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The Forgotten Crime Victim

In the seemingly unending clamor for revenge against people in prison and those accused of committing a crime, a particularly vulnerable, unchampioned, group remain overlooked. Casualties of America's "War On Crime," a growing number of people have lost their lives to the unchecked discretion of judges, prosecutors, and police, and the indifference of the public. There are no fund-raisers, government resources, rallies, or lobbyists, and little hope for them. Caught between the hidden agendas of politicians, the media, and special interest groups on one hand, and the public's fear of crime on the other, the wrongfully convicted person is the forgotten crime victim.

In their book, In Spite of Innocence, Michael Radelet, Professor of Sociology at the University of Florida, and Hugo Bedau, Professor of Philosophy at Tufts University, feature 400 cases in which an innocent man or woman was sentenced to death. By conservative estimates, five-percent of the people in California prisons are innocent. With more and more limited state funds being sucked into the blackhole of the prison building guarding-maintaining complex, less money is allocated to provide attorneys, investigators, experts, and other services to indigent persons charged with a criminal offense. The majority of criminal defendants are poor, and without adequate resources to prepare for trial, some innocent people will be convicted

Once convicted, the innocent person's problems get much worse. On appeal, all inferences are drawn in favor of the evidence which supports the conviction. Jailhouse informants, who testified for the prosecution at trial in return for leniency or immunity in their own pending cases, are presumed unreliable on appeal if they admit lying to get a deal. In Herrera v. Collins, the United States Supreme Court delivered perhaps its most cynical ruling to date. Leonel Herrera, on Texas' deathrow, appealed his conviction on the ground newly discovered evidence proved he was innocent. Justice Antonio Scalia wrote that the execution of an innocent person wouldn't necessarily violate the U.S. Constitution. Chief Justice William Rehnquist, joining in the denial of Herrera's appeal, concluded, "A claim of `actual innocence' is not itself a constitutional claim," and has no business in federal court at all.

In his Commentaries the renowned English legal scholar Sir William Blackstone wrote, "It is better that ten guilty persons escape than one innocent suffer." Sadly, in the rush to punish the guilty, this underpinning of our system of criminal justice has been replaced by the addage, "You've got to crack a few eggs to make an omelet." The problem is human lives are at stake, not just the reproductive cells of domesticated fowl. But America has no monopoly on injustice. The recent box-office blockbuster, In the Name of the Father, chronicles the wrongful conviction, based on confessions obtained by torture, of alleged IRA guerrillas in England. The February 1, 1989, issue of The Daily Yomiruri featured the story of Masao Akabori, acquitted on retrial after 35 years in prison in Japan, 31 on deathrow, because he was innocent.

The difference between other countries and the United States is that the men in the cases cited above would be dead had they been convicted here. In Herrera, the Court opined that the proper avenue for claims of actual innocence was the state governor's office, where the wrongfully convicted could apply for clemency. Politicians are primarily interested in getting elected, increasing their power, and getting reelected. They would be reluctant to release a convicted felon from prison, and thereby repudiate the judge, prosecutor, and police regardless of any miscarriage of justice. A grant of clemency might be portrayed as "soft on crime." State and federal courts may prove just as futile to innocent people seeking their freedom.

Over the past ten years, the U.S. Supreme Court has erected a labyrinth of procedural barriers which severely restrict when, and on what grounds, people in prison may challenge their convictions by habeas corpus. In domino fashion, state courts and Legislatures quickly adopted the federal limits on post-conviction review in favor of "finality." Most of the same state lawmakers have established statutes shielding judges, prosecutors, police, and informants from lawsuits even where they've knowingly convicted an innocent person. In California, for example, the wrongfully convicted are limited to a maximum compensation of $10,000 no matter how many years they spent in prison, or how much suffering they've experienced.

Like all people tried and sentenced to prison, the wrongfully convicted are only entitled to one obligatory state appeal. Without funds to hire private counsel, they must rely on the court to either appoint the State Public Defender or a contract attorney. In California, former governor Ronald Reagan cut the successful Public Defender's Office in half, named a crony to head it, and forced out some of the most experienced criminal appellate defense attorneys in the bargain. Now, criminal appeals that cannot be handled by the Public Defender's Office are often handed out to the law firm which offers the lowest flat rate per case. It's not in the best interests of such firms to spend hundreds of hours and tens of thousands of dollars on investigators or forensic experts to uncover evidence of innocence.

 If the state appeal is denied, the innocent man or woman must present their claim by petition for writ of habeas corpus. Absent certain narrow exceptions, only one petition challenging the underlying conviction can be filed. There's no right to the appointment of counsel, or the effective assistance of counsel, on habeas corpus. If the wrongfully convicted person hires an incompetent attorney, pays a bogus "jailhouse lawyer," or submits a poorly prepared petition on their own, that's it. They will stand legally convicted despite actual innocence. Although there are state and federal groups supporting crime victims, advocating longer sentences and harsher prison conditions, there are no real organizations dedicated to helping innocent people win their freedom.

Unfortunately, some level of crime will probably always be present in a "free" society. Law-abiding citizens have a right to be reasonably safe. But, does the right to public safety justify the routine conviction of innocent people, and denial of adequate means to fully investigate and litigate their claims? Apparently, many people think so. In a 1991 Los Angeles Times poll, a majority responded that the occasional execution of an innocent person wouldn't bother them.

Clarence Darrow, the famed attorney, said, "As long as the world shall last there will be wrongs, and if no man objected, and no man rebelled, those wrongs will last forever." Clarence Darrow is dead, and it seems the wrongfully convicted will remain forgotten.

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