Copyright 2000 The San Diego Union-Tribune
The San
Diego Union-Tribune
April 6, 2000, Thursday
SECTION: OPINION;Pg. B-12
LENGTH: 808 words
HEADLINE:
Resolving questions of innocence
BYLINE: George F.
Will; (C) Washington Post Writers Group
BODY:
'Don't you worry about it," said the Oklahoma prosecutor to the defense
attorney. "We're gonna needle your client. You know, lethal injection, the
needle. We're going to needle Robert."
Oklahoma almost did. Robert
Miller spent nine years on death row, during six of which the state had DNA test
results proving his sperm was not that of the man who raped and killed a
92-year-old woman. The prosecutor said the tests only proved that another man
had been with Miller during the crime. Finally, the weight of scientific
evidence, wielded by an implacable defense attorney, got Miller released and
another man indicted. You could fill a book with such hair-curling true stories
of blighted lives and justice traduced. Three authors have filled one. It should
change the argument about capital punishment and other aspects of the criminal
justice system. Conservatives, especially, should draw this lesson from the
book: Capital punishment, like the rest of the criminal justice system, is a
government program, so skepticism is in order.
Horror, too, is a
reasonable response to what Barry Scheck, Peter Neufeld and Jim Dwyer
demonstrate in "Actual Innocence: Five Days to Execution and Other Dispatches
from the Wrongly Convicted." You will not soon read a more frightening book. It
is a catalog of appalling miscarriages of justice, some of them nearly lethal.
Their cumulative weight compels the conclusion that many innocent people are in
prison, and some innocent people have been executed.
Scheck and Neufeld
(both members of O.J. Simpson's "dream team" of defense attorneys) founded the
pro-bono Innocence Project at the Benjamin N. Cardozo School of Law in New York
to aid persons who convincingly claim to have been wrongly convicted. Dwyer,
winner of two Pulitzer Prizes, is currently a columnist for the New York Daily
News. Their book is a heartbreaking and infuriating compendium of stories of
lives ruined by:
[] Forensic fraud, such as that by the medical examiner
who, in one death report, included the weight of the gallbladder and spleen of a
man from whom both organs had been surgically removed long ago.
[]
Mistaken identifications by eyewitnesses or victims, which contributed to 84
percent of the convictions overturned by the Innocence Project's DNA
exonerations.
[] Criminal investigations, especially of the most heinous
crimes, that become "echo chambers" in which, because of the normal human
craving for retribution, the perceptions of prosecutors and jurors are shaped by
what they want to be true. (The authors cite evidence that most juries will
convict even when admissions have been repudiated by the defendant and
contradicted by physical evidence.)
[] The sinister culture of jailhouse
snitches, who earn reduced sentences by fabricating "admissions" by fellow
inmates to unsolved crimes.
[] Incompetent defense representation, such
as that by the Kentucky attorney in a capital case who gave his business address
as Kelley's Keg tavern.
The list of ways the criminal justice system
misfires could be extended, but some numbers tell the most serious story: In the
24 years since the resumption of executions under Supreme Court guidelines,
about 620 have occurred, but 87 condemned persons -- one for every seven
executed -- had their convictions vacated by exonerating evidence. In eight of
these cases, and in many more exonerations not involving death row inmates, the
evidence was from DNA.
One inescapable inference from these numbers is
that some of the 620 persons executed were innocent. Which is why, after the
exoneration of 13 prisoners on Illinois' death row since 1987, for reasons
including exculpatory DNA evidence, Gov. George Ryan, a Republican, has imposed
a moratorium on executions.
Scheck, Neufeld and Dwyer note that when a
plane crashes there is an intensive investigation to locate the cause and
prevent recurrences. Why is there no comparable urgency about demonstrable,
multiplying failures in the
criminal justice system?
They recommend many
reforms, especially pertaining to
the use of DNA and the prevention of forensic incompetence and fraud. Sen.
Patrick Leahy's Innocence Protection Act would enable inmates to get DNA testing
pertinent to a conviction or death sentence, and ensure that courts will hear
resulting evidence.
The good news is that science can increasingly serve
the defense of innocence. But there is other news.
Two powerful
arguments for capital punishment are that it saves lives, if its deterrence
effect is not vitiated by sporadic implementation, and it enhances society's
valuation of life by expressing proportionate anger at the taking of life. But
that valuation is lowered by careless or corrupt administration of capital
punishment, which "Actual Innocence" powerfully suggests is intolerably common.
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