Is there such a thing as a typical case at the Innocence Project?|
So many of these cases are literally wars. There's a process by which we first
try to find the DNA evidence and that can take years. And then, once we find
it, unfortunately, there is a lot of resistance to letting us get the testing
done. In 33 states in this country there are statutes of limitations of six
months or less on newly discovered evidence of innocence motions. What this
literally means is that prosecutors will come into court and say, "Don't let
them test that DNA evidence that could prove him innocent, because it's too
late, it's too late."
Interview with Barry Scheck.
He is a law professor at the Benjamin N.
Cardozo Law School at Yeshiva University and co-founder of its Innocence
Project. The Innocence Project has successfully exonerated over 35 inmates
using DNA testing. Scheck is also co-author of Actual
Innocence: Five Days to Execution and Other Dispatches from the Wrongly
And so we have to fight that. And we have to go through state courts and then
into federal court. And we have to litigate getting access to the evidence.
And then finally we get a test. And then we get a test result and it
exonerates somebody--it proves that that person couldn't have committed the
crime. And then even after that, it's taken us three, four, five years in some
instances to get the person out of jail.
Don't get me wrong. In some cases prosecutors fully and completely understand
their responsibilities and are really terrific about it, and they say, "We live
by this, we die by this. I don't want to keep an innocent person in jail."
And they consent to their release and it happens very quickly. But
unfortunately there are so many of these cases where it's a battle from day one
to the very, very end.
Wouldn't most Americans be appalled to know that justice is such an uphill
battle for someone wrongly convicted?
Any decent person recoils at the horror of an innocent person being put in jail
for the rest of his or her life, or facing execution. And that's what we're
talking about in these cases: the worst nightmare one can imagine. And yet
there is resistance to doing the tests, there's resistance to letting them go
once the results come in, that at times just absolutely astonishes me and
frankly drives me nuts.
Why is there such resistance?
Each case is different, but I think that, in some instances, there is an
institutional inability to admit mistakes for whatever it is. I can't
understand it in some cases because the prosecutor that we're dealing with was
not the prosecutor at the time of trial, and that person is no longer in
office. And yet almost as an institutional matter: They don't want to admit
that the system can make these kinds of horrible, horrible errors. . .
Even when the fate of innocent people hangs in the balance?
When you say actual innocence doesn't matter, people are shocked. . . But
lawyers are trained to think in terms of procedural due process. We look at
the case and we say, "Well the state didn't prove it beyond a reasonable doubt,
therefore the defendant goes free. It doesn't mean the defendant is innocent,
it just means the state couldn't prove its case." And that is our system and
it's a good system, it's the way the system ought to be. But it also trains
people to think, "Well even though he was acquitted, it doesn't mean he's
really innocent." Or: "Even though you can raise a reasonable doubt about a
case doesn't mean somebody's really innocent and they can always make these
claims." People just don't like the idea that people can be convicted and
didn't do it at all. That is a very hard idea unfortunately for a lot of
people in the system. . .
So you have to prove your innocence at this point?
The burden of proof shifts, as it should, once you're convicted. You're not
presumed innocent anymore, you're presumed guilty. And the burden of proof
then shifts to the person who's trying to make out a claim of innocence. The
problem is that even if you can put in very substantial proof of innocence,
there aren't any courts that really want to hear it. And there are statutes of
limitations and procedural hurdles that prevent you from even presenting the
evidence and even getting an opportunity to be heard. . . There should not be a
limit that forever prevents somebody who can prove he or she actually is
innocent, did not commit the crime, from getting into court. The Constitution
ought to allow people to prove that they shouldn't be rotting away in jail if
they didn't commit the crime. That's basic isn't it?
It may seem basic, but in practice the criminal justice system doesn't seem
to be set up to acknowledge its mistakes.
And these are the worst kinds of mistakes. This is total system failure.
We're not talking about some procedural due process matter, some matter of
unfairness in the way the trial was conducted. We're talking about people who
are actually innocent. And that has to command our respect and attention and
concern unlike any other kind of case. And in fact it's quite the opposite. .
. I think [prosecutors] just don't want to deal with it. They regard the
exoneration of an innocent person wrongly convicted as an attack upon the
system. And that's a very bad way to think. In fact if we can come clean, if
we can face up to these problems and say, "Aha, here's a mistake, there's a lot
of mistakes like this. Let's look at it--let's take innocence seriously and we
can learn from the mistakes and fix the system." Then we'd all be better off.
And that's what we're urging these people to do.
Innocence isn't taken seriously?
No. The system is set up where we care more about procedural fairness than we
do about the substance of whether somebody is really innocent. Now, I'm not
against procedural fairness, I'm greatly an advocate of it, but I'm an even
greater advocate in many ways of saying, let's look at the person that was
wrongfully convicted and face up to the truth of it and learn from these kinds
of serious mistakes. But we have the system stacked against the innocent
person in all ways. You run into the statute of limitations problem in state
after state. You run into trained incapacity-- Thorstein Veblen called it
trained incapacity--that is, this kind of bureaucratic wall that people throw
up. "I don't want to look for that evidence, that's too old. It may be in
some warehouse. It must have been destroyed." So I'll just say to you, "It
must have been destroyed." When in fact--when we push and push and push and
look harder--we find it. And that becomes the key to freedom. . . We have need
for statutes in every state, or one federal statute essentially that would give
people a right of access so they could get to evidence which we can use with
DNA testing to prove their innocence. That should be a right. And if somebody
can't afford a test that could prove they're innocent, the state should provide
them money for it.
And, even then, the DNA cases may be just the tip of the iceberg?
Well, the one thing that the DNA revolution in the criminal justice system has
taught us over the last decade is that there are more innocent people in jail
than we ever thought. We have the data from the FBI itself where, in sexual
assault and murder cases, they come in to the FBI laboratory for DNA
testing--after people for the most part have been arrested-- they get an
exclusion of the primary suspect 26 percent of the time. That's quite an
extraordinary number. It doesn't mean that each of those people would have
been convicted if there weren't DNA testing, but a considerable percentage of
them probably would have been. Even if you want to figure one half of one
percent of these people would have been convicted, when you look at the
hundreds of thousands of cases over time that still translates into thousands
of innocent people in jail. So there's a lot of them out there.
And this is using conservative estimates. . .
Yes, and then you ask the next question: If DNA testing is showing that so
many people are innocent because of mistaken eyewitness identification, false
confession, jailhouse snitch testimonies, and one of the biggest causes, bad
lawyers--lawyers that are ill-trained, lawyers that don't have enough funds for
investigation, or to do their job correctly, lawyers that are just plain no
good at their job or have given up; nothing guarantees the conviction of an
innocent person faster than a bad lawyer. . . When you look at all these
causes of wrongful convictions, and then you ask the question, Well what about
all those other cases where there isn't any biological evidence, where we can't
do a DNA test?
That is cause for very, very serious concern and we're not taking it seriously
enough. . . This is a profound moment in our recent history in the criminal
justice system and by that I mean the last 200 years. We have these DNA
exonerations that are giving us an opportunity to examine the error rate of the
system., and we don't look. . .
Instead we lay down more restrictions on appeal?
Yes. One of the great and cruel ironies of the last decade of the 20th century
in American jurisprudence is that as we enter into this DNA revolution in
criminal justice, where we're showing that there were all these wrongful
convictions, these total system failures, on the other hand there was this
movement in Congress to pass this restriction on the writ of habeas corpus that
we had in this country practically since its founding, where you could go into
court and say, "Look I'm being held unconstitutionally, let me out of jail."
And they set statute of limitations and restricted the writ of habeas corpus.
Now you can't get into federal court on an ordinary felony if you don't bring
the motion within one year of your conviction. And in a death penalty case you
get six months. So these restrictions along with some other things they've
done to the writ of habeas corpus have made it harder for the innocent person
wrongly convicted to come to court and prove innocence than it five years ago .
. . There was a belief. . . that post-conviction applications were being
abused--that applications were being put in again and again and again just to
prevent executions from taking place. And in reaction to this, it was a big
overreaction frankly, Congress restricted the writ of habeas corpus and we have
the same thing on the state court level. And in the process what has been done
is a lot of people that were wrongly convicted are really being kept out of
court. . .
So there are legislative blocks in addition to prosecutorial resistance. . .
And there are judges who are reluctant--in fact, hostile-- to reopening a case,
even though they know that a test is going to confirm that the person was
really guilty or show that there was a horrible mistake. It is mind-boggling
to me. In fact, what's very interesting is that we had this commission that
the Attorney General appointed called "The Commission On The Future Of DNA
Evidence." The Attorney General Janet Reno feels very strongly that these
tests should be done. And this commission that we've put together of law
enforcement types-- the former director of the FBI and the heads of crime labs
and prosecutors, police chiefs--they all got together and we all go in a room,
we passed these recommendations. It didn't take very long at all in many ways.
Everybody was in agreement that in theory this should be done and that people
should consent to testing regardless of what the statute of limitations are,
regardless of what the procedural problems are--that everyone in the system,
prosecutors, judges, should just consent and do justice. That's fine in
theory. We passed these recommendations and I mail them out to people and I
say, "Let's get together in the spirit of reason." And then they just don't
work in the spirit of reason. In too many cases, there is this willful
ignorance, this determination to defend a result against what obviously could
be a strong probability that it's a mistake, for reasons that are infuriating.
When there is a DNA exoneration, is there anyone who tries to go back and
study what went wrong?
One thing that's really extraordinary is when somebody is exonerated with new
evidence of innocence, be it DNA testing or something else, usually the way the
case ends is that a judge will simply sign an order saying, "Conviction
vacated." And there's no written opinion. So all my law students if they go
on the computers and they do their electronic research and they look for an
opinion: They won't find one. They look for an analysis of what went wrong:
They won't find one. The only thing you're lucky to get is press reports, and
frankly press reports, it's not exactly the same as a judicial opinion in terms
of fact-finding and even accuracy in many ways.
You really need an analysis of what happened. Now think about this: What kind
of system, what kind of institution that is responsible for the life and
liberty of citizens can get away with not doing a post-mortem when there is a
total system failure? If there's a hospital that has a malpractice situation
where somebody dies, everybody's called in and we have an assessment to see
what went wrong and then we try to correct it and we write it up. Or if
there's a car manufacturer, or an airplane manufacturer and all of a sudden a
plane falls from the sky or cars are blowing up, there's a huge post-mortem and
there's an evaluation and we try to find out what happened and we write a
report about it. But in the criminal justice system when you have the ultimate
error, the conviction of an innocent person, they just cut an order and there's
no analysis. There's no attempt to find out what are the weak points to the
system, who made a mistake in this case? Nobody will ever name names. So that
is a serious problem. . .
Aren't governors the safety net?
The Supreme Court thought that the governors would be a good safety valve. And
in theory they are the safety valve because they can issue pardons. But
governors are political animals. Governors have a process for clemency that
doesn't involve fact-finding. Governors at the last minute for reasons that
are purely personal and not rooted in facts or justice will just pass the buck.
Courts are not supposed to be like that. Courts really are supposed to make
findings of guilt or innocence and when you have proof of innocence you should
be able to get to court. We've got to change the law to make sure that that can
happen with greater regularity. . . .
What change would you make to the criminal justice system?
In Great Britain they have come up with an institution that we should follow
here in the United States. After the Guilford Four and the Birmingham Six,
these cases where there were wrongful convictions, the country took it very
seriously, the judiciary took it very seriously, and they set up a program
called, the Criminal Case Review Commission. This is a commission that has
subpoena power, it has prosecutors, defense lawyers serving as the lawyers in
charge. They have former police chiefs and investigators. And after the
appellate process is over, if somebody has a good claim of innocence you can go
to the CCRC and they will evaluate your claim of innocence and then issue a
report to a judge and a court saying, we think a mistake was made, the
conviction is unsound. That institution's been in existence for two years and I
think it's very successful. It's something we should look at in this country.
speaking out ·
total system failure? ·
how far will it go? ·
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