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Actual Innocence--Five Days to Execution and other Dispatches From the Wrongly Convicted

By Barry Scheck, Peter Nuefeld, and Jim Dwyer

Review by Roger Hummel

Since 1963, at least 381 murder convictions across the nation have been reversed because of police or prosecutorial misconduct yet not one of the prosecutors who broke the law was ever convicted or disbarred.

Twenty-seven percent of those wrongfully convicted had subpar or incompetent legal help including a Kentucky capital case defendant whose attorney gave his business address as Kelly's Keg, a local tavern.

Sinister prison snitches who earned reduced sentences by fabricating fellow prisoners' "admissions" to unsolved crimes were a factor in 25% of the convictions which were later reversed.

Authors Scheck, Neufeld, and Dwyer expose these and other horrors in Actual Innocence, a catalog of true stories drawn from more than 60 men who were wrongfully imprisoned. Detailed case histories describe how a dozen innocent men were convicted by corrupt prosecutors, jailhouse snitches, junk science, mistaken identification, false testimony, bad layering, and other defects in our criminal justice system.

The authors combine compelling statistics, scholarly studies, anecdotal evidence, historical information, and legal precedent to call into question a system which mechanically sentences innocent people to prison and, all too often, condemns them to death.

Horror is the typical reaction to these factual accounts of tragic and sometimes evil miscarriages of justice. The reader cannot escape the conclusion that countless innocent people are in prison and, quite likely, some innocent people have been executed.

The horror is compounded by the fact that even after clear and convincing evidence of innocence has been offered, the system refuses to admit it made an error and will not release those who have been unjustly convicted. Everyone agrees that it is a terrible thing for an innocent person to be imprisoned. Far worse, though, would be for a politician to take a moderate line on crime.

Authors Scheck and Neufeld met in 1977 when both were young lawyers working for the Bronx Legal Aid Society.

Neufeld had developed an expertise on scientific evidence that was matched by only a few of his colleagues. He was highly knowledgeable on blood tests and blood evidence. He and Scheck collaborated on many cases, most notably the O. J. Simpson trial in Los Angeles.

Scheck became a professor of law at the Benjamin N. Cardozo School of Law in New York City.

Unlike most private lawyers, Scheck had access to the resources of the criminal law clinic at Cardozo. He had a formidable cadre of academics, student investigators, researchers, and scientists who were not only bright but eager to help.

In 1991, Scheck and Neufeld founded the Innocence Project at Cardozo. Driven by the belief that the criminal justice system far too often convicts the innocent, the project provides pro bono assistance to prisoners who can convince Scheck and his students that they are innocent.

Jim Dwyer is a two-time Pulitzer Prize winner who currently writes for the New York Daily News. His journalistic skills were effectively employed to weave the mass of statistics, history, and tortuous judicial proceedings into the cohesive, readable narrative that became Actual Innocence.

The Innocence Project relies on relentless investigating, skilled lawyering, biological evidence, and DNA in particular to obtain the release of those who were wrongfully imprisoned. Scheck and Neufeld have used DNA evidence to free more than 60 innocent men. In each case, they analyzed myriad factors leading to the convictions. Mistaken eyewitnesses were a factor in 84% of the cases; snitches or informants in 25%; false or coerced confessions in 24%. Defense lawyers were inept in 27%; prosecutorial misconduct played a part in 42%; police misconduct in 50%.

Those who were wrongly convicted spent an average of 9 years behind bars before they were exonerated.

In their discussion of prosecutorial misconduct, the authors call "harmless error" the lie the criminal justice system tells itself. Lies, cheating, and distortions at the lower levels of the system are excused at higher ones. Even when an appellate court is sufficiently perturbed to reverse a guilty verdict, nothing happens to the people who broke their oaths and the law in pursuit of the conviction. Since 1963, at least 381 murder convictions have been reversed because of police or prosecutorial misconduct yet not one of the prosecutors who broke the law in these most serious charges was ever convicted or disbarred. Most of the time, they were not even disciplined. An unwritten code of silence discourages calling prosecutors to answer for their misconduct. A culture of protective secrecy silences criticism, encourages nondisclosure of potentially exculpatory evidence, and discourages any admission of errors, much less correcting and accounting for them.

The false god of "finality" often grants prosecutors leave to ignore facts and enshrine faulty convictions. Montgomery County (Texas) District Attorney Michael A. McDougal recently commented: "I can't afford to put the taxpayers of this county in the position of giving everybody a retrial that may come up with some kind of, uh, something that may indicate they may not be guilty when a jury has already said, 'Yes, you're guilty. '"

Actual Innocence concludes with a short list of recommended reforms to protect the innocent. At the top of the list, not surprisingly, is the need for state and federal statutes to allow post conviction DNA testing. Presently, only Illinois and New York have such laws.

Forensic scientists should formally agree that crime laboratories function as an independent third force within the criminal justice system, unbeholden to prosecutors or defense lawyers. Crime laboratory budgets should be independent from the police and police officials should not be able to exercise supervisory control over the staff of any crime lab.

To reduce eyewitness identification errors, the authors urge that all lineups and photo spreads are videotaped. An independent examiner who does not know the identity of the suspect should run all lineups and photo spreads.

All snitch interrogations and negotiations should be videotaped. Trial judges should presume that all snitch and informant testimony is unreliable and require the prosecutor to overcome that presumption before a jury can hear the evidence.

Each state should pass no-fault compensation statutes to provide relief to those persons who can prove they were wrongly convicted.

Fees for court-appointed lawyers must be raised to a level that will attract competent lawyers to take cases. Public defenders' salaries should be the same as prosecutors' in each jurisdiction.

Actual Innocence should be required reading for prosecutors, public defenders, judges, law enforcement officials, and everyone else involved with the criminal justice system. There is clear evidence showing that the system is broken: Scheck, Neufeld, and Dwyer offer sound recommendations to repair it.

This book is available from PLN. To order send $24.95, plus $3.20 priority postage, to: PLN, 2400 N.W. 80th St. PMB 148, Seattle, WA 98117. Phone orders with credit card accepted.

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