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24 Apr 2007 09:59 am

Proof of innocence

[Megan} Radley Balko has a great column on convictions of the innocent up at Fox News:

It's likely of no coincidence that the one jurisdiction where blood samples have been preserved is also one that's finding a shocking number of convictions of innocent people.

If there's one positive that might come out of the Duke imbroglio, it's that the unusual demographics of the parties involved and alliances it spawned may mean some much-needed new scrutiny of the criminal justice system, and win welcome new advocates for reform.

Nifong is by no means the only overly aggressive prosecutor in this country. And Durham is by no means the only jurisdiction where the wrong people have been wrongly accused. As Seligmann suggested, the only real difference may have been that the Duke players had the resources to fight back. Many others don't.

Examples abound.

A 2002 audit of the crime lab in Houston, Texas, found that experts may have given "false and scientifically unsound" testimony in thousands of criminal cases. Subsequent reports showed that crime lab employees often tailored their tests to fit police theories about how a crime was committed. The city is finishing up a $5.5 million review of 2,300 cases, including death penalty cases.

In 2003, Texas Gov. Rick Perry pardoned 35 mostly black residents of Tulia, Texas, who had been prosecuted for drug crimes based on testimony from undercover police officer Tom Coleman. Coleman, once named Texas "Police Officer of the Year," was found to have manufactured evidence from whole cloth.

Just last month in Maryland, self-styled ballistics expert Joe Kopera committed suicide after it was revealed that he lied about his expertise and training. Kopera had testified in hundreds of criminal trials over 40 years, many of which may need to be reopened.

A 2005 audit found critical errors in the sate of Virginia's crime lab, considered one of the best in the country. The audit found that senior-level experts in the lab were too often persuaded by political pressure to secure convictions. The audit was ordered after the exoneration of Earl Washington Jr., a man who served 17 years on Virginia's death row.

These are merely examples from the last several years, and they're by no means comprehensive. Here's hoping that the most vocal critics of Mike Nifong and the Durham justice system that relentlessly pursued the Duke lacrosse players — many of whom don't generally speak out on criminal justice issues — will see the case as more than just an example of media bias or reverse discrimination.

It's merely one very high-profile example of the flaws and inadequacies in our criminal justice system. And it demonstrates why we need strong protections for the accused and transparency, accountability and oversight of the system that accuses them.

The hardest part of all of this is that many of the miscarriages of justice, even many of the abuses, probably aren't deliberate.   Anyone who's ever done sales can tell you just how quickly you start believing your own pitch.  And while the pressure to believe that you've got the guy is particularly strong in high-profile cases that can turn elections, you have to remember that even in cases where there's no publicity, police and prosecutors in these cases are dealing with a hideous crime.  That gives them a powerful psychological incentive to believe that you've got the guy.  So lab technicians believe their results are stronger than they are, prosecutors resist learning that their case has fallen apart, and police rewrite events in favour of guilt. 

It's not enough, or even much of a start, to punish the prosecutors who are guilty of abuse.  There also needs to be major systemic change to correct for all sorts of psychological biases on the part of witnesses, police, prosecutors, and victims.  The evidence of innocence that DNA tests have provided should be sparking a revolution in criminal procedure, designed to protect innocents in the majority of cases where there isn't DNA evidence.  But so far, I don't think it has.

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