Proving Innocence Takes Conviction for Local Law School
Wednesday, November 30, 2011
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.
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“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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