The number of “innocence projects” has mushroomed to 35 nationally-nearly half formed in the last four years-triggering a movement that has steadily altered criminal procedures in dozens of states.
Since the 1998 formation of the first Innocence Project at the Benjamin N. Cardozo School of Law in New York, the projects have played a key role in:
- Exonerating 151 prisoners through DNA testing;
- Passing post-conviction DNA statutes in more than a dozen states;
- Implementing videotaped interrogations by more than 200 police departments; and
- Reforming eyewitness identification procedures in two dozen cities.
“When we first started we were nothing more than a mom-and-pop organization attempting to uncover wrongful convictions and free the innocent,” said Peter Neufeld, co-founder of Cardozo’s innocence project.
“What’s happened with the expansion of the innocence project is the emergence of a new civil rights movement . . . primarily concerned with making the criminal justice system more about its truth-seeking function, more scientific, and ultimately, more just.”
Most innocence projects start at law schools, where students, under the guidance of professors, investigated cases of inmates who claim they have been wrongfully convicted. Among the older and more experienced of these programs is the Center on Wrongful Convictions at Northwestern University School of Law, whose staff has helped exonerate 13 Illinois death row inmates in the last 15 years. It did not become a formal program, however, until 1999.
In many innocence programs, law students do the bulk of the investigating, while volunteer lawyers in the private sector litigate the cases for free. Innocence programs are funded primarily through private donations. Most recently, the Ohio Innocence Project in September received a $1 million grant from some local philanthropists.
Meanwhile, many prosecutors are observing the innocence movement in a respectful light, applauding defense lawyers for taking the lead on an issue that, they say, really should be championed by the prosecutorial side.
“It’s just as much our duty to free the innocent as it is to convict the guilty. And we should be the ones who are leading the charge to make sure the defendants are given every single consideration in that all exculpatory evidence is disclosed,” said Carl Marlinga, a prosecutor in Macomb County, Mich., which last year saw its first and only exoneration through DNA testing. “It is a prosecutor’s worst nightmare that he or she would convict an innocent person. We should be happy that there are people out there who are protecting us from living that nightmare.”
New national priorities
One of the national priorities of those involved with innocence projects is the reform of eyewitness identification procedures, which was the main topic of a national conference held recently in New York. Defense lawyers, prosecutors and police officials from all over the country attended, including Hennepin County, Minn., prosecutor Amy Klobuchar.
“I appreciate the work the innocence project has done, particularly in the area of DNA. They pushed this issue. Those kinds of things have been very helpful for the justice system,” Klobuchar said. “Our role as prosecutors isn’t just to convict someone, but to convict the right person . . . we want to have a better system. You don’t want an innocent person sitting in jail, and you don’t want a rapist running loose.”
Hoping to avoid suspect misidentifications, Klobuchar recently helped launch pilot programs in four cities, including Minneapolis, that are designed to change the way police conduct lineups and eyewitness identifications.
The programs, which are part of the innocence projects’ national campaign to reform eyewitness ID procedures, include two key tactics:
Using a sequential identification process where the victim looks at one picture at a time, rather than viewing all potential suspects at the same time in one lineup. Proponents argue that this would help avoid confusion and possible misidentification.
Having a third, independent party who doesn’t know who the suspect is conduct the identification process to prevent any inadvertent hints by police as to who the suspect is.
According to Klobuchar, some law enforcement officials resist adopting some of the eyewitness identification recommendations for financial reasons.
For example, she said, some police argue it’s too expensive to videotape interrogations, or hire a third, independent person to conduct lineups. Klobuchar tries to convince them otherwise.
“I would trade in the costs of videotape and updating interrogation rooms for the $38 million wrongful conviction suit in Illinois any day,” Klobuchar said.
According to Neufeld, in the last year, more than two dozen jurisdictions have implemented the eyewitness protocol reforms, including police in Minnesota; Massachusetts; Santa Clara County, Calif.; the entire state of New Jersey; and parts of Seattle.
Legislative efforts also are under way in Washington to give every inmate in the country, if they made proper showing, an opportunity to have post-conviction DNA testing. That bill is pending before the U.S. Senate.
According to Neufeld, more than half the states have some sort of post-conviction DNA statute, but some of those bills have flaws. For example, some states have sunset provisions giving inmates a 12-month deadline to apply for DNA testing, which is too short a window of opportunity, argues Neufeld.
“There are plenty of people who were convicted 10 to 15 years ago who we can’t reach out to in the next 12 months. To put an arbitrary time limit on it seems mean spirited,” Neufeld said.
An exoneration, and a wedding
But exonerations triggered by innocence project work are still grabbing the most attention. The most recent came out of Georgia, where the fledgling two-year-old Georgia Innocence Project on Aug. 31 helped free Clarence Harrison, who spent 17 years in prison on rape, robbery and kidnapping charges after being identified in a police lineup.
According to Aimee Maxwell, executive director of the Georgia Innocence Project, a law student discovered two slides from a rape kit that contained semen that had not undergone DNA testing because the technology wasn’t good enough at the time.
Maxwell said DNA testing proved that Harrison was not the alleged attacker.
“I think people are paying attention to these cases now,” Maxwell said. “And I think that there’s an extreme interest in this country in forensics. There’s a third CSI [the television show] starting. There’s even a CSI New York. People understand that there is real evidence out there that can say who committed the crime, not just testimony, not just circumstantial evidence, but there’s real hard evidence out there.”
On another note, the Georgia Innocence Center also has taken on the role of helping the exonerated get on with their lives. In Harrison’s case, it recently helped throw a wedding for him and his new bride, a woman he met while in prison.
“We’re lawyers by day, and wedding planners by night,” joked Maxwell.
Butting heads in Ohio
In Ohio, Stark County prosecutor John Ferrero said he respects the intentions of innocence projects.
“I give them credit for what they’re doing. I would hope they give us prosecutors credit for what we do, too,” Ferrero said.
But in his county of 380,000 people, Ferrero said, he doesn’t see a need for any changes in witness identification protocols, or for mandating videotaped interrogations.
“We’ve never had any accusations that our agencies use any strong-arm tactics. We read about that in the bigger counties and in the bigger cities. But from my standpoint here I think the [police] agencies all handle [interrogations] pretty well,” Ferrero said.
Currently, Ferrero is butting heads with the one-year-old Ohio Innocence Project over a drunken-driving conviction involving Chris Bennett, who in 2002 was sentenced to eight years in prison on vehicular manslaughter charges after his friend was killed in a May 2001 crash.
According to Ferrero, Bennett pleaded guilty to driving a company van off the road, killing his best friend, and a witness also stated that Bennett was the driver.
But according to the Ohio Innocence Project, medical records show that Bennett suffered amnesia from the accident and that he wasn’t the driver. The project also alleges that DNA tests on blood and hair samples taken from the van show that Bennett was the passenger, and that a second witness who was never questioned by the prosecution also said Bennett was not the driver.
“Despite all that, the prosecution is still fighting it,” said Professor Mark Godsey, faculty director of the Ohio Innocence Project, which is affiliated with the University of Cincinnati College of Law.
Ferrero said he doesn’t buy the amnesia argument, and maintains that the impact of the accident could have sent blood and hair strands flying everywhere.
“We’ve looked at their new evidence and we feel strongly that we’re on good footing here, ” Ferrero said. “ I’ve heard about other [DNA exoneration] cases around the country and I have nothing bad to say about them. I think [the innocence project] is a good organization. And there are some cases that are worth looking at . . . but they’re just wasting time here.”
An evidentiary hearing for Bennett is set for Oct. 1, during which a judge is scheduled to decide whether Bennett will receive a new trial.
Meanwhile, the fledgling Ohio Innocence Project, which recently received the $1 million grant from philanthropists, is busy combing through a backlog of several hundred cases that haven’t yet been looked at.
“I don’t think anybody, even defense lawyers, would have guessed that there were this many innocent people in prison until DNA came along and proved how fragile our criminal justice system is,” Godsey said.
Innocence project proponents note that the DNA-exoneration movement has received a big boost from private attorneys who donate their time and litigation skills to freeing the innocent.
One such private attorney is Gail Pamukov, a solo practitioner in St. Clair Shores, Mich., who last year assisted the three-year-old Innocence Project at Thomas M. Cooley Law School in Lansing, Mich., in exonerating a rape suspect.
In June 2003, Pamukov helped free Kenneth Wyniemko, who spent nine years in prison after being wrongfully convicted of raping and assaulting a woman in 1994.
He was sentenced to 40-to-60 years in prison, but was exonerated through the use of DNA evidence found on a cigarette butt, a pair of panties and fingernail scrapings.
“In my lifetime as a lawyer, I probably will not be involved in another case where I am directly involved in assisting someone in getting out of prison,” Pamukov said. “The system is not set up to let these folks out. And it has turned out to be some of the most satisfying work I’ve done, so there’s real value in this kind of thing.”
Attorney Joshua Bowland knows all too well the pressures of trying to weed out the innocent from prison.
As the director of the five-year-old Rocky Mountain Innocence Center, he’s the only attorney in charge of investigating alleged wrongful convictions in Utah, Washington and Nevada. He currently has 45 active cases-more than half from Nevada, which doesn’t have a post-conviction DNA statute-and he gets a letter a day from an inmate asking for help.
“I’m so busy all the time. We’re always looking for funding,” said Bowland, who started the job four months ago. The Rocky Mountain Innocence Center has not yet exonerated anyone, but Bowland said two cases are close to being resolved.