Burden of Innocence
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[How difficult is it for someone to sue the state after they've been exonerated?]

It's almost impossible. There are a number of obstacles that have been put up over the years to make it very difficult for wrongfully convicted people to get compensation from the state. First of all, all police officers enjoy qualified immunity, which is a doctrine that means that you can't just make them responsible based on negligence. You have to show that they were intentionally responsible, or at least grossly reckless.

There's no question that the state has a moral obligation to compensate every single person who can prove that they were factually innocent and they were wrongly convicted.

Prosecutors who can suborn perjury in a trial have absolute immunity for that. They can't be touched, civilly. Also, you're talking about cases that happen 15, 20 years ago. Memories are lost, evidence has been destroyed. It's very, very difficult for those people to collect.

[How do you win these suits?]

Well, in a few states, compensation statutes have been enacted that are focused on people who have been wrongly convicted. The other thing that we're trying to do now is we're trying to rely on the civil rights statutes that were enacted at the end of the Civil War to protect recently freed slaves. I think that's probably an apt analysis, because to pluck these people from the street and kidnap them like that, and torture them for 10 or 15 years while they're claiming their innocence is an enslavement. So we're trying to use those very same statutes to help these people get some compensation, and we're having some success.

[Some success, but not too much?]

It's a slow process. One of the things that happened is that we assumed that most of these misidentification cases were simply mistakes. But once you do the post-mortem on these cases, and you start digging away at it, and digging away, you find out it's not just a matter of mistake. It's not just serendipitous. Rather, it's misconduct by cops who are overreaching; they think they have the right guy, so [they think], "Why not color the testimony a little bit? Why not bend the time. Why not modify the police reports? Do whatever we can to make sure that a guilty guy gets convicted."

It's bad to do it even when the guy is really guilty; it's obviously much worse to do when the person turns out to be factually innocent.

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Neufeld, with Barry Scheck, founded The Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University. In this interview with FRONTLINE, Neufeld discusses the difficulty of filing a civil suit on behalf of exonerated individuals -- even in cases with documented police or prosecutorial misconduct -- and why the system has been so resistant to change. This interview was conducted on Dec. 4, 2002.

[There is misconduct?]

Oh, we found misconduct in every single case that we've looked at. There's no case that we've looked at now where there wasn't significant misconduct, either by police, by prosecutors, by the crime lab people. All the cases that we've looked at, it's not simply "Whoops, a terrible mistake has occurred." It's generally something more sinister.

[But even in some cases where there is misconduct, you can't sue, right?]

Even the ones that are more sinister, you still may not be able to sue successfully, because you have statutes of limitation -- three, five years, in many jurisdictions -- for events that happened 15 or 20 years ago. ...

[Why do people oppose compensation?]

... I guess there are some people who think that the Earth is still flat. I mean, I can't answer that question logically. Why is it that so many people oppose post-conviction DNA testing? It's a simple test; it's inexpensive. If you've got the wrong guy, the state will save money on it. You'll correct a wrong. You may even find out who the real perpetrator is. But nevertheless, 50 percent of the prosecutors we deal with oppose post-conviction DNA testing.

Opposing compensation? It's the same thing. Because when you actually compensate somebody, you have to have this kind of catharsis, where you admit that a terrible mistake has been made and that maybe the people who we trust with our security -- our police, our prosecutors -- are at fault. And that's a horrible acknowledgement to make for some people.

[Isn't it enough that the sentence is vacated?]

No it's not. One of the best examples is a guy named Earl Washington in Virginia. Earl received an unconditional pardon for a capital murder and rape he did not commit. Yet to this day, the police in that town and the prosecutor say they believe Earl is guilty. They refuse to prosecute the man whose DNA matched the crime scene evidence. They refuse to commit to a public apology. They won't do those things, even though the conviction was vacated and he received an unconditional pardon.

So for a lot of these folks who are trying to help, suing may be the only opportunity to have a full public airing of exactly what went wrong and who was responsible for this horrible miscarriage of justice. In so many of these cases, when the conviction is vacated and there's a dismissal of the indictment, nothing is said by the judge. It said, "Well, there's a DNA exclusion, therefore on the motion of the defendant, and with the consent of the prosecutor, the conviction is vacated, the indictment dismissed," and everybody goes home.

[What does that mean?]

Doesn't mean anything, because no one is going to change the way they do business. One of the most important reasons for civil lawsuits, for civil rights lawsuits, is not just to get compensation for somebody who's been wrongly convicted, but to publicize the causes of that miscarriage of justice. That's why people sue -- to bring about change, to bring about reform. It's not just about compensation. ...

[Give an update on the cases of Ron Williamson and Dennis Fritz.]

Fritz and Williamson is not over yet. You have to remember, the civil lawsuit never went to trial. It settled. There's no order preventing people from talking about what we learned in discovery. There's no order that would prevent us from going to the U.S. attorney and saying, "As a result of what we learned in discovery in the civil case, certain public officials past or present should be indicted and criminally prosecuted."

We have an obligation as members of this community -- not just to represent our clients and get them compensation, but to do everything we possibly can to bring those people who engaged in those misdeeds to justice; to do everything we possibly can to see that these communities change their laws, change their law enforcement methodologies and techniques; to reduce the likelihood of other innocent people being wrongly convicted in the future. Our job wouldn't be done unless we went all the way. ...

[Shouldn't there be compensation?]

Oh, there's no question that the state has a moral obligation to compensate every single person who can prove that they were factually innocent and they were wrongly convicted. There's absolutely no question about that. The fact that there are certain states that are unwilling to cross that bridge is shocking.

In Oklahoma, for instance, the governor said that if they passed a bill allowing compensation, he would veto it, because it would mean that we would have to admit that we had done something wrong. When it's been proven time and time and time again that law enforcement officials in Oklahoma had done something wrong, [that] means that there's a serious disconnect between what we all know to be the truth and what these public figures are posturing as the truth.

[Did you think it would be so hard when you first started examining these cases?]

I would have to say that, when we first started The Innocence Project, most of what we now realize, we didn't begin to think about back then. First of all, we initially just tried to get people out of prison who were innocent. We didn't think that we could also be about reforming the criminal justice system to implement remedies that would reduce the likelihood of wrongful convictions. We're doing that now.

We thought it would be enough to get people, out and they would be so pleased that they got out, that everything would be great. Obviously, that was incredibly naïve of us. Most of the people we've gotten out have had very, very difficult times adjusting -- emotionally, financially, work-wise, sexually. You name it, those are the problems they've had. So it's really incumbent on all of us now to sort of pitch in and come up with remedies for them, as well.

... I'm learning every day from this experience. So much of what we learn through The Innocence Project is counterintuitive. I never thought that innocent people would confess to a crime they didn't commit. Twenty-five percent of our cases have false confessions; I would have never thought that in a million years. I would have never imagined that police so routinely encourage eyewitnesses to pick somebody out when the eyewitness isn't sure, just because the police officer is sure. I would never have imagined that, in 50 percent of these cases, there was police and prosecutorial misconduct. I thought most people were above that. I could never have imagined how many lawyers are completely incompetent -- just don't do their jobs at all, don't give a damn, even if their client gets executed.

That was a rude awakening.

[Did you ever find a prosecutor who cooperated with you?]

... I've yet to have a case where the prosecutor who was responsible for the conviction joined in asking for the pardon. It has to be someone who can at least say, "This didn't happen on my watch."...

It's very difficult for any of us who play a role in the criminal justice system and played a role in the wrongful conviction of an innocent person to acknowledge our culpability. Whether we're the defense attorney, the prosecutor, the police officer, it's not an easy thing to do, or even the initial victim of the crime. But you know there are a few cases -- very few. ...

[Talk about Neil Miller.]

I remember the day I walked into court in Suffolk County, in Boston, to walk him out of prison. At first blush, he was very bookish. He was a philosopher, he was a poet, and he had beautiful things to say. I thought to myself, "My goodness, he's going to have an easier time dealing with life when he gets out, because he's so rational, he's so thoughtful, he's so reflective."

I can now look back -- this was almost two years ago -- again, boy, I was really, really pretty naïve. Neil's had a really terrible time adjusting. He hasn't gotten any help or support from the state, the city. He hasn't even gotten support from the legal community that should be helping him, that really cares about these issues. Frankly, the people of Boston, Massachusetts, have done him a terrible disservice.

[What can be done for Neil?]

There's a lot that one can do for Neil Miller. Immediately, there should be a far-reaching compensation statute passed in Massachusetts, which would at least help him to get some measure of peace. Can you restore him to the way he was before he was plucked from the street and held hostage for a decade? Of course not. But you can give him support.

First of all, you can let him know that the state really cares about him, that they want to give him a substantial amount of financial compensation, that they want to give him an education, that they want to give him therapy, that they want to give him a good job -- not a garbage job, but a good job. That would be a beginning: [to] recognize him as a victim just like people have been victims of terrorism, of torture, of genocide. He's no different from those people. ...

[How is the prison experience different for the innocent person?]

Look. Prison is a tough situation for anybody in this society, but we have made a determination that it's an appropriate punishment for the commission of certain criminal conduct. So at least there's some kind of psychological acceptance of this reality and these consequences.

But if you're completely innocent, OK, and you have been removed from your family, from your job, from your friends, from your neighborhood, and put into this kind of surreal institution where no one believes you ... that is psychologically almost incomprehensible.

I can only [compare it to] people who were in concentration camps for a number of years, but frankly, even those people knew why they were there. They were there because they were the wrong race. They were the wrong ethnicity. They had the wrong politics. But at least everybody knew that was the reason. Here, there was absolutely no reason, because they were in fact innocent. I can't think of anything that would be worse than that, psychologically. ...

The whole theory of tort law in America is that you can never make somebody whole. Obviously you can't turn the clock back. ... Think about it. These young men, their peers during those 10 or 15 years got married, went to college, started careers, had kids. And what did they do? They sat in prison and punched license plates, or they were shipped down to Texas to a border jail. ... I can't imagine anything worse. ... My God, we should do as much as we can to reduce the pain, the horrible pain and suffering that these guys endure for the rest of their lives. That's the duty we have -- to give them a cushion.

[Neil wants his record to be expunged.]

I would hope that one day Neil's records can be expunged so it will be easier for him to get employment. But, you know, expunging the record doesn't answer the question, because if your record is expunged and an employer says, "Have you ever been convicted of a crime?" you can honestly answer the question "No." But then the next question is, "OK, so tell me what you've been doing for the last ten years of your life?" What's he going to say? "I had an address at Walpole"? That's the reality.

So the problem is it's not enough to expunge a record. These guys are not going to get jobs, because people don't want to hire somebody who spent the last 10 or 15 years in prison. They think, whether it's justifiable or not, that even if they're innocent, they're now damaged goods, because they were in prison. They picked up those bad habits, they hung out with those kinds of people, they don't have a good work ethic, they don't have the prior psychological composition that we want in an employee in this company.

They may be right about that. So that's just another level of damage ... and why we have to compensate them financially. I mean, the truth is that a lot of these folks won't be able to work again. We have to accept that reality. It's our fault, and we have to pay for it.

[Compensation is the remedy?]

I think substantial financial compensation is a beginning of a remedy. Obviously, the most important remedy is reducing the causes of wrongful convictions, prospectively. But how else do you take care of these people? It's not even about legal issues or political issues. It's morally; if a guy didn't do anything wrong, and the state denies him his freedom, denies him his love life, denies him his children, denies him a career for 10 or 15 or 20 years, how can the state not want to take care of him for the rest of his life now? How can they not want to give him money to at least make the remaining years of his life a little bit less painful?

I don't see how any just and humane society would refuse to do that. It doesn't make any sense to me.

[But they don't.]

Well, maybe there are elements in the society that aren't as just and humane as I thought they were.

[Has the issue of compensation for wrongful imprisonment moved to the forefront because of all of the publicity surrounding DNA evidence?]

I think that DNA is reeducating the public on a lot of issues, obviously. They realize now for the first time that the criminal justice system is a lot more vulnerable than we ever thought it was. They understand that police and prosecutors can engage in misconduct more than they ever considered possible. It's also educating us, probably, [about] this phenomena of wrongfully convicted people being dumped on the street and not having the means to support themselves. And so we have to take that on.

I agree that there's probably a learning curve before we can achieve some measure of satisfaction. It took years to get states to pass bills to get people access to post-conviction DNA testing. It may take a number of years to get states to pass compensation bills, although I would hope that, since there is no logical, rational reason to oppose compensation, that states will eventually come to their senses.

Passing these bills, it's not a fiscal issue where they can say, "Oh, we can't afford it." That's not what it is at all. It's a question of moral responsibility. That state has to assume that moral responsibility, and once it does, then these people will be compensated.

[But the states don't want responsibility?]

Some do, some don't. Obviously, that governor in Oklahoma didn't want to, because he said, "If we assume that moral responsibility, we will be acknowledging that we made mistakes. And we don't make mistakes." That's nonsense. You know? There are always going to be elected officials who take that kind of nonsensical approach. But frankly and fortunately, there's an electorate out there who can compensate for those kind of fools. ...

[Do people know the truth about life in prison?]

You know what's interesting is, when these guys come out -- because we've walked so many of them out of prison off of Death Row -- they say they feel great. The first 15 days is this sense of euphoria. They all experience it: "My first slice of pizza, my first time re-experiencing love."

There's a fellow we just got out. He was a high school swimmer, and he hadn't been allowed to go swimming in 15 years while he was in prison. First thing he did, even though it was November in Montana, he wanted to jump into a lake, take his clothes off. That was the most important thing. All these sensations are fantastic.

And then what happens is, the euphoria wears off, and this depression takes hold. It's a depression that obviously developed over 15 or 20 years of imprisonment. It's a depression because, as much as you're elated with your freedom, you realize that you can't be free of the 15 years of torture that you've endured.

I mean, just think about it. I always remember this "Twilight Zone" [episode] when I was a teenager, where the guy has a recurring nightmare that he's in prison and he's about to be executed. He knows he's innocent, and he knows that the call is going to come from the governor saying he's innocent, but it's going to happen after they electrocute him. And it happens. He's electrocuted and then the call comes saying, "He's innocent, let him go." Then he wakes up and it's the same dream again, and the same dream again.

Well, these guys were living that TV show for real for 10 or 15 or 20 years. You ask any psychiatrist or psychologist in the world, and they'll tell you that does permanent damage to somebody. It's not something that you can just sort of ignore or eliminate from your psyche. It doesn't work that way. You don't have to be a professional to know that. It's obvious.

... Prison, for them, is not the same as prison for a guy who is guilty. It isn't. It's qualitatively different. These are guys who were forced to go -- a lot of them were rape and rape homicide defendants -- they were forced to participate in these sexual assault therapy groups. They refused to do it. They were so principled that they were told they wouldn't get paroled. I'll tell you something, this is amazing to me -- as bad as prison is, these guys said, "I'm not going to participate in those groups and admit to a crime I didn't commit, even though I realize by doing so, I'm going to have to spend more years in prison." You had to participate in these groups as a precondition for being released on parole. I think I would say almost anything they wanted to hear to get the hell out of there. But these guys didn't do it.

So think about that torture, think about that state of mind that they were living with day in and day out. I don't think you could put it in words.

 

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published may 1, 2003

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