Opinion/Bill Lueders
April 15, 2002

The importance of being sorry
Why the DA's office ought to apologize to Anthony Hicks

"It's almost as though the vast, unchecked power of prosecutors robs them 
of the humility they need to exercise it."

Doug Moe of The Capital Times wrote an angry column last week urging the state Legislature to apologize to and compensate Anthony Hicks, the former Madison man who spent nearly five years in prison for a rape he almost certainly did not commit.

 The call for compensation makes sense, since it will take an act of the Legislature for Hicks to get more than the pathetically inadequate sum--$5,000 per year, not to exceed $25,000--that the state Claims Board can award to people who are wrongfully convicted. The call for an apology, however, seems misdirected.

 It wasn't the state Legislature that charged Hicks with a crime. It wasn't lawmakers who secured a conviction by arguing that pubic hairs found at the scene "matched" those of Hicks, only to later pooh-pooh DNA tests that excluded him as the source of one of those hairs. This was the doing of the Dane County District Attorney's Office, which has never admitted error or apologized.

 In 1997, ten months after the state Supreme Court threw out Hicks' original conviction, Deputy District Attorney Judy Schwaemle asked that the charges be dismissed, saying the new evidence introduced "reasonable doubt into this otherwise compelling picture of guilt."

 Otherwise compelling? The hair was the only physical evidence linking Hicks to the crime. He was also picked out by the victim in a lineup--which is notoriously unreliable, especially with cross-racial identifications, as was this one. And attorney Jeff Scott Olson, who is representing Hicks in a civil suit against his former lawyer, says Hicks' appearance differed from the original description "in some ways that the victim remembered most clearly."

 The Wisconsin State Journal wrote an editorial at the time rebuking Schwaemle's "gratuitous comments" about the evidence against Hicks even as she was admitting the case against him wasn't strong enough to file new charges. The legal system, the paper said, "can and should learn to gracefully admit it might have been wrong." And it said Hicks deserved an apology.

 None, of course, was forthcoming.

Contrary to what people in the DA's office might like, the Hicks case did not--and is not about to--go away. Although Hicks promptly moved to Texas, where he apparently feels the justice system is less capricious, he has not given up his struggle for vindication in Wisconsin.

 In October 2000, a jury deemed Hicks' attorney negligent and ordered him to pay $2.6 million in damages. Two weeks ago, a state appellate court ruled that to collect on this award, Hicks must prove not only that his attorney screwed up but that he is innocent. To this end, Olson plans to seek a new civil trial; the case could drag into next year and beyond.

 Interesting, Olson feels people in the DA's office "did their jobs" in charging Hicks, given what was known at the time. Still, he thinks there should be some willingness to reassess based on subsequent evidence and that "some official person, speaking on behalf of the state of Wisconsin, ought to say, 'We're really sorry.'"

 Who should that person be? Schwaemle, a good and honorable prosecutor, did not respond to a request for comment. Her boss, District Attorney Brian Blanchard, says he knows little about the case beyond what he's read in the papers, and has had "no occasion to review" the case file. While not ruling out such a review, he expresses great reluctance, saying "I really don't think I could possibly justify" the necessary investment of resources.

 More troubling still, Blanchard says he's not sure an apology is needed unless "there was error at the time" that charges were filed. Presumably, Blanchard won't say he's sorry his office put an innocent man in prison for five years unless the prosecutor knew or should have known he was innocent all along, a ridiculous standard.

 Former Sheriff Rick Raemisch, who is likely to challenge Blanchard this fall, hits this one out of the park. Raemisch believes people who have been wrongfully convicted deserve an apology and monetary compensation. He doesn't feel this equals an admission of wrongful prosecution, since he assumes charges would never have been filed without just cause. But if new evidence shows a person was locked up for something they didn't do, "as a human being I'd say I'm sorry that happened."

 If elected, Raemisch says he would review the Hicks case.

Obviously, even the most heartfelt apology would not make Hicks whole; it might not even make him feel better. But it would accomplish something much more important: Establish the office's commitment to putting the interests of justice ahead of its powerful will to self-justification.

 Nobody likes to admit being wrong, but few people are as reluctant to do so as prosecutors. It is almost as though the vast, unchecked power they wield robs them of the humility they need to exercise it. And that is why the district attorney--by far the most powerful local elected position--must on appropriate occasion acknowledge his office's terrible capacity for error.

 I for one would rather have a DA who looked into past cases where innocent people may have been convicted than one who poured his energies into a seemingly endless caucus probe that has no chance* of leading to the successful prosecution of key legislative leaders, even as it grants immunity to all manner of players--19 to date--who may have deliberately broken the law. (*If I'm proven wrong about this, I will admit error and apologize.)

 Anthony Hicks is not the only person convicted of crimes in Dane County who is possibly if not probably innocent. Similar claims have been made about Darnell Hines (the subject of an Isthmus cover story a few weeks back), Penny Brummer and Audrey Edmunds. But Hicks' case is the most clear-cut, and even here there is a complete refusal on the part of the DA's office to admit error or express remorse. And that makes the office potentially as dangerous as any criminal.

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