Q: What are the obstacles in using DNA testing?
NEUFELD: Forty-one out of the 50 states have fixed time limitations on when an individual can come forward with newly discovered evidence of innocence. Every one of these 28 cases [in the 1996 Justice Department study] exceeds that time limit. So the laws themselves discourage people from coming forward with new evidence--such as DNA evidence--to exonerate them.
In many of these cases, the only alternative then was to go to the governor and seek a pardon. And we've found that in far too many cases that even when the prosecutors want to do the right thing and join us in seeking a pardon from the governor, that the governors drag their heels and are very reluctant to quickly grant the pardon even with overwhelming undisputed evidence. That's because they're afraid of political fallout and being seen as soft on crime even when the person isn't a criminal, but is clearly innocent because of the perception of the public.
Q: Why are these DNA cases happening more rapidly? Why are there more of them?
NEUFELD: Cases are happening more rapidly now, number one, because word has gotten out that there is a test available that can prove conclusively a person's innocence.
Number two, word has gotten out that projects such as ours--we now represent more than 300 people nationwide--we're willing to secure them the testing for free if need be. People are coming to us and demanding these tests. They didn't have that information, they didn't have that access to testing before. So we're going to see more and more and more and what we're going to see is a kind of geometric progression here, where the number of innocent people exonerated grows rapidly in the next couple of years.
NEUFELD: Well, we believe that there is no question at this time that the number of innocent people who've been unjustly convicted probably runs into the thousands. These numbers are borne out by recent results in data published by the FBI with respect to their DNA exclusion rate, and if one extrapolates from those numbers just on conviction rates, one can readily see that before the advent of DNA testing thousands of people who are factually innocent were convicted by juries for crimes they didn't commit. And those people are going to be demanding DNA testing now.
And some jurisdictions are going to have a hard time getting that testing secured; especially, securing the evidence if it's been destroyed. In those jurisdictions where we can get the testing done, where the evidence still exists, we'll exonerate them and then the courts and the governors will have no choice on a moral level, even if they can't justify it legally, on a moral level they will have to free these people.
Q: Should we be surprised? I mean, when you say there are thousands of people in jail wrongly, that seems a shocking idea.
NEUFELD: The concept that there are thousands of factually innocent people in prison is shocking to me and is shocking to probably most of the members of the defense bar as well as everybody else who toils on a daily basis in the criminal justice system.
We've always had certain intuitive feelings about the rate of innocence amongst people who are convicted by juries and judges in this country. And I can assure you and confess to you that, at least, for myself, that number was very, very, very small. But based on the data we're now seeing from the Federal Bureau of Investigation ...
Q: What does it tell you?
NEUFELD: I always thought, my whole life I've been practicing law, especially as a criminal defense attorney that 98%, 99% of the people convicted by juries and judges must be guilty. And now I look at this new data which shows that with DNA testing they're exonerating 25% of the people accused in sexual assault cases and I'm completely freaked out by the number because it tells me that the number of people who are unjustly convicted in our system is extraordinarily high, is a number that we as a democracy can't live with, is a number that I want to do everything that I can to change.
Q: What do these cases tell us particularly about eyewitness identifications?
NEUFELD: Well, I knew and everybody I work with has known for a long time that eyewitness identification is unreliable. But with these cases we now have very compelling empirical data to convince even the most reluctant that eyewitness identification is an extremely unreliable method of criminal identification. And that we're going to have to engage in a major overhaul of the way eyewitnesses identify people.
Q: But these cases often involve rape ... involve people who at some point are six inches, not even six feet, apart. Does DNA bring a different perspective to eyewitness ID?
NEUFELD: DNA brings a different dimension to the argument as to the unreliability of eyewitness identification in two ways. Qualitatively and quantitatively. Qualitatively it provides irrefutable empirical evidence of it. Quantitatively, we're seeing it now in so many cases where before it was only something alluded to that we must be very very nervous as an institution, as a system that relies on eyewitness identification for so many convictions and the problem by the way is much bigger than sexual assault cases. We're only disproving these convictions in sexual assault cases using DNA evidence. What about all the muggings and other types of crimes that rely exclusively on eyewitness identification by the victim where there is no biological evidence to use now to show that there was a mistake that had been made and that an innocent person is in prison for a crime that he didn't commit.
Q: How concerned should we be when we find out that there's someone who is wrongfully convicted?
NEUFELD: Whenever we learn that someone has been unjustly convicted, the logical question that we have to ask is: Well, how did it happen? And the reason we ask that question is we're concerned that it can happen again, and unless we take corrective measures, it will happen again.
And by looking at a whole body of these cases, we're now able to see what kinds of problems there are in the criminal justice system that can be corrected. Eyewitnesses identification problems are just one of them. Another problems is the manner in which confessions are obtained from suspects. Several of these cases, where people have been exonerated with DNA testing, made full confessions. Obviously they were unreliable. Yet the public thinks, "My goodness, somebody confessed, he must be guilty." So there must be things wrong with the way they are extracting these confessions. We have to go back in, look at those cases, do an autopsy on the cases if need be, and try and prevent those kinds of mechanisms being used in the future to extract unreliable confessions.
Q: Do you think that eyewitness identifications are accounting for the vast majority of the problems or factor in the vast majority of these cases?
NEUFELD: ... but it's not the eyewitness identification alone that's responsible for the conviction. It's corroborated by the unreliable confession, the bad forensic scientific evidence ...
When we look at these unjust convictions we see that there are a variety of factors that precipitate them. We see unreliable confessions. We see sloppy forensic scientific evidence. But first and foremost, we see just unreliable eyewitness identification occurring in almost every single case.
Q: So what do we say to the good cop who seems to be doing everything he can to solve a crime?
NEUFELD: There's no question that most police officers are trying to do the right thing when they investigate the commission of a crime. And they want to get the right guy. They don't want to get the wrong guy. But the problem is that what they are relying to conduct an identification or to conduct an interrogation are skills that they learned in their training. The problem is that the skills they learned may have been taught poorly. The wrong skills may have been taught. With these cases we can go back and analyze what went wrong and now teach them a newer way to do it, and a better way to do it to prevent these kind of miscarriages from happening in the future.
It's as simple as that. No one's pointing the finger at these officers and saying you're bad people or you acted with malice, on the contrary. They want to do the right thing. And because they want to do the right thing, they should be the people who are most receptive to learning new skills to avoid this kind of mistake in the future.
Q: What do we owe people who are wrongly convicted?
NEUFELD: If the state takes away someone's freedom unjustly, because they're factually innocent then the state doesn't just have a legal obligation, the state has a moral obligation to do everything they can to make that person whole. Obviously if you take away 10 years of someone's life for a crime they didn't commit, you can never give those 10 years back, but you damn well better make every effort to give that person some type of financial cushion to allow him to lead a more comfortable existence in the future, because it's not simply lost freedom, it's that 10 years of lost freedom is going to constantly, constantly adversely affect the way he lives for the rest of his life.
Q: What does that DNA tell us about the justice system?
NEUFELD: Well, when you hold DNA up to the mirror and that mirror is the criminal justice system, the DNA points out all the cracks in that mirror in a way that we're never saw it before. It shows that where we thought we had a system that was above reproach and beyond question, we have a system that can, is quite fallible, a system which can let a lot of people go down the hole who don't belong there. And hopefully with DNA testing in the future, we'll have a sharper and shinier surface to work with where innocent people aren't just convicted.
I don't think we should be shocked that there are flaws in the system. Any system that relies on human beings to make important decisions has to accept the fact that there are human failings and we're not talking about the laws of physics here. We're not talking about some objective science that can determine whether or not guilt or innocence is there. As long as we rely on people there will continue to be those kinds of crack in the system, but with advent of DNA typing, we reduce the likelihood that they will be this positive in a case where life or liberty is at stake.
Q: What is the potential and power of DNA?
NEUFELD: Everybody likes to think about what is the awesome potential of DNA typing in the criminal justice system? And it's wonderful to put out platitudes and compare it to fingerprinting as the greatest thing to come along in this century and will revolutionize the criminal justice system. But we have to proceed cautiously because again we have to remember that this kind of science is not the law of physics. It's people applied science. It's applied technology. And whenever people interact with science, there's plenty of opportunity for mistakes in the technology as well. So we have to do everything we can to insure that the technology is utilized in a totally reliable fashion and we're not there yet. Until the various players in this whole criminal justice system agree to work together to insure the reliability of DNA testing, we're not going to be there.
Q: Can you explain the quirk that has allowed these 28, 35, 40 wrongful conviction cases to happen...
NEUFELD: The three dozen or so cases, to date, involving post-convictions exoneration with DNA are all somewhat idiosyncratic because it's all serendipitous that for instance a rape kit wasn't thrown out when it was supposed to be thrown out. In one we did, there was an order from the police department to destroy this evidence, but there were two boxes, so the police only removed the first box from the shelf and destroyed it and didn't notice that there was a second box right behind it. Had they done what they were supposed to do, it would have never exonerated that person and almost every one of these cases is that idiosyncratic. It's a prosecutor who let the evidence squeeze behind her desk. It's a property clerk who forgot to return the evidence to the police department at the conclusion of the appeal, and but for these situations where the evidence was preserved most of these people would still be in prison or would be executed.
Looking at this body of three dozen or so post-conviction exonerations, one is led tragically to the conclusion [that] they're just the tip of the iceberg. That there are hundreds, if not thousands, of people who are factually innocent who just didn't commit the crime. They're the wrong guy who is rotting in prison or waiting on death row to be executed and we've got to do something about it.
Q: What about the O.J. Simpson case and its impact on the public's percetion of DNA evidence?
NEUFELD: One legacy of the Simpson case with respect to DNA typing is it highlights on the one hand the tremendous potential of this technology that it is a science that can be the equivalent of the videotape of the commission of the crime. Yet, on the other hand, it points out that this is not a law of science that we're dealing with, such physics such as the law of gravity.
Instead, we're talking about an applied science, an applied technology and whenever people get involved in the application of science is much opportunity for mistake, error and for much worse. And so we have to be very rigorous in the kinds controls that we exert when we utilize this tremendously powerful new technology to make sure that it's used wisely and cautiously.
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