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Proving Innocence Takes Conviction for Local Law School

Above: Justin Brooks, Director of the California Innocence Project, in his office at San Diego's California Western School of Law

Aired 12/2/11 on KPBS Midday Edition.

Guest: Justin Brooks, director, California Innocence Project, California Western School of Law.

Whenever I try to read about someone who has been declared innocent after spending years, even decades, in prison, I have to stop. I start seeing the days and years stretching on endlessly, and I can’t bear to think about it.

Justin Brooks knows why the innocent sometimes end up in state prison. As the director of the California Innocence Project at San Diego’s California Western School of Law, he deals regularly with the fallout from the flaws in our justice system.

The program at California Western is one of two in the state. The 12 students in the CIP at California Western not only learn the workings of criminal law, they also take on actual cases where they may have a shot at proving innocence.

Why is something like an innocence project even necessary? Why do we manage to get such an important thing as solving a violent crime wrong? Justin Brooks ticked off the reasons during my visit to California Western. It turns out it’s easy.

“The number one cause of wrongful conviction in the United States and in the world is misidentification."

Brooks seemed as if 10 years of trying to explain this basic reality is wearing on him.

Story continues below video.

Evening Edition

Anyone who follows the news knows that people can serve time in prison - decades even - for crimes they didn't commit. But some law schools - including San Diego's own California Western School of Law - are working to free people who they believe are innocent. KPBS reporter Pat Finn has this profile of the teachers and students who work in the California Innocence Project and why they do what they do.

“When somebody walks into court and points at another person and says, ‘that’s the person who committed this crime,’ that’s very powerful evidence. However, the science has proven that it’s not very good evidence, that lots of times people make mistakes with identifications.”

There is more than one reason for this, according to Brooks, getting more earnest as he got deeper into his topic. “Sometimes its just basic stuff like they’re afraid when the crime happens, and fear distorts memory. Sometimes it’s poor lighting.”

But an even thornier problem is cross-racial identification. “The studies have shown that we’re not good at identifying people from another race.” And, Books noted, “that is a huge problem in California. We have many, many cases where people are convicted just based on that evidence.

“I’m a Caucasian American, but I grew up in Puerto Rico. I’m very good at identifying Puerto Ricans. I was the only gringo in my high school. It was all Puerto Ricans. So it’s just simple exposure, and if you’ve never been exposed to any other race at all, you’re going to be terrible at it.”

And what if the witness is 100-percent certain it was the defendant who committed the crime? Brooks leaned forward for emphasis. “There’s actually studies that show that there could be an inverse relationship between people’s confidence in their identification and the quality of the identification. And that’s a difficult thing to accept; it’s not very intuitive. The witness who says, ‘I’m sure that’s the person,’ is the terrible witness.”

From “Perry Mason” to “Prime Suspect,” From “The Defenders” to “Law&Order,” most popular culture crime fiction promotes the point of view that eyewitness identifications are the gold standard, needed to corroborate physical evidence. According to Brooks, the problems with eyewitness IDs do not stop with faulty recall. Often, the procedures themselves, also enshrined in the popular culture, are at fault.

“The one that’s the worst is the classic six-pack photo array,” said Brooks. “Studies have shown that when you put six photos in front of somebody at the same time that it actually distorts the memory, and they start picking up on whomever looks most like the person in their head. They become more and more convinced that it is in fact the person. And if you just show them one person at a time, you would get better identifications than showing six at a time.”

Sometimes whoever shows the photos has a suspect in mind already.

“A police officer can be just doing his job and not intend any bad action at all, but be sitting with a witness and actually indicate who the suspect is through non-verbal communication. And there is study after study that shows this to be true.”

The innocent also end up in prison because of bad lawyers. Brooks acknowledges the perception that public defenders are overworked, underpaid and not very good. “That is completely false,” he says. “In San Diego we’re very lucky in that we have an outstanding Public Defenders’ office. If you have a public defender, there’s investigators on staff, and they’ve got a lot of support, and they’ve got motions banks and they’ve got experts. In California our problem is more with the private bar.”

If the family of a defendant charged with a violent crime doesn’t want a public defender and goes to a lawyer they know who deals mostly with DUIs and divorces, the results can be ugly.

Brooks cited one recent case where the DNA evidence excluded the suspect. His lawyer didn’t know how to read the report and so agreed with the prosecutor that his DNA was a match. Another private lawyer of an innocent man, against whom there was no real evidence of any kind, plea-bargained him right into a life sentence.

As if misidentification and bad lawyers weren’t enough, there’s also bad science. “Forensic odontology -- bite mark evidence – has been shown to be by and large terrible,” said Brooks.

"But the problem is that jurors will sometimes treat a bite mark the same way they treat fingerprints or the same way they treat DNA. And the levels of matching are just not even in the same universe. First of all, it’s not even a bite mark, it’s the bruising that responds from a bite mark. It’s completely inexact; most bite marks are pretty much the same. And a lot of time these forensic odontologists are really just bored dentists who watch a lot of television and sign on to be the county forensic odontologist.”

One more giant pothole blocking the path to justice is that many jurisdictions –- San Bernardino, Bakersfield, even Los Angeles -- are not at all happy to see the California Innocence Project come knocking. In San Diego, Brooks says, things are different.

Bonnie Dumanis and the District Attorney’s office will review cases with us – and will consent to testing, for example. But in most other jurisdictions, they fight us on everything, even getting into the evidence room….It’s just about ego….They don’t want us to come in and undo their work….It’s, ‘I wouldn’t have prosecuted this guy if he wasn’t guilty, so what are you doing here showing up to say he’s not?’

“And really, at this point, after hundreds of people have walked out of prison after a showing of innocence, after DNA has definitively proven that innocent people do go to prison, you have to look at your case and say, 'maybe I was wrong.' And that’s why I still hold out hope in every case. I still say can we sit down and talk about this, can we avoid going to court altogether? If this guy’s guilty, I will walk away.

“All we want to do is represent innocent people.”

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Avatar for user 'Peking_Duck_SD'

Peking_Duck_SD | November 30, 2011 at 9:26 p.m. ― 5 years, 3 months ago

We are very fortunate to have programs like these.

Saving just one innocent man or woman from rotting in prison is justification enough, but these various programs at law schools have proven the innocence of many.

Of course the conservative backers of the prison state the U.S.A. has become would most likely just consider these people "casualties" of their bigger multi-trillion dollar prison industrial complex not to be focused on, but these are REAL people and deserve having evidence re-examined, especially in situations where the original circumstances of the case were sketchy.

For anyone who hasn't seen it, I highly recommend the documentary "Witch Hunt".

Here is a clip that talks about the documentary that deals with many parents falsely accused of being child molesters in Kern County and later found innocent after serving many years in prison.

This stuff happens, it's real, and it needs to be addressed.

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Avatar for user 'dlchadwick'

dlchadwick | December 1, 2011 at 7:06 p.m. ― 5 years, 3 months ago

The California Innocence Project may have lost its innocence. See the article:

NATIONAL ASSOCIATION OF COUNSEL FOR CHILDREN 2011 · Volume 33 · Number 3 The Guardian.

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Avatar for user 'Pat Finn'

Pat Finn, KPBS Staff | December 2, 2011 at 11:36 a.m. ― 5 years, 3 months ago

dlchadwick's reference is to a short article in the magazine The Guardian on the Ken Marsh case. Marsh was recently freed after 21 years in prison due to the efforts of the California Innocence Project and Marsh's girlfriend, whose baby marsh was convicted of killing.

Here's what Justin Brooks had to say about that case and other shaken-baby cases in our interview:

"Shaken baby syndrome is a science that’s under attack around the world. In Europe, there have been hundreds of cases reversed that were first thought to be shaken baby cases, but were found to be undiagnosed blood disorders or a lot of other things that could have caused that injury.

We had the case of Ken Marsh here in San Diego. Ken spent 21 years in prison for the death of his girlfriend’s baby. And we sat down with bonnie dumanis.

We got neutral experts to review the evidence and made the determination that Ken should have never been convicted. And on a joint motion, our office and the district attorney’s office moved the court to have him removed from prison. And he walked out after 21 years. The shaken baby cases are heartbreaking….

They’re incredibly complex because I’m not a doctor and my students are not doctors and just to understand the science behind it is very very difficult. But you can see from a juror’s perspective – they see a dead baby and they see a parent who’s been arrested by the police and a prosecutor who believes this man committed this crime and these cases are not hard to get a conviction for. And sometimes the lawyers that I’ve seen never got a handle on the science and couldn’t undermine the prosecution’s case."

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Avatar for user 'dlchadwick'

dlchadwick | November 25, 2012 at 9:04 a.m. ― 4 years, 4 months ago

It's hard to trust the so-called "neutral experts". The American Academy of Pediatrics and the National association of Medical Examiners have published statements supporting the science behind the medical diagnosis of Abusive Head Trauma, the cause of death in the case in question.

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