Action is the Key to Unlocking Innocence
Candace Marra and I attended Unlocking Innocence: An International Conference on Avoiding Wrongful Convictions held at the Fairmont Hotel in Winnipeg, Canada, October 20-22. We will have a lot to say in the next few weeks on this conference.
Action being the key that unlocks innocence was emphasized throughout the conference. Every keynote speaker emphasized the need for action, and specific actions were recommended. This initial report is simply a summary of the actions we need to take, and the reports that follow will apply these actions specifically to Scott's case and to the American criminal justice system. Please note that I have adapted the language of the Canadian Judicial System to its United States counterparts.
PREVENT ~~ DETECT ~~ CORRECT
The General Public, Police investigators, Prosecutors, and Judges simply are not aware of the extent of the problem. Too many people consider wrongful convictions an aberration, something that rarely happens. Too many people are ignorant or unsympathetic to the cost of wrong convictions. They see this as a bleeding-heart liberal issue with little relevance to their situation. Janet Reno spoke eloquently about the need to educate people about the costs of wrongful convictions: 1) the human suffering imposed on the wrongfully convicted and his or her family, 2) the financial costs to the state, and 3) the reality that when the wrong person is in jail, the right person is still free to commit more crime.
The human suffering goes even beyond the convicted and his or her family. It extends to the victim and the victim's family. They are conditioned to believe that justice has been served, the real perpetrator is incarcerated and being punished. It is very traumatic for the victim and the victim's family to finally find out, years later, that the wrong person was convicted. Some can never accept the truth. This is a terrible injustice to them.
Much has been learned about what breeds wrongful convictions. Indeed, wrongful convictions have a template:
A heinous crime
A vulnerable person
A person of color
Living an Alternate lifestyle
Seen by others as odd or different
Rush to Judgment
Enough evidence exists to show that the causes of wrongful convictions are systemic, not institutional. That means that the system itself encourages wrongful convictions, they are not peculiar to specific police departments. Furthermore, the systemic problems occur at every level. For example, tunnel vision doesn't just plague police investigators, but District Attorneys and Judges as well.
All parties involved in the Criminal Justice System -- including the General Public, because jurors come out of the General Public -- must be educated about the common causes of wrongful convictions, so they can prevent others from happening. "Best practices" must be identified for each of the causes of wrongful conviction. Legislators must take the responsibility to pass laws codifying these "best practices" to ensure their adoption by all.
These are the 5 factors that appear over and over again in wrongful convictions and that dominated the Conference presentations and discussions. In the coming days, we will have an editorial reviewing what the Conference presented on each of these factors:
Incorrect Eye Witness Identifications
Currently, the onus is on the Convicted, who often has no resources and no one to believe in him. In addition, once a wrongful conviction is asserted, the government increases its resources and intensifies the adversarial attitude to ensure that the conviction is sustained, making it even more difficult for the convicted to prove his innocence.
Instead of this piecemeal approach, which puts a heavy burden on both the convicted and the Government, we need a systematic approach. We have a very good example of such an approach in the Manitoba Forensic Evidence Review Committee. After becoming aware that hair comparison analysis was "junk science," this Committee reached back 15 years to examine all homicide convictions in which hair comparison analysis was a factor in the conviction. The Committee subsequently has expanded its inquiry into convictions for lesser crimes. When these two factors were present in a conviction -- hair comparison analysis and the Convicted's continued assertion of innocence -- the Committee thoroughly examined the quality of the other evidence that was used to convict to determine if it was sufficient.
The concept is simple: if a certain type of evidence has contributed to one wrongful conviction, then it has probably contributed to others.
The same is true of people who are involved in wrongful convictions, whether they be police detectives, prosecutors, jailhouse informants, expert witnesses, or judges. If their conduct/testimony was a causal factor -- not just present in the case, but an essential element of the conviction -- then someone really does need to look closely at every other conviction that person participated in.