To The Readers Of The Metropolitan Corporate Counsel:
Two million people are imprisoned in America. Many do not belong in jail. They are innocent. They were falsely convicted by a flawed criminal justice system. It is time for our profession to face this sad reality and embrace reform.
With the advent of DNA testing, an alarming number of exonerations are exposing widespread practices that condemn the innocent and let the guilty go free. Hardly a week goes by where we do not read of yet another case in which the wrong person was convicted. Why is this happening in a country that exalts due process and expends enormous resources to ensure a fair trial and appellate process? And what can we do about it?
The Innocence Project at Benjamin N. Cardozo School of Law at Yeshiva University has documented more than 160 exonerations through conclusive scientific evidence. In a study of the first 130 exonerations, the Project exposed myriad fundamental defects that contributed to the false conviction: 35 false confessions; 101 mistaken identifications; 21 flawed hair comparisons; 21 false implications by informants; three false DNA inclusions.
While exonerations receive the greatest notoriety in the more closely scrutinized capital cases, false convictions are also prevalent in non-capital cases. Moreover, exoneration of the innocent is inestimably more difficult in cases in which DNA evidence is unavailable. Significantly, one study found that of 116 exonerations based on the innocence of death row inmates since 1973, only 14, or 12 percent, were based on DNA evidence.Indeed, the vast majority of criminal prosecutions do not involve biological evidence that can be subjected to DNA testing. So, how many of the 2,000,000 in prison are actually innocent? No one can say, but experts believe that many thousands of our nation's inmates have been falsely condemned.
Fortunately, public recognition of this alarming phenomenon is growing. The American Bar Association's Criminal Justice Section Ad Hoc Innocence Committee has undertaken an extensive review of the causes of erroneous convictions, and with the aid of prosecutors, defense counsel, academics, judges and representatives from the forensic and law enforcement communities, has promulgated a series of reports and recommendations that have been adopted by the ABA's House of Delegates. These initiatives comprehensively expose flawed practice and inadequate procedural safeguards that routinely contribute to false conviction. They include the following:
Interrogations and false confessions,
Crime laboratories and forensic evidence,
Eyewitness identification procedures,
Investigative policies and personnel,
Defense counsel practices,
Compensation for the wrongfully convicted.
(See Myrna S. Raeder, Andrew E. Taslitz and Paul C. Giannelli, Convicting the Guilty, Acquitting the Innocent, 20 Crim. Just. 4 (Winter 2006)).
The co-chairs of the ABA's Ad Hoc Innocence Committee, Professors Raeder, Taslitz and Giannelli, recently wrote that '[i]t is clear that the leadership of state and local bar associations is critical to furthering the goal of strengthening the criminal justice system to avoid convicting the innocent.' NYCLA embraces this challenge. In recent years, we have advocated several innocence protection initiatives, including videotaping of the entirety of custodial interrogations, preserving the right to seek federal review of state convictions and upgrading our indigent defense system.
Proud as we are of these initiatives, there is much more to do to correct the systemic flaws that cause wrongful convictions. This is not just a responsibility of those lawyers who practice in the criminal justice field. It is a responsibility of all lawyers, indeed, of all citizens of conscience. Regardless of one's philosophy on penal policy, protection of the innocence is a moral imperative in a just society.