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‘Actual innocence’ program in St. Clair County clears nine defendants

LaShunda Green discusses the day her two sons were arrested

Her boys were eventually cleared by St. Clair County's "actual innocence" program
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Her boys were eventually cleared by St. Clair County's "actual innocence" program

LaShunda Green peered out the front window of her home on St. Andrew Drive at about 7 a.m. and was shocked to see Cahokia police officers and U.S marshals. She quickly opened the door.

On this April morning last year, members of a police apprehension team were actually looking for Green’s sons, DeLarren Mason, then 17, and his 19-year-old brother Jerry Outlaw, who said he awakened to a flashlight in his eyes and orders shouted by police in black clothing to put his hands behind his back. Mason was arrested later in Belleville.

Both were charged with an armed robbery, where the alleged take was a cellular phone and a set of car keys from a 20-year-old victim who lived nearby and waited a week to report the crime. Neither could afford a lawyer or make bail. Both were jailed, with Mason going to the county juvenile detention center. Outlaw said that upon his arrest he told a Cahokia detective that he was guilty.

But 225 days later, both were freed after all charges were dismissed through what members of private innocence projects associated with Illinois universities said is probably the state’s only “actual innocence” program in any prosecutor’s office. The program was quietly initiated two years ago by St. Clair County State’s Attorney Brendan Kelly, who announced its existence two weeks ago. Under the program, nine defendants accused in eight cases have been freed in prosecutions that involved murder, armed robbery, predatory criminal sexual assault, reckless homicide, possession of a weapon by a felon and felony retail theft.

Unlike Cook and Lake counties, jurisdictions that maintain “conviction integrity units” to review questionable cases after a defendant is found guilty, Kelly’s program begins before conviction, when a defense lawyer makes a good-faith inquiry to prosecutors that a client is actually innocent. Then a protocol is put in place that includes an entire review of all aspects of the case by prosecutors and police, who can utilize new witness testimony as well as testing through polygraphs and voice-stress analyzers.

A protocol is put in place that includes an entire review of all aspects of the case by prosecutors and police, who can utilize new witness testimony as well as testing through polygraphs and voice-stress analyzers.

Green’s sons were released in late October when Mason passed a polygraph. Mason told a reporter that while he passed the test on the question of the robbery of the phone and keys, he flunked when asked, “Have you ever robbed anyone?” When pressed to answer if he had indeed robbed anyone, Mason said, “Not of money.”

Of his nearly eight months behind bars, Mason said, “I’m stronger now. It wasn’t that I did eight months in jail. It was that I did eight months in jail innocent.”

Outlaw said he falsely confessed only after police began pounding a table where he was seated and insisting that he was guilty.

“I thought I was going to jail anyway. So, I just said I did it,” Outlaw said, “But I didn’t know anything about it.”

Neither man has a serious criminal record.

I thought I was going to jail anyway. So, I just said I did it. But I didn’t know anything about it.

Jerry Outlaw, who was cleared of robbery through innocence program

“They missed school. They missed work. Our lives were turned upside down,” said Green, who added that the only person to apologize to the family was the victim, who called the day her sons were released. “No one else said they were sorry.”

Moral certainty

Kelly said that under the program, charges are dropped only after prosecutors determine “to a moral certainty” the a defendant is innocent.

“Defense attorneys know they have to articulate some reasonable basis to question the underlying probable cause,” Kelly said, referring to the legal threshold that must be met by police before an arrest can be made.

“For example, if we have a defendant dead to rights on video committing the crime and he claims he’s innocent, that claim is made in bad faith and not considered ... This program should ensure that no one is falsely convicted of a crime,” Kelly said.

“It’s the worst nightmare of the police and prosecutors to get the wrong guy. So together we have cautiously embraced this approach. This process informally began in 2013 and has been (recently) codified into our current policy.”

It’s the worst nightmare of the police and prosecutors to get the wrong guy.

Brendan Kelly, St. Clair County state’s attorney

The first defendant to have his case reviewed was accused murderer Rodney Lewis, and like Green’s sons, he waited in jail for a lengthy period until, after 414 days, he was freed when new witnesses were found. The witnesses told police that Lewis was only defending himself when he shot and killed a knife-wielding acquaintance.

“From the beginning, he stuck to his story, that what he did, he did in self-defense,” said Thomas Keefe III, the attorney from the public defender’s office who represented Lewis.

“It’s the right thing for prosecutors to do,” Keefe said of the actual innocence program. “The state’s attorney has a budget four times the public defenders’ budget. They have the resources to completely evaluate the case ... In the meantime, defendants wait for a year to have their cases evaluated. It usually comes when there is a looming trial date.”

Praise for prosecutor

Pamela Cytrynbaum, executive director of the famed Chicago Innocence Center, where journalists are among the investigators in wrongful-conviction cases, said she had not heard of another so-called actual innocence program in Illinois operated by prosecutors. “I am eager to learn more about it,” she said.

Cytrynbaum said that as of Friday morning when she checked the National Registry of Exonerations, “1,728 people have been exonerated, exonerations publicly heralded across the country. This means more than one per week, so we have finally gotten to the point where as a country we accept the fact that thousands of innocent people are convicted and incarcerated wrongly...”

Cytrynbaum praised Kelly’s decision two years ago not to accept cases from the Brooklyn Police Department because he considered the investigations to be unreliable because of allegations of wrongdoing by the small village’s police, along with official misconduct convictions of elected officials .

“A prosecutor unafraid to so brazenly call out misconduct is rare...to refuse to take cases from an entire department, that takes guts,” Cytrynbaum stated in a written response.

Karen L. Daniel, a clinical professor of law and director of the Center on Wrongful Convictions at the Northwestern University law school, said of Kelly’s program, “I think its great.” She too thought it is the only pre-conviction review team for prosecutors in the state.

Bill Schroeder, a professor of law at Southern Illinois University Carbondale, a specialist in federal court procedure and a member of the law school innocence project team, said, “A prosecutor has immediate power to make sure the wrong person isn’t prosecuted. No one benefits when an innocent person is prosecuted. When this happens, the guilty person is still on the street and the taxpayer is paying to incarcerate someone who shouldn’t be in jail.”

At a glance

Two-year old program instituted by State’s Attorney Brendan Kelly reviews questionable cases before conviction and frees defendants is they are deemed to be innocent. These are actual innocence cases dismissed by St. Clair County prosecutors since 2013.

Defendant

Charge

Reason for release

Time in jail

Lashonda Moreland

Retail theft, aggravated assault, fleeing

Polygraph

1 day

William Welmon

Aggravated dui, reckless homicide

Polygraph

412 days

Brandon Jackson

Armed robbery

Polygraph

Never in custody

Jerry Outlaw

Armed robbery

Co-defendant passed polygraph

225 days

Delarren Mason

Armed robbery

Polygraph

225 days

Datavious McGary

Armed robbery

Polygraph

75 days

Lawaun Strong

Possession of weapon by felon

Polygraph

70 days

Darwin Cabb

Predatory criminal sexual assault, child

Polygraph and stress voice analyzer

1 day

Rodney Lewis

First degree murder

New witnesses

414 days

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