Sunday, January 9, 2011

Massacre of the Innocents? Flaws in US Justice

In the USA, which boasts itself the model of all justice and fairness, Cornelius Dupree, 51, had spent 30 years in jail for rape and robbery when Texas District Judge, Don Adams, said he was “free to go”—cleared of his conviction by DNA evidence. Yet just 266 people have been exonerated by DNA evidence since 1989, according to the Innocence Project, which aims to reform the use of science in the criminal justice system. That most of them are black shows the continuing racial injustice of US justice!

Black men accused of raping white women are falsely convicted than than others accused of rape, and young suspects under 18 are at greater risk of false confession than others. Capital exonerations are less common among those convicted of murdering more than two victims and those convicted of murdering children. When defendants would not confess, and vigorously asserted their innocence at trial, yet were found guilty, the rate of later exoneration is higher.

Attorney Barry Scheck, who heads the Innocence Project, said:

Cornelius Dupree spent the prime of his life behind bars because of mistaken identification that probably would have been avoided if the best practices now used in Dallas had been employed.

Critics say the US criminal justice system is riddled with injustice through bad practices and outdated science, even though modern science and technology can prevent it. The police identification lineup is grossly flawed, and has been known to be for a long time. 75 percent of all convictions proved wrong by DNA evidence start with mistaken identity by eyewitnesses. In 1979, Cornelius Dupree was himself picked out of a photo display by a rape victim. She picked the wrong man!

Brandon Garrett, a professor at the University of Virginia School of Law, points out that people are not as certain of details as they think, and are subject to all sorts of subtle suggestions by police, even subconscious and inadvertant ones, but also, when they want to nail a victim, deliberate ones. Garrett added:

There have now been thousands of studies with incredibly consistent results all showing that suggestion has this outsized powerful effect on eyewitness memory… Even if police are trying their best not to signal anything, the eyewitness—who may be a victim of a crime and hesitant about participating—may be looking to the police officer for reassurance and for cues and may perceive things that weren’t even intended.

The big question, in a country where tens of thousands of cases each year rely on eyewitness testimony for convictions, is “do the administrators of this ‘justice’ want to change their bad but often convenient practices?”. Some, but only a few, do. Some police departments, perhaps a few hundred, have begun to change the way they conduct lineups. One way is to have an officer not involved in the case supervising the parade. Another is to tell the witness that the suspect may not be in the lineup at all.

The same criticisms hold true for other old fashioned police methods that remain in practice even though modern day science has disproved their reliability. Michael Saks, law professor at Arizona State University, calls the pseudo science still used by the police departments “wannabe science”. It includes handwriting, fingerprints, fire and arson investigation, and even forensic dentistry.

Cameron Todd Willingham was executed in 2004 for setting the house blaze that killed his three small daughters. Attorney Scheck and other legal experts engaged several fire science experts to review the evidence that convicted Willingham. They concluded the fire was not arson. University of Michigan professor Samuel Gross, said:

The problem with arson cases is that if the defendant wasn’t guilty it is not because someone else did it, it is because there was no crime!

Much US justice, especially in emotion loaded cases, is concerned with having a victim, not catching the real criminal. People want to feel exonerated that someone, anyone, has been punished for what they think is a heinous crime. A conviction will convince them the punishment is just, though they have no idea of the strength of the evidence presented.

That is so in the Lockerbie case, the destruction of an airliner for which Abdul Baset Almagrahi was convicted. The case against him is extremely thin, and looks to have been bought because it suited the US authorities to pin the outrage on to Libya. The conviction does not look just, and unless justice is seen to be done, no one should pretend it is just. Gail Jaspen, chief deputy director of Virginia Department of Forensics, says:

Evidence by itself doesn’t prove somebody’s innocence, because the (forensic science) department doesn’t have the ability to exonerate anybody. Only the court or the governor does.

So however strong the evidence, scientific or otherwise, it may not be enough, when the legal authorities, police, judges, governors, and even presidents, in international cases, already have made up their mind which outcome they favor.

The irreversibility of a death sentence, when evidence is found that undermines a death penalty, is a big argument for its abolition in civilized societies. To keep a man imprisoned wrongfully for thirty years is bad, but the man still has his life, and the state can offer some compensation for wrongful imprisonment. Bringing a dead man back to life remains impossible. Yet, the senior authorities of most states in the Union will not consider abolishing the death penalty, confident as they are it will never be used against them.

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