alt.lawyers

New York Times
October 1, 2007

Exoneration Using DNA Brings Change in Legal System

By SOLOMON MOORE

State lawmakers across the country are adopting broad changes to criminal
justice procedures as a response to the exoneration of more than 200
convicts through the use of DNA evidence.

All but eight states now give inmates varying degrees of access to DNA
evidence that might not have been available at the time of their
convictions. Many states are also overhauling the way witnesses identify
suspects, crime labs handle evidence and informants are used.

At least six states have created commissions to expedite cases of those
wrongfully convicted or to consider changes to criminal justice procedures.
One of them, the California Commission on the Fair Administration of
Justice, will hold a hearing this month on remedies for people who have been
wrongfully convicted.

Laws in several states, including Illinois, New Jersey and North Carolina,
have bipartisan backing, with many Democrats supportive on civil rights
grounds and Republicans generally hoping that tighter procedures will lead
to fewer challenges of convictions.

³Technology has made a big difference,² said Margaret Berger, a DNA legal
expert who is on a National Academy of Sciences panel that is looking into
the changing needs of forensic scientists. ³We see that there are new
techniques for ascertaining the truth.²

Maryland, North Carolina, Vermont and West Virginia passed legislation this
year to create tougher standards for the identification of suspects by
witnesses, one of the most trouble-ridden procedures.

Nationwide, misidentification by witnesses led to wrongful convictions in 75
percent of the 207 instances in which prisoners have been exonerated over
the last decade, according to the Innocence Project, a group in New York
that investigates wrongful convictions.

Legislatures considered 25 witness identification bills in 17 states this
year, the National Association of Criminal Defense Lawyers reported. Five
states approved bills, while five states defeated them. Bills are pending in
seven states.

³It¹s become clear that eyewitnesses are fallible,² said Lt. Kenneth A.
Patenaude, a police commander in Northampton, Mass., who is an expert on
witness identification techniques.

Two states, Vermont and Maryland, passed laws this year to improve crime lab
oversight to eliminate errors and omissions. Maryland recently passed a law
that will hold its crime labs to the same standards as clinical labs, a much
more rigorous requirement. Other legislative changes to crime lab oversight
are pending in 21 states, including New York.

More than 500 local and state jurisdictions, including Alaska, Illinois,
Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico,
Wisconsin and the District of Columbia have adopted polices that require the
recording of interrogations to help prevent false confessions, according to
the Innocence Project.

The California Legislature also passed a bill this year that requires
informant testimony to be corroborated before it can be heard by a jury.
Critics say such testimony can be unreliable, especially when it is offered
by convicts or suspects in return for leniency. The bill awaits approval by
the governor.

Advocates of efforts to use DNA to exonerate those wrongfully convicted say
the changes in the state laws are welcome and long overdue.

³The legislative reform movement as a result of these DNA exonerations is
probably the single greatest criminal justice reform effort in the last 40
years,² said Peter J. Neufeld, co-director of the Innocence Project.

But some law enforcement officials oppose some of the changes, saying they
create legal minefields for the police and prosecutors. Any deviation from
the new standards, no matter how minor, could be taken up by defense lawyers
in an appeal, the critics say.

The California State Sheriffs¹ Association is fighting two bills there that
would mandate electronic recording of interrogations and corroboration of
informant testimony. The bills have been passed by the Legislature and are
awaiting final approval by Gov. Arnold Schwarzenegger, a Republican.

³Simply put, these two bills create loopholes for defendants to get an edge
in court on technicalities,² according to a letter from the sheriffs¹
organization to the California Commission on the Fair Administration of
Justice. The association also opposed a state bill that would create
guidelines for suspect lineups.

Even some proponents of the new standards balk at making them state law,
insisting they are better dealt with by local law enforcement agencies.

³I¹m not fond of legislation,² said Lieutenant Patenaude, the Massachusetts
police commander. ³I¹ve been asked to review bills in several states, and I
haven¹t seen one that mirrors the best practices that we¹ve put out here.
I¹d like to see police agencies mold the procedures instead of legislatures
or courts.²

Studies of wrongful convictions suggest that there are thousands more
innocent people in jails and prisons. The Innocence Project, the nation¹s
most prominent organization devoted to proving wrongful convictions, is
pursuing 250 cases and at any given time is reviewing 6,000 to 10,000
additional cases for legal action. Approximately 1 percent of those cases
will be accepted, and half of those accepted cases are closed because
evidence has been lost or destroyed.

Other smaller efforts to overturn wrongful convictions also receive
thousands of letters from inmates.

In a 2005 study, a University of Michigan Law School professor, Samuel R.
Gross, estimated that 340 prisoners sentenced from 1989 to 2003 had been
exonerated. Of those, 205 were convicted of murder and 121 of rape. Half of
the wrongful murder convictions and 88 percent of the wrongful rape
convictions included false eyewitness identification, the study found.

DNA evidence was used to exonerate 144 of those inmates.

In a 2007 study, Professor Gross analyzed 3,792 death sentences imposed from
1973 to 1989 and found that 86 death row inmates, or percent, had been
exonerated through 2004

Professor Gross said the total number of innocent prisoners was likely to be
far higher. In his view, well-documented wrongful convictions in capital
cases provided a window on systemic problems, with even larger numbers of
convictions for less serious and less publicized convictions.

³Of the 340 exonerations I looked at² in the 2005 study, Professor Gross
said, ³96 percent are for rape and murder.² He added: ³Does that mean nobody
was wrongfully convicted for drug possession, or drunk driving or burglary?
Chances are there are many, many more false convictions for lesser crimes.²
The most recent prisoner to be exonerated by DNA evidence was Dwayne Allen
Dail, who served 18 years in North Carolina for a false conviction of child
rape. Prosecutors had used the victim¹s identification of Mr. Dail and hair
found at the crime scene to convict him. Years later, after repeated
inquires from defense lawyers, the police found a box of additional evidence
in the case that contained the victim¹s semen-stained nightgown. DNA
analysis ruled out Mr. Dail and implicated another man. Mr. Dail was
released from prison in August.

The proposed laws on witness identification are intended to reduce cases
like Mr. Dail¹s by requiring things like sequential photo lineups of
suspects, in which police officers show witnesses photographs of one suspect
at a time. Studies have shown that witnesses tend to compare photos when
they are shown them simultaneously, a tendency that can lead to errors.

The legislation would also create ³double blind² systems so that the police
officers administering the photo lineups are unaware of the suspects¹
identities in order to avoid influencing witnesses.

The North Carolina legislature adopted both lineup procedures this year.

Crimes labs are also getting additional scrutiny in some states.

William E. Marbaker, president of the American Society of Crime Lab
Directors, an independent accreditation body, said the group had accredited
more than 300 crime labs. But some law enforcement agencies are finding that
even more oversight is needed.

A two-year review of the Houston Police Department¹s crime lab called into
question more than 600 cases. The review was initiated after a court found
in 2005 that faulty forensic evidence led to the conviction of George
Rodriguez in 1987 for kidnapping and assaulting a child. Mr. Rodriguez
served 17 years of a 60-year sentence before his release two years ago.

Houston crime lab officials erroneously concluded that hair found at the
crime scene belonged to Mr. Rodriguez. The crime lab also failed to rule out
Mr. Rodriguez as a suspect after finding that semen collected from the scene
matched that of another man.

Eight states ‹ Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South
Carolina, South Dakota and Wyoming ‹ do not have laws that give inmates
access to DNA evidence.

Advocacy groups, including the Innocence Project, said they intend to lobby
for the passage of access laws in those states during the next legislative
session.


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