Systamatic Factors leading to Jens Soering's wrongful conviction
The following summary should be read in conjunction with “Trial and Error?” and other articles on this website.
- Biased judge
The judge at Jens Soering’s 1990 trial was a friend of the victim’s family. On the day the trial began, a local magazine published an article quoting the judge’s opinion that Jens “did it.” Yet, under the Virginia court rules, it was the judge himself who was allowed to decide whether to remove himself from the case. He decided he could be fair.
- Biased jury
The judge ruled that the local jury pool in Bedford County had been tainted by nearly four years of pre-trial publicity. Yet he then chose to import a jury from a neighboring county that received exactly the same newspaper and TV coverage as Bedford County. Most of the jurors seated on Jens’s jury said that they had formed an opinion about his guilt, but would be able to set that opinion aside for the trial. None of this was appealable before trial – only after, when it was too late.
- Incompetent lawyer
Jens’s defense counsel lost his license four years after his trial. In his bar association “trial,” the lawyer said that he had been mentally impaired for the entire period of Jens’s trial and first two appeals. These events were incorporated into Gail Marshall’s subsequent habeas corpus appeal. She obtained an expert affidavit by a past President of the Criminal Law Section of the Virginia Bar Association, now a federal magistrate, according to which Jens would not have been convicted but for the inadequate legal services of his trial lawyer. The state did not offer an expert of its own to contradict this finding. Yet all appellate courts ruled that Jens’s trial lawyer’s mental impairment did not warrant a new trial, because supposedly there was no clear evidence of error.
- False confession
It is now commonly known that, of the over 150 prisoners who have been exonerated through DNA – and therefore are provably innocent – more than 20% had confessed. Examples of high profile false confessions include the Central Park Jogger case, Earl Washington, Jr., and John Mark Karr (JonBenet Ramsey case). All of this was completely unknown at the time of Jens’s 1990 trial. At that time, confessions were still regarded as iron-clad proof of guilt. Unfortunately, there is no legal vehicle – no form of appeal, no brief, no writ – that allows prisoners to raise the issue of false confessions in court.
- Bogus forensic evidence (footprints)
Bogus forensic evidence is now generally acknowledged to be one of the leading causes of wrongful convictions; see "Achieving Justice: Freeing the Innocent, Convicting the Guilty" by the American Bar Association. Highly dubious footprint evidence played a major role in the Haysom/Soering case; after the trial, jurors told newspaper reporters that the jury was split six-six when deliberations began, but then decided to convict based on footprint testimony. For a full discussion of the footprint evidence, see "Trial and Error?" and the articles on this website. Here is a summary: before Jens became a suspect, a state forensic scientist determined that a bloody sock-print at the crime scene was equivalent to a size 5 to 6 man’s shoe. After Jens became a suspect and was discovered to have size 8 ½ feet, this scientist vanished and another man, Robert Hallett, testified at trial that the footprint was most likely Jens’s. Significantly, the trial judge ruled that Hallett was not an expert. After the trial, Gail Marshall obtained expert affidavits from two genuine experts: a New Jersey state trooper and an FBI Special Agent attached to the FBI Crime Lab. They found that Hallett’s trial testimony was "quite misleading" and that the footprint could just as easily have been made by Elizabeth Haysom, Jens’s girlfriend and co-defendant. Unfortunately, both of these experts are now deceased. A much greater problem is that appellate procedure does not allow appeal courts to determine the weight of this new evidence, or to consider whether it would have resulted in a different verdict. Under habeas corpus rules, only procedural issues – so-called "technicalities" – can be considered by the courts; actual innocence is not relevant. (For a particularly trenchant example of this legal principle, obtain Herrera v. Collins, 506 U.S. 390 (1993).) Thus Gail Marshall was forced to argue that Jens’s trial lawyer had "rendered ineffective assistance of counsel" by failing to obtain expert testimony like that which she had obtained five years later (the New Jersey state trooper and the FBI Special Agent). Of course this is an entirely different argument than saying that this new footprint evidence would have led to her acquittal. Not surprisingly, "ineffective assistance of counsel"-arguments almost never succeed on appeal – perhaps because judges are unwilling to criticize their professional colleagues, lawyers. (For the same reason, the above mentioned ABA report "Achieving Justice" devotes virtually no space to inadequate defense lawyers as a cause of wrongful convictions.)
- No DNA
Although there was a drop of blood at the crime scene that might have proved Jens’s innocence, this biological sample was destroyed in testing during the late 1980s. Thus there is no DNA evidence that can exonerate him beyond a doubt. This is a common problem for wrongly convicted prisoners; for many of them, the popularity of DNA tests is actually a disaster. Contrary to the forensic fantasies on TV, the majority (!) of crime scenes do not yield any biological samples whatsoever. But the general public and the courts now expect the iron-clad proof of DNA evidence every time, thanks to Barry Scheck and his Innocence Project. For the majority (!) of prisoners whose cases do not have DNA, there is now virtually no hope.
In Jens’s case, there is one new form of forensic/scientific evidence or testing that could exonerate him: AFIS, the national fingerprint database. This was not available at the time of his trial in 1990, but is available now. At the crime scene, police discovered an empty shot glass on a side table near one victim’s body (Derek Haysom’s). Both victims were heavily inebriated. On one side of the shot glass was the victim’s fingerprint (Derek Haysom’s), and on the other side was a fingerprint whose owner has never been determined. However, that fingerprint cannot be run through the AFIS system without a court order – and no court will order it to be analyzed by AFIS because, of course, the “real” killer is Jens Soering.
- Appellate procedure
In 1996, the Virginia Supreme Court ordered an evidentiary hearing to determine the value of new evidence developed by Gail Marshall concerning two drifters found near the crime scene who later committed another murder. Under the current system, this evidentiary hearing was held by the same trial judge who had presided over Jens’s 1990 trial – the friend of the victim’s family who gave the notorious magazine interview. If he had ruled in Jens’s favor at the evidentiary hearing, he would in effect have determined that he had made a mistake in 1990 – something no one is likely to do, no matter what one’s profession.