Wednesday, November 10, 2010

The Unindicted Co-Ejaculator

When the State learns that the DNA from the rape (and perhaps murder) victim did not match their prisoner, they don't release their prisoner. That would make them look foolish. Instead they hypothesize that their prisoner was simply one of two people who raped (and perhaps killed) the woman. This happens so often, in fact, that it has a name: the unindicted co-ejaculator.

I'm only wishing I made this up. If I made it up, I could claim credit for the clever name. If I made it up, we would have many fewer people wrongfully behind bars. But I didn't make it up. If you type in "unindicted co-ejaculator" into Google, you'll get 884 hits, plus an ad for RightHealth.com. ("Relax. Take a deep breath. We have the answers you seek.") You might not get exactly 884 hits, but I did. I also got a few tips about some horrific things that can happen to men.

Frontline just did a show called "The Confessions." You can see it online here. You should watch it. Be forewarned, spoilers to follow.

The case of the Norfolk Four is the granddaddy grandprogenitor of all unindicted co-ejaculator cases. Let me count the ways.

A Virginia woman is raped and killed on a naval base. Defendant #1 is arrested almost immediately because someone thought he had a thing for the vicitm. (What Defendant #1 actually had was a newlywed wife who had just been diagnosed with ovarian cancer. She would die of that cancer while he was still languishing in prison.)

Defendant #1 confesses after lots of hours of intense interrogation by "The Guy Who Was Really Good At Extracting Confessions," herein after referred to simply as The Confessionator.

The day after the murder, the police see the autopsy report. It doesn't match the confession, Defendant #1 apparently forgot to confess that he had stabbed her rather than choked her to death. No problem. The Confessionator convices Defendant #1 to amend his confession.

A few weeks after the murder, the DNA comes back. It doesn't match the confession. Defendant #1 apparently forgot to tell the police there had been an unindicted co-ejaculator. No problem. The Confessionator convices Defendant #1 to provide the name of his accomplice.

The named accompliced soon becomes Defendant #2. After lots of hours of intense interrogation by The Confessionator, Defendant #2 confesses. They take DNA samples, but the DNA doesn't match. Defendant #2 apparently forgot to mention the name of the other unindicted co-ejaculator. No problem. The Confessionator convices Defendant #2 to provide the name of not one, but two additional accomplices.

Defendant's #3 and #4 both confess, but darned if their DNA doesn't match either. (I'm not making this up.) No problem. The Confessionator convinces Defendant #4 to give the names of three additional accomplices. (I swear I'm not making this up.) Those three accomplices soon become Defendants #5 through #7, and (you guessed it) none of their DNA matched the crime scene DNA.

Not only that, Defendant #7 had a airtight, and I mean airtight, alibi. He was a few states away at the time of the crime, and seemingly everybody in that state could place him there.

Now here's where it starts to get a little strange.

It turns out the police had not, for whatever reason (I certainly can't think of one), run the crime scene DNA through the system to see if it matched anyone already in the system. I guess they figured it was easier to daisy chain confessions than it was to ask the computer to check the DNA against the DNA database. But somehow, I can't recall how, they suddenly had a DNA match with Defendant #8, already in prison for raping and attacking women near the scene of the naval base crime.

Defendant #8 confesses but claims he acted alone. No problem. They send in The Confessionator. But  the Confessionator is no longer dealing with a bunch of innocent rubes. The Confessionator is now dealing with a real criminal who has seen this crap before. Defendant #8 refuses to budge. He raped her, killed her, and did it alone. Period.

The police can't link Defendant #8 to the other Defendants. Now way, no how. No problem. The State revises its theory of the crime. Defendants #1 through #7 were hanging out in the parking lot, planning the gang rape and murder of the woman. She wouldn't let them in, even though she knew the neighbor. So  when soon-to-be Defendants #1 through #7 have a chance encounter with soon-to-be Defendant #8, they ask him if he will join them in their plan to gang rape and murder the woman. Not wanting to be rude to strangers, he agrees to help. Not only that, he will be able to convince her to open the door, even though she doesn't know him from Adam #1.

Now the new theory may sound like crap to you, but it sounded like proof beyond a reasonable to Jury #1 who put Defendant #3 away for 8 years for rape. And it sounded like proof beyond a reasonable doubt to Jury #2 who put Defendant #4 away for life. After that, no more juries were required. To save themselves from the death penalty, Defendants #1 and #2 pled guilty, Defendants #5 through #7 walked (because they had never confessed), and Defendant #8 claims to this day that he acted alone.

The police, The Confessionator, the district attorney, the governor, and the attorney general claim to this day that all the confessions are valid.

That leaves Frontline with the following tagline: "How could four men confess to a brutal crime that they didn't commit? Inside the incredible saga of the Norfolk Four -- a case that cracks open the justice system to reveal almost anything that goes wrong when innocent people get convicted." 

Change that last part to "when innocent people get arrested" and I'm there.

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