Monday, February 23, 2009

Actual Innocence

I saw a news item recently that the 34th person had been released from prison in Texas after being exonerated. This brought to mind a good book I read awhile back, called "Actual Innocence", by Barry Scheck, et al. The book recounts the experiences of The Innocence Project, which has obtained the release of many convicted felons based on proof of their innocence.

What is interesting to me is the analysis of why it is that innocent people get convicted in this country, when we supposedly have so many safeguards in place to prevent this. Scheck groups the reasons into a number of different categories.

The first category is faulty eyewitness identification. Scheck starts by recounting the famous classroom experiment conducted by Professor von Liszt in Berlin in 1902. An incident was staged and then the students were asked to describe what had happened. The students got significant details wrong anywhere from 26% to 80% of the time.

Despite this century-old knowledge about how unreliable eyewitness testimony is, prosecutors have continued to build cases upon such faulty evidence, and juries obligingly convict based on it. Often the crime has taken place at night, when visibility is poor, rather than with perfect lighting and close proximity as was the case in the classroom experiment.

I can't help but mention a recent film noir I saw, called "Boomerang", which is based on a true story. A telling scene is the lineup, in which the witnesses were brought into a room together and shown a lineup of 6 men. All identified the innocent suspect, and the "herd instinct" is obvious here. It is well-known that, in a group, people tend to "follow the leader", and this lineup process was irrevocably tainted by having everybody in the room together like they did.

The second category of problems cited by Scheck is false confessions. Scheck writes that of the exonerations obtained through DNA testing, 22% contained false confessions or false admissions. Why somebody would admit to something he didn't do is a psychological issue which is complicated. Police have techniques they use to trick people into confessing. Some defendants feel important implicating themselves in something that is plastered all over the news media.

A third category is what Scheck calls "white coat fraud". These are instances in which the prosecution's expert simply makes up evidence and lies on the stand. Scheck blames defense lawyers who are not adept at dealing with scientific evidence. He writes that "Too many lawyers ended up going to law school because of lousy grades in chemistry and biology. A fear of science won't cut it in an age when many pleas of guilty are predicated on the reports of scientific experts."

Also to blame are prosecutors and lab technicians who turn over their final reports to defense counsel, but not their lab notes. Often the lab notes lead to a different conclusion than the final report indicates. Inadequate oversight of police labs is also cited as a factor.

Another category of problem is the use of jailhouse snitches. Scheck reports that 19% of exonerations by The Innocence Project involved convictions based in part on jailhouse snitches. This is an odious practice used by prosecutors, who often focus on the desire to convict at the expense of their sworn duty to do justice. Snitches make up stories to get a break for themselves. It is a despicable prosecution practice and should be stopped.

Canada was so shaken by a well-publicized case of an innocent man being convicted based on a jailhouse snitch, that it laid down a series of new rules: 1) before a snitch can testify, a high-level screening committee must satisfy itself that the story can be corroborated; 2) the committee must determine whether the snitch is a recidivist; 3) the testimony is presumed unreliable, and the prosecutor must satisfy the Judge that it is worth hearing, before it can be presented to the jury; 4) all deals with the snitch must be in writing; and 5) all conversations with the snitch must be taped.

A fifth category of problem is junk science. This includes various types of analyses masquerading as science. Some infamous cases have included prosecution "evidence" matching up a hair from the crime scene to the defendant's hair. A historical example would be the wood evidence from the infamous Lindbergh kidnapping case. The prosecution claimed the defendant had made a ladder using wood from beams in his attic. The idea that anyone would cut up wood from his attic to make a ladder is ludicrous on the face of it, but the jury bought this evidence hook, line and sinker.

As was the case with snitch evidence, there are a number of reforms that could be enacted to cut down on the error rate caused by presenting junk science in court.

Other categories of problems are broken oaths, sleeping lawyers, and race. All one can say after reading this sad account is, thank God for people like Barry Scheck, who are willing to work night and day to undo the injustices of the past.

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