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.