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Actual Innocence: When Justice Goes Wrong and How to Make It Right
By Barry Scheck, Peter Neufeld and Jim Dwyer, Signet, NY, 2001, 403 pages. (c) 2000
Review by Hans Sherrer
The March 2001 release of the revised paperback edition of Actual Innocence was most timely. U.S. Supreme Court Justice Sandra Day O'Connor publicly acknowledged shortly thereafter, in July, that it is possible innocent people are being executed in this country, and their inadequate access to quality defense lawyers is contributing to such injustices.
Two of the authors, Barry Scheck and Peter Neufeld, founded the Innocence Project at the Benjamin Cardozo School of Law in New York City that has aided the exoneration of dozens of innocent people, The national recognition they received as part of O.J. Simpson's legal team contributed to the founding of several other innocence projects that have achieved dramatic results. The innocence project at the University of Washington's law school, for example, was instrumental in exonerating several men and women wrongly convicted in the mid-1990s of participating in what is now known to have been a fictitious Wenatchee, Washington child-adult sex ring.
Written for lay people in a style that is noticeably devoid of legalistic jargon, Actual Innocence explains through case histories how easy and commonplace it is for an innocent person in this country to be wrongly accused, prosecuted, convicted, imprisoned, and as Justice O'Connor pointed out -- even executed. Those case histories are separated into chapters related to wrongful convictions attributable to specific causes. Among those causes of injustice are:
* The positive, yet false identification of an innocent person by an eyewitness.
* The false confession of an innocent person to a crime he or she did not commit.
* The doctoring of lab reports by unscrupulous law enforcement officials.
* Prosecutors reducing a sentence or dropping charges in exchange for tailored testimony by a jailhouse snitch or other informant.
* Incorrect results from the testing of physical evidence.
* Perjury by police and other law enforcement officers.
* The withholding of exonerating evidence from defendants by prosecutors.
* Grossly incompetent defense lawyers, including ones who have dozed through a capital trial.
* Prejudice and bias by jurors, prosecutors and judges against an innocent person considered to belong to a minority or unpopular group.
Although the authors of Actual Innocence recognize wrongful convictions directly result from the malevolence, indifference and incompetence or both of one or more people involved in a prosecution, they see the root of the phenomena as systemic:
"[L]ike the shapes in a Polaroid snapshot as it is developing, the outline of the emerging picture is clear enough: the criminal justice system, from the police precinct to the Supreme Court, is a near shambles." (p.329)The flip side of that shambles are the heroic efforts of many people, typically relatives, friends, and other concerned "outsiders," who rectify, one at a time, the multitude of injustices the judicial system "insiders" inflict in untold numbers on innocent people. Those injustices can be expected to continue because, as shown by the authors, the judicial system's propensity for generating wrongful convictions is not the result of happenstance, but deeply ingrained pro-prosecution attitudes that infect every court up to and including the Supreme Court.
The cases of two men who were exonerated between the release of Actual Innocence's hardcover and paperback editions illustrate how dangerous those pro-prosecution biases can be to anyone suspected of a crime. Those two men are Larry Youngblood and Earl Washington.
Convicted in 1983 for the abduction and rape of a 10 year-old boy, Larry Youngblood proclaimed his innocence from the time of his arrest. The police, however, destroyed the boy's semen stained clothes prior to providing Mr. Youngblood with an opportunity to have them tested. After the jury deadlocked 6 to 6 in his first trial, he was convicted when retried. Appealing all the way to the Supreme Court, he claimed he was denied due process because the destroyed clothes were crucial evidence that could have exonerated him.
In a landmark 1988 decision, the Supreme Court affirmed Mr. Youngblood's conviction by ignoring the potentially exculpatory value of the destroyed clothes, and instead focused on the issue that there was no proof police deliberately destroyed the evidence. Chief Justice Rehnquist wrote:
"Unless a criminal defendant can show bad faith, however, on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process." (P. 334, quoting from Arizona v. Youngblood, 54 L.Ed.2d 717 (1988)).In dissenting from the Court's decision, Justice Blackmun emphasized: "The Constitution requires that criminal defendants be provided with a fair trial, not merely a 'good faith' at a fair trial." (p. 335). There was no physical evidence linking Mr. Youngblood to the crime, and he only generally fit the description of the assailant provided by an eyewitness -- a middle-aged man with a bad eye. In response to the state's skimpy case, Justice Blackmun wrote: "The evidence in this case was far from conclusive, and the possibility that the evidence was denied to [Youngblood] would have exonerated him was not remote." (p. 335).
Twelve years later, in the spring of 2000, Justice Blackmun's concerns were validated. Larry Youngblood's innocence was established when a newly discovered cotton swab used to collect semen from the boy on the night of the attack was tested for DNA. In Mr. Youngblood's case the Supreme Court not only affirmed the conviction of an innocent man, but in doing so it established a horrific precedent that as the 'law of the land, makes it complicit in the conviction, imprisonment, and possible execution of innocent people nationwide who have potentially exculpatory evidence destroyed by the law enforcement officers prosecuting them.
Earl Washington, the other exonerated man, was wrongly convicted of the 1982 rape and murder of a nineteen-year-old woman. Virginia's governor pardoned Mr. Washington on October 2, 2000 after his innocence was proved by DNA tests conducted that summer. He, too, had been rebuffed by the Supreme Court, when it ruled against a class action lawsuit brought by Virginia's death row inmates, of which he was one, who sought the appointment of lawyers for the men on Virginia's death row. Mr. Washington could have been executed, with the Supreme Court's blessing, if a New York corporate law firm hadn't become involved in his case on a pro bono basis two weeks before his scheduled execution in September 1985. State and federal appeals court judges had dutifully affirmed Mr. Washington's wrongful conviction, just as they had Mr. Youngblood's.
Unfortunately, Larry Youngblood and Earl Washington's cases were aberrations. It is estimated the DNA testing they relied on for exonerations only applies to approximately 1% of criminal defendants. So there is no question the Supreme Court and lower federal and state courts are affirming the conviction of untold numbers of innocent people who don't have the benefit of DNA testing or competent legal representation to establish their innocence. The two men's cases also demonstrate that the judicial affirmation of a conviction has little or no relationship to a defendant's possible guilt: it only means that judicially approved prosecution and trial procedures were followed closely enough to justify upholding the conviction. That rationale underlies the Supreme Court's 1993 decision in Herrera v. Collins (122 L.Ed.2d 203 (1993)). In that case Chief Justice Rehnquist wrote the majority opinion that ruled actual innocence of a crime isn't a constitutional issue that will in and of itself bar a person from being executed.
As in Youngblood's case, two other justices joined Justice Blackmun in countering the Court's majority position. He observed: "Just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder." (Quoting 122 L.Ed.2d at 246).
State and federal courts throughout the country follow the moral and legal leadership of the Supreme Court, and they are, quite expectantly, enforcing the pro-prosecution attitude decried by Justice Blackmun.
Actual Innocence is valuable as a chronicle of the ruthless carnage being inflicted on innocent people, and when most effective on readers, it will help to raise their consciousness level about the prevalence of wrongful convictions. A consequence of that could be the exercising of better judgment and wisdom by people in a position to determine who may and may not be guilty of the accused crime. One can only hope that men and women all over America who have read Actual Innocence are selected to serve on a criminal jury.
To provoke debate and encourage positive change in the legal establishment, Actual Innocence includes an appendix that lists twelve specific recommendations to reduce the incidence of wrongful convictions.
Actual Innocence is one of those books that recommends itself to people attracted to its subject matter. Whether read in its entirety, or in piecemeal fashion by chapter, any such person may find it rewarding.
© Justice Denied
