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David Vasquez confessed to a capital murder he did not commit. It took years to prove his innocence, and while the Commonwealth of Virginia was holding Vasquez in custody, the actual perpetrator killed three more people. How these circumstances unfolded is a subject of the recent report of the Innocence Commission for Virginia. The report, titled “A Vision for Justice,” details the stories of 11 men who were convicted in Virginia of crimes they did not commit. Why did Vasquez confess to a terrible crime when he was innocent? The answers to that question, and to many others raised in “A Vision for Justice,” provide the basis for the commission’s recommended reforms, which are aimed at making Virginia’s criminal justice system more accurate. Here’s what happened in the Vasquez case. On Jan. 23, 1984, Carolyn Jean Hamm, a young attorney, was raped and strangled in her Northern Virginia home. Neighbors told investigators that they saw Vasquez, a man they described as “creepy” and “a peeping Tom,” near the victim’s home on the night of the murder. The police brought Vasquez, a man of low IQ, in for questioning, but they did not videotape the interrogation. During the questioning, the police falsely told Vasquez that they had found his fingerprints in the victim’s home. In a series of three rambling “confessions,” the confused Vasquez parroted back details of the crime that he learned from the police during the interrogation. Other evidence strongly suggested that the police had arrested the wrong person. One particularly obvious problem was that Vasquez’s blood type did not match the rapist’s. Yet despite this biological evidence of innocence, police and prosecutors charged Vasquez with capital murder. Faced with the daunting task of disproving his confessions and the prospect of a death sentence if he went to trial, Vasquez chose to plead guilty to second-degree murder. After Vasquez went to prison, three more women were murdered in bizarrely similar ways. An Arlington County police detective, Joe Horgas, noticed the disturbing pattern and came to doubt Vasquez’s guilt. Eventually, the detective identified Timothy Spencer as the perpetrator of all these horrific crimes and, with the help of the Federal Bureau of Investigation’s criminal profiling unit, convinced prosecutors that Vasquez was innocent. In 1989, having spent five years in prison for a crime he did not commit, Vasquez was pardoned by Virginia’s governor and released. Spencer, the actual murderer, was convicted and executed. HOW ERRORS HAPPEN The David Vasquez saga is not unique. At least 10 other innocent Virginians also have been convicted of serious crimes they did not commit. How these errors occurred, and how similar errors can be prevented in the future, is the focus of the report of the Innocence Commission for Virginia. In 2003, Virginia became just the second state (after North Carolina) to have an innocence commission. An innocence commission investigates officially acknowledged cases of the wrongful conviction of innocent people, with the goal of identifying common factors that led to these convictions, and it proposes reforms to prevent such injustices. The Innocence Commission for Virginia is a nonprofit, nonpartisan organization created by the Mid-Atlantic Innocence Project at American University’s Washington College of Law, the Constitution Project at Georgetown University’s Public Policy Institute, and the Administration of Justice Program at George Mason University. In March 2005, the commission completed its 18-month investigation into mistaken convictions in Virginia. It focused on serious felonies and limited its investigation to convictions after 1980. It also focused only on official exonerations, meaning cases in which a conviction was later overturned by a pardon or court order or when prosecutors publicly conceded that the wrong person had been convicted. Using these conservative criteria, the commission identified 11 defendants erroneously convicted of rape or murder in Virginia between 1981 and 1990. These innocent men spent a collective 118 years in prison for crimes they did not commit. Virginia taxpayers spent more than $2 million to imprison them. The commission has identified several factors that contributed to the 11 erroneous convictions. The four most common factors were (1) mistaken eyewitness identifications, (2) police interrogation techniques that lead suspects to falsely incriminate themselves, (3) “tunnel vision” � i.e., the tendency by police and prosecutors to prematurely and exclusively focus on a particular suspect � and (4) failure by prosecutors and/or police to disclose to defense attorneys evidence that helps show a defendant’s innocence. Additional factors included antiquated forensic testing methods for biological evidence, inadequate assistance of defense counsel, and unavailability of sufficient post-conviction legal remedies. The Vasquez case involved at least three of these factors, including mistaken eyewitness identifications, a false confession produced by high-pressure interrogation practices, and tunnel vision by law enforcement investigators. PREVENTING MISTAKES Over the past three years, Virginia lawmakers have enacted new legal procedures by which convicted suspects may prove their innocence, including reforming time rules for presenting new evidence and creating writs of actual innocence that inmates may file to secure review of newly discovered evidence. Nevertheless, there is much more to do to prevent wrongful convictions in the first place. The commission’s report identifies a number of relatively simple, inexpensive, and, for the most part, noncontroversial reforms that Virginia could implement to improve the quality of justice in the commonwealth. The following are the top three needed reforms. First, modernizing eyewitness identification procedures, as the Virginia State Crime Commission has also recently recommended, would eliminate many of the problems that can lead eyewitnesses to mistakenly identify the wrong suspect. In particular, police should adopt “double blind” lineups, where the officer conducting the lineup does not know the suspect’s identity. Police also should use sequential rather than simultaneous identification procedures with eyewitnesses. In other words, witnesses should see photos or lineup participants one by one, not in a group. The witnesses are thus forced to compare each individual photo or lineup participant against their own mental image of the criminal. This reduces the temptation to compare the lineup participants with one another and, sometimes, to identify the person who looks most like the offender, but is not in fact the offender. Second, videotaping interrogations in felony cases would create a window into the interrogation process, capturing on tape those rare instances � such as in the Vasquez case � when false confessions occur. In the larger pool of cases, it would protect against challenges to properly obtained confessions and limit frivolous claims of police misconduct during questioning. Third, “open file” discovery policies are needed, by which police and prosecutors share with the defense all the evidence they have collected, not merely the obvious exculpatory evidence. Sometimes police and prosecutors can discount potential evidence and thus not disclose it, even though the defense may view it as exculpatory. Sharing all evidence would ensure that defense counsel can learn of overlooked leads and present potentially exculpatory evidence at trial. Knowing that this will occur, police and prosecutors will have a greater incentive to pursue these alternative leads and thus potentially escape what may have been their initial tunnel vision. More broadly, training police officers to pursue all reasonable lines of inquiry, whether they point toward or away from a particular suspect, could help ensure that the actual criminal is caught and an innocent person is not imprisoned. BETTER JUSTICE These best practices have already been adopted by some Virginia police and prosecutors. For instance, about 4 percent of Virginia law enforcement agencies always videotape interrogations, and about 12 percent do so most of the time. These police departments, in Virginia and elsewhere, that have videotaped interrogations have been able to provide powerful evidence of guilt. As Amy Klobuchar, the county attorney for Hennepin County, Minn., has stated: “It has become clear that videotaped interrogations have strengthened the ability of police and prosecutors to secure convictions against the guilty. At the same time, they have helped protect the rights of suspects by ensuring the integrity of the criminal justice process.” Law enforcement agencies that have implemented reforms to traditional eyewitness identification procedures report that they lead to more accurate and reliable identifications. (Other states have been persuaded, as well. Illinois and New Jersey require that, when possible, photo arrays and in-person lineups be conducted sequentially rather than simultaneously.) Many Virginia prosecutors who already have instituted open-file discovery policies support these practices, in part because they encourage defendants to plead guilty once they are aware of the strength of the government’s evidence. But more needs to be done. All prosecutors and police departments in Virginia should voluntarily adopt these procedures. And where necessary, the Virginia General Assembly should pass legislation to enact these reforms, such as by requiring the videotaping of custodial interrogations in all cases of homicide and other serious felonies. Additionally, Virginia should act to improve the quality of defense counsel, preserve DNA and other forensic evidence for longer periods, and lower the barriers that inmates face in challenging their convictions when they have compelling new evidence of innocence. The most basic function of the criminal justice system is to convict the guilty � and only the guilty. When that system goes awry, both the innocent prisoner and the general public suffer. When an innocent person is convicted, the actual criminal remains free to threaten the community, as the Vasquez saga illustrates. When our justice system convicts the wrong person, the innocent inmate suffers a devastating loss of freedom. And when we mistakenly prosecute the innocent, public confidence in the legitimacy and accuracy of the criminal justice system can erode. For the sake of those innocents, and for the sake of the general public, Virginia should adopt these reforms. Injustices like that suffered by David Vasquez should never happen again. Donald P. Salzman is the president of the Mid-Atlantic Innocence Project (www.midatlanticip.org) and legal director of the Innocence Commission for Virginia (www.icva.us). A complete copy of the commission’s report is available on its Web site.

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