The great Posner wrote the opinion overturning Lawrence Owen’s murder conviction (Lawrence Owens v. Stephen Duncan). Owens was convicted of first-degree murder in November 2000 after a bench trial in the Circuit Court of Cook County. The judge sentenced him to 25 years in prison; he has almost 11 years of his sentence left to serve.

The opinion begins on a September night in 1999 in the City of Markham, 20 miles south of Chicago. Seventeen year old Ramon Nelson was riding his bike away from a liquor store when he was struck on the head by a wooden stick that could have been a baseball bat. But as you read on, it is clear where the opinion is heading:

Two eyewitnesses to the murder testified at Owens’ trial. Maurice Johnnie identified Owens as the murderer from a photo array of six persons and from a lineup—although Owens was the only person in the line-up who also was in the photo array, thereby diminishing the probative value of the second identification. The other eyewitness, William Evans, identified Owens as the murderer from the same photo array and a lineup. But at the trial, though Owens was present in the courtroom, Evans twice pointed to a photo of someone else in the photo array as being Owens. There were other discrepancies between the two witnesses’ testimony. Evans testified that there had been two assailants, Johnnie that there had been only one. And Evans but not Johnnie testified that Nelson had spoken with the assailants before they assaulted him…

Nelson had crack cocaine on his person when he was killed that appeared to be packaged for individual sale, for the cocaine was in 40 small plastic bags in his coat. No evidence was presented that Owens had known Nelson, used or sold illegal drugs, or had any gang affiliation. If Owens had had any record of involvement in the illegal drug trade, or in gangs, the prosecution would, one imagines, have presented evidence of that involvement; it did not. Also absent was any physical evidence (such as fingerprints on the baseball bat) pointing to Owens as the murderer.

Who did Posner find at fault? The judge. Usually, wrongful convictions have centered on prosecutors engaging in unethical practices such as refusing to turn over evidence under Brady. However, Posner’s opinion left no room for doubt that judges themselves could be a driving cause to wrongful convictions.

Posner noted that the judge’s explanation of the verdict in Owen’s case was “nonsense.” The lower court judge had stated that the issue was whether Owens knew that Nelson was a drug dealer and that Owens wanted to kill Nelson. Furthermore, the judge claimed that the government had proven this fact. However, as Posner notes, “No evidence had been presented that Owens knew that Nelson was a drug dealer or that he wanted to kill him.” He goes on to state that “there was no factual basis of any sort, in the trial record or elsewhere, for the judge’s finding that Owens knew Nelson, let alone knew or cared that he was a drug dealer. The judge made it up.”

The opinion concludes that the judge’s error was not harmless. In fact, the opinion states that Owens might have well been acquitted had the judge not mistakenly believed that Owens had known Nelson to be a drug dealer and killed him because of it. Accordingly, the Court reverses the judgment denying Owens relief and gives the state 120 days to either retry him or release him from prison.

Posner is influential. Could this opinion lead to more scrutiny on judges? There has be a surge in wrongful convictions in the media such as that of Kirk L. Odom as well as movements to provide compensation to individuals wrongfully convicted. However, none of these calls for change will have effect without addressing causes of the problem, which Posner makes clear, includes judges.