Barry Scheck / Peter Neufeld / Jim Dwyer: Actual Innocence – When Justice Goes Wrong and How to Make It Right

A scathing Verdict on the U.S. Criminal Justice System

“Our procedure has been always haunted by the ghost of the innocent man convicted.” – U.S. v. Garsson, D.C., 291 F. 646, 649 (1923) (Judge Learned Hand)

While you may find “Actual Innocence” in the “true crime” section of your bookstore, this is not your typical fare of a more or less well-written and soon-to-be-TV-movie account of a harrowing crime, or series of crimes. And while the book undeniably shows the hands of two lawyers who know how to craft a closing argument, and a Pulitzer Prize winning journalist, this is at heart, as the authors point out – and disturbingly so – a “work of nonfiction.”

“Actual Innocence” (which was originally subtitled Five Days to Execution and Other Dispatches from the Wrongly Convicted) is an account of the work of Scheck’s and Neufeld’s “Innocence Project,” describing some of the Project’s most prominent and successful cases, and a scathing condemnation of the shortcomings of the American system of criminal justice – particularly, under the Supreme Court’s holding in Herrera v. Collins, 506 U.S. 390, 404 (1993) (Rehnquist, C.J.) that “a claim of ‘actual innocence’ is not itself a constitutional claim.” Under Herrera and the cases following it, a federal court can reject a defendant’s petition for relief even if it is based on proof of innocence, even if that proof is, as in the cases represented by the Innocence Project, of a scientific nature (DNA evidence showing that the defendant cannot have committed the crime he has been convicted of), and even if the deadlines for submitting that proof are so short that it is virtually impossible for a defendant to present evidence obtained post-conviction in time for a consideration at least in the state court system, which review has to precede a review by the federal courts.

In Herrera, the Supreme Court upheld a Texas death sentence after the defendant had missed the state law’s 30-day deadline to get a new trial based on new evidence. And while that particular case involved questions of the reliability of circumstantial evidence, admissions of guilt and eyewitness identifications (briefly, at night and without live testimony by one of the witnesses), these exclusionary rules apply regardless of the type of evidence presented. In the cases that Scheck, Neufeld and Dwyer describe here, this sometimes meant that DNA evidence which, due to scientific advances, had only become available years after the conviction, was not admitted, even if it conclusively proved that the wrong person had been convicted. The defendants were left to petition for executive clemency, which is discretionary and, more often than not, depends on the amount of political pressure exercised.

It is often argued, particularly by proponents of the death penalty, that the criminal justice system functions well, and that even in the best system, regrettable errors cannot be prevented. The authors of “Actual Innocence” make a compelling case for the contrary. Even if a lawyer’s shortcomings in the representation of his client may, in theory, lead to the reversal of a conviction, the bar here is almost as high as that for the presentation of proof of innocence. In Texas, e.g., not even a lawyer sleeping during the trial or showing up drunk is considered ineffective and, like in other states, most mistakes made out of inexperience with the handling of murder/felony trials will not be enough to support a reversal, either. Moreover, scientific evidence, such as a “DNA fingerprint,” is often not available to indigent defendants, who are most likely to be hurt by inefficient trial attorneys because they lack the means to hire counsel experienced and sophisticated enough to handle a trial of that nature. These more often than not are the ingredients of a cocktail which, without timely and forceful intervention, can be as lethal as the death penalty itself; even if there is not, in addition, abuse on the prosecutorial side – failure to fully investigate and/or disclose the evidence available in the case (including exculpatory evidence), racial bias in the jury selection, misconduct by scientists acting as the government’s experts, etc.

American TV again and again broadcasts reports on persons released from prison, sometimes only days before their execution, based on belated proof of their innocence. All of these cases expose, in differing ways, the inherent weaknesses of the U.S. criminal justice system. While I did not practice in the U.S. long enough to feel comfortable echoing unreservedly the verdict handed down by the Scheck, Neufeld and Dwyer, who declare the country’s criminal justice system “a shambles,” many facts recounted by them ring true to me, too. I also stop to consider if not only a Democratic president (Clinton) imposes a moratorium on the death penalty but a Republican governor, a one-time declared proponent of capital punishment, takes the same action and orders an investigation because “since the reestablishment of the death penalty in Illinois in 1977, there have been persistent problems in the administration of the death penalty as illustrated by the thirteen individuals on death row who have had their death sentences and convictions vacated by the courts” and “the number of death sentences and criminal convictions being vacated or overturned has raised serious concerns with respect to the process by which the death penalty is imposed.” (Former Illinois Governor H. Ryan, Executive Order Creating The Governor’s Commission On Capital Punishment, May 4, 2000).

Of course, not every claim of innocence is justified. But any criminal justice system should be able to allow for the presentation of conclusive proof of innocence, regardless how belatedly. And while the question of guilt or innocence may not have dominated the discussion on the case of executed Oklahoma City bomber Timothy McVeigh – to many people, even those otherwise opposed to the death penalty, the poster child for its application – I am not exactly comfortable with the assessment by former President George W. Bush, who in 6 years as governor of Texas oversaw more than 150 executions, that McVeigh was “lucky to be an American. This is a country that will bend over backwards to make sure that his constitutional rights are guaranteed, as opposed to rushing his fate.” (New York Times, May 12, 2001.)