Assignment America: Innocent and damned

NEW YORK, April 30 (UPI) -- How can there be this many?

Every time The Innocence Project makes news, it's both a beautiful and a horrible moment that you would normally expect to inspire page-one headlines all across the country. A man has served 10 years in prison, or 15 years, or 21 years, or he's been on Death Row for a decade, and now it's been proven that he never committed any crime at all. The doors swing open, and he walks free -- both elated and bitter, vindicated and confused, above all disoriented as to time, place, and his position in the universe.

I've read newspapers from the 1920s when long-jailed men were proven innocent and released, and it was always considered a scandal, an outrage or, at the very least, a tear-jerker of a feature story. Today these cases pass like so much agate type. In many cases the national news networks, which provide hundreds of hours of coverage of the Chandra Levy or the Laci Peterson case, don't mention them at all. Shame on them, and shame on us.

It was 10 years ago that Barry Scheck and Peter Neufeld, professors at the Benjamin N. Cardozo School of Law in New York, founded The Innocence Project in an effort to make DNA testing available to prisoners who felt they had been wrongly convicted.

If it weren't for DNA, these people would have rotted in prison, and some of them would have been executed. The real scandal, though, is that, after all this time, The Innocence Project is the ONLY organization providing this kind of service. They scrape by on donations and volunteered services, when a more civilized nation would simply fund it entirely through the Department of Justice and make it available to any criminal defendant. What could be more fundamentally fair than simply allowing a man to conduct a scientific test that can conclusively prove his innocence or guilt? There's absolutely no danger to society, and common decency and fair play would seem to demand it.

But you get a sense of just how complex and user-unfriendly this procedure is when you sift through a new book called "The Innocents" (Umbrage Editions, $34.95, 128 pp.), the work of a 28-year-old photographer named Taryn Simon who took 45 of The Innocence Project's cases and photographed the freed man (they're almost always men) in a location key to the case -- either the scene of the crime, the scene of the arrest, or the place the condemned man actually was at the time of the crime (especially ironic, since it's an alibi location that was disbelieved).

These photographs are mesmerizing character studies reminiscent of Walker Evans in their sheer emotional power.

They're accompanied by brief descriptions of each man's case, the crime he was charged with, the nature of the misidentification, the reasons for his conviction, a chronology of his attempts to free himself, and -- most powerful of all -- a few lines from his own mouth describing how he views the world now.

There's a more comprehensive book on the subject, "Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted," written by Scheck, Neufeld and Jim Dwyer and published by Doubleday in 2000, but in many ways this photo book -- one hesitates to call it a coffee-table book -- is the more powerful document. (The original photos can also be seen in an exhibition beginning this week at P.S. 1 in New York, with a nationwide museum tour to follow.)

Take the photo of Frederick Daye, which leads the essays.

Daye was sentenced to life in prison for the rape and robbery of a woman in San Diego. But at the time of the crime he was actually having a beer at the bar in American Legion Post 310. (Thirteen witnesses placed him there, but they were disbelieved by the jury.) Daye sits on the same bar stool today, after serving 10 years for a crime he didn't commit, looking straight to camera, his face lined and wary, but his eyes flashing with the boldness of the standup comic he wanted to be. The bar is empty, illuminated only by a few strings of Christmas lights and a video poker screen and the spillover from a back room. The picture has an Edward Hopper tone. You get the same ineffable sadness.

You can see how such stories inspire artists. Downtown on Bleecker Street, "The Exonerated" has been running several months, based on the lives of six prisoners saved from Death Row by The Innocence Project. The play, directed by Bob Balaban, uses the real words of the freed inmates, spoken in stark understatement by actors like Richard Dreyfuss, Jill Clayburgh and a rotating cast of people normally seen only on the big screen.

When you read about all these cases -- there are hundreds, but the 45 in the new book are fairly representative -- you can't help but ask some very troublesome questions about the people in charge of our police and courts. For example:

1) Why does the wrong man go to jail in so many rape cases? It's rare for a rapist to use a disguise. The victim sees him up close. In fact, she sees lots more of him than she probably wants to see.

But time and again she picks the wrong face. The book suggests some possible reasons, the principal one being "cross-racial" identification -- mostly white women wrongly identifying black men. I don't really buy this, though. Facial features are facial features. I think the more likely culprit is bumbling unimaginative police.

A rape occurs. A suspicious character is picked up in an unrelated matter in the same neighborhood. His photograph is shown to the victim. She's not sure. They come back with a different photograph of the same man. She's still not sure. They have a police lineup, and she says that, yes, she thinks that's the man.

Well, of COURSE she thinks it's the man. She's seen him THREE TIMES now. She's studied his face more than she was able to study the face of the actual rapist.

And it's an error that compounds itself, because, once she's sure, then the face BECOMES the rapist in her own mind, and when she testifies, the jury believes her, because they tend to put heavy emphasis on eyewitness identification.

Many of these men were convicted in the 1980s, before DNA testing was widely used. The blood testing done at the time was primitive. It couldn't positively identify the rapist, but it could say a certain person "can't be excluded." As a practical matter, "can't be excluded" carried the weight of "he did it" with juries. Which brings me to my second question:

2) How are juries able to ignore so much exculpatory evidence? I've always thought that "reasonable doubt" amounted to reasonable protection against horrible miscarriages of justice. It's a good standard. It's a legal way of stating the Founding Fathers creed -- that we would rather see a hundred guilty men go free than one innocent man go to prison.

How do you explain, for example, the case of Ron Williamson, a minor league baseball player sentenced to death for the rape and strangulation of a waitress at the Coachlight Club in Ada, Okla.? One of the principal prosecution witnesses testified that Williamson had been bothering the waitress the night she was killed. But 23 other people -- many of whom had known Williamson for years -- said he had not been in the club that night.

Williamson, who suffers from mental illness, spent 11 years on Death Row, much of that time banging his head against the bars and screaming about his innocence.

Again and again these kinds of evidence matters come up in these cases. Alibi witnesses are considered to be lying. Prison snitches are believed. When the times don't match up -- the time of the crime and the time the defendant was in another location -- the jury ignores it. You can't always blame the police or the physical evidence or the attorney. In some of these cases, it seems like the jury itself is just raring to convict. "Reasonable doubt" can't really work as a standard if it becomes "without a shadow of a doubt."

3) Once they're convicted, why does it take years and years for these defendants to get access to physical evidence so they can do DNA testing?

Three years, 5 years, 8 years -- they're told that they have no legal right to DNA testing. They're told that the physical evidence doesn't exist anymore. (In some cases that's true. Amazingly, some states allow physical evidence to be destroyed after a certain time has passed, even if someone is still in prison.) What in the world kind of cockamamie reason could there be for answering "no" to the question, "Can I have a scientist test the DNA on the original rape kit?"

4) When they finally ARE cleared by the DNA test, why do so many prosecutors continue to try to keep them in prison?

In several cases the prosecutor, rather than saying the man can go free, goes back to the court with an "alternate theory" of guilt. Besides being legally specious -- you can't say you're putting him in prison because of this evidence and then bring new evidence 10 years later because the original evidence turns out to be false -- it seems just downright cold-hearted. What would the motive possibly be? To keep the conviction rate up? To protect the reputation of the District Attorney? When DNA says he wasn't at the scene of the crime, HE WASN'T AT THE SCENE OF THE CRIME.

But most troubling of all, to me, is the question:

5) What about the 80 percent of cases in which the DNA evidence no longer exists? If The Innocence Project has had this kind of reversal success -- fighting the system all the way -- on cases that sometimes turn on sheer chance (a lab happens to save one swab from the original crime scene), how many other people are languishing in prison, but without even the hope of the "magic bullet" of a certain DNA exoneration?

Years from now, I think people will look back on The Innocence Project as a turning point in how we think about criminal justice. You can't read these cases without thinking that at this point -- especially for the poor and the black - it is simply unfair. Or in the words of Ron Williamson, the man who had been drafted by the Oakland Athletics but ended up spending 11 years on Death Row instead:

"I hope I go to neither heaven nor hell. I wish that at the time of my death that I could go to sleep and never wake up and never have a bad dream. Eternal rest, like you've seen on some tombstones, that's what I hope for. Because I don't want to go through the Judgment. I don't want anybody judging me again. ... I asked myself what was the reason for my birth when I was on death row, if I was going to have to go through all that. What was even the reason for my birth? I almost cursed my mother and dad -- it was so bad -- for putting me on this earth. If I had it all to do over again, I wouldn't be born."

How can there be this many? How can there be even one?

(E-mail John Bloom at [email protected].)