How do you decide if there's a lawsuit against the state?
... Well, with great difficulty. You have to reinvestigate the case. You have to see if there is any kind of bad-faith misconduct that can bring about a basis for a federal civil rights lawsuit. Unfortunately, in the vast majority of these cases, even if there is misconduct, very often it's immunized; even if there is gross negligence, there's no basis for a lawsuit. Even if people violated all the rules that they're supposed to follow, there's not a lawsuit. So they're rare, not frequent. ...
They have what's known as "qualified immunity," and prosecutors, frankly, for the things they do in the case, have absolute immunity. When people get on the witness stand and testify, they have absolute immunity for their testimony. So you can criminally suppress exculpatory evidence if you're a prosecutor. You can lie if you're a police officer or a scientist on the witness stand, and you can't be sued for that conduct.
So it's very, very hard. You have to find certain conduct which fits into just the right legal niche. Then, even when you do that, and you bring the lawsuit, it's very expensive. It takes a long time. They can take what they call interlocutory appeals -- appeals in the middle of the case. They can drag these things out for years and years and years, so lawyers don't want to take them; they're too expensive. The prospect of winning is not very great, in many instances -- too risky. It's not a good business proposition, so most people won't do it. ... It is a very technical and very difficult area of the law. ...
On the other hand, they're very important, because these lawsuits can be brought -- not just to vindicate the client and get compensation, although no compensation's ever going to make up for what these people have suffered -- but these lawsuits have the potential to make police and law enforcement pay for practices that they should have ceased doing a long time ago.
We're really enthusiastic about the lawsuits concerning mistaken eyewitness identification procedures. We might be able to change that. We are really enthusiastic about lawsuits where we can attack interrogation procedures that should be changed. We're really enthusiastic about lawsuits where we can clean up bad forensic science -- just get these people that shouldn't be in the laboratories out of there, and raise the standards for the laboratories.
Those are all important lawsuits, because if county and state governments have to pay for making law enforcement better, they will. It shouldn't be that way; making law enforcement better not only protects the innocent, it helps them go out and apprehend the guilty. So this is something they should be doing. But often, unfortunately, the way it works in American society, you have to sue them and make them pay before they change the practices. ...
How many cases of wrongful incarceration are honest mistakes?
A lot of them start off as honest mistakes. They start off as mistaken eyewitness identification. The victim of a crime or a witness really believes that the person being pointed out is the criminal. But as the case goes on, details emerge that don't fit when it's an innocent person. The issue is, what happens to those details? Do they get disclosed to the defense lawyers? Do people act on them or do they get hidden?
Unfortunately, what we find in so many of these cases, they get hidden by either police or prosecutors. There are some cases that are just mistakes. There are some cases that are just mere negligence. But when you start scratching the surface, I'm afraid to say that most of them are not just honest mistakes.
There's often malice, yes. ...
You've got to remember -- when these people get out of prison, they have nothing. They are terribly wounded -- spiritually, financially, physically -- and it's hard to stay the course, period. ... I haven't met one of these exonerated individuals who can sleep. Virtually all of them have some form of post-traumatic stress disorder. ... And it's not just what happens to you in prison, the fights, the attacks on your personally. What people don't understand is that, when you witness violence, when you see people killed in front of you, when you see people stabbed and wounded terribly, it makes an almost greater impact on you. Those are the nightmares that repeat again and again and again. I haven't met one -- not one -- who can sleep.
How does compensation help?
Compensation with money can never make up for these losses. It can't make up for the parents, for the siblings, for the children that have literally died while you spent decades in jail. It can't make up for all of those years of your life where you were just rotting away in a hole, and everybody else was growing, living, moving on with their lives. It can never make up for that.
But you can give them money, and money does give you a certain amount of material comfort. It will never help you spiritually, but it gives you material comfort, and you can move on as best you can. You'll never get over it, you'll never get closure, but you might learn to live with it.
But if you don't have any money, you don't have any compensation; you can't afford medical care; you can't afford psychotherapy; you can't get a car to drive around; you can't get a job; and you can't further your own education. Well, it gets all that much worse, doesn't it? And that's what happens to so many of these people.
You think we have to have compensation laws?
The most rational and decent thing we can do as a democratic society is take all this blaming out of it. If you can prove that you're innocent by clear and convincing evidence, then like we have it in New York State, you should be able to collect for past and future pain and suffering, past and future lost wages. It's that simple.
You don't have to have runaway jury verdicts. You can do it in front of a judge. The point is you have to do the little that we, as a society, can provide -- some material compensation for all the lives that have been lost when the system fails. ...
Why is there so much opposition to compensation?
The opposition to compensation befuddles me. I don't understand it. I think people don't understand the issue. They're just afraid of paying more money. They're afraid maybe of plaintiffs' lawyers or something like that. I think it's just money. I just think that legislators are reluctant to let any dollars go from the state treasury. It's that simple.