Kim Whiting, MA, MBA, is a psychotherapist, organizational consultant and author (Life Sentence, Life Purpose: A Memoir). She publishes streetlifetostraightlife.com in collaboration with prisoners; t’s dedicated to opening eyes and minds, and inspiring ideas for social and prison reform. She lives in Oklahoma with her husband and two children.

Kim Whiting and Mikael Webb during a 2015 prison visit in San Diego.

In Search of Truth

Why Wrongful Conviction Claims of Some May Never Be Truly Believed

March 2016

Kim Whiting and Mikael Webb during a 2015 prison visit in San Diego.

BY KIM WHITING

One of my favorite people in the world is a 31-year-old African American convict in southern California. He’s serving a life sentence in a maximum-security prison for double rape and battery with severe bodily injury. Mikael Deandre Webb was convicted of this crime five years ago. On paper, he’s the convict stereotype, the type of man we fear and the type of man “tough on crime” lawmakers have in mind when they design their heavy-handed laws.

As for me, I’m a married mom, a white professional, 20 years older than Mikael. And, I’m a survivor of rape—double rape, in fact—and so I’ve never viewed Mikael through idealistic or naïve lenses. My three-year friendship with him is non-traditional to say the least (and some would use far less positive terms to describe it).

The path that led me to him was unexpected. I’d been putting together a compilation book called When God Shows Off that featured short stories about everyday miracles, serendipity and the power of love. One of the contributors suggested that I put something similar together called When God Shows Off Behind Bars, focusing on inmate stories. I agreed, and put out word to prison outreach organizations. My very first submission came from a 53-year-old man named Mickey Owens; he’d been in prison a total of 35 years at that point.

Mickey hadn’t had a visitor, or virtually any contact with the outside world, since his mom died in 1979. He was a beautiful writer, exceedingly kind and gentle (ironic for a man serving time for assault), and it broke my heart that for decades he’d had no one who had shown him love. My heart broke further when I learned that Mickey represented a good portion of the prison population: abandoned and forgotten men who at some point (often due to drug addiction and/or mental illness) had stepped out of alignment with their true natures and done something hurtful.

My connection with Mickey then prompted me to start a Convict Christmas Fund; thanks to many kind donors, other inmates (who, like Mickey, have no one and nothing) now receive cards, letters and gifts from the outside. And as a result of this, I’ve developed several prisoner pen pal friendships—Mikael included.

At first, I wasn’t aware that Mikael was serving time for rape. Believe it or not, despite what I went through personally years ago, it wasn’t important for me to know what he’d done. I make it a point in my relationships with these guys (and in my relationships with non-felons as well) to form my opinion based on who they are now. None of us want to be judged or excluded because of the mistakes we’ve made. The inmates I know are not only being punished by the system, they’re punishing themselves as well—with guilt, self-loathing and shame. Most felt self-loathing long before prison, which is what led them to hurt others in the first place. I see the good in these men. It might surprise you to know (as it surprised me) that our prisons house some of the most sensitive, poetic, enlightened souls on the planet. Mikael is one of those beautiful souls.

This then, is the story of Mikael’s journey into, and through, the criminal justice system. It’s an investigation that illuminates the many eye opening and disturbing ways that people end up in prison and end up stuck there. Although we hear fascinating and astounding tales about prisoners being exonerated of crimes after DNA tests prove they aren’t the perpetrator, the vast majority of cases aren’t so cut and dry. Most cases are like Mikael’s. They’re complicated. In fact, it’s highly unlikely that we’ll ever know for certain whether Mikael—and thousands of other inmates like him who also claim to be wrongfully convicted—is truly guilty or innocent.

A KIND SOUL, DESPITE A TOUGH LIFE

Mikael’s first letter to me was written on a third of a page of lined yellow legal paper and I knew this was because he had limited resources and was rationing paper. His handwriting was artsy and playful, much like a graffiti artist, and in his letter he said, “I love to write! Writing and practicing my handwriting is one of my favorite things to do!”  I laughed out loud. Mikael’s entire letter could have been written by Will Farrell’s character, Buddy the Elf­ (although a world-wise version)—and I read it with a grin.

In fact, I still read Mikael’s letters with a smile. The word that best describes him (a descriptor one wouldn’t normally conjure for a man, least of all a man in maximum security prison serving time for rape) is “delightful.” Mikael is full of delight. He loves games of pick-up basketball in the prison yard, organizing games of Bible trivia, and watching Ellen DeGeneres’ daily TV talk show. Before prison he loved to rollerblade down the boardwalk of Mission Beach in San Diego, calling it the happiest place on Earth.

During the last three years, I’ve had the chance to speak many times with Mikael on the phone, and I’ve visited him twice. He never seems down—even though I’m in the free world and he’s in maximum security, more often than not he’s the one lifting my spirits, as opposed to the other way around. He thinks everything I do “sounds like so much fun!” and that my ideas are “amazing.” Our mutual friends on Mikael’s cell block tell me that Mikael is much this way with everyone, even guys with swastikas tattooed on their skulls—which is pretty enlightened for a young black man.

PROVING THE PRINCIPLE, “INNOCENT UNTIL PROVEN GUILTY”

All this being said, you can see why when Mikael told me, “Kim, I didn’t rape that woman. I will never lie to you,” I leaned toward believing him. And when I learned that producers with The Reporters Inc. said they were developing a documentary about innocent men and women in prison, I reached out to them and said, “You should interview Mikael!”

And then things got messy.

I volunteered to do some of the research on Mikael’s case for The Reporters Inc. to find out if Mikael’s story of innocence really did hold water.

As a former psychotherapist who has worked with survivors of abuse (some of whom hadn’t gotten help before they themselves became abusers), when I met Mikael I was well aware that hurt people hurt other people. I was also aware that even wonderful people can do horrible things given the right (or wrong) set of circumstances. If you add addiction into the mix, the chances of doing something horrible multiply exponentially.

During my investigation into Mikael’s past, I discovered that he’d been a drug addict since early adolescence and that he came from a fatherless and impoverished (sometimes homeless) background. He had no family except for his mother and despite her best efforts, she was unable to force him to stay in school past the age of 14, prevent him from hanging out with the wrong crowd, or push him to make choices that would help him to value himself and feel hopeful about his future. All of these are factors that can lead to criminal behavior. In fact, most of the men in our prisons share backgrounds similar to Mikael’s.

CRIMINALS AREN’T BORN, THEY’RE MADE

These insights into Mikael’s past brought up the question, “Did Mikael lie to me when he said he didn’t commit this crime?”  But even more so, “How is it that we allow our fellow humans to suffer the indignities and psychological wounds that lead to most criminal behavior?” Or more practically, “If we abhor crime then why is it that we still allow and even foster the conditions that breed it?”

Philosopher Thomas Moore’s quote from Utopia came to mind: “For if you suffer your people to be ill-educated, and their manners to be corrupted from their infancy, and then punish them for those crimes to which their first education disposed them, what else is to be concluded from this, but that you first make thieves and then punish them.” Things haven’t changed much since Moore wrote those words in 1516. As a species, we humans are slow to evolve—and here in the U.S. where we make up five percent of the world’s population and house twenty five percent of its prison population—we are especially slow.

As I pondered these questions, my thoughts turned to Tay. Not long ago Tay was a gang leader with a coast-to-coast drug business. Tay and I are currently co-authoring his memoir and his life story reads like a “How To” book for creating a criminal. He’s a 46-year-old Black man currently serving his 18th year of a 36 years-to-life sentence for kidnapping. Tay admitted to me that he’s committed many crimes, but maintains that kidnapping isn’t one of them. However, because he’s guilty of so many other offenses for which he didn’t get caught, he views his prison time as entirely justified.

Tay and Mikael (who were housed in the same cell block for two years) were predictably raised in similar neighborhoods and in similar conditions. Both report believing, even as children, that they were not valued as people and that the society in which they lived would rather they didn’t exist at all.

Tay writes, “By the time I was a young teen, I had already had my fill of wary looks from white people, looks that said, ‘Is he going to do something to me?’ or store clerks looking at me like I’m there to steal something, or a white girl walking across the street to avoid passing me on the sidewalk. We black guys feel the wariness and distrust, the expectation that we’re nothing but trouble and it gets to us. It got to me. My belief was that the world would prefer that poor black boys like me weren’t in it. It’s hard to feel anything but hatred for that kind of opinion of you.”

I think it’d be difficult for anyone to develop a sense of self-worth when believing that the world holds that opinion of them; for Tay and Mikael and thousands like them, it’s challenging to feel hopeful about the possibility of a happy and fulfilling future.

Tay’s response to being placed at the bottom of society’s totem pole was to join a gang, where he felt a sense of belonging, pride in his ethnicity, part of something bigger than himself and where he had a chance to contribute and shine. Mikael found acceptance, belonging and understanding with high school (and junior high school) dropouts who, like him, numbed their grief and depression with drugs, calling it “partying.”  These young men weren’t anomalies in their neighborhoods, they were the norm. In fact, Tay Isn’t able to think of a single male childhood friend who hasn’t been killed or served prison time. He’s currently in the same prison as two of his cousins; his stepdad is incarcerated as well.

THE PREVALENCE OF SOCIETY’S ‘DOWN AND OUT’

Where Tay grew up, more than 50 percent of the residents lived (and continue to live) below poverty level. Mikael’s neighborhood was only slightly more prosperous. What we would consider “down and out” stories were, for them, everyday life.

This example from Tay’s young adulthood in Northern California illustrates this point:

“Veronica was one of my customers. She was beautiful and a good person and I liked her, but because she had a drug habit, I never considered being in a committed relationship with her. One night, at 2 a.m., I pulled into a gas station at 10th and P and saw Veronica’s little Dodge Dart parked in the far corner of the lot. I walked over to the car and saw clothes and bags piled in the back seat. Her little girl was asleep in the passenger seat and Veronica was in the driver’s seat. In between them was a big bag of Funions. “V, what’s up girl?” I asked. “Nothing,” she said. “It’s 2 a.m.,” I said, “what you got her out here like this for?” “I don’t got no place to stay and no money for a hotel,” she replied. She told me that her uncle had put her out because she refused to sell herself to support their drug habits. I took them down the street to the Sea Horse Motel, got them a room and told Veronica that I was going to go take care of some things and would be back.

I had a guy who was the manager of a place in Oakland called the Lake Merrit Lodge. He and his wife were both addicts and owed me a lot of money for drugs that I had sold them. The Lake Merrit Lodge had been a fancy place back in the day, but by that time it was rundown. People lived there and paid rent by the month. The residents were served breakfast and dinner, so it was a good deal for people who didn’t have much. I got V and her daughter a room for a whole year. What makes this story so sweet is that once V moved in, the manager gave her a job as a desk clerk and after that she got herself off drugs. The last I heard from her was in 2013. She told me that she had been clean for 20 years, had two more kids and was married to a nice man with a good job at Standard Oil. Her little Mary (the girl who had been in the car that night) was going to college in Tennessee.”

This story has a happy ending, ironically because a self-professed thug like Tay intervened. But I read this story and wondered why it is that we create and maintain this “us and them” hierarchy that leads those we place at the bottom to suffer from low self-worth, self-confidence and hopelessness –which then often leads to self-medication and addiction, crime and prison. Tay intervened where many of us wouldn’t; a single gesture of kindness that gave a young woman hope that other good might follow. It was enough to turn a woman’s life around, and her daughter’s life, too. That’s all it took, and that’s all it might take for a whole lot of people.

Let me be clear that I’m not talking about walking up to people in cars who look homeless and offering assistance –that would be too scary for too many. I’m talking about addressing social perceptions and social and economic inequalities that lead to addiction and crime. I’m talking about making changes so that an addict isn’t on a waiting list for months or even years for addiction recovery treatment programs, and that they have follow-up support. I’m talking about social service programs that focus on self-worth, healing, recovery and self-confidence, and about providing food and shelter for adults and their children when they’re in a tailspin or trying to get their lives together.

From an “I Have A Dream” perspective, I’m talking about believing that everyone has innate goodness and potential and deserves support in unleashing that goodness and reaching that potential. I’m talking about, as much as possible, addressing problems before they fester into something big – and as happened for Tay and Mikael, into something criminal.

In their mid-twenties both Tay and Mikael were convicted of crimes that condemned them to prison for what could end up being the remainder of their lives.

A SEARCH FOR THE TRUTH

Despite his troubled past, I leaned strongly toward believing Mikael’s claim of innocence. At this point in my research on Mikael’s case, I felt mostly sad—sad that a good man was wasting his years away in a steel cage. In the weeks to come my sadness would segue into outrage, then doubt, then sadness again. And in the end, resignation.

Mikael told me (and the court) that he met his accuser in October 2010 via an online chat room where people went to “hook up.” He and the woman conversed for a long time one night. She told him, he said, that she got paid for sex so that she could put herself through college and support her kids. He said that during their online conversation he tried to talk her into making money in other ways, aside from prostitution.

He said that he and the woman agreed to meet in person the next day at a nearby mall. Once there, they talked some more. Mikael said he’d gotten tickets for them to see a boxing match at a sports bar that evening with a couple of his friends. He said they had some time to kill before the fight, and that she invited him over to her place.

When he walked into her apartment, Mikael said he was surprised to see a man sitting on the couch. The man didn’t acknowledge them as the woman led Mikael to a bedroom. Mikael said he and the woman made out and then she stopped him, saying she needed to be paid for the sex.

Mikael stated that, because he had thought she genuinely liked him, he told her, “I thought we were past this conversation.” Disappointed, he said he grabbed his things and left. He insisted that when he left she was still wearing all of her clothes except for her shirt. On the way out, Mikael said he again passed the man on the couch, who still didn’t acknowledge him.

According to a summary of Mikael’s 132-page court file, his accuser told a different story. Mikael “pushed” her onto her bed, “began to undo her pants and, when she resisted, strangled her until she blacked out.” She claimed that she “briefly awoke, but passed out again after Mikael—then on top of her—choked her again.” She went on to say that when she awoke again, she was unclothed and her phone and wallet were missing. She then stated that she went to a neighbor’s apartment and waited there while the neighbor called police, who then escorted her to a hospital.

According to the medical examiner who tended to the woman, she observed “fresh” injuries, abrasions, bruises and swelling that were “consistent with something being inserted into the vagina.” The examiner went on to say that the injuries’ severity indicated that the penetrating object lacked a “helper” such as lubricant and that the injuries indicated the woman did not want to have sex or wasn’t “in the right position” to have sex. However, according to court transcripts, when the defense attorney asked the medical examiner whether there was a possibility that the sex could have been consensual, the medical examiner stated, “The findings were consistent with penetration but it was not necessarily non-consensual.” Additionally, the plaintiff testified that she “felt no soreness or pain in her anal or vaginal regions in the five days after the attack” and a criminalist testified that he found no male DNA on swabs of the woman’s vagina or anus.

The woman could not recall what happened while she was unconscious, or even testify that Mikael had penetrated her.

As far as I was concerned, all of this shed some doubt on whether the woman had been raped. But even if she had been assaulted, it looked uncertain to me as to who committed the crime, because swabs taken from the plaintiff’s breasts revealed DNA belonging to Mikael, but also a second strand of DNA belonging to someone other than Mikael.

SO, WHAT MIGHT HAVE ACTUALLY HAPPENED?

I’ve asked Mikael myself, “Why would this woman claim you raped her if you didn’t? What would her motive have been? Who do you think the other man in the apartment was? Do you think he’s responsible?” His answers: “I don’t know,” “I have no idea,” and “Her pimp, maybe?”

So let’s just say, for argument’s sake, that Mikael is indeed telling the truth when he says that another man was in the apartment that afternoon. I’m going to agree with Mikael’s supposition and say the man might have been the woman’s pimp. After Mikael left, perhaps the pimp went into the bedroom to collect his percentage of the transaction. If so, he found his employee half naked but with no money to show for her supposed “work.” To make matters more complicated, the man might have been her boyfriend as well the two of them might have agreed that she would earn money via prostitution. (This isn’t unusual in impoverished neighborhoods, particularly where drug addiction is involved.) Maybe the man tolerated his girlfriend bringing men into their bedroom because it was a good source of income and possibly supported their drug habits.

Continuing to give credence to Mikael’s story, on the day in question the woman spent hours with Mikael outside of the home, then brought him home, went behind closed doors in the bedroom, went far enough to get half naked and yet collected no money—nor did she alert her pimp/boyfriend that a client was leaving without paying. Perhaps the boyfriend was angry that she didn’t produce any income, but even more problematic, maybe he suspected that she had romantic feelings for Mikael.

Furthering this hypothetical, let’s say that the pimp/boyfriend had been waiting all those hours for that income so that he could purchase the drug(s) that he was both physically and emotionally craving. Or maybe the two of them owed money to their drug dealer and if it wasn’t paid there was going to be trouble. Let’s then say that the pimp/boyfriend strangled the woman out of anger and jealousy but caught himself before he killed her.

Because he was enraged, perhaps he couldn’t get an erection (or perhaps he simply wanted to punish her) so he used an object to rape her. Or perhaps the woman’s abrasions came from a previous client. Mikael claims that she had admitted to being a prostitute and prostitution is a line of work in which sex without arousal and self-lubrication is common. The pimp boyfriend could have then grabbed her wallet and her phone, so that she couldn’t alert the authorities, and headed to his drug dealer to buy drugs and make a payment.

The woman testified that she went to a neighbor’s apartment to call the police. Let’s say that in her disorientation and rage (or because of her need for medical attention) the woman was prepared to report her pimp/boyfriend to the police. But then, she realized that to admit that her boyfriend/pimp was the perpetrator would almost guarantee that she’d be severely injured, if not murdered, for her betrayal. When asked who did this to her, the only safe thing to do was blame Mikael.

Of course, as possible or probable as these scenarios might be, we all know hypotheticals aren’t admissible in a court of law.

MIKAEL’S COURTROOM DEFENSE, OR LACK THEREOF

Mikael didn’t—and doesn’t—have the resources to hire his own legal representation or private investigators. His only family support is his mother who is on fixed and meager government assistance. And while court-appointed public defenders do the best they can, they’re more often than not overworked, underpaid and not provided with the investigative resources available to lavishly paid private attorneys. While high-priced attorneys often get their rich—and sometimes guilty—clients off, public defenders often fail to get their poor—and sometimes innocent—clients true justice.

Mikael says he asked his court-appointed lawyer, Dan Tandon, if an investigator could be put on the case to locate the man whom he claimed was in the apartment that day. He said Tandon told him that courts don’t allow for this type of investigation unless there is ‘just cause’ and in Mikael’s case they had no information on this man other than that he was an African American male.

But even if there had been an investigator assigned to Mikael’s case, odds are that anyone who might have been able to ID the man in the apartment would either corroborate the woman’s story in order to protect her or pretend to know nothing—because to get involved might endanger their welfare and even put their lives at risk. The other convicts I know say that lack of witnesses is very common (no one in the “hood” likes a snitch) and puts defendants at a great disadvantage in court.

Mikael also says that he asked to have a background check done on the plaintiff, to see if she had a history of being victimized, or of prostitution. He says that Tandon told him that alleged rape victims are protected by the Rape Shield Law, which prevents any background of prostitution, or domestic disputes in which they were the victims from being entered in court. Again, this put Mikael at a disadvantage in court –as well as all other defendants accused of rape.

Mikael says that he then asked his attorney to see if the text conversation between himself and the plaintiff could be found on his cell phone, but he claimed that wasn’t done either.

In addition, no character witnesses were called to testify for him. Mikael had previously worked for three years in shipping and receiving at Scandia, driving a forklift and performing other warehouse duties. He’d been in a long-term addiction recovery support group and was very close with his fellow group members and he’d worked with an organization that helped underserved kids, but no one from any of these parts of his life was asked to speak on his behalf at trial.

Mikael was convicted of vaginally and anally raping his accuser and of strangling her until she passed out. For these crimes he was sentenced to two 15 years-to-life prison terms. (Two 15 years-to-life sentences means that Mikael will be eligible to sit before a parole board only after serving a minimum of 30 years. But he could, quite possibly, be denied parole for many years. In some cases parole is never granted and the entire life sentence is served.) It seemed to me that Mikael’s judge had grossly over-sentenced him.

Let’s not forget that because Mikael is black, the chances of him receiving a guilty verdict were, statistically, much higher. In fact, according to the NAACP, African American men are found guilty six times more often than whites.

At this point, I believed that the system had seriously let him down. On behalf of Mikael and so many others like him, I felt outraged. My sweet friend would waste his life away in prison, first because of the shortcomings of our society and then because of the shortcomings of our criminal justice system.

THE APPEALS

Mikael’s first appeal contended that the evidence was inconclusive at best. He lost.

The court ruled, “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal for a judgment, for it is (up to) the trial judge or jury to determine the credibility of a witness…”

Notably, the decision continues, “Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction.”

Yes, all it takes is one witness. In this case, Mikael’s accuser.

Mikael was then told by fellow inmates, who have taught themselves the law, that his double life sentence was illegal and that he should push for another appeal. Mikael knew nothing about the law, but because he had no money for legal help, he had to learn how to write what’s called a writ of habeus corpus himself (essentially a legal filing asking the court to give a prisoner another trial).

The vast majority of prisoners come from poor backgrounds, so most of Mikael’s fellow inmates have the same challenge. Mikael was one of the fortunate ones, however, because he not only knew how to write, he writes well. Most of his peers are either illiterate or read and write at around a fourth grade level. Most also don’t have enough money to barter stamps or commissary goods for legal help from the “jailhouse lawyers” in their midst. Mikael’s mom sent every spare dime she had so that Mikael could enlist some legal help from a fellow inmate who’s reputed to know what he’s doing.

In November 2014, Mikael again appealed, this time claiming lack of investigation of his case, lack of character witnesses called, and he challenged the legality of the double sentence. The appeal was accepted by the state but the court would only consider the double sentence issue. I thought it outrageous that the lack of investigation wasn’t accepted in the second appeal, as it seemed obvious to me that this had been a serious shortcoming of his original trial. Mikael was assigned another new public defender with whom he had little contact before the court date in October of 2015.

DISCOVERING THE INCONSISTENCIES, AND THE LIES

During this time I asked Mikael how long he’d been off drugs before incarceration. He answered, “five years” but I knew this wasn’t true. He’d previously written a blog for my website and described being sober for at least a couple of years but then relapsing and becoming what he described as “not a good person” before being arrested. He wanted me to believe that he was sober when the crime occurred and I knew this wasn’t the case. If he lied about this—and lied when he said he’d never lie to me—then what else might he have lied about?

Mikael gave Dan Tandon, the attorney from his original trial, permission to speak with me. Tandon first addressed the cell phone issue, explaining that contrary to what Mikael believed, Mikael’s phone carrier was contacted and did provide the text conversation between Mikael and his accuser. The attorney said that nothing in the text exchanges shed much light on the case. There was evidence of nude photos of Mikael’s accuser on his phone, photos that she admitted she had sent him, but naked picture exchanges don’t prove, or disprove, consensual sex.

I discovered that Mikael had previously served a year in prison for statutory rape of a 14-year-old when he was 19. Mikael’s attorney informed me that the father of the girl wrote a letter to the court saying that his daughter was out of control and promiscuous and the charge was dropped to a misdemeanor, but the fact remained that Mikael hadn’t told me about this.

The attorney then told me that Mikael has also been tried for another rape, involving his ex-girlfriend, but found not guilty.

More doubts about Mikael’s innocence began clouding my mind.

I asked the attorney, “But what about the medical examiner saying that there was a possibility that the penetration the woman experienced could have been consensual?” He explained that except in the most obvious and extreme cases, the medical examiners always say that, and that in this case, the bruises and lesions were more than mild and strongly pointed to non-consensual sex.

“Well, what about the second DNA sample found on the plaintiff’s breast that didn’t belong to Mikael?” I asked. He told me that while the DNA sample belonging to Mikael had been strong, the other strand had been just a trace, so small that the lab couldn’t even determine if it belonged to a male or female. (However, what they could piece together indicated it was highly likely that it might be a match for the woman’s own DNA.) In other words, the evidence strongly indicated that Mikael was the only person who had contact with the plaintiff that day.

After learning this, I thought, “No wonder they didn’t try to locate the man that Mikael claimed was in the apartment that day. There wasn’t ‘just cause’ because the DNA evidence strongly suggested that there had been no other man involved.” Although the “just cause” rule could obstruct justice in other cases, I no longer believed that it had been an issue in Mikael’s case.

This information left me reeling. I lapsed into a spiral of doubt that made me sick to my stomach. I saw no other option but to believe that Mikael had lied about his innocence.

PLENTY OF PUNISHMENT; LITTLE REHABILITATION

Dana Feuling, Mikael’s most recent attorney, explained to me that when Mikael’s latest appeal had been accepted by the court, a court examiner discovered that Mikael hadn’t been over-sentenced after all; in fact, he’d been under-sentenced.

Not only did Mikael lose his latest appeal this past fall, he received two 25 years-to-life sentences, which added 20 years to his original sentence. His attorney went on to say that it’s extremely rare for the courts to discover that a person has been under-sentenced. She pointed out that if Mikael hadn’t appealed, this discovery would have never happened.

The judge contended that, based on character reference letters, reports from the prison and a psych evaluation, Mikael seemed to be a changed man and had demonstrated that he was using his prison time well and getting his life together. Nonetheless, she said that because the crime had been so grievous she felt Mikael deserved the full two 25 years-to-life sentences. In other words, although our criminal justice system bills itself as an institution of “correction” and “rehabilitation,” the truth is that it’s primarily about punishment.

It’s my professional opinion that very early on in his incarceration Mikael was well on his way to rehabilitation. After only a couple years behind bars, I think Mikael was no longer a man who would commit a violent crime–or any crime–as long as he maintained his sobriety.

If in fact Mikael did commit the crime for which he was sentenced, his addiction to methamphetamine (a drug that makes one paranoid and agitated) was at the root of his actions. Meth can turn even a positive person like Mikael from a Dr. Jekyll into a Mr. Hyde. But once drug-free (and in conjunction with the “slap in the face” of a lengthy prison term) Mikael returned fairly quickly to his natural, good-natured and good-hearted self. I know this to be the case for addicts in general, which brings up the issue of the criminalization of addiction in this country –but that is a whole other article.

In Mikael’s case it means that even though, at this very moment (with support in getting a job and maintaining sobriety), I believe he would likely be a positive, contributing, law-abiding and tax-paying member of society, he has not yet (according to the courts) been punished enough for his crime and so will remain in a cage until at least the age of 76.

According to a recent U.S. Sentencing Commission report, the life expectancy for a person who begins their life sentence in their mid-twenties is 64 years old. It‘s not likely that Mikael will ever again experience the free world.

WHERE DO WE GO FROM HERE?

I felt sad about Mikael’s sentence. I also felt sad that (at least as far as I knew) he had lied to me about his innocence. I sent him a note and told him that I was so sorry about his resentencing. I also told him that from what I’d learned of the DNA evidence, I believed he had committed the crime and that he had lied to me.

I have always told Mikael that my friendship with him is based on who he is now and not who he has been or what he has done in the past. Even if he is guilty, I stand true to that promise. In my note to Mikael I reiterated this, in the hope that he now would feel secure enough in my friendship to tell the truth. The whole truth.

This was his response:

“I thought that seeing my mom break down in tears again in the same courtroom was as bad as it was going to get, but reading your note saying that the DNA points solely to me almost made me give up on everything. I felt the blood leave my face and felt like I fell into a deep hole. My criminal prior (the statutory rape) was very embarrassing and I feel sick whenever I think about it, which is why I couldn’t bring myself to tell you about it, but everything that I have told you about my current case is true. I wish I was able to take a polygraph, but those don’t hold up in court even if a person passes them.”

I don’t know what to do with this response. Is Mikael still claiming his innocence in order to look good in the eyes of others, particularly me and the criminal justice system? Is the crime and its repercussions so horrible that he’s convinced himself he didn’t commit it? Or is he innocent?

Interestingly, early on in my research for this investigation, I wrote an additional hypothetical scenario in which Mikael was starting to have consensual sex with the woman but then when she demanded that he pay her to go any further (and because he really thought she liked him), he lost it and strangled her.

When I shared that with him, he responded quietly, “Wow.”

I wonder now if that “wow” was actually an inadvertent way of him acknowledging the scenario as truth—as if something like “Wow, she really nailed it” went through his head when I spoke.

If this scenario truly did happen, and if Mikael had admitted to it from the very beginning, he might have been sentenced to just eight years in prison. And he’d have just 24 months left to serve today. But then again, if he were angry enough to strangle her, he might have been angry enough to rape her, too.

An acquaintance of mine spent most of his career as a forensic expert with London’s Scotland Yard Police Force. I presented him with the DNA evidence on Mikael’s case and asked him if there was any chance that someone other than Mikael could have committed this crime. He told me the chances were slim; but he also said that just because the DNA found belonging to Mikael was solid (while the other was only a trace sample), it didn’t necessarily indicate that Mikael had been the last person to touch his accuser, nor did it necessarily indicate that he had more contact with the woman than the person who left the trace DNA. (But remember, the trace DNA sample might very well have belonged to the woman herself.)

He went on to say that as long as investigators couldn’t definitively confirm that the trace DNA was the plaintiff’s (or the neighbor’s or someone else who assisted the plaintiff before the medical examination) it could belong to another suspect, and that suspect could have been with the plaintiff after Mikael. That’s a lot of “ifs” –and maybe, if Mikael could somehow appeal again, a top-notch legal defense team could use that information to create enough reasonable doubt in a new jury’s mind.

Or, maybe not.

I can only imagine what Mikael’s mother goes through, wondering about the guilt or innocence of the person she loves most in the world. She’s asked me repeatedly what I think, and I can tell that my uncertainty tears at her heart. At this point, it’s not whether Mikael committed the crime that’s most difficult for her; even more gut-wrenching is not knowing whether he’s telling the truth when he says he didn’t do it.

Mikael told me that he wished he could take a polygraph test and I wondered if this was really true or if he was just making the claim to, again, sound innocent. So I pressed him, asking if he’d like The Reporters Inc. to try to arrange a polygraph test for him if/when a reporter or producer interviewed him; he excitedly responded, “Yes! Wow, that would be great!” On one hand, his answer is encouraging. If he’s guilty, then why would he pursue what could be a very public display of his guilt?

I now believe that Mikael, as an addict, was the kind of person who could have committed a violent crime. But the only version of Mikael I’ve ever known personally is the clean and sober version, a man who is kind, quick to smile and laugh, enthusiastic, and amazingly upbeat and positive even in the bleakest of environments and circumstances. The Mikael I know is indeed delightful. He lifts my spirits and makes me grin. The Mikael I know is a good person and a great friend.

Yet in the end, whether Mikael is innocent or not, the fact of the matter is that prisons are an inhumane and counterintuitive way for us to treat even the guiltiest men and women, regardless of the severity of their crimes. I know this opinion won’t be popular in many circles but there’s simply no getting around this truth, from my experience.

Think about the elements that have helped all of us heal from psychological wounds and become better people: love, beauty, nature, human connection and support, the feeling of being valued, having a chance to contribute to society, being treated kindly. We take these wounded men and women and remove them from these elements. We label them “bad guys” and treat them as the scum of society and then expect them to somehow forgive themselves and develop the self-worth necessary to be a positive, contributing member of society.

We treat them as horrible people while expecting them to become better people. We put them in a hopeless place and expect them to develop the hopefulness needed to motivate them to take positive strides in their lives. We punish them and call it rehabilitation and when we release them 76 percent of them commit another crime. We then feel justified in our original “bad guy” label of them, justified in our original treatment of them–and at an average cost of about $40,000 a year per inmate—we repeat the cycle. As the system currently stands, no one is a winner.

Mikael’s last note to me ended like this:

“If I have to spend the remainder of my physical life in here then it looks like I will have to wait until Heaven before I hit the water again or go rollerblading. Until then I’m going to practice living for Him and being grateful for everything that I have.”

Kim Whiting can be reached at whitingk@cox.net. 

A footnote: The Reporters Inc. attempted to interview Mikael Webb in his San Diego prison for our upcoming documentary about wrongful convictions, The Innocent Convicts. Although the California Department of Corrections was willing to allow the interview, the department also cited a decades-old policy prohibiting the videotaping of “specific-person” interviews. (California prisons do allow on-camera interviews of “random” inmates.) Despite long-standing claims by both journalists and prisoners that this policy is unconstitutional, the courts have ruled that it doesn’t violate the freedom of the press, as guaranteed by the first or 14th amendments. Because our project is indeed a film, California’s refusal to let us videotape Mr. Webb prevents us, unfortunately, from including him in The Innocent Convicts.

Discussion

8 people commented on "In Search of Truth"
Feel free to join the conversation and leave a comment as well.

  • Stephanie Brazell says:

    He’s an addict, and has at least twice previously been accused of sex crimes. His lips are moving-and you believe him?! I’m sure he’s quite nice to you, ma’am. But he’s also a lifelong manipulator in need of significant treatment. Perhaps 50 years is harsh. 30? For a brutal, forcible rape? I rather imagine it will take the victim that long-or thereabouts-to calmly go out at night alone, so that seems fair to me. And I’m pretty liberal. I agree that the first trial seemed like a joke until you spoke with attorney #2. But now you know. Dont knock yourself out. Sadly, you can’t save them all.

  • Joan Treppa says:

    I appreciate this story and I know perfectly how Kim feels. I especially appreciate her humble honesty both to herself and to Mikael as she delved deeper. There are too many of us walking around with blinders on and ignoring all that is taking place right in front of us. Few care or are willing to reach beyond their immediate surroundings to lend a hand. Shame on every last one. If more of us stepped up, we could help decrease the crime problems we have today. Too bad prison is not a place for rehabilitation. I’ve heard numerous times that the majority of offenders will eventually be released back into society. Do we really want them to be uneducated, unskilled and plagued with low self esteem; unarmed to prevent their own recidivism? But this is the reality and why crime stays constant. It serves no one to simply lock these people up and throw away the key. We can be better than that and it is our duty to act. Thank you Kim for acting.

  • Richard Hartley says:

    Well thats a good story! I believe some woman can state wrong facts but simething went on there that only he knows and ehat that woman knows whether he had sex with her or not there was a crime committed far as 50 years vs. 30 is another subject, sounds likr he hss pryors for sex crimes, I believe he also suffers from Mental Illness and addiction, the same as me. I done 20 years in 13 prisons and was a Leader for 23 years of the Notorious Prison Gang The Aryan Brotherhood and a member for 26 years from 1985 to 2011 upon my release from my 13 th prison. I’ve been home 5 years and now I’m a Volunteer in a Christian Ministry called Gang Awareness and Prevention were we go into Juvenile Hall and mentor and Minister to kids in Gangs or not in Gangs. Hopefully one day the truth will set Mikael free from the bondage of addiction &Sin and incarceration? I’m now a published Author and Juvenile Hall Chaplin. By the grace of God, I’ve been vindicated from a life of addiction and mental illness & Crime & Punishment because I finally chose the narrow road that leads to Life and not many find it. Because the broad and wide road that leads to destruction ruins many lives and the Fathers of lies comes to kill steal and destroy.

  • William Natale says:

    Thank you Kim for taking the time to write a very well written and composed article that addresses the inequity that exists for African Americans to receive a fair trial that is equal to what someone white would experience. There was enough reasonable doubt that one might find for Mr. Webb a verdict of not guilty. However, eye witness testimony by a victim is paramount in the decision of innocence or guilt even when it is absolutely wrong as it was in the Stephan Avery case in Manitowoc, Wisconsin as portrayed in the Netflix presentation, “Making of A Murderer.” Stephan Avery served 18 years of incarceration for a crime that DNA technology (not available at the time of his first trial) was able to reverse. There is little question in my mind that the police and the prosecutor knew that another possible suspect, who eventually proved to be the culprit, existed….and they did little to investigate that individual at the time of Avery’s trial. As to Mr. Webb, your investigation does leave doubt as to his innocence. I do think that the man has changed, and probably has served more than enough time and punishment for consideration of parole, however, our society and legal system lacks the ability to monitor an inmate’s progress of rehabilitation and act on it. If somehow, convict rehabilitation could be evaluated, which would include mental assessment and marketable skill assessment for the purpose of finding gainful employment and thus changing one’s life – that would be a goal worthy of pursuit. However, the hurdle any convict faces is the employment application which requires reporting any committed felonies, no matter if the time has been served and the debt for justice paid. Until that is addressed, we will continue to be the leader in the world that incarcerates more people than any other country on the globe

  • Michelle says:

    Thank you for caring about people in prison and thank you for this article. You are an angel on Earth Kim.
    And Mr. William Natale, your post and comment, 4 words = Nail on the head! I agree with you Sir 100%

  • Mable Wallace says:

    I’m looking for some help see my sonand nephew are in prison for a murder we no they didn’t do we have proof we have the real killer on tape this took place in 2010 they are in prison now we now no why they DA won’t help in 2015 the States own eyewitnesses have came forward and given us new written statements saying they lied on them one even said the police payed him to lie so now u see why we need help so I have started a petition on change.org it’s called help free Brandon and Marcus Wallace two innocent men in prison please sign it and pass it on to others please help us .and God bless you Kim you are a grate person.

  • kim whiting says:

    William Natale, this response is long overdue, but very well said and I agree

  • kim whiting says:

    Mable Wallace have you contacted the Innocence Project? I wish you the best in your quest for justice!

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