When justice system crashes

The following editorial was published in the Palm Beach (Florida) Post on December 23, 2009.

When justice system crashes

James Bain is enjoying his first Christmas as a free man since 1973, even though for all those years he was an innocent man. Florida must create a commission to investigate such catastrophic failures of the criminal justice system.

In 1974, Mr. Bain was arrested for the kidnap and rape of a 9-year-old boy. Polk County prosecutors got a conviction, despite relying only on what was a very shaky eyewitness identification. Attorneys for The Innocence Project of Florida pressed for DNA testing, which prosecutors rejected several times before agreeing. Results confirmed Mr. Bain's innocence, and he went home last week.

The state owes Mr. Bain $1.75 million, based on $50,000 for each stolen year. The Florida Supreme Court owes it to the state justice system to create an Innocence Commission.

Mr. Bain became just the latest example of system failure. In 2004, it was Wilton Dedge (22 years). In 2005, it was Luis Diaz (26 years). In 2008, it was Alan Crotzer (24 years) and William Dillon (28 years). Then there are the 23 exonerations from Florida's Death Row.

As Innocence Project co-founder Barry Scheck has noted, these cases are to the justice system what a crash is to the airline industry: a tragedy, but also a chance to learn. When a ValuJet plane crashed in the Everglades 13 years ago, for example, we learned the dangers of outsourcing maintenance. Miscommunication led to the storing of full oxygen canisters in the hold. They ignited.

One week before Mr. Bain's release, Talbot "Sandy" D'Alemberte petitioned the Florida Supreme Court to create a Florida Actual Innocence Commission. According to the petition, the commission would "investigate the circumstances of cases where actual innocence of a crime has been demonstrated and to develop recommendations for reforms to reduce wrongful convictions." Mr. D'Alemberte is a former president of the American Bar Association and Florida State University, where he also was law school dean. Joining the petition at this point are roughly 70 lawyers, among them prosecutors and former Florida Supreme Court justices. Fifty are required for the court to consider a petition.

The petition suggests that the court establish a commission modeled after the one in North Carolina. The court has no timetable to decide, but Mark Schlackman, who works with Mr. D'Alemberte at the Florida State University Center for the Advancement of Human Rights, said, "We are very optimistic."

Other studies, one by the ABA in 2006, identified flaws with the state's criminal justice system. When that system gets it so wrong, so badly, so often, the search for justice demands that the system understand why.