Trials of Innocents
E-mail by Dennis J. Dechaine
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Mankind censure injustice fearing that they may be the victims of it and not because they shrink from committing it. Plato The Republic 3rd Century B.C. |
Imagine being a 21-year-old with numerous prospects and suddenly having your world turned upside down by accusations of murder. Imagine being forced to stand before a jury of your peers while a parade of state witnesses spew inaccurate and vituperative testimony, painting the portrait of a monster you cannot begin to identify. Imagine being wrongly convicted and sent to death row to await your execution by a justice system that is blind even to truth. For Kerry Max Cook, to have had the luxury of imagining that fate would have been a dream come true; instead he lived that nightmare and his conviction was just the beginning of a 20-year pain-filled ordeal that the average human would not have survived.
It was 1978 when Kerry was convicted of the particularly brutal murder of Linda Jo Edwards, a 21-year-old secretary from Tyler, Texas. "One day I’ll prove I didn’t do it," Cook told a reporter after his conviction. "If it takes me 10 years, 20 years, I’ll prove I didn’t do it."1
Kerry Cook arrived at Ellis I penitentiary near Huntsville in July of 1978 and was housed in one of the segregated cell blocks reserved for death row inmates. Shortly after he arrived, Kerry was savagely raped by three other prisoners who finished their degrading assault by carving a lewd comment on his buttocks with a razor blade. In those early days on death row, Kerry recalls that the loneliness was nearly as bad as the abuse. He would often think of his family and burst into tears. Even through a degrading prison indoctrination, Kerry focused on the fight to correct the wrongs imposed on him by the State of Texas. He soon learned that the urgency he felt in getting back into court was not shared by the Texas judiciary. It was 1991 before Kerry’s second trial was granted on the basis of constitutional violations, and that trial resulted in a hung jury. A third trial in 1994 resulted in a conviction and another death sentence, but by this time the media were beginning to pay attention.
In 1996, the Texas Court of Appeals again overturned Kerry’s conviction, this time citing "prosecutorial and police misconduct has tainted this entire matter from the outset."2 Kerry was released on a bond paid for by friends who had joined the fight to prove his innocence. The district attorney, however, vowed to seek the death penalty for a fourth time.
In a last August, 1999 article in the Dallas Observer(on-line) a journalist said that Cook spent 17 years on death row thanks to Smith County prosecutors and cops who fibbed, connived and bent rules to put him there. Even the conservative Dallas Morning News joined the fray. An investigative reporter named David Hanners repeatedly accused Smith County prosecutors of railroading Cook by building its case on "circumstantial, prejudicial questionable and conveniently altered evidence."3 In his first trial, prosecutors had gone so far as to welcome the testimony of a prison informant with the nickname "Shyster" to help them secure Kerry’s execution.
Despite a trail of prosecutorial impropriety, the county again succeeded in indicting him, and trial was scheduled for early 1999. However, before a jury was picked, prosecutors made Kerry an offer: in exchange for a face-saving (theirs) no contest plea, he would serve no more prison time. He was given a half hour to decide. Just a few days earlier, the state crime lab in Austin had finally gotten around to testing semen stains found on the victim’s underwear. Could it be that the DNA belonged to someone other than Kerry Cook?
While Kerry pondered the decision to trade his innocence for freedom, he was haunted by memories of death row. Imagine his frustration at having been wrongly convicted and thrust into the savagery of prison, unable to respond to violence in any manner that might undermine his pursuit of justice. Imagine the fear and vulnerability that must have come from being shackled by innocence. Yes, he took the deal. Who can blame Kerry for not wanting to return to an untenable situation, for not daring to jeopardize the miracle of his survival. After the deal was done, a party broke out, but all Kerry could do was sit apart from his friends, saddened by what he had been forced to trade for this moment. "This is not the victory I had envisioned for myself from a 5-by-9 cell," he said. "I am innocent, but convicted." 4
Cook’s lawyers have filed for a full pardon from Governor George Bush, but Kerry knows this will be an uphill battle. In December of 1999 he told a Dallas Observer reporter, "The prosecution nailed me to the wall. They sponsored perjury, suppressed evidence, manufactured a case out of whole cloth. It’s madness… I lived this nightmare for 22 years, but how am I supposed to tell my story without looking like a liar or like I’m making something up or hiding the truth? Who is going to believe me? Who is going to believe me?"5 And what about the DNA test conducted 22 years ate the crime? Results excluded Kerry Max Cook as the source of biological evidence found on the victim’s clothing, further supporting his claim of innocence.
What happened to Kerry Cook teaches us that our vaunted American justice system tends to reflect the imperfection of its participants. Unfortunately, the Cook case is just one of many where innocent people have been convicted of crimes they never committed. In 1987, Hugo Bedau and Michael Radelet published a revealing and controversial study in the Stanford Law Review regarding that most irrevocable of all punishments – the death penalty. According to the authors, in this century at least 350 people have been wrongly convicted of capital crimes (or potentially capital crimes) and 23 have been executed.6
Given the strong support for capital punishment in America, the study was attacked on several fronts. In the fall of 1988, the Stanford Law Review published a response to the Bedau-Radelet study. The authors of the response, Stephen Markman Assistant Attorney General for the U.S. Department of Justice, and Paul Cassell, Assistant Attorney General for the Eastern District of Virginia, based their rebuttal in large part on the sufficiency of trial evidence that resulted in the conviction and executions of people that Dedau-Radelet claimed were actually innocent. Though Markman and Cassell tried to diminish the Bedau-Radelet study by endeavoring to prove the guilt of some people whose cases had been overturned on appeal, they nevertheless deigned to offer the following insight.
"Given the fallibility of human judgments, the possibility exists that the use of capital punishment may result in the execution of an innocent person. This terrible prospect raises the issue of whether the risk or error in administering the death penalty is sufficiently high both to outweigh the potential benefits of capital punishment and to offend the moral sensibilities that must support a free society’s criminal justice system."7
Just how often has the death penalty been used to kill innocents, inadvertently or otherwise, in the history of this country? In 1608, George Kendall had the misfortune of being the fist person executed in America. Kendall, who was a governing councilor in what is now Virginia, was shot for being a spy. Walt Espy, a leading researcher on the history of the death penalty, says that evidence indicates that Kendall was railroaded by angry opponents who wanted him removed from power.8
Espy estimates that as many as 22,500 people have been killed by states since the birth of our nation, and he adds that by 1984, of the 681 people executed in his home state of Alabama, at least 10 were found innocent after the fact.9 By extrapolation, we can reasonably estimate that at least 300 innocents have been executed in the history of our country.
According to the Death Penalty Information Center in Washington, D.C. since the reintroduction of the death penalty in 1970, 78 innocent prisoners have been freed from death row, and we can only guess at how many are being left behind for the executioner.10 The new millenium finds about 3,500 on death row in America, compelling one to wonder if the numbers suggested by Bedau-Radelet will be dwarfed in the next century.
Despite the fact that law enforcement occasionally admits to the possibility of wrongful conviction, even in death penalty cases, arguments tend to arise over fundamental questions: How often does injustice occur? Why does it occur? What can be done to reduce its incidence? This essay attempts to address those questions.
In 1996, Professors C.R. Huff, Arye Rattner and Edward Sagarin fueled the wrongful conviction debate when they published their academic treatise, "Convicted but Innocent: Wrongful Conviction and Public Policy." Though there is no easy way to determine how many innocent people are convicted every year in the United States, the Huff study attempted to quantify the phenomenon by tabulating the results of 229 questionnaires returned by a cross section of criminal justice personnel in Ohio and 41 state Attorneys General. Due to the participants’ backgrounds in the justice system, the results of the questionnaire are viewed as conservative by the authors of the study. Huff and his partners concluded that only one-half of one percent of all convictions result in injustice.11 This figure represents only eight serious "index" crimes which include murder, non-negligent manslaughter, rape, aggravated assault, robbery, burglary, larceny-theft, motor vehicle theft and arson.
The wrongful conviction rate expressed in the Huff study, conservative though it may be, indicates that in 1993 around 10,000 wrongful convictions occurred in the United States and many more occurred if lesser crimes are included. (The Huff study referred to the Department of Justice Bureau of Justice Statistics estimate of 2.85 million people charged with index crimes in 1993.)
Another study worth noting when attempting to quantify the frequency of wrongful conviction was conducted by Kalven and Zeisel in 1966. Their research on the American jury involved the cooperation of a large number of judges. In this study, judges were asked to secretly render their own verdicts while awaiting jury decisions: In four percent of the cases, judges had voted not guilty when juries returned guilty verdicts. Were juries wiser than judges in these cases, or are thousands being wrongfully convicted every year by ill-informed jurors?
An even more alarming wrongful conviction rate came out of a 1996 Justice Department report entitled, "Convicted by Juries, Exonerated by Science; Case Studies in the Use of DNA Evidence to Establish Innocence After Trial." The report found that of the 8,048 rape and rape-and-murder cases referred to the Federal Bureau of Investigation crime lab from 1988 to 1995, fully 25% of arrestees were found to be not guilty on the basis of forensic (DNA) test results. Just a few years earlier, the majority of the wrongly arrested innocents represented in this report would have probably been sent to prison, their voices added to the chorus of prisoners clambering for justice.
It sometimes seems that conservatives view the wrongful conviction issue as the bailiwick of liberals who can better relate to the individual and social costs of injustice. Despite the incalculable suffering intimated by the most conservative of estimates, social costs are magnified when we consider that one of the inevitable consequences of wrongful conviction is the freedom afforded actual offenders to continue their criminality, without regard for the political inclinations of their victims.
It is not uncommon for claims of innocence by prisoners to be viewed by jaded media and law enforcement personnel as pathetic attempts by desperate criminals to avoid their comeuppance. But in the United states, no single aspect of forensic science is serving to support claims of innocence as demonstrably as genetic testing, a technology that identifies the DNA (deoxyribonucleic acid) left behind at crime scenes.
Human DNA is similar to a fingerprint in it individual uniqueness. A difference between DNA and fingerprints is that DNA is found in every cell of our bodies, increasing opportunities to discern the identity of a perpetrator at a crime scene. DNA evidence has been collected from unusual sources and in quantities so minute as to seem insignificant. Crimes have been solved by DNA analyses of the saliva left on cigarette butts, postage stamps and even ski masks. DNA testing of single strands of hair has solved other crimes as has the perspiration left on a baseball cap. DNA’s forensic value is even more impressive when we consider that testing methods can yield results on evidence that is decades old.
We have come a long way since 1986 when DNA testing was first used to convict a man in Great Britain. The United States is now in the process of building DNA databases, and as the number of profiles increase, old murder and rape cases are being solved by the hundreds. Christopher Asplen, executive director of the National Commission on the Future of DNA Evidence, describes DNA as the "most reliable evidence."12 The commission, made up of experts chosen b y the National Institute of Justice, readily acknowledges the reliability of DNA testing as a forensic science. In an article in Reason magazine, Director Asplen stated that no other form of evidence for identifying human beings has gone through such rigorous scientific and legal validation as DNA has.13 Just as DNA has been a forensic windfall to law enforcement, it has also been an unexpected source of hope for the wrongfully convicted.
In September of 1999, the U.S. Department of Justice published a report entitled, "post conviction DNA Testing: Recommendations for Handling Requests." In the introduction, U.S. Attorney General Jane Reno underscores the importance of DNA testing as a forensic tool, not only useful in convicting criminals, but also in freeing those who were wrongfully convicted. Her message states:
‘The vigilant search for truth is the hallmark of our criminal justice system. Out methods of investigation, rules of criminal procedure and appellate process are designed to ensure that the guilty are apprehended and convicted while the innocent are protected. But while ours is a system to be cherished, it is not a perfect system, and those of use charged with the administration of justice have a responsibility to seek its continued improvement. These recommendations acknowledge and accept that responsibility. They were created because forensic DNA technology can strengthen our confidence in the judicial process.
In 1996, the National Institute of Justice (NIJ) issued the research report, ‘Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial.’ It told the stories of 28 men whose innocence was proven by applying DNA Technology to evidence after they were convicted and sent to prison. They had, however, served an average of 7 years in prison. Since the publication of that report, more than 40 other cases have been identified.
In response to NIJ’s report, I requested that the Institute establish a National Commission on the Future of DNA Evidence to identify ways to maximize the value of DNA in our criminal justice system. I commend the commission’s recognition of the need to address the post conviction issue immediately and I applaud the vision of a better system that these recommendations provide.
The analysis offered by these recommendations applies DNA technology to the appeals process while recognizing the value of finality in the criminal justice system. Where DNA can establish actual innocence, the recommendations encourage the pursuit of truth over the invocation of appellate time bars. In those cases in which DNA testing may be determinative of innocence, the recommendations encourage cooperation between prosecutors, defense attorneys, laboratories and the judiciary. Likewise, in those cases in which a DNA exclusion would be of no value in the determination of actual innocence, the recommendations discourage the filing of a DNA-based appeal simply because the attorney’s client requested it.
I encourage prosecutors, defense attorneys, the judiciary, victim advocates and laboratory personnel to apply these recommendations to their individual cases. Using DNA technology fairly and judiciously in post conviction proceedings will help those of us responsible for the administration of justice to do all we can to ensure a fair process and just result."14
In her message, Attorney General Reno recognizes that many criminal cases exhausted legal remedies before the advent of DNA testing, and for the sake of truth, the conventional time limitations imposed by the course should be relaxed to take advantage of new technologies. Hundreds, if not thousands, of innocent people in prison are hoping that these recommendations will finally yield justice, that their cases will be fully heard and the truth revealed, despite the adversarial system of justice that sometimes loses sight of its responsibility to pursue truth.
"The biggest problem with the commission’s recommendations, " says Peter Neufeld, Director of the Innocence Project, "is that they are only recommendations. Prosecutors don’t have to follow them if they don’t want to."15 Neufeld directs the Cardozo School of Law Innocence Project with Barry Scheck, and both men know all too well the legal and political hurdles that prevent promising technology from being used to free innocent prisoners.
The Innocence Project’s mission is to assist prisoners in using DNA technology to prove their innocence. The project performs legal triage to deal with the volume of requests it receives. In 1999, approximately 200 cases were actively pursued while a backlog of 1,000 cases waited their turn. In 70% of the cases reviewed by the Innocence Project, claims of innocence could not be supported with DNA, (no biological evidence was available for testing) and therefore had to be rejected. In some states there are no laws preventing the destruction of biological evidence after a jury has reached its verdict, undermining the DNA-bases appeals by plaintiffs.[sic]
The Innocence Project employs the resources of the Cardozo School of Law Legal Clinic, where law students do research and legal writing under the supervision of law professors. So far, their efforts have freed over 30 people across the nation, and Neufeld predicts that thousands of prisoners might be exonerated if only states would grant them the right to have DNA testing done.16
It has been Professor Neufeld’s experience that in most of the project’s cases, prosecutors fight against requests by prisoners to do DNA testing. Barry Scheck echoed that frustration at a meeting of the National Commission on the Future of DNA Evidence, saying that requests by the project to have DNA testing done on biological evidence that was being held in some state crime labs are often ignored or dismissed out of hand. Worse still, Scheck said, "We encounter every day across this country cases where DNA has exonerated individuals and the court system is extremely reluctant to let them go."17 In a recent case, Vincent Jenkins was exonerated by DNA evidence for a rape he was convicted of nearly 17 years ago. Mr. Jenkins was given a life sentence for the crime, and despite the fact he has proven his innocence, lawyers from the office of the Erie County District Attorney told a New York Times reporter in September of 1999 that they will continue to oppose efforts by Jenkins’ lawyers to have a federal judge rule that he should be freed because his innocence has been established.18
Why is this scenario being repeated across the country? Professor Scheck hypothesizes that the reluctance to free innocent prisoners occurs "because people pay a price when these things come out. Even if it’s nobody’s fault… it looks like a political embarrassment."19
To date, only Illinois and New York have recognized the near impossibility of getting prosecutors to cooperate in the pursuit of justice and have responded by enacting laws giving prisoners the right to postconviction DNA testing. As a result of such laws, both states are freeing wrongfully convicted prisoners at rates that exceed the national average. Sheck claims that because of these statutes, Illinois has seen 14 post-conviction exonerations and New York has seen seven, representing nearly one-third of all U.S. prisoners that successfully used DNA to prove their innocence in the last decade.20 For the sake of justice, both Scheck and Neufeld propose that similar statutes be enacted in other sates or by the federal government.
What about the claims of innocence that cannot be supported by biological evidence? A case in point occurred in 1982, when a 24-year-old black engineer named Lennell Geter was arrested in Dallas for an armed robbery. Despite the fact that Geter was on the job at E-Systems at the time the crime happened, he was still arrested, convicted of the crime by an all-white jury and sentenced to life in prison. Geter’s co-workers raised some money for his appeal and the NAACP entered the picture. Before long, an outraged media had revealed this travesty of justice: Dallas County District Attorney Henry Wade had been willing to lock Geter away forever, despite the fact that his whereabouts at the time of the robbery were easily verifiable.
It took two years for Geter to see justice, and he was released without apology from the district attorney. Upon his release, Geter expressed concern that there were other people in similar predicaments, without benefit of public support and media scrutiny. "People expect our judicial system to work in a 100% efficiency mode," the engineer said. "I know it doesn’t, and I’m a prime example. There other Lenell Geters out there."21 Charles Hartford, Geter’s supervisor at E-Systems added, "The law enforcement people and the district attorney didn’t try to find the truth; they just tried to get a conviction."22
Besides the obvious racial element in the Geter case, the ineptitude of police and the callousness of the district attorney were also contributing factors to a wrongful conviction. Mr. Geter’s exposure to injustice drove him to explore what could be done to punish those who had harmed him and maybe keep them from harming others. Geter’s lawyer, Edwin Segal of Dallas, describes well the limited recourse available to innocents who have suffered at the hands of malicious or incompetent police and prosecutors. He said, "There is absolute immunity on the part of the district attorney’s office. As long as they are dealing in good faith, nothing can be done. As for the police, they have a certain amount of immunity."23 Pace Law School professor, Benett L. Gershman added, "If a prosecutor withholds evidence, it’s not a crime. The fact is that criminal prosecutions of prosecutors for matters elating to their professional responsibilities in American law are virtually unknown, inconceivable, unthinkable."24 In their treatise on wrongful conviction, Huff and partners attempted to identify the sources and distribution of errors in our criminal justice system. They created a database of 205 cases and what they discovered was that in nearly half those cases of wrongful conviction, eyewitness misidentification played a role. In one out of ten cases, perjury by witnesses or negligence by criminal justice officials were cited as other causes of wrongful conviction. False or coerced confessions surfaced in almost eight percent of the cases studied. Though the Huff study concluded that several causes of wrongful conviction often work simultaneously, the following observation was made:
"If we had to isolate a single ‘system dynamic’ that pervades large numbers of these cases, we would probably describe it as police and prosecutorial overzealousness: the anxiety to solve a case; the ease with which one having such anxiety is willing to believe, on the slightest evidence of the most negligible nature, that the culprit is at hand; the willingness to use improper, unethical and illegal means to obtain a conviction when one believes that the person at the bar is guilty.25
More recently, the issue of witness manipulation is surfacing as a cause of wrongful conviction, especially in alleged crimes involving child abuse. In Massachusetts, the Fells Acres Day School, operated by the Amirault family, was the source of horrific child abuse allegations beginning over 13 years ago. The investigation of allegations, which exploited the suggestibility of children who attended the day care, resulted in the conviction of three Amirault family members. Though those convictions were eventually overturned, in August of 1999, the Supreme Judicial Court of Massachusetts reinstated the convictions, a decision that upset many people familiar with the case. The Christian Science Monitor noted that it was the "second time in two years the court refused to correct… a prosecution that should never have been brought."26 Dorothy Rabinowitz, writing in the Wall Street Journal, said that this was ‘a case built on testimony from children who were bribed and badgered until they said they were abused."27
In October of 1999, public pressure saw Cheryl Amirault released from prison through a modification of sentence, from prison time to probation. Given the investment of time and money in convicting the Amiraults, the justice system of Massachusetts was reluctant to admit fault in the matter. In exchange for her freedom, Ms. Amirault had to agree not to oppose the sentence revision, give any television interviews, or pursue further efforts to prove her innocence. So much for courts being fact-finding forums. Though Cheryl Amirault’s mother was freed before she died, her brother, Gerald, still languishes behind bars.
A similar story was recently repeated in Edenton, North Carolina, where the owner of the Little Rascals Day-Care Center, Robert Kelly, was vindicated in the fall of 1999 after having been convicted of child sexual abuse charges in 1992 and sentenced to 12 consecutive life terms.
On the West Coast, an even more bizarre case is still unfolding, one where 43 people were brought up on child abuse charges in 1994 and 1995 in the small town of Wenatchee, Washington. Prosecutors alleged that groups of Wenatchee citizens gathered once or twice a week for the purpose of sexually abusing scores of children.28 Two girls, then aged 10 and 12, pointed out most of the 23 homes where these abuses had allegedly happened and named many of the adults who were supposedly involved. These two star witnesses, as it turns out, were living in case detective Robert Perez’s home when the allegations were made. The relationship between the girls and the detective resulted in nearly 29,000 counts of sex crimes being brought before the grand jury, including allegations of group sex and even church orgies.
As the incredible stories of abuse unfolded, the Washington Department of Social and Health Services was asked to provide counseling to the victims. After interviewing a 15-year-old who recanted her story of sexual abuse, Social Worker Paul Glassen reported his findings to investigators. Shortly afterwards, police entered Glassen’s office and arrested him for witness tampering and several other offenses. Mr. Glassen was fired from his job and his name began showing up on Detective Perez’s child molester lists. Glassen fled to Canada to avoid imprisonment and fought the allegations against him from Vancouver, British Columbia. Before he succeeded in clearing his name through civil suits, Glassen had been made a suspect in the molestation of over 50 children.
At this time, Wenatchee prosecutors are fighting against the groundswell of public support that is resulting in the reversals of the convictions they fought so hard to win back in ’94 and ’95. It is becoming increasingly apparent that prosecutors may have succeeded in ruining the lives of 43 innocent citizens, imprisoning 21 of them, by responding to the community outrage engendered by a flawed investigation. One would think such travesties impossible in this information age, a time when science supposedly reigns over ignorance. Unfortunately for the wrongfully accused, in matters involving children, people tend to be guided by heartfelt passions instead of objective clarity.
The Reverend James McCloskey, Director of Centurion Ministries, another group that works to free innocent prisoners, alludes to public apathy as another cause of wrongful conviction: "I realize I am a voice crying in the wilderness, but I believe that the innocent are convicted far more frequently than the public cares to believe, and far more frequently than those who operate the system dare to believe. An innocent in prison, in my view, is about as rare as a pigeon in the park."29
In its 20-year history, Centurion Ministries, an organization operated by volunteers and funded with donations and grants, has freed 20 people from prison. As is the case with all organizations attempting to correct injustice, Centurion Ministries is forced to severely stretch its limited resources. At the start of 2000, there are 14 cases to which they are committed, cases sifted from the thousands of pleas for help they receive from prisoners.
In his experience in freeing the innocent, Reverend McCloskey estimates that 10% of people convicted of serious crimes are innocent. He attributes the epidemic of injustice in part of the work performed by crime lab "experts".
"We see instance after instance where the prosecutor’s crime laboratory experts cross the line from science to advocacy. They exaggerate the results of their analysis of hairs, fibers, blood or semen in such a manner that it is absolutely devastating to the defendant. To put the defendants at further disadvantage, the defense attorneys do not educate themselves in the forensic science in question, and therefore conduct a weak cross-examination. Also, in many cases, the defense does not call its own forensic experts, whose testimony in numerous instances could severely damage the state’s scientific analysis."30
Another source of injustice stems from police officers’ willingness to do most anything to obtain a conviction, especially when encouraged overtly or tacitly by prosecutors. "What would surprise and even shock most jury members is the extent to which police officers lie on the stand to reinforce the prosecution and not jeopardize their standing within their own particular law enforcement community.," said Reverend McCloskey. "The words of one 25 year veteran senior officer on a northern New Jersey police force still ring in my ears: "They [the defense] lie, so we [the police] lie. I don’t know one of my fellow officers who hasn’t lied under oath."31
Lies are one thing, but as the well-publicized incidents of police brutality in New York City indicate, sometimes police get so far out of hand as to become the criminals. One recent case involves Los Angeles’ anti-gang CRASH unit, an acronym that stands for Community Resources Against Street Hoodlums. An officer in the employ of the CRASH program was caught stealing cocaine; in exchange for a lighter sentence, he agreed to describe the criminal activities of fellow officers, including the brutal shooting of a handcuffed, unarmed teenager. The revelation of criminal activities of several police officers has resulted in two men being freed from prison with the likelihood that dozens will follow. Jesse Walker, who wrote about the CRASH incident in Reason magazine, asked a valid question regarding police criminality: "Who’s supposed to protect us when a militarized police force starts adopting gangster values?"32
In researching for this essay, I found hundreds of documented cases where innocent lives had been destroyed by injustice for any number of reasons, some simple and others complicated. Facts show that far too frequently, despite our safeguards, wrongful convictions do occur. The facts presented in this essay prove that you too could become a victim of injustice through no fault of your own through any one of several failings in our justice system. To end the national disgrace of wrongful conviction, caring citizens must first agree that the problem exists. Martin Luther King, Jr. once said, "Injustice anywhere is a threat to justice everywhere." His wise observation supports the proposition that injustice in a courtroom invariably results in a loss of trust in our judicial institutions. How can we reduce the incidence of injustice by wrongful conviction? What more can we do to protect the integrity of our justice system? Here are some ideas to consider:
In view of the inevitable errors in judgment to which humans are subject, abolish the death penalty and replace it with life imprisonment. The possibility of killing even one more innocent citizen should be anathema to a society that prides itself on the equitable distribution of justice. Why deprive ourselves the opportunity to correct errors in judgment?
Enact state laws to make it illegal to destroy biological evidence, at crime scenes until the value of that evidence is ascertained through DNA testing.
Also enact state laws allowing for the testing of biological evidence, at state expense, in cases where such testing could support claims of innocence or establish guilt. These laws should also provide for the education and training of law enforcement personnel regarding DNA testing and the procedures for gathering biological evidence to conduct that testing.
Provide police academy recruits with case histories of wrongful conviction along with academic research on the subject. Police who are aware of the incidence and causes of wrongful conviction would be better able to avoid the pitfalls that lead to innocent people being arrested.
Modify our adversarial system of justice from one focused on pitched courtroom battles to one focused on the pursuit of truth. Harvard professor, Lloyd Weintraub, offers a starting point:
"Transfer of investigative responsibility from the police to a legally trained judicial officer allows unification of the independent investigations of the prosecution and defense into a single investigation, the outcome of which is a careful conclusion supported by the evidence…. The declared purpose of the investigation should be to find out what happened, not develop a case for either side."[33]
Give judges greater latitude to work with juries during trials, allowing for better understanding of evidence by having juror questions and concerns addressed.
Provide state courts of appeal with budgets for hiring independent investigators to be used in cases where claims of innocence or accusations of guilt cannot be supported by biological evidence, particularly in cases where eyewitness identification is the sole evidence.
The financial constraints of defendants should not limit, in any manner, access to justice. Generously compensate court appointed attorneys to improve the quality of representation for indigents.
Protect defendants from the pressure to plea bargain in cases where innocence is supported by evidence or lack of it.
Insist on accountability for any player in the judicial system who deviates from the obligation to arrive at justice through the pursuit of truth. If law enforcement officials knowingly alter or fabricate evidence in order to achieve a conviction, they should be removed from their positions of trust. Malicious or incompetent agents of the court should not be protected by state law from civil lawsuits seeking redress for harm caused to innocent citizens.
Ban prosecutors from soliciting or accepting testimony from jailhouse informants. Desperate prisoners, hoping for favors or relief, typically make unreliable witnesses.
Establish state protocol to assist wrongfully convicted citizens with reintegration into free society. Those protocol[s] should also address the issue of fair compensation for the losses and suffering caused by injustice.
Establish more law school legal clinics and enlist them to provide legal assistance to prisoners filing appeals. The success of legal clinics in rooting out truth and pursuing justice is so indisputable as to merit the financial support of state and federal governments.
Perhaps fewer innocents would fall victim to wrongful conviction if we demanded that our burgeoning prison-industrial complex measure its success, not by the growth of its inmate population, but by its decline.
In closing, I would like to pass along messages from two men who survived the ordeal of wrongful conviction. In a telephone interview, Kerry Max Cook explained that he made it through 17 years on death row in Texas because of his faith in a higher power. But it was the knowledge of his innocence that gave him the courage to engage the state in legal battle on numerous occasions, succeeding in overturning his case not once, but three times before he was finally freed.
In a recent television interview, Reuben "Hurricane" Carter, who survived 19 years in the New Jersey Prison system, convicted of a tripe murder he never committed, encourages people who suffer from the ignoble fate of wrongful conviction to fight the injustice they endure by having the fortitude to dare to dream. His experience fighting injustice from a prison cell also yielded a caveat: "The one thing I learned in prison is that bitterness consumes the vessel that contains it."
May the courage, wisdom and success of all people who have succeeded in their battles to correct injustice inspire those whose fights are still young.
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This essay was included in Frontiers of Justice, Vol 3: The Crime Zone, published by Biddle Press, Brunswick, Maine, 2000 |
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Editors’ Note: The essays in this volume are written in the first person by those who openly admit their involvement in the crimes that sent them to prison. This essay, "Trials of Innocents," is an exception; the editors felt it was important to include a contribution on behalf of the many men and women in this country who are serving time for crimes they did not commit. |
RESOURCES
Center on Wrongful Conviction, 357 East Chicago Avenue, Chicago, IL 60611, (312)503-8576. A collaboration between Medill Journalism School and Northwestern University Legal Clinic. The legal clinic assists prisoners whose cases withstand the scrutiny of the journalism school.
Centurion Ministries, 32 Nassau Street, Princeton, NJ 08543, (609)921-0334
Assist prisoners, especially those with long sentences or on death row, through the application of conventional investigative techniques.
Innocence Project, Cardozo School of Law, 55 Fifth Avenue, New York, NY 10003, (212)790-0354. Works with prisoners in advancing DNA issues.
Association of the Wrongfully Convicted, 155 Delaware Avenue, Toronto, Canada M6H 2T2.
FOOTNOTES
REFERENCE LIST
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Permission is granted by Biddle Publishing Co. to include the chapter "Trials of Innocents" by Dennis Dechaine from the book Frontiers of Justice Vol 3: The Crime Zone on the website www.trialanderrordennis.org as requested by morrison bonpasse. |
