REVIEW
- New York Law Journal, September 28, 2004
Reviewed by Norman L. Greene
"If
the system can survive only by imprisoning innocent people, then
it deserves to be destroyed." - Philip K. Dick, "The
Minority Report"
In
1932, Professor Edwin M. Borchard dedicated his classic "Convicting
the Innocent" to Professors John H. Wigmore and Felix Frankfurter for
their contributions to the subject of preventing wrongful conviction. "Erroneous
conviction of innocent people," Borchard concluded, is "among the
most shocking" of "injuries and most glaring of injustices" resulting
from "official wrongdoing and error."
Borchard
studied 65 cases of wrongful conviction from various states,
in which innocence was established in a number of ways, including "the
turning up alive of the alleged 'murdered' person." In
several of Borchard's cases, the "convicted prisoner,
later proved innocent, was saved from hanging or electrocution
by a hairbreadth."
Scott
Christianson's "Innocent" on
wrongful convictions in New York State is a worthy successor
to Borchard and the growing literature in the field. In selecting
New York, the author states that New York "in legal
matters, is generally considered relatively advanced and
sophisticated and often regarded as one of the best," and
wonders what goes on in states with lesser reputations. (The author does
refer to New York's share of criminal justice scandals, however.)
"Innocent" groups
the causes of wrongful convictions into chapters - mistaken identification,
eyewitness perjury, ineffective counsel, false confessions, police misconduct,
fabrication of evidence, and prosecutorial misconduct. Another
chapter catalogs selected wrongful conviction cases, person by person,
including capital cases, and eerily warns us that this might
not be all. "Unfortunately,
not much is known about the current nature and extent of wrongful conviction.
The state does not maintain a master list of its mistakes," says
Christianson. The wrongful convictions typically addressed are "only
where very long sentences are involved" - not those of the "vast
bulk of offenders, who serve two years or so in prison," even though
some of those convictions are likely to be wrongful as well.
The
book moves rapidly through brief case summaries - lousy evidence, shoddy
police work, inept defense lawyers and obstinate or unapologetic district
attorneys seeking to uphold wrongful convictions. Contributing to the problem,
says Christianson, are "trial judges [who] consistently make rulings
that favor the prosecution above the law" and the fact that "[a]ppellate
courts ... tend to uphold convictions."
"Wrongful
conviction is a team sport," says the author,
with police, prosecutors, defense attorneys, trial judges, juries, appellate
courts, and legislators sharing responsibility, but rarely held accountable.
It is unusual for the participants to be "voted out of office, dismissed,
disciplined or subject to civil damages."
Borchard observed
that in his day, the tendency of prosecutors "to
regard a conviction as a personal victory calculated to enhance the prestige
of the prosecutor" and the impact of inflamed community opinion on
prosecutors, judges and juries, were also factors.
To explain
the catastrophic consequences of wrongful conviction, the author quotes
a Court of Claims judge, who asked in awarding damages to Gregory Reed
for wrongful conviction: "How can this Court place itself
within the experience of the claimant?" and "How does one feel when
handcuffed and shackled and placed in a cell ...?" and "How can
one replace the emotional contact of loved ones forever gone?"
The
author also includes an excerpt from a long letter (virtually a poem) in
2001 from since exonerated prisoner Lamont Branch - then at Shawangunk
Correctional Facility and who served 13 years in prison - which describes
the prison experience in part as follows: "Prison is a place where you write
letters and cannot think of anything to say. ... where you hear about your neighbor's
kids graduating from school and you didn't even know that they had kids
who started school ...; where you forget the sounds of a baby's cry. You
forget the sounds of a dog's bark, or even the sounds of a dial tone from
a telephone.... where if you are married, you watch your marriage die ...."
Space
allows only a sample of the cases Scott Christianson presents: Nate Carter,
a basketball playmate of New York Governor George E. Pataki in the 1960's,
was convicted of murder and sentenced to 25 years to life, and served 2-1/2
years before being released; Betty Tyson, sentenced to 25 years to life
for murder and served over 25 years; Gregory Reed, convicted of murder
and sentenced to 15 years to life, freed after serving 6-1/2 years;and
Luis Rojas, freed after serving 7-1/2 of a 15 years to life sentence in
prison for murder. These are some of the "fortunate" ones; they
were not only exonerated but also received compensation. Not everyone is
so "lucky."
Will
books like "Innocent" inspire change? After all,
we assume that the vast majority who are convicted are guilty; we rarely
personally know anyone who has been wrongfully convicted; at least some few
(very few, the author assures us) are receiving significant settlements
or awards against the state for their ordeal; and it takes a tremendous effort
to "scrutinize" a
criminal conviction and "undo
an unjust result." There is also a sense that it cannot happen to
me; and if it does, everything will work out in the end. As Alexander
Solzhenitsyn wrote in "The Gulag Archipelago": "Since you
aren't guilty, then how can they arrest you? It's a mistake!... They'll
set things straight and let me out! ... You still believe that the Organs
are humanly logical institutions: they will set things straight and let
you out." But according to Borchard,
anyone might find himself wrongfully taken from the streets and jailed "and
suffer the tribulations of the damned." The modern American criminal
justice system, of course, bears no relationship whatsoever to the horrific
Soviet system described by Solzhenitsyn or the precrime system described
in Philip Dick's science fiction (in which people are arrested before committing
crimes); and it is decades after the one described by Borchard. Yet there
is still no assured happy ending, only hard struggles and uncertain results.
There
are some promising developments. New York has renowned private organizations
and persons dedicated to undoing wrongful convictions, such as Cardozo
Law School's "Innocence Project" and Brooklyn Law School's "Second
Look Program" (the book includes an intriguing questionnaire from
that program) and "good police, prosecutors, defense lawyers, investigators,
advocates, and judges who struggled to right such wrongs." The success
stories entail "terrible
misfortune but also great perseverance." The author notes that "North
Carolina has created an independent commission to review how innocent parties
get convicted and what can be done to address wrongful conviction," which
may provide a useful model for New York. But "'innocence' to some
officials has become archaic and quaint - a luxury we can no longer afford," and
certain "hard-liners
deny that anyone ever gets wrongly convicted." Perhaps they do not
recognize that overturning wrongful convictions not only restores an innocent
person's freedom but furthers law enforcement, since "cases of wrongful
conviction represent instances where the real criminals go unpunished."
"Innocent" is
an excellent recommendation to make the next time someone questions the
need for further criminal justice reform. Let him explain that to the wrongfully
convicted and their families.
Norman
L. Greene is a member of the New York City law firm of Schoeman, Updike & Kaufman
and the past chair and current member of the Committee on Capital Punishment
of the Association of the Bar of the City of New York.