Justice denied should lead to broad reform

February 20, 2005|By C. Fraser Smith

AFTER READING the record of his case, a handful of veteran Maryland lawyers had one question: What's this man doing in jail?

Walter Arvinger was serving a life term for murder because of shoddy legal representation, because of politics and because the judge in his case was new to the bench.

We call it a criminal justice system, but the questions of guilt or innocence are handled by human beings who can succumb to the pace of demanding cases. Error and circumstance and malfeasance can conspire to defeat justice.

It took a village - a team of law school students, their professors and Gov. Robert L. Ehrlich Jr. - to restore Mr. Arvinger's freedom after 36 years behind bars.

He went to prison at 19. He got out at 55.

The Arvinger case may be the political equivalent of a syndrome widely referred to as "Nixon in China."

President Richard Nixon's opening of relations with China might have been damaging for Democrats who would have been seen, because of their "liberal" orientation, as "soft on communism." A Republican could do the sensible thing without a loss of his credentials.

In the Arvinger case, a "liberal" would have released Mr. Arvinger at peril of seeming "soft on crime."

Mr. Ehrlich, a Republican, could do it for political reasons. It was a campaign pledge of his to look at such matters case by case. That progressive initiative has been somewhat obscured by the enduring slots controversy, the reporter ban and land deals.

The process review is important. Every poor defendant doesn't have a team of lawyers to intercede on his or her behalf - and no one should have to wait 36 years for justice.

Mr. Arvinger would almost certainly still be in jail save for University of Maryland professor Michael Millemann, who has spent much of his professional life examining such cases. Somehow, one of Mr. Arvinger's many letters finally landed in the right hands.

Mr. Millemann and the informal lawyer review panel he assembled reached these conclusions: Mr. Arvinger's lawyer, now deceased, failed his client. He did not demand a jury trial. He did not subpoena witnesses. He was infamous for saying he went to court with only those files that fit in his suit coat pocket.

The judge was Harry A. Cole, Maryland's first black state senator. Mr. Millemann surmises that Judge Cole thought Mr. Arvinger had been a lookout for the perpetrators and therefore party to the crime.

There were times over the years when the prisoner might have been released. Asked to explain his case to the parole board, Mr. Arvinger said, "Well don't you have my case right there in front of you?" The question was regarded as rude, and he was summarily sent back to jail.

At one point, the parole process was suspended. Governor Ehrlich's predecessor, Parris N. Glendening, adopted a tough-on-crime position, favoring the death penalty and long prison terms for violent offenders. "Life means life," he said.

At another point, after he had been on work release for three years, another convict in that pre-release program committed a murder on the outside. Gov. William Donald Schaefer ordered everyone back to their cells. Mr. Arvinger had been working outside the prison for three years by then. And he had been in prison for 25 years. He would serve 11 more.

The more time passed, the more difficult the task of righting the wrong. Mr. Millemann had the help of 30 or so law students, who pursued the case during a class on legal research and post-conviction advocacy. They saw the hits and misses of a system that demands precision. They saw what can happen to real people when parts of it aren't working.

Outside this hall of mirrors stand people like Mr. Arvinger, a man who never gave up. With the help of a law school and a governor, he saved himself from a 37th year in prison. Maybe his perseverance and Governor Ehrlich's (metaphorical) trip to China will save others a similar fate.

C. Fraser Smith is news director for WYPR -FM. His column appears Sundays.

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