It is better that ten guilty persons escape than that one innocent suffer.
– Blackstone’s Ratio
Dark night in a city slum. Three black street gang members, two men and a woman, pull into the parking lot of a housing complex. They exchange words with three members of another gang, all men. The words lead to a brawl in the parking lot. The next night, the two men and the woman are sitting on their front porch when an SUV pulls up across the street. A man gets out, walks up, words are exchanged, he pulls a pistol and shoots the woman and one of the two men, who later dies in the hospital of his wounds.
Police at the shooting scene call out an elite unit of crime scene investigators. They scour the scene, collecting unusual shell casings and a couple of bullets that have hit the house, outside and inside. They discover that the shell casings could only have been fired from a Russian or East European gun, and send investigators out to comb the city gun shops to find any that might have sold such a weapon. The bullets extracte from the house prove to have come from some other weapon, indicating that at least two people were shooting.
The two victims eventually recant their original accounts and name a young man, not a member of any gang, as the shooter. The police arrest and interrogate him. His alibi fails to persuade them, and he is charged with murder and other associated felonies, convicted, and sentenced to life plus twenty years.
But after four years, one of the three men from the apartment complex gang discovers he is dying of cancer. He calls in two family members and another man who took part in the fight and confesses to them all that he did the shooting and that he knows the man in prison is innocent. An independent investigator finds one of the family members, then the other two, and persuades them all to file affidavits recounting the dying man’s confessions to them.
When these are presented to the Court as newly discovered evidence, the
prosecutor who brought the original case is devastated at the thought he may have sent an innocent man to prison, and sends his entire investigative staff out to assess the new evidence. Convinced of the likelihood of its truth, the prosecutor joins the defense attorney in requesting a new trial, and the wrongly convicted man is almost instantly freed into the arms of his waiting family.
Cut to commercial messages.
That’s a story you’ve probably seen with some variations many times, if you watch the innumerable police and legal dramas on television. Unless you’ve had personal experience with the criminal justice system, you’ve probably been convinced that such stories more or less accurately portray how that system works. Here’s the same story, a little closer to reality:
Dark night in a Tulsa slum. Three members of the 107 Hoover Crips pull into the parking lot of the Comanche Apartments – Brandon Savage, Dominique Jasper and Carlameisha Jefferson. They are there to talk to a potential distributor of drugs, but first begin talking with the three members of a different set of Crips – Arlen Young, Freddie Smith and Henderson Porter – in the parking lot. The talk turns rapidly challenging, and the two sets of people begin fighting. Jasper gets Arlen Young onto the pavement and kicks him repeatedly in the face. Freddie Smith comes up with a pistol and fires a warning shot. Security police, followed shortly by Tulsa police, arrive on the scene and everyone scatters. Brandon Savage, Dominque Jasper and Carlameisha Jefferson all take off in their car and return to Savage’s house. A young man named Channen Smith, who has been visiting a friend who lives in the apartments, has come outside along with other residents to watch the fight, but has not been otherwise involved in it.
Two nights later, Savage, his fiancé, Jasper and Jefferson are standing out on the front porch of Savage’s house. They have been playing a drinking game and have come outside to cool off. An SUV pulls up across the street. Arlen Young gets out, walks up, words are exchanged, he pulls a pistol and shoots Jefferson and Jasper.
Crime scene investigators find only two shell casings, despite reports of as many as 14 shots being fired. The shell casings are 9 x 18 Makarovs, housings for a round that can be accommodated by only a Russian-made Makarov pistol or an East European copy. No further mention is made in the trial record of any attempt to identify the source of these casings, the source of the two (non-Makarov) bullets found in the doorframe and inside wall of the house, or to explain how so many shots produced so few shell casings. (The investigator testifies that sometimes that just happens.)
A few days after the shooting, stopped for a traffic violation by gang unit detectives, Carlameisha Jefferson tells the detectives “that she was told Channen Smith was the shooter.” A few days after that, another detective is told by Brandon Savage that he saw Channen Smith shoot Jefferson and Jasper.
A week later, Jasper dies of complications from his wounds. A homicide detective, Vic Regalado, takes over the case, Savage identifies Channen Smith again as the shooter from a photographic lineup, and Regalado secures an arrest warrant. Two days later, after Regalado’s interrogation, Smith is charged with murder and jailed, pending trial.
At trial, Smiths’s public defender asks Regalado, “I believe you also mentioned it was not right to arrest based on some people just saying something, but yet, isn’t that exactly what happened in this case?” Regalado replies, “Yes.” He adds, “Well, when I obtained that arrest warrant for a first-degree murder, I was positive that he was the individual.”
The evidence against Channen Smith consists of the highly contradictory accounts Savage and Jefferson gave of the night of the shooting, the dubious claim made by Jasper’s mother that Jasper named Channen Smith as the shooter, and the hearsay assertion that, “mistakenly” placed in the same holding cell with Savage, Smith had made statements that might have been construed as a confession. Smith’s alibi witnesses, who placed him in a town 30 miles distant at the time of the shooting, were pilloried by the prosecutor and evidently not believed by the jury, which found Smith guilty on all counts.
Seven years after the shooting, Arlen Young discovered he was dying of cancer. Shortly before he succumbed to the disease, Young told two of his cousins that he had been the one who shot and killed Jasper, and that he wanted them to get the information out and apologize to Smith. An independent investigator secured the cousins’ affidavits repeating this confession. The investigator also secured affidavits from Freddie Smith and Henderson Porter, attesting that Arlen Young had driven off from the Comanche the night of the shootings, that he had returned and told them that “he just got at them fools,” meaning Jasper and Jefferson, and that he had shot them both.
Smith’s family had by then collected enough money to hire an independent attorney, who filed an application for post-conviction relief, based first and foremost on Arlen Young’s newly revealed confession. The States Attorney remained un-devastated, and did not take steps to discover if he had mistakenly convicted the wrong man. Instead, he searched for and found legal precedents outlining definitions for “newly discovered evidence.” Then he argued, in response to Smith’s application, “Petitioner’s claim fails because his newly discovered evidence is not newly discovered under the law. All of these witnesses were known to Petitioner long before his trial date . . . . Just because these witnesses did not want to snitch upon Young does not escape (sic) the prisoner from the requirement that he exercise due diligence to uncover said facts.”
The States Attorney offered no evidence, nor had there been any given during trial, that Channen Smith knew any of the witnesses under discussion other than Freddie Smith, although he and his girlfriend did also know Carlameisha Jefferson. Even if he had known them all, Arlen Young would have had no reason to confess to a crime for which another man had been indicted, nor would his two friends and fellow gang members have had any reason to turn him in, nor would his cousins have received his confession.
Presented with the State’s response to Smith’s application two days before Christmas, 2022, Judge Dawn Moody took until the 3rd of January, 2023 to cut and paste the State’s response, verbatim, into her finding, adding only a one-sentence rejection of the application. That decision will be appealed to the Oklahoma Court of Appeals. Channen Smith, meanwhile, will remain in prison.
Police detectives retain their jobs and get promoted based on the rate at which they clear cases by providing suspects to District Attorneys’ offices. District Attorneys get re-elected by securing convictions. Admitting to having been responsible for wrongful convictions does not contribute to their chances for re-election. Judges, if elected, are rarely removed from their chairs by voters unless they are painted as “soft on crime.” While the entire legal establishment frequently offers lip service to Blackstone’s principle, while television script writers frequently suggest that that principle drives police and lawyers and investigators to remarkable feats of diligence and selflessness, the criminal justice system is a business, and the various components of it are professions. Those professions are occupied by humans, generally by humans no less motivated by self-interest than any other set of humans. Meaning that selfless heroes may be found among them, but not as many as Blue Bloods might lead you to expect to find.
So far, there are none to be found in Channen Smith’s case. Presented with a shooting that became a murder, the police seem to have done precious little investigating of the shooting or of the fight that likely led to it. Instead, two participants in that fight, one of them a victim of the shooting, presented the police with a target with few financial resources. They immediately homed in on that target and paid no attention to his assertion that he had an alibi. The prosecution proceeded with their laughably weak case, with the presiding judge’s assistance at every step, and the jury bought it, despite its highly unlikely nature. Succeeding judges have rejected all appeals on often transparently thin legalistic pretexts.
Thousands of people have been wrongfully convicted and ultimately exonerated, a process which has generally cost those people from ten to twenty years of their lives.
They have most often been freed because people outside the official criminal justice system have insisted that the system correct its own failings. Human institutions, including that criminal justice system, do not naturally hasten to admit to or correct their own errors and miscarriages. Citizens – not passive consumers of comforting television fantasies – need to work to make those corrections happen.
Channen Smith’s sister has created a website containing a petition requesting an evidentiary hearing: https://www.change.org/p/help-unchain-channen-by-supporting-our-appeal-for-an-evidentiary-hearing. An advocate for wrongfully convicted prisoners is working on a website offering more information on his case. It will be at www.justiceforchannen.org. She has also designed a line of short and long-sleeved shirts whose purchase will benefit Channen’s defense fund. They can be viewed and purchased at https://www.bonfire.com/store/faith-and-freedom-designs/.
