Barry, Peter and Science

There’s no one interested in the criminal justice system who hasn’t heard the name Barry Scheck, a law professor at Cardozo Law School who was a co-founder of the Innocence Project.  Peter Neufeld, for reasons that elude me, isn’t as well known, but just as responsible.  The point of the Innocence Project was to question dubious old convictions with DNA evidence available, test it and make sure they didn’t convict the wrong guys.

The thesis justifying the Innocence Project is that there were innocent people convicted.  Barry and Peter proved the thesis over and over.  The original Innocence Project now has plenty of state and local counterparts, adding more laboring oars to the rowing.  In Mississippi, they just did it again.  From the New York Times :

Mr. Bivens, 59, and Bobby Ray Dixon, 53, two men who were serving life sentences, were exonerated by a judge on Thursday morning, their guilty pleas to the charge of murder erased. The judge said it was likely that another man, Larry Ruffin, would soon be cleared for the same murder.

There was no special hurry in his case. Mr. Ruffin died in prison eight years ago.

Notice that Bivens and Dixon weren’t convicted after trial, but pleaded guilty.  There were confessions galore, and they even cooperated by testifying against Ruffin, who also confessed, then recanted, in the rape of Evan Gail Patterson in front of her 4 year old son, after which her throat was cut.  The only problem is that DNA showed that it was done by Andrew Harris, who was serving a life sentence for another rape.

Ashby Jones at the WSJ Law Blog makes an astute observation:

Is it just us, or does it seem that tales of the wrongfully-accused-getting-released-from-prison are popping up more and more frequently?

While it’s wrongfully convicted, the point is well taken.  It’s past 250 and still going strong, but it has also begun to lose impact.  That’s what happens with familiarity.  The shock we felt in the beginning gives way to complacency.  Rather than headlines, exonerations become blurbs.  Soon, no mention will be made at all.  It will become mundane and unworthy of valuable media territory.

In course of the work of the Innocence Projects, we came to realize many things: That the causes of false convictions were junk science, eyewitness identification and false confessions.  Then there were lying, scheming prosecutors, and lazy, incompetent defense lawyers.  We learned that judges go with the flow, neither watching the gate nor overseeing the process to assure its integrity. 

The most significant lesson learned was that we could undo the damage if there was DNA to be had.  If not, prosecutions, whether ending in a conviction after trial or plea, were untouchable, though they bore all the same burdens.  Despite all we’ve learned, there has been almost no institutional recognition of how poorly we do in distinguishing between guilty and innocent (or less innocent than charged), or providing a fair trial.

This particular case, as horrific as they come, provides an example of how even the most trusted and conclusive of methods for determining guilt, the plea, reflects as much a failure of the system as a bad ID or coerced confession.  Bivens and Dixon copped a plea to avoid the death penalty.  A fine day’s work by all involved, but for that one unfortunate detail, that they were innocent.

Having no idea what these two men discussed with their lawyers before deciding what to do, let’s assume that they were told that their confessions left them defenseless and their option was conviction with death or, under the best of circumstances, conviction with life.  A plea to life makes perfect sense.  Under these circumstances, who can blame them for the choice.

It would have been impossible to know, back in 1980, that DNA evidence would serve to eventually exonerate them.  Nor would they have suspected that two New Yorkers, Barry and Peter, would found a gang dedicated to using that DNA to clear the names of the wrongfully convicted.  Without omniscience, the case was handled as well as can be expected.

The problem is that nothing has changed.  Sure, we’ve learned tons.  The National Academy of Science has ripped junk science and the mechanisms that support and allow it in the courtroom, yet it remains as prevalent as ever.  We know that eyewitness identification is the most potent of evidence, and yet inherently unreliable.  False confessions are every bit as real as true confessions, but no one really cares.  And of course, there are still bad prosecutors, bad defense lawyers and bad judges.

One of the great hopes was that the public, the jury pool, would become more sophisticated, better educated, by the work of the Innocence Project, realizing that the system is far from perfect and extrapolating from DNA exonerations that the same flaws exist in non-DNA cases, but without a means to prove them wrong.  There’s no indication of this happening.

Even readers here, far more likely to be aware of, concerned about, attuned to the flawed criminal justice system, might have missed the news of Biven’s and Dixon’s exoneration.  After the first 250, what’s another exoneration?  And ordinary injustice goes on as if nothing has happened.

11 thoughts on “Barry, Peter and Science

  1. Jdog

    Yup. But in my own defense — and that of the rest of us who haven’t paid particular attention to this exoneration, we’ve already gotten the point: convictions of people who are not factually guilty by reason of they just plain didn’t do it are horribly common, even though nobody seems to have good numbers.

    It’s broken.

  2. Gritsforbreakfast

    A subtext to these exonerations is that death penalty lawyers, particularly in the appellate realm, have evolved a culture that makes getting LWOP instead of death a “win.” That’s a terrible disservice to actually innocent clients, but every lawyer I know who works DP cases thinks that way.

    In Texas the anti-DP crowd succeeded in 2007 in getting and LWOP option for capital cases. The problem is the compromise was ELIMINATING the option of life WITH parole to get the prosecutors on board. I always thought that was selling out their clients because of this bizarre ideology that losing is somehow winning. Winning = “Not Guilty.”

    On Grits I follow all the Texas exonerations. I’ll freely admit I don’t always follow those in other, lesser locales. 🙂

  3. SHG

    You’ve done an extraordinary job of tracking and reporting on exonerations in Texas, which is a great service. 

    As for the LWOP/Death issue, I agree that it’s hardly a “win” to put an innocent person in prison for life. But never having done a DP case, I lack the experience to understand and appreciate the situation well enough to have any authority for my opinion.  I defer to those who have been put to the test.

  4. John R.

    That’s 250 miracles, DNA or no. Laymen would be amazed at how difficult it can be to get a ruling out of a judge even with the most compelling evidence.

    Peter and Barry should be canonized somehow.

    Still, it’s relatively few cases where DNA can provide the evidence for an exoneration. From reading one of their reports, though, the number of DNA exonerations in those cases where it is possible suggests very high percentages of wrongful convictions across the board.

    We are doing a very poor job, it seems.

  5. Windypundit

    I worry that that there’s got to be a long tail to this problem. If there are this many innocent people convicted in capital cases — which are relatively rare, usually defended with considerable resources, and under a lot of scrutiny — then there must be far more people wrongfully convicted of lesser crimes. There must be a lot of guys doing time for crimes they didn’t commit — 90 days, a year, five years — because it just made sense to deal, because not enough of the right people cared. I realize that death is different, but I’ll bet that in terms of total years of life lost to wrongful conviction, there’s at least an order of magnitude more tragedy at the low end.

  6. Lee

    I’d disagree that the general public is not more aware of the flaws in our justice system than they were a decade ago. Panels will routinely acknowledge having read about problems with ID testimony, forensic analysis, false confessions. As you and I noted recently, the herculean task is getting them to believe its happened in THIS individual case. That is exceedingly hard to do.

    I think Barry and Peter have done an absolutely outstanding job of all the collateral work that the project has had to take responsibility for. They are not content to do the saintly work of exonerating the innocent case by case, they do all they can to keep it in people’s faces through media relations, to lobby legislatures for procedural changes that make false convictions less likely and DNA testing post-conviction easier to obtain, they lobby for the right of the exonerated after exoneration and they (particularly Barry, which is why I think he is better known) travel the world educating people on the problems.

    The next step in this frontier is for someone to do what Peter and Barry have done for the convicted who have DNA to test for those who do not. I know they have such a program at Stanford’s Law School, but this is a tremendously underserved demographic: the wrongly convicted without any DNA aspect to their case. I’ve urged Professor Chemerinsky at UCI, who has done great things to create a public interest oriented law school, to create a similar program for Southern California at UCI.

  7. Janice

    I remember when my daughter was in law school 8 years ago in MI, she worked on the Innocence Project that Barry Scheck brought to the school. She was so hopeful for justice in many cases. She called home one evening crying and said, “Mom, I just feel sure this older gentlemen (late 70’s) is innocent but he will never be freed — they did not have any DNA to test.” So, I wonder now how many of the older population in prisons will never be vindicated because they did not have or did not keep DNA evidence. Hopefully, with Barry and Peter crusading for justice, there will be less wrongful convictions and prosecutors, judges and defense attorneys are being held to a higher standard than before.

  8. David

    It appears to me these problems exist and are fixable totally within the realms of the lawyers involved. A dirty prosecutor or incompetent defender may not be liable, but they may be disbarred. A fantasy to be sure, but less of a pipe-dream then hoping for an educated and suspicious jury pool.

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