"Mr. Green, you gotta believe me. I did not do this. I am innocent of this." I could tell by the sense of urgency and desperation that he was certainly sincere. Jason was a friend and was a loyal client of my law firm. He had referred his daughter who was injured in a car wreck case to us, and scolded her for considering even retaining another attorney. I appreciate loyalty, and Jason was loyal. Jason is also a hard worker. His sister is a longtime friend of our family and Jason is a guy I wanted to believe and wanted to help. Jason was devastated at facing a criminal charge, and of all charges a theft charge. A theft charge could ruin him. What employer would keep him, and what prospective employer would hire him? I tried to calm Jason down. "Jason, calm down and let's start from the beginning." As I sat and listened, I began to take notes and observe his demeanor. The charge stemmed from one his company's customers. Jason works for a local furniture store and was dispatched to deliver furniture to a customer's residence on New Year’s Eve. This is hard work. He was with a co-worker delivering furniture. While in the customer's home he asked to use the restroom (a violation of company policy he would later learn). The costumer's wife granted him permission. Jason walked in to the bathroom and was there for about two minutes. After finishing their delivery, he and his co-worker left. In all they would make eight customer deliveries that day. Jason had been in the employ of this furniture store for the past 4 months, where he told me worked between 35-48 hours per week at $10 an hour. Why would he take such a risk I thought to myself. His background suggested no drug use (often times a clue as to a motive for theft) or any motive at all.
Several days later, when Jason arrived at work his boss called him in. "Jason, we've got a complaint by one of our customers on you." Jason asked what the complaint was about. The customer called in to report that his wallet was missing. The customer informed them his wallet was in a paints pocket hanging on the back of the bathroom door; the same bathroom Jason used. The customer said his wallet was there when Jason went in to the restroom and was now missing. Jason then provided a written statement to his boss. Only later did he learn there was a warrant out for his arrest. Upon learning of the warrant, Jason then went to the Metro Jail docket room, and turned himself in on the active warrant. The loud clank of the heavy steel door and a corrections officer greeting him somehow seemed surreal. Could this really be happening? Jason was processed. Corrections officers fingerprinted him and then took his mugshot. His mugshot would soon appear for all the world to see- he was a thief.
Upon learning of the warrant, Jason was dumbfounded. No police officer or detective ever called him or spoke to him or attempted to get his version of what happened. As he asked around, the police never spoke with his employer either. And he was not sure anyone ever attempted to speak with his co-worker. Could this even happen? His only mistake was using the customer’s restroom. “Mr. Green, I am innocent of this charge. I didn’t do it. Will you help me?” Jason had been loyal to me, and believed in my abilities when he referred his daughter to our office in her car wreck case. Of course I would help him. I took the case on pro-bono. I believed him. The State charged Jason with a felony-theft of property offense. Since the contents of the wallet included a credit card, the charge was a felony. The theft of a credit card or a debit card, regardless of its value, constitutes theft of property in the third degree a Class D felony in Alabama (Ala. Code §13A-8-4.1), punishable by not more than 5 years or less than 1 year and 1 day (Ala. Code §13A-5-6). Jason had some serious exposure here. When I started investigating, I immediately noticed some red flags. The complaint itself was so vague it was readily apparent to me that something really was wrong with this complaint. The complaint stated that the offense occurred “on or between December 30, 2016-January 2, 2017.” Jason was only at the complainant’s residence on New Year’s Eve.
How a detective convinced a magistrate to sign off on such a warrant was a shock to me. It is far too easy to swear out a warrant on someone, as I have witnessed as a municipal court judge here in Mobile. Perhaps it is because the standard of proof (probable cause) is so low. However even these facts on their face were questionable. I know as a former assistant district attorney I would not have approved a warrant recommendation on the information I saw. I then wondered if the authorities or the victim looked to see if the credit card had been used. Clearly proof that the credit card had been used by the real criminal would clear Jason. Then I began to wonder, was a crime even committed. Did someone really take the complainant’s wallet? It was clear the complainant or the detective who signed the warrant had no idea when the wallet was taken, if at all.
When I reached out to Jason’s employer I discovered he was still working there. They had not fired Jason. His supervisor told me that the only action the company took against him was to discipline him for violating company policy for using a customer’s restroom. They did not fire him. I thought this odd to retain an employee accused of felony theft. The supervisor told me Jason was a hard worker and an otherwise great employee. It seems they believed Jason too.
WHAT ABOUT JASON’S SIDE OF THE STORY?
From all I could tell, the police never did any follow up or collateral witness interviews. It appeared all the police did was interview the complainant. We don't think the co-worker nor Jason's employer was ever interviewed. And most importantly no one ever called Jason to get his side of what happened, or at least Jason never received any call.
OUR DAY IN COURT: STATE OF ALABAMA vs. JASON
I prepared the case. The case was set in Mobile County district court. Since the charge was a felony, the case was set for a preliminary hearing. A preliminary hearing is a probable cause hearing where the state presents witnesses to offer testimony on what evidence they have to convince the judge that there is probable cause to send the case to the grand jury for consideration. The standard is low, and the formal rules of evidence are relaxed. Even hearsay testimony is allowed at this stage of the proceeding.
Jason met me at my office early the morning of court, and we walked together to the courthouse. We go through the medical detectors and courthouse security, enter the crowded elevator, and emerge on the fourth floor to have our day in court. Rarely ever does an accused testify at the preliminary hearing stage and I knew this was going to be a frustrating day for Jason. An innocent man wrongfully accused told he should not say a word. I imagine myself in that position and it drove me mad.
So we arrive in Court, and we wait for the prosecutor to arrive. I want to see what evidence he has that a crime was even committed. While we are waiting, a stroke of good fortune shot down like a thunderclap. The complainant was in court as Jason pointed him out to me. I can tell immediately something is troubling this man. He walks over to Jason and tells him he wishes to dismiss the charges. I introduce myself as Jason’s attorney. This man looks me in the eye and immediately apologizes. He tells Jason and I that he found his wallet. It was at his house. Nothing was missing from it. He had been trying to reach the district attorney’s office to tell them. In the meantime, poor Jason was twisting in the wind worried about a pending felony court date. The owner was in court with his wife and kept apologizing profusely. I sensed a genuine sense of guilt and regret, by the complainant.
The prosecutor arrived soon thereafter and the complainant told him of the wrongful charge. The judge called the case and the prosecutor nolle prossed the case. I never saw the detective in court that day.
Jason had to pay a bonding company a non-refundable $300 to get out of jail, had his mugshot posted on the Mobile County Sheriff’s website accusing him of being a thief, and now has a felony arrest on his record. All in all it was an expensive day in court for Jason.
I suppose there several lessons to be gleaned from this incident. It’s far too easy to swear out a warrant (particularly a felony) for an accused. Sometimes the police are far too willing to believe a complainant without sufficient corroborating evidence. And yes, the police like everyone else sometime make mistakes. The police are not always right. They are not infallible. Believe and listen to your clients. Our Constitution, rules, statutes and common law secure the accused certain fundamental rights- namely the presumption of innocence and due process of law for just such an occasion.
And when your friends or family presume a person is guilty because the police say so, tell them Jason’s story.
THE GHOST OF THE INNOCENT MAN
You think there are others? At least two Supreme Court Justices have opined on the ghost of the innocent man, namely that there is no such thing.
However as science and technology improve, we are now faced with an ugly reality. There are innocents still out there confined in prison. For instance are you aware of the incredible true story of two innocent men convicted of murder (one of whom was sentenced to death) based on dubious forensic testimony later exonerated by DNA evidence and confession by the true killer? The story of the two men is detailed by Radley Balko and Tucker Carrington's new book, The Cadaver King & The Country Dentist. Radley spoke to our local Federalist Society Chapter earlier this June 2018. You have to watch this to believe it.
It took Jason and his case to convince me.
Judge Andrew Napolitano on The Presumption of Innocence
 I have used a fictitious name to protect Jason's true identity of the client. He has however granted me permission to share a true story of a near miscarriage of justice. This is his story.
Note: This story has been shared with the express permission of "Jason," a wrongfully accused person. For a story of another wrongfully accused client of mine here in Mobile, check out My Friend Ken, and Momma Gray.
About the Author:
Matt Green represents personal injury and victims of criminal wrongdoing. He also assists those accused of wrongdoing. He served as a municipal court judge in the City of Mobile and the City of Saraland for nearly a decade. Before that Matt prosecuted major felonies, traffic homicides (including drunk drivers who injured innocent victims), and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel. Matt also defends the constitutional rights of his clients. He may be reached at 251.434.8500 or by e-mail at firstname.lastname@example.org
The Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.