Eight Myths of Justice

     Innocent Americans are routinely convicted and
     incarcerated. The new book False Justice explains
     how.

By Steve Weinberg
November 12, 2010
http://inthesetimes.org/article/6530/eight_myths_of_justice

In the 2006 U.S. Supreme Court ruling Kansas v. March,
Justice David Souter and Justice Antonin Scalia
conducted a public debate within their opposing written
opinions. Discussing the fates of death row prisoners,
Souter opined that in such high stakes cases, innocent
men and women are too often found guilty. The
"unusually high incidence of false conviction" is
probably caused by "the combined difficulty of
investigating without help from the victim, intense
pressure to get convictions in homicide cases, and the
corresponding incentive for the guilty to free the
innocent," Souter wrote.

Scalia countered that wrongful convictions are rare in
capital cases because they "are given especially close
scrutiny at every level, which is why in most cases
many years elapse before the sentence is executed."

For 40 years, I have researched, written about and
obsessed over wrongful convictions. Souter's thinking--
heavily reliant on the research of Samuel Gross, a
University of Michigan law professor who has
demonstrated that wrongful convictions are more
prevalent than most law enforcement insiders
understand--is spot-on. Scalia's is misguided, informed
by a judicial culture more interested in speedy
convictions than thorough investigations.

The law enforcement personage who recognizes the
problem of false convictions is a rare and refreshing
breed--and often comes from unlikely corners of the
political ring. Republican politician Jim Petro,
experienced an epiphany during his term as Ohio
attorney general that surprised him, his wife Nancy and
many of his supporters. The epiphany? Petro realized
that a significant number of prisoners who say they are
innocent are indeed innocent. He realized that wrongful
convictions occur in multiple Ohio county courthouses
and in federal courts. He realized that the number of
wrongful convictions can be minimized, and that police,
prosecutors, judges and defense attorneys can perform
their jobs better. His newfound cause was well suited
to his law-and-order way of thinking--when wrongful
convictions occur, the actual perpetrators (murderers,
rapists, burglars, etc.) go unpunished, and often
murder or rape or burglarize again.

In my years of research, I have heard only a few
prosecutors acknowledge the breadth and depth of the
problem. In his new book False Justice: Eight Myths
That Convict the Innocent (January, Kaplan), Petro
outdoes them all.

Most of the cases that raised red flags for Petro, and
now benefit from his lawyering, are Ohio cases. Petro
was especially gripped by the cases of Clarence Elkins,
Michael Green and Roger Dean Gillispie, convicted
felons whose exonerations in Ohio are completed or
pending.

Petro and his wife, a business consultant, rely heavily
on the Elkins, Green and Gillispie case studies in hope
of dispelling eight "myths" about the criminal justice
system:

*  Everyone in prison claims innocence. Most inmates
   make no such claim because guilt is obvious. Lots of
   prisoners complain about police cutting corners or
   prosecutors offering overly harsh plea bargain
   terms, but rarely do they deny their crime
   completely.

*  The American criminal justice system almost never
   convicts an innocent person. Nobody can know the
   census of innocent inmates. But hundreds of
   documented cases exist, and Petro, among others,
   suggests the number reaches into the tens of
   thousands.

*  Only the guilty confess. False confessions show up
   in at least one quarter of documented wrongful
   convictions.

*  Wrongful conviction is the result of innocent human
   error. Numerous cases have yielded evidence that
   police and prosecutors had reason to doubt the
   validity of the arrest, but made the arrest anyway.

*  An eyewitness is the best testimony. Sometimes that
   is true, but numerous well-designed research studies
   suggest the odds of accurate eyewitness
   identification are no better than 50-50.

*  Conviction errors get corrected on appeal.
   Appellate judges tend to side with the prosecution
   because finality is an overwhelming value within the
   court system.

*  It dishonors the victim to question a conviction.
   In fact, many victims and their loved ones want the
   actual perpetrators to serve prison time.

*  If the justice system has problems, the pros will
   fix them. In researching the more than 2,300
   criminal justice jurisdictions across the United
   States, I have found that the pros almost never
   initiate the repairs. Instead, those repairs begin
   with innocence project advocates, journalists
   through their public investigations, law professors,
   and the rare state legislators and public officials
   willing to buck against the criminal justice
   establishment.

Any well-informed primer on wrongful convictions is
welcome. Even better is a primer by somebody like
Petro, who has the credentials to move reform proposals
to center stage.

___________________________________________

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