James Walder Joseph Frey has spent a lot of time in jail. Some of it for crimes he committed and a lot of it for one crime he always said he didn’t. In 1991, he was fingered as the suspect in a brutal break-in and rape of a student at knifepoint. Just this week, a judge in Wisconsin reversed his conviction. But, in 1994:
He was convicted on Feb. 2, 1994, by a Winnebago County jury despite his claims of innocence, the victim’s dubious identification of him as the attacker, the lack of a DNA match and destruction by an Oshkosh Police detective of important evidence before the trial.
That old evidence included a jailhouse informant, the victim’s identification of Frey in a “live in-person lineup,” prior sexual assault charges and DNA results from the victim’s bedsheet that excluded Frey as the source.
The holy grail of wrongful convictions: 1) A misidentification; 2) DNA that excludes the defendant; 3) Evidence getting mysteriously destroyed by a police department; 4) Tunnel vision; 5) A jailhouse informant.
The “identification” was done by police in a “simultaneous” manner – a practice now frowned upon because it results in people picking the person who “looks most like” rather than “who is” the suspect. They also placed the same person in more than one lineup, which would signal to anyone with a functioning brain cell that the person who repeatedly showed up was one that police believed did the crime.
And there were other problems. The Innocence Project said the victim identified at least two other men before saying that Frey “looked similar” to her attacker.
There was DNA tested before trial and that DNA (stains from the bedsheet) excluded Frey, but the prosecutor argued – and the jury believed – that those stains could just be leftover from consensual sexual activity the victim had. The news report doesn’t reveal whether that was followed up with the victim at trial or compared to the DNA of any lover she might have had to confirm that.
But the real kickers here are the actions of the police department and the tunnel vision they tend to develop when they have a suspect in their sights. Confirmation bias kicks in and the police start viewing all the evidence through the lens of confirming their suspicion, rather than looking at it neutrally and seeing where it goes. Oh, and it would’ve been nice if, you know, they hadn’t destroyed evidence before the trial:
After those results were received — and before trial — all of the physical evidence in the case reportedly was destroyed, according to trial testimony of then-Oshkosh Detective Phil Charley, who acknowledged disposing of the items but “could not recall anyone ordering him to destroy the evidence,” the Innocence Project said.
Maybe there was a shortage of space. In Phil Charley’s brain. But wait, there’s more:
“In addition to the improper destruction of evidence,” the motion for DNA testing said, “all of the police documents, including police reports, inventory reports, submission and transmittal forms, testing requests and results and chains of custody, were destroyed by the (Oshkosh Police Department).” “As a result, it is unclear what evidence was originally collected, identified for testing, or remained after destruction.”
I can’t think of one single legitimate reason to destroy these items, especially at or near the time of trial. Maybe 20 years down the road, after legal challenges have been disposed of, maybe. But police departments have strict policies about this. Because you never know, when one day 20 years down the road, DNA testing implicates someone else. What’s that you say? Is that what happened here?
Frey’s chance at exoneration came after a Winnebago County court clerk discovered a scrap of bedsheet left over from the “improper” destruction of the physical evidence by a now-retired Oshkosh Police detective before Frey’s 1994 trial, according to the Innocence Project’s October motion seeking DNA testing.
A scrap. Of a bedsheet. In a clerk’s office. That’s what needed to happen to save Frey. Not all the dubious evidence and the shenanigans that I outlined above. All of that is what got him convicted. It took a random bedsheet scrap that somehow escaped the purge of Detective
And it wasn’t just that the bedsheet had DNA that excluded Frey. They already knew that. It was only when the DNA evidence matched that of another convicted rapist, who prior to his death in 2008, may have tried to confess to this crime, that the prosecutor was willing to concede that, okay, maybe, perhaps, if you squint really hard, they had the wrong guy.
Finality is such a powerful thing that even the most level headed and logical people get so entrenched in their positions. “It has been decided”, they say, “so mere doubt cannot and will not be permitted to give us doubts about the veracity of our decisions. We must be slapped repeatedly in the face to awaken us from our stupor”.
It was sheer dumb luck that brought Joseph Frey to the precipice of exoneration and freedom. How many are sitting in jail right now, convicted on this evidence, without that scrap of a bedsheet? How many are sitting in jail right now, because prosecutors are convinced, despite evidence to the contrary, that they got the right guy all those years ago? How many are sitting in jail right now, because prosecutors refuse to test DNA evidence, because it might prove they got the wrong guy? Hubris is a powerful thing and almost never results in any good.
How many are sitting in jail right now without any DNA out there to support their innocence, convicted based on tainted, faulty identifications, gung-ho cops and juries that can’t convict fast enough because criminals. Isn’t that most frightening thing of all? That there are innocent people in jail right now without any way for the world to know that they exist. Without any way of proving that they didn’t do it. Because they didn’t get lucky. Should the justice system require luck? Or should it require proof?
So the next time you read a story about an obviously guilty guy, think for a second. The next time you’re on a jury, think long and hard. Are you convinced? Is there any doubt? Or are you going to say good enough and figure maybe he’ll get lucky down the road?
Frey was represented in his motion for a new trial by a dear personal friend of mine, a law professor at the University of Wisconsin Law School, Tricia Bushnell. I know the volume of hard work that she and her students did in this case and words cannot ever justify the satisfaction that she must be feeling, so I can only say congratulations and that maybe now you should take a nap, Tricia.