[Vision2020] Wayne's Analysis of Criminal Innocence

[Bruce and Jean Livingston]

As someone who has represented people on death row that I believe were/are innocent, one of whom was executed anyway, this book, let alone the book review posted by Ted, should be mandatory reading for all citizens, so I am deleting Ted's message and leaving only the book review for those of you who didn't get to that part of his message.   Bruce Livingston

The National Center for Reason and Justice 
[Copyright 2000 Mark Pendergrast. First printed in the Atlanta Journal-Constitution and the Philadelphia Inquirer, 27 February 2000. Posted here with explicit permission from Mark Pendergrast. 
Book Review 


    Actual Innocence: Five Days To Execution, 
    And Other Dispatches From The Wrongly Convicted. 
    by Barry Scheck, Peter Neufeld, & Jim Dwyer. 
    Doubleday, 2000. $24.95. 298 pages. ISBN 0-385-49341-X. 

  Reviewed by Mark Pendergrast 


  Chilling. Disturbing. Terrifying. Appalling. These words describe not only the gruesome rapes and murders detailed in this book, but the fate of the innocent men who were accused of these crimes, convicted, and ultimately cleared by DNA evidence. What emerges from these pages is a chilling, disturbing, terrifying, and appalling portrait of the much-touted United States legal system. While the accused are supposed to be presumed innocent until proven guilty, it appears that the convicted are presumed to be guilty even when proven innocent. In case after case, prosecutors and judges have attempted to keep innocent men locked behind bars, citing the need for "finality," a word that is all too real for those on death row. 

  Why? Although it defies common sense, the law of the land was stated by Chief Justice William Rehnquist in 1993: "A claim of actual innocence is not itself a constitutional claim." Thus, the title of the book, Actual Innocence, is ironic. It is a technical legal term used dismissively by many judges. In a recently aired Frontline documentary, The Case for Innocence -- which featured lawyers and authors Scheck and Neufeld -- filmmaker Ofra Bikel asked Texas Judge Sharon Keller whether a man cleared by DNA tests might be innocent. "If you're talking about the point of view of actual innocence?" Keller asked, clearly startled by the notion. "Oh! Um, I suppose that is a possibility." But that wasn't the point for her. Whether the convict was actually innocent was irrelevant. 

  Scheck, Neufeld, and Dwyer, a Pulitzer Prize-winning investigative journalist, offer compelling case histories of men such as Walter Snyder, convicted of raping Faye Treatser in Virginia. They document how, once police zero in on a suspect, everyone recasts the evidence and their memories to make him match. Eyewitness testimony is notoriously fallible, particularly if, as in Snyder's case, his picture is first shown to the victim, then she sees only him sitting on a bench at the police station. Eventually, though Treatser first passed over his picture, she proclaimed herself "100 percent sure" he was her rapist. 

  Snyder was convicted in 1986 and sentenced to 45 years in prison. Like many innocent men, he refused to take the course for sexual offenders and was consequently denied parole. (Ironically, real sex offenders who play the game are paroled earlier.) Eventually, despite a string of incompetent or greedy lawyers, Snyder got a new DNA test which proved the rape sperm was not his. But in Virginia, as in many other states, a convict has only 21 days after his conviction to prove his innocence. This had taken seven years. The only option was to ask Governor L. Douglas Wilder for a pardon. Despite the support of the state's Attorney General Randy Sengel (unusual, since many prosecutors resist DNA evidence), Wilder waffled until sympathetic news stories on Snyder's case forced Wilder to grant a pardon. 

  Actual Innocence is not an easy read emotionally, but it is very clearly written, with a strong narrative thrust and interesting historical anecdotes that will appeal to lay as well as legal readers. It is gratifying that 64 convicted men have been cleared by DNA evidence. But that isn't the point. "What matters most is not how these people got out of jail but how they got into it," the authors observe. In a succinct summary, they tick off the contributing factors: "Sometimes eyewitnesses make mistakes. Snitches tell lies. Confessions are coerced or fabricated. Racism trumps the truth. Lab tests are rigged. Defense lawyers sleep. Prosecutors lie."

  Each of these short sentences summarizes a disturbing chapter in the book. Jailhouse "snitches" frequently fabricate hearsay confessions in order to shorten their own sentences. Police routinely lie and use mind-games to extract so-called "confessions" from innocent people. If you are a black man accused of raping a white woman, you are in deep, deep trouble not only from overt racism but because "they all look the same" to many white witnesses. Before the iron-clad DNA tests arrived, junk science ruled the courts, with ambiguous blood evidence and bogus hair identification, and such evidence is still used. Underpaid public defenders may be overworked idealists, but they can also be incompetent and/or uncaring. 

  Most disturbing is the callous and sometimes vicious attitude of prosecutors. Take the case of Robert Miller, convicted in 1987 of the rape/murders of two elderly women in Oklahoma City. Miller was sentenced to two death penalities plus 725 years. After Miller's incarceration, the same pattern of rapes of elderly women continued, with the same modus operandi, and the guilty man, Ronald Lott, was captured. Even though prosecutor Ray Elliott knew about Lott, he kept it to himself. The jurors never heard that Lott had admitted to identical crimes in the same neighborhood. And even when DNA evidence cleared Miller and implicated Lott in the murders, Elliott insisted that Miller must have been present. "We're going to give Robert Miller the needle," Elliott gloated. "He's just blowfish." The prosecutor summoned Lott and offered him a deal if he would implicate Miller, but Lott refused. Today, Ray Elliott is an Oklahoma judge. 

  This book documents several cases like this, in which prosecutors, cops, pathologists,and others either lief or distorted evidence. But why would they do that? Generally, it is because they were truly convinced that this man was guilty, and so a little tweaking of the evidence was justified. Once invested in this belief system, it became very difficult for them to reverse themselves and admit they had incarcerated an innocent man. So they denied it and fought the DNA evidence. 

  What is to be done about the situation? The authors make specific, workable, common-sense suggestions throughout the book, summarizing them in an appendix. The most obvious recommendation is to use DNA testing wherever possible, within weeks of a crime. And test old evidence. "Hundreds of thousands of rape kits from unsolved cases are thrown out or sit in dead storage for years with no effort made by the authorities to run DNA tests," they write, "squandering opportunities to identify serial offenders and clear the wrongly convicted." Other recommendations include videotaping all police interrogations, limiting the use of snitches, making crime labs independent of police and prosecutors, disallowing junk science, paying court-appointed defenders more, compensating the wrongly convicted, and putting a moratorium on the death penalty. 

  But until police, prosecutors, and judges are held legally accountable for their actions, their near-absolute power will continue to corrupt absolutely. They are generally immune from prosecution themselves, and until that changes, these travesties of justice are likely to continue, in one form or another. "Under the current setup," write the authors, "a prosecutor can't be sued for knowingly allowing perjured testimony or for deliberately covering up evidence of innocence." 

  Scheck and Neufeld run the Innocence Project, specializing in cases where DNA can clear the wrongly convicted. But what about innocent people who cannot rely on DNA evidence? After a conviction, it is very difficult to win an appeal without compelling new evidence. Actual Innocence should be required reading for everyone involved in our justice system, but it raises many more questions than it answers. 

  —Mark Pendergrast is the author of Victims of Memory and, most recently, Uncommon Grounds.

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