A new National Registry on Exonerations casts doubt on the accuracy of our criminal justice system

The following editorial was published in the Birgmingham (Alabama) News on May 23, 2012, by the Birmingham News editorial board.

How many is too many?

One?

Five?

Ten?

One hundred?

Eight hundred and seventy-three?

How many people wrongfully convicted of a crime are we willing to accept? Especially those who are sentenced to Death Row?

A report released Monday by the National Registry on Exonerations raises those questions and more. The registry, a joint project of the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, profiles 873 exonerations from January 1989 through February 2012. The report discusses including at least 1,170 other defendants whose convictions were dismissed after more than a dozen major police scandals. Most of those scandals involved the massive planting of drugs and guns on innocent defendants, which led to "group exonerations."

Most of the 873 exonerations profiled in the database are for homicides (416 cases, including 101 resulting in death sentences) and sexual assaults (305). The most common reasons for wrongful convictions are perjury or false accusations (in 51 percent of cases) mistaken eyewitness identification (43 percent) and official misconduct (42 percent), according to the report. False or misleading forensic evidence and false confession are other major causes for false convictions.

"The National Registry of Exonerations gives an unprecedented view of the scope of the problem of wrongful convictions in the United States," said Rob Warden, executive director of the Center on Wrongful Convictions. "It's a widespread problem."

Including, as you might imagine, in Alabama.

Among the 873 exonerations included in the registry are 17 convictions in Alabama -- including five in Jefferson County -- later cleared in Alabama courts. One of those cases was a federal exoneration; the other 16 were state cases. Alabama ranks 14th nationally for total false convictions and 10th per resident, according to the report.

State Attorney General Luther Strange said the numbers actually make the case that Alabama's criminal proceedings result in very few errors.

"Sixteen errors out of tens of thousands of convictions does not indicate a systemic problem but rather supports the high degree of accuracy in our proceedings," he said in a statement.

But the study's authors say the number of exonerations is much higher than they have been able to document. The ones they found are "the tip of the iceberg," according to Michigan Law professor Samuel Gross, editor of the registry and an author of the report.

"Most people who are falsely convicted are not exonerated; they serve their time or die in prison," he said in a statement. "And when they are exonerated, a lot of times it happens quietly, out of public view."

Of the 16 state exonerations in Alabama, six were men sentenced to death. It does not require a vivid imagination to wonder whether a wrongly convicted person awaits execution on Alabama's Death Row or, worse, whether the state has killed an innocent person in our names.

If someone goes to prison for a crime he or she did not commit, it is an injustice. That is especially true in capital murder cases, where a life is at stake. We would like to have as much confidence in Alabama's criminal justice system as Strange professes, but the report on the national registry casts enough doubt to cause grave concern.

The National Registry of Exonerations, which will be updated on an ongoing basis, can be viewed online HERE.

Colorado's wrongful conviction of Robert Dewey holds lessons

The following opinion by Jason Kreag was published by the Denver Post on May 4, 2012 Lawyer: Colorado should compensate the innocent

NEW YORK — During the nearly 18 years he was incarcerated for a rape and murder that DNA evidence finally proved he didn't commit, Robert Dewey coped by imagining that he was riding a motorcycle. In his own words, "I'd hop on and ride in my mind."

Eighteen years is a long time to fantasize about being on a bike, but it would have likely been an even longer ride had the Colorado state attorney general's office and the Mesa County district attorney's office not been willing to work with the Innocence Project and Dewey's long-time counsel, Danyel Joffe, to reopen its investigation of the crime.

Dewey became a suspect in the 1994 rape and murder largely because the police found his actions suspicious. Although DNA testing done at the time excluded Dewey as the source of semen at the crime scene, pretrial DNA testing of his shirt seemed to indicate the presence of the victim's blood on it. Even this evidence was not particularly strong; the analyst testified at trial that the blood on Dewey's shirt was consistent with approximately 45 percent of the population. That was good enough for the jurors, who convicted Dewey despite any other substantial evidence of guilt.

We now know the system got it wrong. Robert Dewey is innocent. Unlike many of our clients, he was fortunate to have been assigned counsel to help with his post-conviction appeals. In 2007, the Innocence Project teamed up with Joffe and retested the trial scene evidence. Advances in DNA technology made it possible to definitively exclude the victim as the source of the blood on Dewey's shirt. The new testing also confirmed that Dewey wasn't the source of the semen recovered from the blanket.

We took this information to the state attorney general's office, which had recently received a federal grant to fund a Justice Review Project. After securing the cooperation of the Mesa County District Attorney's office, the attorney general's office conducted additional testing confirming that it was Dewey's blood, not the victim's, on the shirt.

This testing also yielded DNA results from the semen stain on the blanket which matched profiles of the DNA from the fingernail scrapings and other evidence from the victim's body. The profile of the semen was put in the CODIS databank and matched to Douglas Thames, who is serving a life sentence for a similar crime. The DNA results and some traditional investigative work confirmed Dewey's innocence.

Now that Dewey's innocence has been established, four aspects of the case deserve attention. First, although prosecutors elected not to pursue the death penalty in his case, the crime certainly could have been prosecuted as a capital murder. It's sobering to think what might have happened had he been sentenced to death.

Second, all too often we are forced to close cases because crime scene evidence is no longer available. Fortunately, that is not a problem in Colorado because the state legislature passed a law in 2008 requiring law enforcement to preserve evidence. Colorado lawmakers should pat themselves on the back because these laws not only help to free the innocent but, as we saw in this case, can also help identify the real perpetrator.

Third, Dewey's case is a compelling example of the usefulness of having the prosecution and defense cooperate in post-conviction cases involving innocence claims. DNA evidence has helped to show many in law enforcement that the system doesn't always get it right. In response, prosecutors around the country have started conviction integrity units like Colorado Attorney General John Suthers' project to investigate cases where someone may have been wrongfully convicted.

Dewey's case is the first exoneration to have stemmed from the Colorado project.

The Innocence Project has worked with many of these projects, and we've found that the most successful projects welcome cooperation from defense attorneys. Involving defense attorneys provides an alternative perspective and therefore a more objective examination of the evidence.

After this successful experience, we're hopeful that Attorney General Suthers has seen the value of always including defense lawyers in these investigations. From our experience, those projects that encourage defense cooperation are likely to find cases where the wrong person has been convicted, whereas those that work in a vacuum rarely do.

Finally, while Colorado has done many things right with regard to uncovering wrongful convictions, it is lagging behind in one very important regard: compensation. While he was wrongly incarcerated for the past 18 years, Dewey lost out on some of the best years of his life. He missed out on opportunities to get an education and build a career.

When he was released last week, he walked out of prison with literally nothing but the clothes on his back. While nothing could compensate Dewey for the years he's lost, the state owes it to him to see that he doesn't spend the remainder of his years penniless.

My hope for him is that the state will agree and quickly pass a compensation statute to bring Colorado in line with the majority of the states that have compensation statutes for wrongfully convicted individuals.

I also hope that Dewey has a chance to hop on a real bike soon. I have no doubt that when he does, he'll quickly remember the feeling he had on his last ride nearly 18 years ago, before his odyssey through the criminal justice system began.  

Jason Kreag is a staff attorney at the Innocence Project.