Why we won't give up

As a private lawyer in Washington, I represented Ted Bundy pro bono in post-conviction proceedings challenging his convictions and death sentences in Florida. I did this from 1986 until his execution in January 1989. On the first day of the 1988 hearing in federal court to determine if Bundy had been competent to stand trial when he was convicted in 1980, a reporter asked the judge as he entered the courthouse whether the hearing was "just a waste of time." The judge, before hearing any evidence, replied, "Absolutely."

At the end of the week-long proceeding, without hearing arguments or reading any briefs, the judge declared confidently from the bench that Bundy was "the most competent serial killer in America." Later, as we were packing our exhibits and papers, a high-school student who was in the courtroom asked me if I would want a serial killer living next door to me. I assumed that was her way of asking why I defended Ted Bundy. I told her that I had a daughter her age and that I would not want a serial killer living next door to me. But, I added, that's why it's important for the police and prosecutors to make sure they have the right person; convicting the wrong person leaves the serial killer on the streets.

In the wrongful-conviction work that I now do at Duke University, I often think of the federal judge who was so certain that Bundy was not entitled to relief that he could decide the case before hearing the evidence. I thought of that judge when Superior Court Judge Richard Doughton ruled against Kalvin Michael Smith in January 2009 and allowed the state to write the opinion he issued, almost verbatim. I thought of that judge when anonymous judges on the North Carolina Court of Appeals declined to review Judge Doughton's decision only five business days after the state filed its opposition. That struck me as an extraordinarily short period of time in which to decide that none of the issues warranted review. In my experience, that level of instant certainty on the part of judges has been rare, except in the criminal-justice system.

I also think of the judge in Bundy's case every time Winston-Salem Police Chief Scott Cunningham explains why nothing that former Detective Don Williams failed to do ever matters. The members of the Silk Plant Forest Citizens Review Committee, after an exhaustive review of the police investigation of the case, unanimously concluded that they had no confidence in the investigation; seven members of the committee said there was no credible evidence that Smith was present at the Silk Plant Forest store when Jill Marker was attacked. On the basis of that report, Chief Cunningham has instituted numerous significant reforms in which cases are investigated. But he aggressively defends the results of the investigation; except for the many deficiencies, Smith's trial was fair enough.

I also thought about the judge when I read the Journal's recent article on Jill Marker ("The aftermath of violence," March 20). The story is heartbreaking. But because I believe Kalvin Smith is innocent, I believe the person who so horribly assaulted Jill Marker is still free. Perhaps, like Williard Brown, who remained free while Darryl Hunt sat in prison, the person who attacked Marker has attacked others. Having escaped justice in her case, he likely feels invincible. Official certainty does not make us safe. Ask Williard Brown's previous victim, Regina Lane.

I thought of the judge in the Bundy case when I spoke out against what Mike Nifong was doing in the Duke lacrosse case in 2006. I thought that case might be a wake-up call in North Carolina. The people being mistreated were not the usual suspects; as the mother of one student said, Nifong picked on the wrong people. The response was unprecedented. The North Carolina Bar intervened; Attorney General Roy Cooper intervened and declared the students innocent; and even some prosecutors criticized Nifong. But I was wrong. That kind of justice is not available for people like Kalvin Michael Smith. In his case and the cases of other faceless and powerless defendants, a different kind of justice prevails; one characterized by indifference to errors and intolerance for those who complain.

I often tell the prisoners whose cases we investigate that as long as we believe they may be innocent, we will never give up the pursuit of justice. And, in the face of official certainty and indifference in the criminal-justice system, none of us who would mind living next door to a serial killer should ever give up.