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Inside Wrongful Conviction Cases

by Scott Christianson

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.

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