Mimesis Law
22 May 2019

Pursuit of Innocence Isn’t a Free Pass For Christine Mumma

Jan. 19, 2016 (Mimesis Law) — Prosecutors are allowed to use evidence that is obtained through deceit, coercion, and trickery. Evidence that violates a person’s reasonable expectation of privacy can be used so long as the officer obtained it with lawful authority or in “good faith.”

But defense counsel are held to a different, higher standard, as Christine Mumma found out when she tested a used water bottle without permission, hoping to exonerate her client, and faced a bar complaint as a result.

In 1978, Joseph Sledge was convicted of murdering two people, based on the presence of pubic hairs that were “microscopically alike” to his own, and the testimony of two jailhouse informants, who claimed that he had confessed his crimes to them while sitting in his cell.

Naturally, the case was crap. Microscopic hair analysis is crap. Jailhouse informant testimony is crap—one of the men would later say that he was fed details of the crime by local officials, and that prosecutors offered him leniency and cash for coming to court and saying what had to be said.

Prosecutors were ordered to genetically test the hairs in 2004 to see if they matched Sledge. But they dragged their feet until 2012, when Christine Mumma took the case and forced their hand. Although authorities claimed that the evidence had been lost, Mumma managed to find the hairs in storage after a few days.

The hairs didn’t match, but that was not enough for the State to concede innocence. Although the hairs were the State’s only physical evidence at trial, it was now thought that the identity of the person who left them was “all but inconsequential.”

So in the absence of much interest from prosecutors about who may have committed the 1978 murders, Mumma began asking suspects, and the family members of suspects, to submit DNA for testing.

Mumma went to the home of one of the potential suspects’ family members. The woman, Marie Andrus, initially agreed to provide a DNA sample, and then, later, changed her mind. At this point, Mumma either took a half-empty water bottle deliberately from Andrus’ home to test it, or she accidentally brought it back to her car thinking it was hers.

Either way, she ended up testing the bottle, and it didn’t turn out to match the potential suspects. This didn’t matter much in the end, as the evidence of innocence eventually mounted to the point that even the prosecutor conceded the point, freeing Sledge without first requiring him to give up his ability to sue for being wrongfully imprisoned.

But there was still the matter of Mumma’s misconduct. The State Bar argued that even if Mumma had only accidentally taken the water bottle from Andrus’ home, she was still ethically obligated to bring it back if she didn’t have permission from Andrus, especially since the North Carolina Innocence Inquiry Commission would (a year later) get a similar sample legally, through a court order.

Mumma’s excuse was her frustration with the process. Frustration with the State failing to provide her the evidence she needed until forced. Frustration with the relaxed pace of the Innocence Inquiry Commission, which had indicated to her that it did not plan to test her preferred suspects. Frustration that, as a private person, she had few of the powers bestowed upon the government to search, seize, threaten or detain in the pursuit of information.

The bar complaint alleged two ethical violations:

First, that Mumma had violated Andrus’ rights by testing the water bottle without her permission.

Second, that Mumma had acted dishonestly in failing to notify Andrus that she would be testing the bottle.

Let’s get this out of the way up front. Mumma’s story about “accidentally” bringing Andrus’ bottle back for testing seems pretty unlikely. Despite that, perhaps because she was in pursuit of a worthy cause, the Bar gave her only a written admonishment, the lightest punishment available.

Even though the record leaves little doubt that Mumma acted outside the rules, it would be hard to believe that similar conduct would be punished (or even noticed) if it occurred on the other side of the courtroom.

But ultimately, Mumma’s conduct teaches a valuable lesson. Even though she fought for a worthy cause, private attorneys still have to honor the rights of third parties if they want to credibly argue for the rights of the accused.

That means being straightforward with witnesses, even though a police officer might not have to be. It means finding ways to compromise, negotiate, or order the production of evidence, even though the government would not have to leap the same hurdles.

Ultimately, when we pursue justice for private individuals, we have to be a bit better than the government that seeks to convict them. More honest, more forthright. More likely to doubt ourselves.

And much as we hate to say it, the pursuit of innocence gives us no leeway to be otherwise.


3 Comments on this post.

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  • LawDog
    19 January 2016 at 6:16 pm - Reply

    No sale. Christine Mumma should wear that admonition as a badge of honor. And if she has to lie to get away with it next time, I can look the other way. Consider it to be an engraved invitation:

    Decency, security and liberty alike demand that government officials be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself.” Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

    Our government has become a law unto itself, and I lay that at the feet of our judges. Under the fraudulent guise of “repugnancies,” they have rewritten the Constitution so often and so flagrantly that it should be called the SCOTUStitution. Erecting a wall of “absolute immunity” for themselves, prosecutors, and jurisdictions they represent, they have insulated themselves from accountability for even willful misconduct, to the point where our “Bill of Rights,” like its Soviet counterpart, is quite literally void for lack of meaningful enforcement.

    As SCOTUS reminds us, the prosecutor’s actions are intolerable:

    The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88 (1935).

    I’m sick and tired of putting up with corrupt judges, dishonest prosecutors, and bar associations run by good-ole-boys’ clubs making a mockery of justice. At the very least, prosecutor Jon David should be disbarred. Nothing less is acceptable.

    • Andrew Fleischman
      19 January 2016 at 6:33 pm - Reply

      I don’t know much about Jon David. But he did eventually concede actual innocence without making the guy waive his right to sue first (even though he stalled on investigating and dragged his feet on the release).

      Sadly, that probably makes him better than your average prosecutor confronted with an actual innocence claim.

      And SCOTUS… well, they like to use a lot of flowery language. But if there’s anything I’ve learned as an appellate attorney, it’s that the more floral a judge’s proclamation of the importance of a freedom, the more likely he is to shit all over it in the next paragraph.

      • LawDog
        20 January 2016 at 11:34 am - Reply

        I would say “nothing but net,” but methinks you shattered the backboard. 🙂