JEFFREY BROWN: James Bain is a free man tonight. Yesterday, he was released from a Florida prison, where he had spent 35 years for a crime he didn’t commit. A court-mandated DNA test proved Bain was wrongly convicted of sexual assault in 1974.
JAMES BAIN: I am going to see my mom, the one I just got off the phone to. That’s the most important thing in my life at this moment, besides God. The one thing I have to say about this DNA, ladies and gentleman, it’s going to do one of the two. And I tell these gentlemen in prison that have this type of case, it’s going to do one of the two, free you or lock you.
JEFFREY BROWN: Bain’s release was in fact the third of its kind just this week, all the result of work by the Innocence Project based at the Benjamin Cardozo School of Law at Yeshiva University.
According to the Project, since 1989, there have been 248 post-conviction exonerations based on DNA evidence. Seventeen of those exonerated served time on death row. Twenty-seven states, the federal government and the District of Columbia, compensate individuals who were wrongfully incarcerated.
Joining me for an update is Barry Scheck, co-founder and co-director of the Innocence Project.
Well, Mr. Scheck, James Bain was held longer than anyone now exonerated by DNA testing. But is his case unusual in any other way?
BARRY SCHECK, co-director, Innocence Project: No. As a matter of fact, what’s remarkable about his case is that it’s a single-perpetrator sexual assault case with a mistaken identification. And the single greatest cause of the conviction of the innocent has been eyewitness misidentification.
JEFFREY BROWN: Eyewitness, in most of the cases, you still find that that’s what lead to the wrongful conviction?
BARRY SCHECK: Yes.
I mean, we know what the causes of wrongful convictions are, eyewitness misidentification, false confessions, invalid or improper forensic science, prosecutorial police misconduct, or inadequate lawyering, jailhouse snitches. Those are the causes, but the one that has caused more miscarriages of justice is eyewitness identification.
And we now know, after 30 years of really solid social science research, how to minimize that with best practices that can reduce the number of misidentifications, without reducing the number of correct ones.
JEFFREY BROWN: Tell us a little bit more about the DNA evidence. What is it, and how often is it available so many years later?
BARRY SCHECK: Well, the trick, frankly, is finding the evidence.
And, here, this case was 1974. And the problem — Mr. Bain was asking for testing for quite a long time, but the problem always is finding the evidence. In Dallas, Texas, where there have been more DNA exonerations than any city in the country, the main reason for it is that they can find the evidence.
It’s also lead to the creation of a wonderful conviction integrity unit in the Dallas District Attorney’s Office that really assists the Innocence Projects in trying to get people out. But it’s finding the evidence that’s the biggest problem.
JEFFREY BROWN: Now, you said Mr. Bain was trying to get people to look at it, and that leads to an obvious question. How easy or difficult is it to get a court to take a new look at DNA evidence?
BARRY SCHECK: Well, when Mr. Bain started doing this, it was very difficult. We had a lot of trouble in Florida getting courts to allow DNA testing. We had one case that went up and down through the system, Wilton Dedge.
Finally, Florida has created a post-conviction DNA statute. And now 48 states have such statutes on the books. And the federal government has one as well. But, when we started this work, there were no states that had post-conviction DNA statutes. And, in fact, trying to get into court was very difficult, because there were statutes of limitations, where courts wouldn’t even look at newly discovered evidence, even evidence as powerful as DNA testing.
JEFFREY BROWN: Now, I wonder, how often is the true perpetrator found through DNA testing? How often does that occur?
BARRY SCHECK: A lot.
Right now, there are 105 individuals who have been identified as the real assailants in these cases, out of the 248 post-conviction DNA exonerations. And what’s really important to emphasize here is that DNA is only present in about 10 percent of cases, in other words, biology that can be tested, that can be determinative of who really committed the crime.
So, what about the other 90 percent of the cases where there is eyewitness misidentification and false confessions and bad lawyering and misconduct and invalid or improper forensic science? That is the challenge.
We really need to learn from this incredible set of cases lessons which can help enhance the capability of law enforcement to catch the real perpetrator, at the same time that we protect the innocent. And that’s the real meaning of these cases.
JEFFREY BROWN: Well, there was a congressional hearing this week where — about the backlog of cases where there is evidence still awaiting testing. This was specifically, I think, mostly about rape cases.
How big a problem is that, just not only to find the evidence, but then that it’s sitting around waiting for somebody to get to it?
BARRY SCHECK: Well, that’s a very serious problem. And it’s confounding, because — you know, take sexual assault cases. And here in New York City, we had to work with the prosecutors off the police department to get them to look at all these unsolved rape cases that were just piling up.
So, it’s absolutely essential. As you wait to do DNA testing on an unsolved case, the real assailant can go out there and commit a lot of rapes and murders, because, very often, these are serial offenders. And when the cases are in backlog, you know, you can find that the same person committed more than one crime if you begin to test them.
So, so much could be done to improve the criminal justice system if, within seven to 10 days after the commission of a serious crime, you had DNA testing. They have had that in the United Kingdom for a long time. And it has significantly improved the clearance rate in cases.
JEFFREY BROWN: And just in our last minute, finally, I want to ask you about the compensation system. I understand that Florida just last year passed a law that someone in this situation would be paid I think it’s $50,000 a year per year served. That will help in the case of Mr. Bain. But I gather it’s a rather haphazard system around the country?
BARRY SCHECK: Yes. And there are laws in some jurisdictions, not in others. There are restrictions that shouldn’t be there.
And, frankly, it’s not enough money. You know, just think about it. When these cases get to trial and federal civil rights actions, when the very small needle can be threaded by a claimant, jurors routinely give them a million dollars a year, as well they should, given what, really, somebody is entitled to who has been incarcerated in a maximum security prison as an innocent person for even a year.
JEFFREY BROWN: All right, Barry Scheck of the Innocence Project, thank you very much.
BARRY SCHECK: Thank you.