Guest Shot: 'Due process' often sends the innocent to jail

The following editorial was published in the Miami (FL) Herald on October 6, 2009.

'Due process' often sends the innocent to jail

By RONALD FRASER Guest Columnist

On paper at least, the Constitution's "due process" clause is the citizen's guarantee against wrongful conviction and imprisonment. But once inside a courtroom, all bets are off. Research shows that eyewitness misidentification, false confessions and government use of snitches as witnesses -- all part of due process -- too often put innocent people behind bars.

According to Innocence Project attorneys at the Cardozo School of Law in New York City, courts in 34 states have used DNA testing to reverse more than 230 criminal convictions and free wrongly convicted persons who, on average, spent 12 years in prison.

In Florida, 10 prior convictions have been nullified. The state's first reversal took place in 2000 but was too late to free Frank Lee Smith, who died of cancer in prison after serving 14 years for a murder he did not commit. In part, Smith was convicted based on eyewitness testimony that he was seen leaving the scene of the crime.

The latest reversal in Florida occurred in 2008 when, after serving 26 years in prison, William Dillon was cleared of a 1981 murder conviction. Prosecutors had used eyewitness testimony from a former girlfriend that placed Dillon at the crime scene and the testimony of a jailhouse snitch who said Dillon admitted guilt while in jail awaiting trial.

These cases expose serious breakdowns in America's justice systems. If the courtroom failures found in these cases are at work in all state and local justice systems, what good are constitutional guarantees?

Each year many thousands of cases are decided in which DNA evidence is not available as a technical check on the reliability of traditional evidence. In these cases a person's guilt or innocence may very well be determined by error-prone eyewitness testimony, unreliable forensic procedures, government snitches and false, self-incriminating statements often obtained under heavy duress.

"These DNA exoneration cases," says the Innocence Project, "have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed."

Eyewitness misidentification testimony was a factor in 74 percent of post-conviction DNA exoneration cases, making it the leading cause of these wrongful convictions. And two in five of these eyewitness identifications involved cross-racial identification. Studies have shown that people are less able to recognize faces of a different race than their own.

Traditional eyewitness identification procedures are known to give unintended clues that result in misidentifications. The project recommends using double-blind lineups, where neither the witness nor the lineup administrators know the suspect.

Invalidated forensic evidence played a role in about 50 percent of the wrongful convictions later overturned by DNA testing. Unlike DNA testing, which is based on solid scientific research, according to the project, other forensic techniques used in courtrooms, such as hair microscopy, bite-mark comparisons and shoe-print comparisons have never been subjected to rigorous scientific evaluation.

In addition to the need to validate all forensic techniques scientifically, the technicians using techniques that are already validated, such as blood typing, need to be well trained to ensure that test results are accurate.

False confessions lead to wrongful convictions in approximately 25 percent of the cases, many involving defendants under 18 years of age or younger or developmentally disabled persons. To prevent coercion and to provide an accurate record, all police interrogations should be electronically recorded, says the project. In homicide cases, the states of Illinois, Maine and New Mexico already require taping of interrogations.

Snitches contributed to wrongful conviction in 16 percent of the cases. Snitch testimony is unreliable because it may be offered in return for deals, special treatment or the dropping of charges. All communications between snitches and prosecutors should be recorded and judges should instruct juries that snitch testimony is unreliable.

Governments exist to protect the rights of individuals. But when federal, state and local government prosecutors and judges knowingly tolerate judicial processes that violate the constitutional rights of citizens they, themselves, become rights violators.

Ronald Fraser, Ph.D., writes on public policy issues for the DKT Liberty Project, a Washington- based civil liberties organization. E-mail: fraserr@erols.com