Early in the morning on Jan. 3, 1984, Janet Burke, a 20-year-old white woman, was opening the day care center where she worked at the East End Church in Richmond, Virginia. After she locked the door behind her and walked back toward her office, a man broke the glass portion of the front door and came inside. “Sometimes,” she said, “it takes everything to fall into place the wrong way for it to work to someone’s advantage.” Normally, for safety reasons, two people opened the center together. But that morning, Burke’s co-worker had her own child care emergency, and Burke was alone.
Burke never heard the glass break or the footsteps in the hallway. A man grabbed her, held a knife to her throat, and pushed her down. He was black, dressed entirely in black, wearing a ski mask with the face ripped out. For a brief, futile moment, Burke held out the hope that he just wanted her money. He raped her.
Afraid she might be killed, Burke also knew the babies and toddlers in her charge would be arriving at any moment. She feared for their safety, too, and the horrific scene they might confront. Over and over again she told the rapist, “The children are coming,” as she begged him to leave. A parent buzzed the front door, and the man left out the back, but she could still see him there, standing just outside, watching her. Eventually, he disappeared. “I composed myself as best I could,” she said, and went to open the broken door.
Burke’s boyfriend’s grandparents lived across the street from the church. She was taken to their house, and the police arrived soon after. Even though Burke had not been able to see above the rapist’s hairline, she had seen his full face. She knew his race, height, and approximate build. She believed she could describe him and identify him.
On Feb. 5, 1984, the police picked up Thomas Haynesworth, a teenager who was on his way to the store on orders from his mother to buy sweet potatoes for Sunday dinner. Haynesworth, a self-described “goody two-shoes and peacemaker” who aspired to be a police officer, had no criminal record whatsoever. But a woman who was raped under circumstances similar to Burke’s had seen him and called the police, saying she recognized him as her attacker. When Burke was brought down to the police station to make identification, she thought she did, too. “I was positive,” she said. “I never second-guessed myself one bit.” Burke’s confidence was buoyed when the police told her a blood test showed Haynesworth was a match for her rapist.
When Burke next saw Haynesworth, in a courtroom, her reaction was immediate and visceral: “I fell apart, and the detective had to stand beside me and hold me up. I knew exactly that that’s who it was,” she said.
Haynesworth was charged with Burke’s rape and three other crimes, all of which involved kidnapping, rape, or attempted rapes within a 1-mile radius of the East End Church. The charges were literally incomprehensible to Haynesworth: His mother had to explain to him what “sodomy” and “abduction” meant. But he knew he was innocent and remained hopeful that the jurors would believe his side of the story—that he was at home asleep. He prayed that Burke would realize she had made a terrible mistake.
None of that happened at the trial. “What stood out to me,” Haynesworth said, “was that she said I had a face she would never forget. That she was positive. It hurt more than the actual accusation.” Haynesworth was convicted, then convicted in two of the remaining cases and acquitted in a third. On Sept. 11, 1984, the judge sentenced him to 74 years in prison. He was 19.
Meanwhile, abductions and rapes continued in Richmond and towns in the neighboring Henrico County by a man who proclaimed himself to his victims as “the black ninja.” Two months after Haynesworth was sent off to serve his death-in-prison sentence, police arrested Leon Davis Jr., who was eventually prosecuted for most of the attacks. He was convicted and given multiple life terms plus 100 years for rape, sodomy, abduction, robbery, and malicious wounding. The crime spree promptly stopped.
Burke followed Davis’ case, she but never connected it to her own: “When I saw his picture in the newspaper, I never even realized that it was him.” Looking at Davis’ mug shot, she felt nothing, not even the faintest flicker of recognition.
* * *
In prison, Haynesworth did what he could to make the best of a horrible situation. He signed up for every program on offer, getting his GED, learning six trades, completing four years of college courses, reading up on the law, and relying heavily on his Christian faith. “You do the time. You don’t let the time do you,” he explained. Haynesworth’s work ethic and good behavior paid off. He knew that as a convicted rapist, he was the lowest of the low and potentially in mortal danger. He never spoke to anyone about his charges and focused on studying, working in the prison kitchen, and not acting out. In the 27 years he spent behind bars, Haynesworth was never written up for a single disciplinary infraction.
The only thing Haynesworth steadfastly refused to do was attend group therapy for sex offenders. He remembers telling his counselor, “I don’t think I would get too much out of it because I’m not a sexual predator.”
Burke married, had two children, and took a job with an organization called Child Savers, which helps children who have been the victims of physical and sexual assault.
But trauma and fear lurked constantly in the background. “To this day I tell my husband without getting into details that if he had not come along when he did, I am not sure where I would be today. I was afraid to be left alone—what if I don’t hear something? I hadn’t heard the glass breaking. I didn’t hear him come in,” she said. Every January, on the anniversary of the rape, Burke “went through a downtime,” which repeated itself each time the state called with news that Haynesworth was once again eligible for parole. She never told her children: “I was always waiting for the right time, and there was never a right time. There is never a right time to explain something like that.”
In 2005, DNA tested from rape kits collected in the 1980s and early 1990s led to the exoneration of two Virginia prisoners, each of whom had spent more than a decade in prison. Mark Warner, then the state’s governor and now a U.S. senator, ordered a sweeping review of closed cases dating back to 1973. Two innocent men suggested there might be more, and Warner said that applying new DNA testing to these old cases was “the only morally acceptable course.” Burke’s rape kit was among those selected for re-examination.
In 2009, the police came to Burke’s house with news that was simply beyond her belief. Thomas Haynesworth was not her rapist; Leon Davis Jr. was. DNA proved it. Burke protested, reminding them that she had been told Haynesworth was a match in 1984. The police explained that back then, the test could reveal only that Haynesworth and Leon Davis had the same blood type—as did millions of other Americans. This new kind of DNA testing was different and much more precise. There was essentially no chance that the rapist was anyone other than Davis.
Denial gave way to shame, horror, and despair, as Burke realized that she was both a crime victim and, in some way, a perpetrator. Her mistaken identification had contributed to a miscarriage of justice that cost a man 27 years of his life.
* * *
Picking Cotton is a best-selling book co-authored by a crime victim named Jennifer Thompson and an exoneree named Ronald Cotton. Like Burke, Thompson was a young white woman who was raped at knifepoint in the mid-1980s by a black man. Thompson had also been determined to identify the perpetrator by paying careful attention to his facial characteristics and body type while undergoing horrifying violation. Both women had gone through a long legal process and faithfully followed the directives of the police in making their identifications, then pointed out their attackers with absolute certainty in court. Both of them learned years later that DNA had proven them wrong. Burke had picked Thomas Haynesworth; Thompson had picked Ronald Cotton.
Thompson and Cotton’s story had made them famous. During an emotional meeting at a church following Cotton’s release from prison, Cotton forgave Thompson, and they had become friends, writing the book and appearing on numerous national media outlets, including 60 Minutes, Today, PBS’ Frontline, and the Oprah Winfrey Show. They traveled the country giving speeches and advocating for important reforms like better eyewitness identification practices and compensation for exonerees.
But after years of advocacy, Thompson had come to believe that pushing for change within the existing framework was not enough. The criminal justice system left a “huge hole” for exonerees and the original crime victims, she said, neither of whom were receiving much help in overcoming the severe, long-term psychological damage that wrongful conviction had inflicted.
The crime victims were guilt-ridden and re-traumatized. They were utterly devastated by the suffering their mistaken identifications had wrought, both to the falsely accused and to the other women whom the true perpetrators had gone on to brutalize.
The exonerees—separated from their families, raped, terrorized, abused, put in solitary confinement—were full of anger and fear. They lacked the tools to express themselves because they had learned to stifle their emotions in order to survive in prison. Many received little or no money from the state. Some died soon after their release, from health problems that went untreated in prison, substance abuse, or suicide.
Thomas Webb III, a black man convicted of raping a white woman in Oklahoma in 1982, was released 14 years later when a DNA test exonerated him. For the first few years, Webb thought he was doing well. He was married with a good job. “Externally,” he said, “I felt like I had moved on. Internally, I still had issues.” Things got worse when the state would not provide any monetary compensation, claiming that under the narrow language of the Oklahoma statute enacted in 2003, Webb was not entitled to a dime, much less an apology.
Webb became disillusioned, then depressed, ultimately turning to drugs and alcohol to blunt the vortex of emotions. “Once that newness of being released and that gratitude for having my freedom back wore off and life appeared in all of its complexities, I was lost,” Webb explained. “I felt like after all the hoopla in the media and the press died down that really no one cared anymore: ‘You’re old news now. We don’t have any intention of trying to make amends. You are on your own.’ And that was how I felt during that whole 14 years, that I was on my own, that everyone gave up on me. That I was not worthy to be considered for justice.”
Haynesworth’s, Cotton’s, and Webb’s experiences as black men falsely convicted of raping white women are part of a disquieting pattern. A 2005 law review article noted that while the majority of men convicted of rape are white, the majority of men exonerated for committing rape are black. In half of the cases in which black men were set free after being wrongfully convicted of rape, the victims were white. Samuel Gross, the lead author of the article, noted two causes for these statistics: First, the documented problems with cross-racial identification, and second, the “incendiary relationship between race and rape” that has led to horrific injustices throughout the history of the United States and likely contributed to these black defendants being convicted and sentenced to long prison terms.
The harm of false convictions goes beyond race and rape. The legal system exacerbates the disempowerment experienced by victims and exonerees in all kinds of cases, often leaving both sides feeling angry, mistrustful, and profoundly disillusioned. “I look around, and I see a lot of people who had been harmed and no place for their collective voices to be heard,” Thompson said. “There has to be a way that, as a community, we are responding to this need. We have become such a punitive culture, driven by fear. What would happen if, as a community, we were driven by healing instead?”
* * *
Restorative justice is a centuries-old concept of bringing together the victims, the people who harmed them, and their respective communities to deal with the crime and agree upon a series of remedial measures designed to bring about reparations and healing rather than meting out punishment.
Our legal system asks three basic questions: Which law was broken, who broke it, and what punishment is deserved? Restorative justice asks three similar questions in a radically different way: Who was harmed, what are his or her needs, and whose obligation is it to meet those needs?
Perhaps not surprisingly, the United States has been slow to recognize the validity of restorative justice in our legal system, which is fundamentally adversarial. Courtrooms are a forum for righteous indignation and harsh punishment, the focus on retribution leaving little room for practices that are reparative and mercy-based. Five years ago, I would have been skeptical myself—even dismissive. Having spent the first part of my career as a public defender, I had always believed that the best antidote to injustice was a zealous advocate: the proverbial terrier, teeth affixed to the Man’s pant leg. But after three years of working at an innocence project at Loyola Law School, I saw up close the enduring anguish, not only of the exonerees, but the original crime victims as well. Getting an innocent person out of prison was not the end of the story. Not even close.
In some parts of the country, restorative justice has begun to take root. One of its foremost practitioners is Sujatha Baliga. She directs a project at the nonprofit Impact Justice in Oakland, California, which works with law enforcement, school districts, and communities to use restorative justice practices as an alternative to juvenile detention and prosecution. In 2013, the New York Times Magazine profiled her work in a Florida case in which a young man shot and killed his fiancée. At the urging of both families and with the cooperation of the prosecutor, Baliga brought restorative justice practices to the table. The young man was ultimately sentenced to a far shorter prison term than he otherwise would have been, and the victim’s family emerged from the process feeling as if their voices were crucial to shaping the outcome.
Jennifer Thompson began reading about restorative justice practices and quickly realized that it was exactly what she and Ron Cotton had been doing as they crisscrossed the country telling their story. Without knowing what “stakeholders,” “buy-in,” and the other bits of restorative justice jargon meant, they had learned that, by sharing their story with judges, legislators, and prosecutors, “they could not not hear us. But we were not offering a platform for other people,” she said.
Thompson began collaborating with David Onek, who was at that time the executive director of the Northern California Innocence Project, which is based in Santa Clara, California. In the late spring of 2014, Thompson and Onek met with Baliga at the Muddy Waters Coffee Shop in San Francisco’s Mission District, hoping to convince her to help them apply restorative justice principles in wrongful conviction cases. They agreed to hold a restorative justice retreat for exonerees and the original crime victims from wrongful convictions.
It was a hard sell. While restorative justice seeks to bring about a resolution more complex and holistic than simple retribution, it has always done so with people in a particular position: victims and those who harmed them. Thompson and Onek were asking for restorative justice principles to apply in a different context altogether—one in which the convicted had been victimized and their accusers felt like perpetrators.
Baliga was skeptical. Restorative justice demands that the offender take responsibility for the wrongdoing, and in her eyes, none of these men and women had done anything wrong. “The exonerees really were blameless, and the crime victims really were victims,” she said. “It was impossible to hold any of them accountable, particularly those who had followed every proper legal procedure and had the state validate their actions.”
But the urgency behind Onek and Thompson’s request and undeniable, unmet needs of exonerees and crime victims ultimately swayed Baliga. The restorative justice theory—shared suffering, mutual understanding, forgiveness, and a will to move forward with positive concrete action—could be made to fit the circumstances of a false conviction case. Baliga explained that those affected by wrongful convictions had “the wisdom and learned experience to heal very broken things that the legal system did not have the capacity to address, much less repair.”
A great deal of thinking and planning went into the retreat, which took place over three days in the winter of 2014 at the Nature Bridge Conference Center north of San Francisco. Four exonerees, two crime victims, and a family member of a murder victim attended. By design, none of the participants were from the same case—that scenario, everyone agreed, would be asking too much, too soon.
On the first day, the group participated in a silent exercise, moving pieces of driftwood around the table to build something beautiful and deciding collectively when the piece was finished. Afterward, they sat in a circle, and each person was asked, “Who are you, and why are you here?” On the second day, the questions became more pointed: “How has the wrongful conviction affected your life? What were your needs then, and what are your needs now?” Thompson said the circle exercises “provoked all of us to dig down into the trauma and the hurt and the pain and hear each other’s hearts and hold each other’s spirits in a safe place.”
For the crime victims, there was a need to seek forgiveness after articulating their mistaken beliefs and the harm they caused, however unwittingly. And there was a need to describe their own pain, not just as a crime victim, but as a stricken bystander, sidelined throughout the exoneration process.
The exonerees wanted their voices heard, too, as they described the brutality of what they had been forced to endure. They forgave the victims but felt it was important for them to understand the lasting impact of the wrongful conviction as they struggled to remake their lives.
Franky Carrillo was one of the exonerees who came to the retreat. At the age of 16, he was charged with murder and attempted murder based on false identifications by six teenagers who had been coerced by police. His belief in basic human decency was shattered in the dingy Los Angeles courtroom. “All I had been able to depend on, or expect, was that people who held these positions of power—lawyers, judges, police officers, these ambassadors of the Constitution, would do the right thing. Not one of them did,” he said. Watching witness after witness perjure himself at the urging of the police, Carrillo felt “utter abandonment.” In 1992, he was convicted and sentenced to life in prison, where he spent 20 years. During his incarceration, his son was born and grew into a man. His father died.
Despite unfathomable loss, Carrillo, released in 2011, moved forward with his life. He became a full-time student at Loyola Marymount University, fell in love, and had a new baby. Intelligent and charismatic, he was constantly asked to speak publicly and testify before state legislators about his case and the need for reform. But Carrillo had not connected personally with any crime victims. In his mind, there was a “divide between those who are in part responsible for wrongful convictions and the exonerees. It had always been us versus them.” The retreat changed his mind. “Now we were outside of those boundaries and meeting face-to-face. You realize it wasn’t that. The victims were duped and used to wrongfully convict the innocent. And now they had nowhere to turn, just as we had nowhere to turn,” he said. There is no equivalence in experience or suffering, Carrillo said, “but there is a shared pain, and that knowledge helped me.”
Early on, Carrillo had his own surreal brush with restorative justice. It came during the court proceeding that ultimately set him free. Thanks to the unflagging efforts of a lawyer named Ellen Eggers, working pro bono and co-counseling with attorneys from the Northern California Innocence Project and the law firm Morrison Foerster, all six eyewitnesses recanted their trial testimony. In the middle of his direct examination by the prosecutor, the central eyewitness turned directly to Carrillo, who was sitting at the defendant’s table in his prison blues. The witness called out across the courtroom: “I never got a chance to apologize to Frank or apologize to his family, you know, and I see his people out there right now, and man, I know they’ve been through it because my family has been through it.” He concluded, “So I am standing up and taking the initiative to be a man and I say I was wrong. And you know, I’m sorry, Frank, I apologize—with my heart, and I swear and I hope that God allows you to forgive me for what I did to you and your peoples.” Carrillo was floored. But he replied back immediately, “I forgive you. I forgive you.”
Eggers describes it as one of the most stunning and emotionally charged moments of her 30-year legal career—even the bailiff was crying. Carrillo says that his forgiveness was heartfelt: “If I was going to move forward and regain my dignity and my freedom, I knew that viewing those witnesses as my enemies would not help.”
For Obie Anthony, another exoneree who was wrongfully convicted of murder and who attended the retreat, the circle exercises provided the opportunity to “move toward healing by putting our feelings on the table and looking at the situation for what it was.” Anthony, who had also been given a life sentence as a teenager, spent 17 years in prison before a team of lawyers from the Loyola Law School’s Project for the Innocent and the Northern California Innocence Project were able to free him. (I began working at Loyola after Anthony was exonerated.) Three years after his release, Anthony felt tainted, as if the years inside had left a permanent psychic damage that manifested itself externally. “The stink of prison is on you,” he said. “It’s there.” He described it as a collection of ingrained habits and behaviors that were clearly inappropriate in the outside world: “You’re still going into the shower with your boxers on, because that’s how you did it while you were in there. It’s how you carry yourself. It’s how you express yourself.” His marriage suffered because he didn’t know how to compromise with his wife or communicate with any nuance. For years, his survival had depended on using terse language that left no room for interpretation: “If you are not absolutely clear, you are in danger.”
At the retreat, going through the wrenching process of opening himself up and listening to the other exonerees talk about similar struggles brought Anthony some comfort and relief.
* * *
One of the lawyers who had fought for years to free Haynesworth was Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project. (The law firm Hogan Lovells and Peter Neufeld and Olga Akselrod of the Innocence Project in New York co-counseled on the case.) In 2009, after the DNA test results came back identifying Leon Davis Jr. as Janet Burke’s rapist, Armbrust took a risk and went to see Burke hoping that she “would be an ally for us.” Armbrust kept her expectations low and came away pleasantly surprised by Burke’s receptivity: “The people who notified her didn’t explain anything to her, and she is a very smart, very thoughtful woman who wanted information.” Armbrust talked to Burke at length about how and why eyewitness misidentifications occur, particularly those involving people of different races. She promised to keep in touch. It was Armbrust, not the prosecutors or police, who was Burke’s point of contact as the case wound its way through the system.
The fact that no one from the police or prosecution had spoken to Burke since the initial notification did not surprise Armbrust. “I don’t think anyone knows what to do with the victims,” she said. She compared it with learning that a friend has been diagnosed with cancer: You just don’t know what to say. “Advocates who are trained to deal with victims in a context that doesn’t involve a wrongful conviction are not necessarily quick to deal with victims in a context that does,” she said.
By 2010, Haynesworth’s attorneys had managed to convince not only the local district attorney’s office but also the staunchly conservative then–Attorney General Ken Cuccinelli that Haynesworth was innocent. Meanwhile, Burke had become an advocate, agreeing to interviews with local news outlets expressing support for Haynesworth. As a rape victim, Burke was able to maintain her anonymity, and her shunning of the spotlight and her ability to cogently explain how she had come to confuse Haynesworth and Davis made her very credible. Armbrust said, “Even though we had two prosecutors and the state attorney general on our side, it was still incredibly complicated. She was a really important part of the case.”
In December of 2011, after a joint oral argument by Armbrust and Cuccinelli, the Virginia Court of Appeals issued a writ of actual innocence to Haynesworth. After his release, Haynesworth went to work in Cuccinelli’s office, starting in the mailroom. He was 46 years old and had to relearn everything. It took him 20 minutes to figure out how to operate the gas pump. He took the bus to work, but the routes had changed, and he ended up lost and on the wrong side of town, forced to walk a long distance in his suit. For the next few days, he took the same wrong route because it was easier than learning a new one. And, he added, “Walking just felt peaceful.”
But over time, things improved. Haynesworth excelled at work and was promoted twice, the second time to deputy of operations. He got a $1 million settlement from the state and could retire from the attorney general’s office in a few years with a pension. But, he says, he probably won’t because he likes his job, which puts him in a position to help people. Every morning he checks in on his mother to see if she needs anything. He is very close with his three sisters and his nieces and nephews but does not think of having family of his own. Recently, he said, he saw the joy on a co-worker’s face over the approaching birth of his first baby and thought of what he had missed. But, he says, “If it was meant to be, it would have happened.”
In his free time, Haynesworth spoke to schoolchildren and at-risk youth, handed out toys to needy children at Christmas, and visited friends in the prison where he lived for so many years. He said, “I have grown men crying and saying, ‘I would never expect you to do this. You are a true friend.’ ”
* * *
Last year, the Mid-Atlantic Innocence Project decided to give its Champion of Justice Award to Jennifer Thompson. Armbrust thought Thomas Haynesworth and Janet Burke should present it. They seemed like the perfect fit given the striking similarities between the cases and the personal connection between the two women—Burke called Thompson her “life raft.” But Armbrust had no idea if Burke or Haynesworth would be open to the possibility or whether it was a good idea for either of them personally. In the three years since Haynesworth’s release, they had never spoken.
“For something like this to work,” Armbrust said, “you have to have the right victim and the right exoneree at the right point in their lives.” Clearly, a joint public appearance would be impossible without a private meeting first. She broached the idea with Haynesworth gingerly, bracing herself for his reaction. “Thomas likes to play jokes on me,” she said, “so when I asked him, he pretended to be all outraged. Then he started laughing, saying, ‘Oh, yes, it’s totally fine. When do I get to meet her?’ ”
For Burke, the decision was more difficult. She was terrified of what Haynesworth would say in their private meeting and more terrified still about presenting the award. She had been an advocate for Haynesworth for years, but she had always done so anonymously. Now she would be exposed, asked to tell her rape story to 500 people at a hotel in Washington. The press would be there, with their microphones and cameras. She thought of the strain on her children. She had told them about the rape in 2009, when the DNA came back, but then it had been a private matter, not something that could explode on social media. Finally, she said yes.
Haynesworth and Burke met in June of 2014 at an office in downtown Richmond. Armbrust introduced them to each other but said little after that. Burke was trembling. She started to cry, then sob. At first it was hard to find the words, and then they poured out of her. She apologized over and over and told Haynesworth she had spent years searching through the bits and pieces, trying to figure out how she could have made such a terrible mistake.
Haynesworth said he had no hard feelings. Yes, it was deeply frustrating and painful to know that he was locked away for almost three decades while she got to go on with her life. But he said that he had long ago realized, “I had to let go to really be free. You can sit here and be mad all you want, bitter all day long, but it’s not gonna change the situation. The damage has been done.” He continued: “I tell people: I cannot forgive with my love. I can forgive with God’s love. My love is not perfect, but God’s love is perfect. I can give that.”
Haynesworth told Burke about everything he had learned in prison and how far he had come since his release. “My life would not be what it is now had I not been wrongfully convicted,” he said. Then he comforted her, describing the journey they would be taking together: “We are going to make it through this.” Even Armbrust, who had known Haynesworth for years, said, “I was shell-shocked by how magnanimous he was.”
As they were saying goodbye, Burke tentatively reached out to shake Haynesworth’s hand. Haynesworth shook his head. “Oh, we are long past that,” he said. He opened his arms and put them around Burke, pulling her close. Burke walked back to her car with tears streaming down her face.
One month later, Burke and Haynesworth stood onstage together and presented Thompson with her award before a packed ballroom of innocence lawyers, exonerees, board members, and attorneys from some of the fanciest law firms in Washington who regularly provide pro bono assistance to the Mid-Atlantic Innocence Project. Both Burke and Haynesworth told their stories. Thompson, who had never met Burke in person and had no idea she and Haynesworth would be appearing together, was overcome with emotion. Watching Burke and Haynesworth felt like looking through a time machine and seeing herself and Ronald Cotton reflected there. “Everything that I had been through and everything I had been trying to do for 15 years came together in a perfect circle that made sense—this work was so much bigger than me,” she said.
Most of the press coverage was overwhelmingly positive—the Richmond Times-Dispatch featured the story on its front page—but on the Internet some people were outraged. They blamed Burke, calling her a racist and worse. Burke said she warned her children to stay away from the blogs and public comments, but her daughter read them anyway and came to Burke “bawling and telling me what other people had said.” Unfortunately, Thompson said, the backlash comes with the work. She has been called a racist many times and even received death threats for her role in sending Cotton to prison.
Burke said she wishes she had understood how the test “match” that gave her so much confidence in 1984 was just blood typing or how inaccurate cross-racial identifications can be. “But I didn’t know any of that then,” she said. “I am not a racist, but race has a place in this, in the respect of, you don’t just pick out certain details about people that you would with your own race. You don’t know how to look for certain things.” Yes, she had gotten Haynesworth’s skin tone and approximate build correct, but there were thousands of men with those same physical characteristics, including Leon Davis Jr. Add to that, Burke said, “the fact that you are put in a situation where you think you might die, you think you are paying attention to certain things, but really you are paying attention to the knife against your throat.”
Haynesworth says that Burke’s mistake is understandable. He and Davis had been confused before—by people in their own neighborhood. But on some level, Burke wonders if she will be able to forgive herself: “For me to look at pictures of them, back in 1984, I think, ‘How in the world could I have misidentified him?’ ” The most important piece in coming to terms with what happened is Haynesworth’s willingness not only to forgive her, but to offer solace.
* * *
On April 21, then–U.S. Attorney Eric Holder gave the Department of Justice Special Courage Award to Jennifer Thompson and Ronald Cotton. The award, presented during the National Crime Victims’ Rights Week, “recognizes a crime victim or survivor who has exhibited exceptional perseverance or determination in dealing with his or her own victimization.” Thompson and Cotton were the first individuals to be honored in a case involving a wrongful conviction.
Thompson decided to use the occasion to launch her own national nonprofit, called Healing Justice. “The premise,” she said, “is to turn harm into healing by using restorative justice principles for all of those who are harmed by wrongful convictions.” The organization is inclusive: All exonerees, crime victims, and family members are welcome. Thompson hopes to go even further by including the jurors, judges, police, prosecutors, and defense attorneys who were misled, lied to, or simply blind to the monumental miscarriage of justice they took part in. “Imagine,” she said, “not just the severity of the harm, but the breadth.” Although Thompson does not expect that anyone who intentionally committed misconduct would voluntarily participate, she would not exclude him or her, pointing to the widely circulated public apology by the prosecutor of death-row exoneree Glenn Ford as an example that, although this kind of remorse is unlikely, it is not impossible.
Thompson has many ideas for her new organization, chief among them creating a database with links to resources and wraparound services for exonerees and victims in every state. Also crucial still is peer support, which she compares with an AA sponsor, “Someone who says, ‘I will be there for you, I understand your journey.’ ” She plans to hold two restorative justice retreats each year, modeled after the one overseen by Baliga. The goal of Healing Justice is twofold. First, to provide help to the people who have been damaged by wrongful convictions. Second, to empower them to become advocates and to help others who have just started on the same long journey.
The Northern California Innocence Project is continuing its restorative justice work. NCIP Policy Director Lucy Salcido Carter says that the organization is in conversations with Healing Justice, other potential partners, and prospective funders.
Restorative justice as applied to exoneration cases remains very much a work in progress. There is no clear framework or “right” way to proceed. At this early stage, it is impossible to say what its impact will be. Exonerees and the original crime victims will need different things from the process at different times—and at times, many may want to have nothing to do with it at all.
But the hope is that many of the people helped by restorative justice will use their newfound knowledge and empowerment to agitate for the kind of change that will make cases like theirs vanishingly rare. They could be some of the most effective advocates for reform of how eyewitness testimony is solicited and presented to juries, testing of old forensic evidence, better funding for public defenders, and punishment for prosecutorial misconduct. And, of course, access to restorative justice for anyone involved in false conviction cases.
While much is unknown about this new movement, those affected by wrongful convictions who have embraced restorative justice firmly believe in its power to transform lives. Burke, who works a few miles from the East End Church, avoided driving by it for years. Now she regularly passes the place where she was raped as part of her commute home. “I know that something terrible happened there,” she said, “but it is part of who I am today.”