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The Innocence Factor

April 25th, 2007 by Celeste Fremon

The Innocents

As commenter, Richard Locicero brought up
in the last thread, the notion of execution—lethal injection or no lethal injection—becomes even dicier when viewed in the light of the growing number of exonerations.

Because of my gang reporting, I know of a smattering of cases in which people are serving time for crimes they didn’t commit. (And, of course, I also know of a number of other situations where people didn’t get caught for crimes they did commit.)

There is, however, one instance in particular that continues to haunt me.

I’ll get to that in a minute, but first some more recent news:

On Monday of this week, the 200th person exonerated through the use of DNA evidence was officially cleared . His name is Jerry Miller and he spent 25 years in prison for a Chicago rape, which he didn’t commit.

Here’s what the AP said about the case:

The details of the latest exoneration are typically nightmarish: Jerry Miller served 25 years for a rape conviction and had already been paroled when DNA tests showed he could not have been the man who attacked a woman in a Chicago parking garage.

Yet more alarming even than the individual stories, is the fact that the number of newly discovered wrongful convictions in the United States is growing at an increasingly rapid clip.

What’s also troubling is how common these exonerations have become since the first reversal in 1989. It took 13 years to reach the first 100 DNA exonerations, but just five to double that number. For prosecutors and judges, as well as defense attorneys, the exonerations raise a larger question: How many others, innocent of their crimes, are behind bars?

Advocates for extensive changes in the way cases are investigated and prosecuted see the 200 as the tip of a huge iceberg and use the word “epidemic.”

Prosecutors bristle at the characterization. They agree that a single person wrongly convicted is an injustice that can’t be tolerated, but see the problems as few, far between and fixable.

Well, maybe. While “epidemic” is a bit extreme, there is a growing uneasiness among many working in and around the criminal justice world who suspect that, as forensic technology becomes more sophisticated, and more and more states begin forming “innocence commissions” to examine claims of wrongful convictions, it’s likely that exoneration numbers are going to increase substantially

In California alone, more than 200 people have been cleared of major crimes—rape, murder and the like—using DNA but also other methods—as it many cases there is no DNA evidence.

The truth is, it doesn’t take a major crime for a false conviction to have a near-ruinous effect on someone’s life.

In an emblematic example of this principle, earlier this month, a Northern California man named Kenneth Wayne Foley was cleared of a burglary conviction that had him locked up for nine years.

And for every case cleared, there are a string of cases pending.…or awaiting a legal champion.

As I mentioned earlier, I’ve been following one of those cases myself. It has to do with a 32-year-old man named Danny Cabral whom I first got to know early in 1991. I was researching a book on gangs, and he was a likeable fifteen-year-old homeboy with the nickname, “Stranger” struggling to pull back from street life.

In the summer of 1994, when he was two months passed his 18th birthday and, by then,trying to figure out how to be a father to his 2-year-old daughter, he was convicted of first degree murder for shooting a man dead in a street robbery gone bad. Right now Danny is serving life without possibility of parole.

His daughter will turn sixteen in October.

Here’s the deal: Danny had nothing whatsoever to do with the murder. The reason I know this with absolute certainty is part of a far longer story (and one that I’ll write about it in the future.) But, suffice it to say, I know, without doubt, who did did kill the guy.

Which brings us back to the original subject at hand.

Because the killing was committed in the course of a robbery, it was a potential special circumstances case. In other words, the prosecutor could have asked for the death penalty.

He didn’t. And, as a result, with any luck, Danny Cabral may one day be on that exonerated list.

Otherwise, after 13 years… he’d likely be dead of lethal injection.

I think about that a lot.

Posted in Civil Liberties, Courts, crime and punishment, Death Penalty, State government, Street Stories | 11 Comments »

11 Responses

  1. listener_on_the_sidelines Says:

    So, the underlying question, or root question, is what is an acceptable number of warrantless deaths in the face of an evolving technology that exonerates some of those convicted? How many state imposed wrongful deaths is okay, to be able to continue to impose the death penalty for some types of crime?

    For me, the bottom line is I might agree to an array of numbers, as long as long as that number never includes me. The likelihood of my being erroneously convicted of a crime eligible for the death penalty might be near zero, but it is not zero. Until it is zero, I continue to vote in a direction that suspends the death penalty. And, if the suspension turns out to be indefinite, because those odds are unachievable, that’s okay too.

  2. Woody Says:

    All this is a tough call. As I learn more, I’m more careful about supporting capital punishment. However, I wouldn’t mind if they got O.J.



    Celeste wrote: Here’s the deal: Danny had nothing whatsoever to do with the murder. The reason I know this with absolute certainty is part of a far longer story (and one that I’ll write about it in the future.) But, suffice it to say, I know, without doubt, who did did kill the guy.

    Celeste, did you kill the guy over whom Danny is serving time? Consider a similar story:

    …The georgia patrol was making their rounds
    So he fired a shot just to flag em down
    And a big bellied sheriff grabbed his gun and said
    Whyd you do it?

    The judge said guilty in a make believe trial
    Slapped the sherrif on the back with a smile and said
    Suppers waiting at home and I got to get to it

    They hung my brother before I could say
    The tracks he saw while on his way
    To andys house and back that night were mine
    And his cheatin wife had never left town
    And thats one body thatll be found
    You see little sister dont miss when she aims her gun

    It’s always bothered me how she condemned the justice system for executing her brother when she’s the one who committed the murder. She let him swing without confessing. Does this bother anyone else?

  3. richard locicero Says:

    A song lyric as evidence?

    As Phil Harris once said “That’s what I lkike about the South!”

  4. richard locicero Says:

    Should be Like – don’t go all Imus on me!

  5. Celeste Fremon Says:

    I didn’t mean to be mysterious, Woody. (And fortunately, I don’t, as yet, seem to be the murderous type. But maybe it’s latent.)

    It’s just a longer story than anyone would have patience for here, plus I’m writing about it.

    But here’s the Readers’ Digest Condensed version.

    I was, at the time, reporting very intensively in the community where it happened, and thus I knew all the players quite well. Danny, the two people who were his alibi witnesses, the younger brother of the shooter, the detective who investigated…. the various people in the neighborhood who witnessed aspects of the aftermath.

    The guy who really did it is locked up for life now and, it would seem, has little to lose by telling the truth. He falls into the Banality of Evil category. A sort of passive, weak guy who did this awful, awful thing. He’d lost his brother to gang violence a few years before and was a mess.

    I think that night he was really high, went to rob someone for money, got spooked and shot the guy. He wasn’t a bad ass at all. Just sort of a sad sack creep.

    I know many, many fine public defenders but Danny Cabral’s wasn’t one of them. He never called Danny’s alibi witnesses, never called other witnesses who could have helped with reasonable doubt—and never even bothered with closing arguments. When the prosecution rested, so did he. (!!!!!) He just felt Danny didn’t matter; that he was just another…you know…..gang member. No Human Involved.

  6. Woody Says:

    Celeste, if your description of the trial is accurate and not slobbered up with emotion, it seems that should be enough to obtain another trial.

    The only discussion about capital punishment is that it ends the possibility of determining innocence. However, one would think that innocence could be demonstrated in twenty years of legal delays. What kind of proof is adequate proof? How much time is necessary?

  7. nicole pena Says:

    hey. celeste i know you may not know me but yes i’d love to fight for danny cabral.. i read his story in the book.. and i know father greg and some of the remaining friends of danny.. i want to pull his record back up so that i can get him out of that nasty place in which he don’t belong there at all.. i feel really bad for him and all his suffering.. . i know he didn’t do it at all too.. your right about the system too about how they lock people up and not really investigate it fullly.. my mom works for the governor of madison wisconsin so i will try my best to see what i can do.. ok.. i do need his case number and such.. oh my address here.. 619 kellog ave #6 janesville wi 53546.. contact me .

  8. nicole pena Says:

    i’ll check back laterz to see if you reply ok.. oh some things about me. how father greg knows me.. im lorenzo’s baby momma.. lulu knows me very well if you want to ask him further about me.. he can also contact me..

  9. Celeste Fremon Says:

    Hi Nicole,

    I’d love to talk to you about Danny Cabral. Send me a working email address at and I’ll send you my phone number etc. I’m up in Montana right now, but back toward the end of the week. Let’s talk

    (PS: I tried the email address that you listed with your post and the email bounced back.)

  10. nicole pena Says:

    hey sorry i haven’t been able to respond to you in awhile.. my email address is and yes i’d love to give you a call.. i am currently working at mcdonalds so i don’t get home till late so its cool… celeste i’ll also try to email you again.. i think i did once.. i’ll send you my phone number so you can call me.. if my sister christina picks up then its ok she can take a message for me.. yes im currently still looking for danny’s location so i can write him a letter and let him know im interested in being a friend of his..

  11. nicole pena Says:

    my email should now be working.. i had to update it.. it is now available.. i’ll be checking it every day now after work so i can get your number so i can call you ok.. also check out my website.. you may have to search a little for mine because of i forgot my last three digits .. please do me a favor if possible.. can you give danny my address.. 619 kellog ave #6 janesville WI 53546.. please .. also you can write me at any time..

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