'Imperative of freedom' should guide review of Myon Burrell case

Last week an independent panel of experts released a report on the conviction and sentence of Myon Burrell, a case that has haunted Minnesota since 2002, when an 11-year-old girl was killed by a stray bullet ("Panel backs Burrell's release, further inquiry," Dec. 9).

As the chair of that independent panel, I hope that our 59-page report will shed light not only on the complexity of the Burrell case, but also on justice issues that extend beyond its long shadow.

The Burrell case is significant because of the multiple levels of tragedy it presents. Never were we far from the bare fact that Tyesha Edwards was killed in her family home. We became familiar with the pain of her family's loss and the cascading tragedy of such a murder in her south Minneapolis community.

It is also significant because of what came next. Myon Burrell was 16 at the time of Tyesha's death. He was convicted of murder twice (the first time, the case was sent back on appeal because of police misconduct) and sentenced to life in prison (plus time on top of that). The trials were prosecuted under two Hennepin County Attorneys: Amy Klobuchar in 2003 and Mike Freeman in 2008, and tried before two different judges.

Our report, which speaks for itself, reaches two conclusions.

The first is that even if we set aside the question of guilt and innocence, no purpose is served by Burrell's continuing incarceration, and no negative fact overwhelms the imperative of freedom.

The second is that there is enough troubling information about the investigation and conviction that we were left with serious concerns. Further study is needed, preferably by the new Conviction Review Unit being formed by Minnesota Attorney General Keith Ellison.

The Burrell case also shines a light on issues that go far beyond any one case.

In considering the sentence, we became profoundly aware of how our nation has changed in the way we consider juveniles who become enmeshed in the criminal justice system.

The period leading up to Burrell's arrest in 2002 was marked by racially charged fearmongering about young "super-predators" who would be violent for the entirety of their lives. Mandatory minimums and other harsh sentencing tools were increasingly used against child offenders, in a belief that they were incapable of change.

That view, though, has been thoroughly discredited by brain science. In a series of cases brought by Bryan Stevenson and others, the Supreme Court has looked to that science in knocking away overly harsh and mandatory sentences for juvenile offenders, finding that children are "constitutionally different" than adults. That shift has moved broadly within criminal law.

In the Burrell case, veteran prosecutor Freeman has already proposed reducing the sentence by 15 years; the question to be argued going forward will be how much of a reduction is appropriate.

Another, broader, issue involves some of the evidence used to convict Burrell. In his second trial, Burrell faced accusations from "jailhouse informants," prisoners who claimed that Burrell had made inculpatory statements in their presence. Such informants are usually given a break on their own sentence, a potentially strong incentive to lie in favor of the government. We sought out the expertise of Harvard Law Prof. Alexandra Natapoff, who provided us with a report laying out the problems inherent with this kind of evidence. The practice must be curtailed in the interests of justice. Both state and federal lawmakers should consider doing just that.

Finally, we realized the power of independence in such an investigation as ours. This panel was not chosen by the government or hired by a client; rather, we were convened by two legendary figures in the wrongful conviction field, Barry Scheck and Laura Nirider (a native of Brooklyn Park).

Though there were drawbacks to our $0 budget, it also ensured clear eyes. Our independence allowed us to talk to all sides without an agenda, and to do something new: Combine the examination of sentencing and conviction into one enterprise.

Previously, the fields of conviction review and sentencing have been isolated from one another, but the complexity of modern criminal law augurs against that division.

As we dug into the case, we also found many people of good faith, the ones who make Minnesota distinctive. Our interviews involved people in prison, people in power and people deeply wounded by the violence done in 2002.

One subject was former Minneapolis Mayor R.T. Rybak. We were struck by his story of meeting with Tyesha Edwards's family at the hospital after she was shot, and watching over Tyesha's little sister Lakia while the family took in the terrible news. It was a moment of vulnerability for them all.

At the University of St. Thomas, I teach my criminal law students that this field is all about tragedy. We cannot un-kill a man or un-rob a woman. The most we can hope for is that we don't compound the tragedy by endangering public safety, imprisoning someone we don't need to or convicting an innocent defendant. In the end, that is what the Burrell case is about: the urgent need to wade into deep tragedy and make sure we got it right.

Mark Osler is the Robert and Marion Short Distinguished Professor of Law at the University of St. Thomas. The independent panel also included Keith Findley, Maria Hawilo, James Petro, David Singleton and Michael Ware, with technical and administrative support from Greene Espel PLLP.