials learned that he was required to retroactively submit a DNA sample stemming from of an unrelated armed robbery offense which also occurred in 1991. (Interestingly, the current Suffolk County District Attorney, Daniel F. Conley, prosecuted that case against Dixon in 1991, when Conley was still an Assistant District Attorney.) Dixon’s DNA sample was entered into the FBI’s Combined DNA Index System, or CODIS, and his DNA profile matched the DNA profiles that had been stored from the two 1991 unsolved rape cases that had followed the rape that Powell was convicted for.
Powell was released in 2004, and thereafter filed a federal civil rights suit against the state for damages stemming from his wrongful conviction. That civil case against the state was settled, and its terms remain confidential. As I said, ironically enough, one of the players in this drama who came out looking the “best” (using that term loosely,) was Suffolk County District Attorney Daniel F. Conley, whose office agreed to review Powell’s case in light of newly-discovered DNA evidence. Although Conley was not the elected Suffolk County District Attorney when Powell was prosecuted in 1991, Conley publicly apologized to Powell last week, on behalf of a system that Conley said had failed Powell. “Nothing can return those years to him,” said Conley. “No amount of compensation that he may have received is going to make this right.” I like Conley. As a Boston & Dedham Massachusetts criminal defense lawyer, I think he demonstrates a high degree of professional ethics and personal responsibility as a prosecutor.
Even more ironically, Powell’s strongest emotions are still felt toward the judge who presided over his trial, Robert Mulligan. Mulligan is now the Chief Judge for Administration and Management for the Massachusetts Trial Court Department. Powell reportedly feels that judge Mulligan was completely hostile towards him and his defense lawyer during the 1992 trial. I do not know if that claim is true, as I did not witness and was not privy to that case. However, Powell’s feelings toward the judge add even more irony to this case, because it is the judge in any trial who is supposed to remain perfectly neutral, not the prosecutor, and Powell’s most negative feelings remain towards the judge in his case, not his own prosecutor.
DAN evidence has proven time and again that many criminal defendants who professed their innocence were telling the truth. Care to know how it was that Anthony Powell was arrested in March 1991? He was simply in the wrong place at the wrong time, and looked somewhat like the real rapist, Jerry Dixon. After raping the victim, Dixon told the victim to come to a nearby skating rink the next night with $100 in cash (why Dixon would think she would do this, I don’t know.) The victim alerted Boston Police who staked out the rink the next night. At the appointed time, Anthony Powell just happened to be walking in the area, and the victim identified him as her assailant. She said she was 100% sure, and the police and prosecutorial ball just kept rolling after that. Imagine that: A completely innocent man, out for a walk – and the next thing he knows, he’s arrested, charged, and convicted of raping someone he never even met. He is sentenced to twenty years in state prison. Kind of make one think of “The Shawshank Redemption“, doesn’t it? Except this wasn’t a movie; it was all too real.
Last week, Anthony Powell stood in a Boston courtroom and watched while the real rapist, Jerry Dixon, admitted to the rape that Powell was convicted of, as well as other Massachusetts rape and sexual assault offenses. So the next time someone’s speaking on the subject of crime and punishment, and yells out “Lock ’em up and throw away the key,” remind him or her that it could be he or she who is behind that locked door someday.