Fallout from the Duke case

Radley Balko has an excellent article about some of the implications of the Duke case. While he starts with the Duke case, he quickly uses it to cast questions upon our justice system.

In response to the Duke case and its ramifications, a Colorado Judge wrote an editorial for the Wall Street Journal (free link no longer available) in which he argued that statistically there are only a few cases of proven innocence. Since the numbers are so low, groups like the Innocence Project are creating a lot of hysteria over nothing.

The eyewitness ID blog (which will be added to my blog roll when I get around to it, as will some other blogs) had a couple of posts that rightly took the judge to task. The first post pointed out that this is not a statistical problem. It is a moral problem with our justice system that we have so many wrongful convictions. The second post focuses on how much our system glosses over the types of errors that lead to wrongful convictions. How many cases get reversed on appeal? Very few. And how many are revered on a post-conviction relief petition? Even fewer. These are in part because the system does not really want any reform to examine the prevalence of wrongful convictions. These are excellent points and I cannot recommend the posts highly enough, but I want to add my own two cents.

The WSJ article says there's no way to figure out a known false conviction rate. That's true. But that misses the point. The exonerations should make us pause for a couple of reasons. First, we are seeing, as Radley notes, a lot of overturned convictions come from Dallas because the Dallas police department has kept physical evidence. Thus, it is one of the few jurisdictions in which we can go back and use objective evidence to see if convictions were wrong.

But there's another problem: DNA evidence, even if it is preserved, is simply not available in every case. Yet we are seeing that juries have convicted the wrong people based upon wrongful IDs, false confessions, incompetent or dishonest forensic lab technicians, legal malpractice, and a variety of other issues. Those issues are present in a vast number of cases where DNA is not even an issue. The citizenry is glad to see an innocent person walk out of jail, but they also scream for his conviction during trial. When legislatures deal with funding criminal justice issues, there is a lot of money for DAs, cops, victims' programs, prisons, judges, parole officers, polygraph operators to watch those sex offenders, lab technicians, and anybody else to get people into jail.

But one of the best ways to prevent wrongful convictions is to have a vigorous defense bar. A defense bar with a case load low enough that they can return phone calls, investigate matters and properly prepare for trials. Alaska's better than most, but we're a long way from ideal. The Alaska Legislature, I think, would rather fund animal research for cosmetics than indigent defense agencies. I'm not a real big fan of taxes being rather anarchistic myself, but as long as the State's going to pay to prosecute people, it should pay the public defenders well enough to be an effective foil to the prosecution.

Another reform would be to separate the state forensic laboratories from being part of law enforcement. The Dallas sheet rock scandal, Fred Zane in West Virginia and San Antonio, the DNA technician in Oklahoma, all are examples of what happens when forensic technicians switch from being scientists to being advocates. A good way to prevent this would be to make the agencies neutral. Privatize the labs. Even the medical examiner's office.

There are a number of ID reforms that could be implemented. For some reasons, though, States do not seem to be rushing to implement them. There has been some movement regarding tape recording all statements, but again, it is sporadic. Federal law enforcement agencies greatly resist such efforts.

Nobody wants the innocent to go to jail. But it seems we really have adopted Feliks Dzerzhinsky's philosophy: Its better to execute 10 innocent men than to leave one guilty man alive. When judges blithely admit errors and say that its no big deal, when they say that we should ignore the questions that this wave of exonerations has raised, when they accuse some people of worshipping innocence, is it such an unreasonable conclusion? No.