Guilty until proven innocent – Isthmus

Late in 2004, Keith Findley met Jarrett Adams in the visitor’s room at the maximum-security Green Bay Correctional Institution. Adams was serving a 28-year sentence for doing something stupid.

At the age of 17, he drove with two other friends from Chicago to the UW-Whitewater campus, where they partied and had consensual sex with a young white student. “I should never have been up there,” Adams says in an October interview. “We were all kids.”

The woman told officers she was raped. The private attorney the state Public Defender’s Office poorly paid to defend Adams offered a no-defense defense. One judge questioned the charge, but prosecutors refiled it and an all-white Jefferson County jury convicted Adams of rape. The judge planned to give Adams a 20-year sentence but, after overhearing him refuse to apologize for a crime he didn’t commit, she added eight more years.

Adams served time in several Wisconsin prisons. When not in his cell, he was in the law library, searching for ways the criminal justice system that locked him up could set him free.

On a portable typewriter his mom bought him, Adams would hunt and peck hundreds of letters to lawyers and officials in Wisconsin’s criminal justice system, pleading for their attention — and help. He sent one to the Wisconsin Innocence Project, founded in 1998 by UW Law School Professor Keith Findley to free inmates convicted of crimes they did not commit.

Some years, the Wisconsin Innocence Project received 500 letters like those Adams sent from prison. Law school students who did the initial research on Adams’ case first wanted to try to appeal the conviction of a friend of Adams also convicted of raping the UW-Whitewater student.

Findley said no. The deadline to file the friend’s federal appeal had passed.

But, Findley noticed, the deadline to appeal Adams’ conviction was only days away. They would take his case. They would handle his appeal. They would go to Green Bay.

Days later they sat across from Adams and told him the news. “That sentence — ‘we want to take your case’ — crashes in my head like a crack of thunder,” Adams writes in his 2021 book, Redeeming Justice. “The words echo. The words drown out all other sound.”

Adams had done so much legal research for other inmates he earned the nickname “Li’l Johnnie Cochran with the glasses,” a reference to the defense attorney who got former NFL star O.J. Simpson acquitted of murder.

Adams told Findley he should use an “ineffective counsel” defense, because his attorney had been so incompetent. Adams had found a case, Strickland v. Washington, that set a precedent on the standard for ineffective counsel.

It wasn’t Findley’s first choice.

“We are absolutely going to include the ineffective assistance, of course,” Adams quotes Findley as saying in his book. “But that is one of the hardest burdens to meet. We want to lead with another argument.”

“Insufficient evidence,” said law school student Jim Miller.

“The young woman testified that nobody threatened her, nobody forced her,” Findley explained. “She said that over and over.”

Adams continued to argue for ineffective counsel, but expressed faith in his new lawyers. “When you put your name on my case, when you say this is coming from the Wisconsin Innocence Project, people will take notice. I defer to you. I believe in my argument. But I am comfortable with whatever makes you comfortable.”

Findley and his team beat the deadline for appeal by two days.

Not a unique tale

Findley is still incredulous that Adams was convicted when the alleged rape victim testified in court that Adams had not threatened her or forced her to have sex.

“In Whitewater, Wisconsin, when a young woman comes in and says, ‘Even though he didn’t do anything to threaten me, and didn’t do anything violent, and didn’t outwardly do anything illegal, I had sex with him’…It rang true with the jurors, because he’s a Black man,” Findley says in an interview. “I mean, that’s the only thing that made sense out of this story at all. And that’s not a unique tale in Wisconsin, I’m afraid.”

Findley’s observation is based on more than three decades in the field, six years as a public defender and more than two decades with the Wisconsin Innocence Project, which turns 25 this year.

Findley, who was born in Kansas but moved around a lot as a child, says his parents instilled in him a “sense of justice.” His dad was a “progressive” Methodist minister; his mom, a social worker and mental health counselor. After one stint at the UW Law School, he worked as a public defender for six years before returning to teach there in 1997.

In 1998, after science nationally had proven the power of DNA to convict, acquit and free those wrongly convicted of violent crimes, Findley pitched a controversial idea to another UW Law School professor, John Pray. “Wisconsin had the sense that we were far more civilized than the rest of the country, that our [criminal justice] system was superior,” Findley says. “We wondered if we had innocent people here, too.

“In a friendly way, we were kind of ridiculed by some of our colleagues. ‘Found any innocent people in prison yet?’ But it didn’t take long until we did, and they kept snowballing. And — guess what — Wisconsin is no different than the rest of the country when it comes to convicting innocent people.”

Findley not only pioneered Wisconsin’s Innocence Project, but helped cofound and for several years lead the Innocence Network, a worldwide coalition of some 70 innocence projects.

Findley “set a sterling example to his students and other staff to put in the hard work necessary to overturn convictions,” recalls Pray, now clinical professor emeritus. “He had the ability to keep an open mind and creatively think of ways that a convicted person might be proven innocent. Often this was through the use of DNA, but sometimes we found novel ways to prove innocence.”

In one case, says Pray, “Keith obtained incriminating tape recordings that were used at trial against our client, and Keith had the idea to forensically examine the recordings, and found that they had been altered, and when that became known, it was clear that the recordings were not incriminating at all. In other cases, we found new witnesses, or obtained statements from witnesses who had testified against our client at trial, who were now recanting.

“In another case, Keith dug into the science of shaken baby syndrome, and was able to demonstrate the flawed presentation of evidence at trial. This was no small feat, for it involved Keith burying his head in medical books and articles to fully understand the science.”

Findley has not shied away from controversial cases. In 2002, he led the appeals that got a California company to retest sperm evidence, which resulted in the freeing of Christopher Ochoa, who had served 13 years of a life sentence for raping and killing an Austin, Texas, Pizza Hut worker. Ochoa, who asked for Innocence Project help, said he had confessed to the crime after being coerced by police and threatened with the death penalty.

In 2003, Findley led the appeal that exonerated Steven Avery, who had served 18 years after being falsely convicted of the 1985 rape of a woman who had been jogging along a Lake Michigan shoreline. The Innocence Project had 13 hairs from the victim retested, implicating someone serving a prison sentence for another sexual assault. The case led to a new legal standard on witness identifications.

But the Innocence Project experienced blowback for its work after Avery was charged in 2005 with the murder of Wisconsin photographer Teresa Halbach. Though it did not represent Avery on the new charges he was facing, it decided to remove information about his 2003 exoneration from its website. “Over time, the website became the focus for angry complaints that it was adding insult to the Halbach family’s very tragic loss, and the site was generating considerable anger directed toward Avery,” the Innocence Project explains on its website. The project decided to remove all case descriptions from their website temporarily “out of respect for the Halbach family, and in hopes of cooling public passions.” After “passions subsided,” all cases were returned to the website.

Avery and his nephew’s 2007 conviction of Halbach’s murder became the subject of a 2015 documentary series, Making a Murderer.

Findley says the documentary was “helpful.”

“It told the narrative from a perspective we don’t see that often…what the criminal justice system does to a lower socio-economic sort of unsophisticated white family who is subjected to prosecution and ostracism by the community,” he says. “It highlighted the ways in which the system is biased, and could make errors.”

In 2018, Findley and two lawyers who represented Avery in the murder case formed a nonprofit, the Center on Integrity in Forensic Sciences, to focus on improving the reliability and safety of criminal prosecutions by strengthening forensic sciences.

Findley is used to being asked why he tries to free people who have made bad choices, hurt people or may not be guilty of the crime for which they are in prison but, if they are released, are likely to hurt others again.

His answer: “It’s not for me to decide whether they are guilty or innocent. It’s for me to advocate for them. If they meet the [legal] standard set by the system for reversing their conviction, then I’ll let the system do what it does, figure it out.

“We’ll take the case. We’ll litigate it as hard as we can, regardless of what I think of the person, or about their guilt or innocence…If you didn’t commit the crime, you shouldn’t be in prison for it. Period.”

Fear that someone the Innocence Project exonerates might commit another crime “can’t be the test — because then we’d all be in prison,” he says. “It’s impossible to live in this world and not commit a felony. You have. I have.”

Findley doesn’t watch all those TV crime shows that usually focus on prosecutors, police and violence. “It makes me too mad.”

‘Keith has fought for me’

The Innocence Project met the deadline to file Jarrett Adams’ appeal, but a federal judge in Wisconsin later rejected it. Findley vowed to appeal to the 7th Circuit Court of Appeals in Chicago.

More than a year passed. Adams was reassigned — for a second time — to the state’s “supermax” prison in Boscobel, which at the time had only segregated cells. “A guard brings me down a narrow corridor and deposits me in my segregated cell,” Adams writes in Redeeming Justice. “I take one step in and feel as if I’ve walked into a coffin.” The Court of Appeals accepted the case.

In 2006, Findley stood before a three-judge federal panel. He argued the “ineffective counsel” standard — the legal strategy that Adams suggested when they first met in the Green Bay prison. Adams listened to the judicial back-and-forth from a telephone at the Boscobel prison.

A judge asked why Jarrett’s first attorney didn’t call a key witness — the same witness whose evidence got the charge dismissed against one of Adams’ friends. The witness “couldn’t have been all that hard to find,” the judge observed.

“The line goes dead,” Adams wrote. “They will take my case under advisement? They are taking my life under advisement.”

On June 30, 2006, Findley and two law school students called Adams. The three judges had unanimously ruled for him, but Findley warned that Wisconsin prosecutors had 120 days to either release or retry Adams.

“Four more months,” Adams sighed. “A lifetime.”

“Jarrett,” Keith said. “This is going to happen.”

It does. On Jan 28, 2007, Jarrett Adams walked out of the Jefferson County Jail a free man.

He went on to graduate from college, work as an investigator for federal public defenders, and earn a law degree. In January 2020, Adams and his wife traveled to Wisconsin’s Capitol, where he was to swear the oath required to practice law in Wisconsin. Adams asked Findley to administer that oath.

“I turn and face him,” Adams recalls in Redeeming Justice. “He smiles as if we were in on some private joke, which, in some way, we are. Keith has fought for me, and we’ve fought battles together. We have vowed to continue to try and do right, or at the very least try to undo wrongs.”

Before administering the oath, Findley addressed the crowd in the ornate Supreme Court chamber. “No one is more deserving than Jarrett Adams to be admitted to the Wisconsin State Bar,” Findley said. “No man has traveled a more circuitous route. Jarrett is a man of great perseverance and great moral character. I am honored to call him my friend.”

Adams is now a nationally known criminal defense attorney specializing in wrongful conviction cases; his firm has offices in Milwaukee, Chicago and New York. In October, Adams went to a New York City social event attended by Ron Klain, President Biden’s chief of staff. Adams has appealed to Biden for clemency for two of his clients in a Virginia prison convicted of murdering a police officer — a crime Adams says evidence proves they did not commit.

Adams was far from his typical client, Findley concedes.

“Jarrett coped by not taking it, by finding a way to push back, educating himself, asserting himself, doing everything he could to advocate for himself — both in his case and what was happening to him in prison. He coped by looking for ways to learn and use the system.”

‘Tone deaf to the demands of justice’

Since founding the Innocence Project, Findley says there have been slow but “meaningful” improvements in Wisconsin’s criminal justice system. State law now requires the preservation of biological evidence after a conviction. There is a new standard for eyewitness identification procedures. And, interrogations must be recorded.

But one critical piece hasn’t changed: Wisconsin has a “miserly” compensation law for those who have their convictions overturned: $5,000 per year with a cap of $25,000. Adams applied for the maximum compensation of $25,000, but his request was rejected because of a lack of “clear and convincing” evidence, Findley says.

The pay rate for private attorneys willing to take public defender cases has also not improved much. The state of Wisconsin in 2020 did raise the hourly rate from $40 to $70 an hour, but those wages are far below what attorneys can charge in private practice.

Meanwhile, Findley says, America “incarcerates people more often, and for longer periods, than any other nation in the world. It’s just crazy, and it’s utterly destroying entire communities and neighborhoods. We need to change attitudes in this country that are so knee-jerk punitive,” he adds, noting that Minnesota — with a demographic profile, population and crime rates similar to Wisconsin — has half as many prison inmates as Wisconsin.

“We need to start holding people’s feet to the fire, make them accountable for the foolishness that passes as ‘tough on crime’ that doesn’t make us any safer and — in many ways — may make us less safe.”

Recent campaign ads run by Republican candidates and groups that backed them accusing Democratic U.S. Senate candidate Mandela Barnes and Democratic Gov. Tony Evers of being “soft on crime” amounted to “fear-mongering,” Findley adds.

“It’s really simplifying things at a grotesque level…Crime has ticked up, probably in the last year or two. But it’s still below levels we saw in the 1990s.”

Findley says what the court system did to Dimitri Henley, the third young Chicago man who went to the Whitewater party, ranks among his biggest disappointments. No timely federal appeal was filed to try to overturn Henley’s conviction. Then, Findley says, “the ultra-conservative Wisconsin Supreme Court used his case as a vehicle for taking away procedural rights that criminal defendants had previously had for decades.”

That tragedy unfolded this way: “Jarrett’s and Dimitri’s cases were so identical that the state trial court judge who presided over their joint trials vacated Dimitri’s conviction after Jarrett won his [case]. It was only the fair and just thing to do — to treat like cases alike.

“The court did so under long-standing case law that established that trial courts have inherent authority to vacate convictions ‘in the interest of justice.’ In what I can only characterize as a mean-spirited decision, tone deaf to the demands of justice, the Wisconsin Supreme Court [in 2010] overruled prior precedent and held that the trial judge lacked the previously recognized inherent authority to vacate convictions in the interest of justice.”

Henley was eventually released from prison but forced to register as a sex offender.

A community leader

Over the course of his career Findley has written more than 50 law review articles and book chapters on the criminal justice system. He’s also been a community leader on these issues. He co-chaired a Madison Police Department committee that made 177 recommendations on civilian oversight of policing, served on the Madison Police and Fire Commission for three years, co-chaired a police department panel on the use of body cameras and, in 2020, was appointed to the Madison Police Civilian Oversight Board.

Findley stepped down as director of the Wisconsin Innocence Project in 2017 and is now a senior adviser; Rachel Burg is its director.

During his time at the project he has worked with hundreds of law school students who were deeply affected by the experience.

Mary C. Delaney, now a benefits specialist for Legal Action of Wisconsin, was a UW-Madison Law School student who reviewed Innocence Project cases with Findley about 20 years ago. The experience shaped her career.

“Keith has worked tirelessly to free innocent individuals who are the victims of profound defects in our criminal justice system,” Delaney says. “He helped me understand how those defects disproportionately affect racialized individuals. He inspired me in my work then and impacted my work since as a criminal defense lawyer, an advocate for disabled individuals in the prisons, for police reform and racial equity work in my own community.”

Findley’s impact on Adams has also been profound: “Keith and the Wisconsin Innocence Project exonerated me, and now I am able to help exonerate others,” says Adams.

Findley considers his role building the Innocence Network as perhaps his most important achievement. “It is this Network that helps grow innocence projects around the world, provides the support they need to do their work, and acts as spokesperson for the groups on national policy matters,” he says.

Findley recently discussed his career and the Jarrett Adams case with volunteers who visit Wisconsin prisons as part of the Restorative Justice program. He was asked why what the volunteers do is so important.

“No one is all evil,” Findley said. “If there is a segment of our population that is needier and that suffers more injustice than prison inmates, I don’t know what group it is…If we are a compassionate and caring society, we have to care about them.”