Earlier this week, I interviewed state Sen. Jeremy Hutchinson about the Gyronne Buckley case. It was one of the most astonishing conversations I have ever had.
As I wrote on Tuesday, Buckley was incarcerated for over eleven years; the state Claims Commission determined that he hadn’t received a fair trial. In particular, the Commission found that Buckley was the victim of a corrupt cop, Keith Ray, who failed to disclose documents at Buckley’s trial that would have helped Buckley; according to the Commission, Ray also “gave, and appears to have assisted in the fabrication of, untruthful trial testimony. These lies resulted in the Claimant [Buckley] wrongfully serving eleven and one-half (11.5) years incarcerated for crimes he did not commit.”
However, after the Claims Commission unanimously determined that Buckley deserved compensation because of the bad acts of government agents, the legislative committee that approves Claims Commission judgments overturned the Buckley award. Senator Hutchinson, shortly after he successfully voted to deny Buckley any compensation for eleven years of time behind bars, then explained to the media that anyone in Buckley’s position “should be lucky and feeling blessed that they got acquitted on a technicality.” I had initially thought that Hutchinson must have been misquoted, but apparently he wasn’t.
In fact, he explained to me during our conversation that
I think there’s probably a better than likely chance based on what I saw — which is limited — that Mr. Buckley caught a break and only served — and it’s a long time, but — he only served eleven and a half years of a thirty year sentence, I believe.
The notion that Buckley “caught a break” by only spending eleven or so years in jail is striking, because it implies that Buckley deserved the fifty-six-year sentence he earlier received — and there is no real dispute that Buckley’s right to a fair trial was violated when he received that sentence. Both the special prosecutor in the case (Larry Jegley) and Attorney General Dustin McDaniel conceded that Buckley didn’t get a fair trial, and of course multiple courts determined that the evidence that was not disclosed to the defense was sufficient to show that Buckley didn’t get a fair trial. In fact, the court expunged Buckley’s conviction (which is to say, eliminated it and wiped it from all public records) — a fairly unusual event.
I appreciate that Hutchinson gave me an extensive interview to explain his thoughts on the Buckley case. But I think it is fair to say that Hutchinson’s method of making decisions is very different from that of most people — and, indeed, most lawyers. I’ve summarized the high points of my conversation with Hutchinson, and with Buckley’s lawyers, below.
The standard Hutchinson used to make his decision — is it the right one?
Hutchinson explained to me that, in Buckley’s case, only intentional wrongdoing or actual innocence deserved compensation:
If somebody is truly innocent, and it’s DNA and it’s clear they’re innocent — or if there is truly intentional, malicious…some type of planting of evidence or perjury or something like that done by the state, then they’re entitled to compensation. But we weren’t, we were presented with no evidence that suggested either of those situations occurred.
Hutchinson further explained that there was no intentional wrongdoing by state government:
There was some discovery that should’ve been turned over that was not turned over. It was not intentional — everybody, even Buckley’s attorneys — said it wasn’t intentional.
In short, Hutchinson argues that because Buckley didn’t supply evidence of “his actual innocence,” and all that happened to Buckley was an inadvertent failure to supply evidence to the defendant, there was no reason for compensation.
Did Hutchinson create a new, special standard — one just for Buckley?
Those who ask the Claims Commission for relief do not ordinarily have to demonstrate actual innocence or intentional wrongdoing by the state. For instance, Buckley’s lawyer, Mark Hampton, explained the ordinary workings of the legislative committee:
Immediately before our hearing, we saw the case of a female at some vo-tech school, learning how to use a saw, had used a buzz-saw that had a guard installed improrperly. She lost two fingers. It was a vo-tech school; you can’t sue a vo-tech school because it’s an arm of the state. There’s the claims commission there to award her monetary damages. It’s a negligence claim; should there have been proper care and supervision at the school? That was the only argument. What did the claims commission do? “No problem, we’ll give her an award for that, because she deserves compensation!” Nobody said: she didn’t have contributory negligence. Immediately after that case, here comes a state trooper that had been killed in the line of the duty. Then comes McDaniel, arguing to increase the award, saying it should be hazardous pay. Nobody asked any questions about the liability of the state trooper or the kid who cut her fingers off. They all recognized that it looks like negligence by the state, and we’re not going to get into minutiae. Nobody said: through no fault of Mr. Buckley, they withheld evidence. For some reason, my client Mr. Buckley had to meet a more stringent test. In his case, they said: he’s a black guy, he’s a drug dealer, and he ought to be glad he got out of prison.
Hampton added that, although Attorney General McDaniel accused Buckley of being a crack dealer at the claims commission, Buckley had never been convicted of any drug-related crimes. (I should add that, if you don’t count a fight he got into in high school as a juvenile, Buckley had never been convicted of any crime at all.)
In other words, it appears that Hutchinson created a new standard that only Buckley was required to meet — because, ordinarily, the Claims Commission does not require the unrealistic standard that Hutchinson created.
Did Hutchinson correctly understand Buckley’s position?
Hutchinson repeatedly contended that even Buckley’s advocates thought there was no intentional misconduct by the government. He explained that “there was a failure to turn over some discovery. And nobody said it was malicious. And that happens all the time.” Indeed, Hutchinson repeatedly emphasized that Mark Hampton, Buckley’s attorney, said that nothing malicious was done in Buckley’s prosecution. According to Hutchinson, there was “not even evidence, but discoverable information that should have been turned over but wasn’t accidentally — they weren’t aware of it, and when they became aware, they turned — they did everything right.” Hutchinson added that there was “zero evidence” that anyone “manufactured evidence,” “planted evidence,” or “encouraged perjury.”
But Hampton had quite a different recollection of the hearing:
I never said that nothing malicious was done in the case, or that Keith Ray was not malicious or a liar.
Hutchinson claimed that there were no signs of evidence-planting. At best, this seems naive.
Hutchinson was careful to distinguish Buckley’s case from a previous Claims Commission case — the Bragg case — in which the legislature had awarded Bragg damages on the basis of a wrongful conviction. Hutchinson explained that the Bragg case involved actual evidence-tampering:
There was no evidence put forth that there was any perjury, that there was any planting of evidence, that there was anything remotely resembling what happened in the Bragg case. And if they had prevented evidence that Detective Ray had done something that was malicious, or doctoring of the evidence, or perjury or something, then we’d probably treat it the same way we did Bragg.
However, Ray was the same “dirty cop” who was shown in the Bragg case to have committed perjury — perjury that resulted in Bragg being sentenced to life in prison for a drug sale that never occurred.
When asked if the videotape demonstrated that the informant who put Buckley behind bars was coached, Hutchinson responded:
I mean, you can call it coaching. I call it witness preparation. I do it all the time before I go to trial or a hearing and have witnesses. You say, this is what you may be asked, this is — ya know, don’t answer anything that’s not asked of you.
Buckley’s lawyer, Hampton, responded that Hutchinson completely misunderstood the significance of the videotape, and that the videotape demonstrated the planting of evidence in a comprehensive manner:
Hutchinson calls this coaching, on the videotape. And he says: well, as a trial lawyer, I’ve prepared witnesses. Well let me tell you something. I’ve been a trial lawyer too. And if I’m going to prep a witness, do you think for one minute I’m going to do it on a videotape? No! What has happened here is that Ray prepped his witness prior to the taping. When you prep a witness, you don’t preserve it on the videotape to turn it over to the other side. You’re going to have hours spent with that witness, to prep him for his testimony. And only after that, you’re going to put together a final videotape, just like cops do all the time. They’ll interview a witness for hours, and when they think they’ve got the witness’s story down the way they want, then they’ll make a final videotape. My point is: once you turn the tape on, you’ve still got 38 discrepancies between what they allege happened and what the witness can remember … The tape demonstrates to me a strong inference that they took an individual under threat, and coerced him, off the tape, to get him to say what needed to be said. Basically, the reason that a cop does this is if a witness gets hostile on the stand and doesn’t say what they need him to do, then the prosecutor can go back in and impeach him with that videotape … The point of the tape is to keep the informant in line, not to make a record. Hutchinson ought to be asked how many practice tapes he preserves on witnesses he was trying to prepare for deposition or trial. They don’t do that: they only turn the tape on when they think they’ve got the statements as good as they’re going to get ‘em.
Hampton’s point illuminates the significance of the video recording between the informant and the corrupt police officer: his argument is that the reason these recordings take place is so law enforcement officials can use them as a tool to impeach witnesses. If there’s any concern that that the witness is going to deviate from his story, the idea is that you’ll use that recording to impeach him if they don’t give the story the law enforcement officers want.
In a 2010 order by a federal judge to send Buckley’s case back to the state Supreme Court, a federal judge found that Buckley had identified 38 impeachment opportunities that he’d been wrongly denied at trial. To paraphrase Hampton: at some point, 38 discrepancies makes Buckley look pretty darn innocent — the standard that Hutchinson claims to use.
Did Hutchinson create a new rule for the admission of evidence?
Hutchinson argued that Buckley never put forward any evidence for his own case:
There was no evidence put forth other than his own testimony. And it wasn’t even his testimony, he wasn’t there. His attorney said he claimed that he was innocent. Mr. Buckley wasn’t even in the committee to be asked questions or speak for himself.
Hutchinson added that the tape that sent Buckley to jail — the one that the state Supreme Court found to contain no evidence of any illegal transactions — should have been played before the committee:
We haven’t heard the tape yet, and I think we should have — but for whatever reason, neither party brought a copy of the tape for us to hear.
Hutchinson also explained his understanding of the workings of the legislature’s Claims Committee:
It’s basically you have a whole new trial, or a new hearing at the Claims Committee. And it’s a de novo review. We’re going to look at it fresh. We’re not going to give any bias to the Claims Commission – quite frankly, because we don’t know why they did what they did. They refused to issue any opinions with their rulings.
(Here’s the opinion that the state Claims Commission issued. I think Hutchinson’s argument is that the opinion is not somehow not enough of an opinion, perhaps because he personally finds it overly conclusory and believes it contains insufficient arguments or evidence.)
Hampton responded that, at Buckley’s hearing, the legislative committee was expressly instructed by its chairman, Sen. Robert Thompson, that it was an appellate body. That means that the evidence had already been received and was preserved by the original body that heard the case — namely, the Claims Commission. (To repeat: the Claims Commission, which ruled unanimously in favor of Buckley, is the body which must initially approve all claims before they can be presented to the state legislature.) Hampton then targeted Hutchinson’s argument that the legislature had not been presented with appropriate evidence:
It’s a falsity for the chairman to say, “Well, we’re going to do an appellate review,” and then Hutchinson takes the position that, “Well, we need more evidence than what’s been provided by the record below.” Those two are just diametrically opposed.
They didn’t do that on the little girl who cut off her fingers, and they sure didn’t do that for the widow of the state trooper. So if they’re going to pretend to be an appellate body, why is it that they can rely on the claims commission for the evidence in other cases?
Hampton also said Attorney General McDaniel had requested two continuances with respect to appearing before the legislative committee (which were granted) and that he and Buckley had also requested one continuance (which was denied). Hampton was aghast to hear that Hutchinson apparently held Buckley’s July 22 unavailability for the hearing against him. He added that the Claims Commission had received extensive records of Buckley’s testimony, and that it also had a copy of the tape which demonstrated witness-tampering on file.
Hutchinson: If we compensate people for being “acquitted on technicalities,” the floodgates will open.
Hutchinson contended that compensating people who are maltreated by the criminal justice system would create huge taxpayer liability.
If we had said, because you’re acquitted and a new trial was ordered, we’re going to spend taxpayers’ dollars, compensate you, when you may very well be guilty — that I think is an extremely bad precedence because like I said there are a lot of guilty people who are acquitted on technicalities and taxpayers of Arkansas do not want to be paying half a million dollars to somebody who was guilty and just managed to get lucky and be acquitted on a technicality.
My position is that unless you can prove beyond a preponderance of the evidence, which is the civil burden, that you were in fact innocent or that you, the state maliciously manipulated the evidence somehow, they did something wrong, then you’re not entitled to any taxpayer dollars. If the standard that Mr. Buckley is seeking were to be granted, then taxpayers better watch out. Because there’d be millions and millions of dollars spent every year compensating criminals. Guilty people. Who may have caught a break, and there’s a technicality and their sentence was acquitted.
Hampton responded that Buckley’s conviction, and his later freedom, were not driven by anything like a “technicality”:
Let’s say there’s a search warrant executed at your house, and they find 500 pounds of cocaine, but the affidavit of that search warrant is somehow defective — that is a technicality, and then that case gets thrown out. But there is nobody who believes that you’re not factually guilty, and there is nobody who believes you’re entitled to compensation, even if you’ve spent years in jail waiting for the appellate court to rule in your favor. But suppose on the other hand that you’ve got a vengeful, dirty cop who is vengeful towards you. Suppose the cop plants cocaine in your house, you get arrested, et cetera, et cetera, but for some reason the cop later confesses on the stand that he planted the drugs in your house. Now, at that point, should you be compensated? Yes. Because that’s not a technicality.
Law professor Tom Sullivan, who represented Buckley previously, added by email:
The claim that there will be “millions and millions of dollars spent every year compensating criminals” is reckless, unless you believe that Arkansas prosecutors and police routinely violate the rights of defendants to fair trials and there is absolutely no evidence that this has ever been the case. This is the rare case in which our courts have found that a due process violation — recognized under both federal and Arkansas law — has actually been committed. It is a sad state of affairs when the position of state officials is that someone who has served a eleven and one/half years after being convicted in a trial in which fairness has been compromised should just be “jumping for joy and happy.” If the argument that taxpayers will have to spend millions of dollars every year is honest — rather than an attempt to inflame the discussion with scare tactics — then the State has a far bigger problem than just Mr. Buckley’s claim because that it is an admission that the Arkansas criminal justice system is thoroughly corrupt. The taxpayers should expect Senator Hutchinson to explain just why he is suggesting that such corruption exists.
Hutchinson believes that there was “certainly” reasonable doubt that Buckley was innocent, but Buckley still doesn’t deserve compensation.
Hutchinson told me:
There was certainly a reasonable doubt that he is innocent of these charges. That’s why he’s no longer facing criminal sanctions or punishments…and he was acquitted; and expunged. It’s like there never was a conviction. But when you’re bringing a civil claim for civil damages, there’s a burden on the claimant at least prove beyond a preponderance of the evidence – which was 50.001% — more likely than not, that he was innocent. And that burden was not met. It was not even close to being met.
To me, the fact that there was reasonable doubt about Buckley’s guilt means he should have never been convicted in the first place. Hutchinson agreed with that, but then disagreed with my assertion that this meant Buckley should never have spent 11.5 years in jail:
Well, no, because if the… I mean — maybe, maybe not. I mean, we don’t know what impact that evidence — that discoverable information — would have had on the trial. There are a lot of people who didn’t think it would’ve had any, make any difference in the outcome of that trial eleven years ago. Um, so that’s speculation to say that ‘well, if he had, if that had been turned over, then he would have been found not guilty and there would have been enough reasonable doubt that he would not have been convicted.’ I don’t, we don’t know that. Um, and I don’t think we can speculate…
There was an omission; there were evidence — or not even evidence, but discoverable information that should have been turned over but wasn’t accidentally — they weren’t aware of it, and when they became aware, they turned — they did everything right. The prosecutor did everything right. Uh…and I think there’s probably a better than likely chance based on what I saw — which is limited — that Mr. Buckley caught a break and only served — and it’s a long time, but — he only served eleven and a half years of a thirty year sentence, I believe. Uh, and, you know, we — again, I’m not saying I know 100% what happened because I don’t, but when we’re handing out taxpayers’ dollars, we have to have some standard by which to go from. And a guy standing up there and saying, ‘I’m innocent,’ and there being some discoverable information that was not turned over for whatever reason — if that’s the standard, then do you want us to — or whomever wants us to use — then Katie bar the door because there’s going to be a ton of cases like that, including capital murder inmates — who do get acquitted and a new trial ordered and if they claim they’re innocent, then based on — if we had ruled for Buckley, we would have to give them money.
I think this is wrong, and not just technically wrong: an attorney should know that, if you get acquitted, you will never, under any circumstances, face a new trial for the same offense. Does Hutchinson really believe that there are huge numbers of cases in which exculpatory evidence was wrongly withheld from criminal defendants — in a manner that affected their trials? As Tom Sullivan noted above, this is an extraordinarily cynical view of our criminal justice system — suggesting, as it does, that law enforcement in Arkansas is thoroughly corrupt. For all our sakes, I hope Hutchinson is wrong.
Hutchinson: “We can’t speculate” about what verdict Buckley would’ve received if he’d gotten a fair trial.
Hutchinson argued that the failure of the prosecution to disclose relevant evidence might just have been harmless error:
That’s speculation to say that ‘Well, if he had, if that had been turned over, then he would have been found not guilty and there would have been enough reasonable doubt that he would not have been convicted.’ I don’t, we don’t know that. Um, and I don’t think we can speculate.
On the other hand, legislators can absolutely speculate about Buckley’s guilt. Because we have a hunch he was guilty of…something.
Based on what I — what I’ve heard, which I will concede is not everything because we weren’t presented with it, but based on what we were presented with, I think it was unanimous in the Claims Committee that I would think he was more likely than not — he’s guilty…of something … [What would that be?] Some type of…drug sales.
This belief in guilt by Hutchinson is especially remarkable because Buckley’s conviction was (to repeat) reversed and expunged. Thus, according to the law, Buckley is not guilty of anything. Arkansas’s expungement statute requires that “upon the entry of the uniform order to seal records of an individual, the individual’s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.”
I’m doing my best to try to figure out what the difference between Hutchinson’s argument and the point of view which says: “He was arrested and put on trial — so he must have done something.” But distinguishing between the two is really, really hard.
Hutchinson: Buckley’s trial may have been influenced by a dirty cop, but the dirty cop’s role was merely “tangential.”
Hutchinson told me:
…the same dirty cop who, at least tangentially, was involved in the Buckley case, was the star witness in this other case and it turns out that this guy was totally innocent. … It’s the same guy who was tangentially involved in the [Buckley] investigation…But this investigation was done by a task force — a team of people — with one bad apple in it.
Professor Sullivan responded:
Ray was the senior cop. He testified at trial. He ran the whole thing. He was the senior officer in the case. Of course, he didn’t testify at Buckley’s resentencing hearing, because by that time he’d been proven to be a perjurer.
Sullivan also noted pointedly that Ray also acknowledged, in federal court, that the task force he ran “targeted” African-Americans.
Hutchinson: It would be really unfair to hold government accountable for what its agents did. But we should definitely punish the dirty cop.
Hutchinson told me:
My biggest disappointment in this whole case is that Detective Ray has not been brought to justice. He should have been punished severely for what he did.
This is an eccentric line of reasoning, particularly because Hutchinson earlier argued that the dirty cop was really only “tangentially involved” in the Buckley case and his involvement had little or no impact on the ultimate verdict. But it is also a very disturbing line of reasoning — if you believe that those who are the victims of government wrongdoing should be compensated.
Here’s the bigger takeaway: the only way we will ever see government reform itself when it acts badly (such as, for instance, inadequately supervising corrupt public officials who do terrible things) is to create powerful disincentives and punishments (like budget cuts for agencies who perform inadequate supervision — which can be used to compensate the victims of bad government actors).
Gosh, I sure wish somebody would review our committee’s judgment, but, darn it, the whole thing is out of my hands.
When I asked Hutchinson if anyone would review the legislative committee’s decision, he told me:
Well, unfortunately because it was a July committee meeting, and we don’t meet in August I believe, or — some like that — that one month of the year the sub-committee’s findings are final. There’s no review by the full legislative council. So, I wish there was. Maybe they would have the chance to play us the tape, or even excerpts of it that they think is exonerating, but Mr. Hampton said that he didn’t think anything malicious went on by the prosecutor.
According to Hutchinson, Buckley should be grateful and feel blessed. He doesn’t realize how good he has it!
When special prosecutor Larry Jegley chose not to retry Buckley, Hutchinson said:
…the state did him a favor by not putting him or the taxpayers through that and released him. And, uh, his conviction was expunged, and that — I know eleven years is a long time, but if you look at it from his perspective, if he truly is innocent, that’s a travesty of justice. If you look at it from a prosecutor’s side, the guy’s guilty and he only served a third of his sentence. That could also be called a travesty of justice.
I hope that Hutchinson is wrong. Do prosecutors actually believe that those who receive trials which are so unfair that their sentences are overturned should really be in prison anyway? Is there any prosecutor who believes that escaping from a thirty-year sentence based on an unfair trial is a travesty of justice?
Hutchinson expanded on this logic:
Mr. Buckley could’ve seen another 20 years if Jegley had taken him back to trial. Jegley chose not to and said ‘I think justice has been done and we’re going to –’ instead of jumping for joy and being happy, he turns around and sues the state.
I don’t want to put words in Hutchinson’s mouth, but I think he’s arguing here that if Buckley had a more sophisticated understanding of the criminal justice system, he’d be grateful that he got off easy with an unfair trial and the 11 years behind bars that came with it.
Senator Hutchinson is, of course, chairman of the state Senate’s Judiciary Committee.