Innocence should be protected

Do we care about keeping innocent people off death row? DNA and other methods of exoneration have led to thorough reviews of the criminal justice system. Now reformers, with their scientific allies, are engaged in battle with bureaucratic opponents who believe that adoption of reforms would undermine respect for past enforcement actions and that correcting recurring problems in the justice system is unnecessary.

The office of Missouri Attorney General Jay Nixon in 2003 argued in the Joseph Amrine death penalty case that even if a defendant could prove he was innocent of the crime, it should still not bar his execution if he had a fair trial. The court disagreed and granted Amrine a new trial. The state declined to retry the case, knowing that the three inmates, one of whom was identified as the "real killer" by other witnesses, had also recanted their testimony. Six other inmates and one prison guard testified Amrine wasn’t the killer.

In Missouri, DNA has been used to exonerate four individuals wrongly convicted of crimes. Lonnie Erby was freed on Aug. 25, 2003, by a St. Louis court after having served 17 years in prison before he was finally exonerated by DNA evidence. The Chrysler plant in Fenton has given Erby his old job back as he tries to rebuild his life.

In 2002, The Associated Press analyzed 110 DNA exoneration cases. In 11 cases, those convicted were sentenced to death. In nearly half the cases, those convicted had no prior adult criminal convictions. In nearly two-thirds of the cases, people were convicted with mistaken eyewitness identification testimony from victims and bystanders. About 14 percent were imprisoned after mistakes or misconduct by forensic lab experts. Nine were mentally retarded or borderline retarded and confessed, they said, after being tricked or coerced by authorities.

What is the actual error rate in our criminal justice system? DNA evidence is mainly used in sex crimes or murders. In 1996, the Department of Justice released a study titled "Convicted by Juries, Exonerated by Science." In its review of the FBI lab, it found DNA results excluded 25 percent of the defendants from guilt. Since this analysis, there has been no known published governmental review of an error rate in the criminal justice system, except for Illinois, where exoneration in 17 death row cases established an error rate of 6 percent since reinstatement of the death penalty in 1977.

The Department of Justice in 1999 published "Eyewitness Evidence: A Guide for Law Enforcement" to instruct police on how to handle this initially very malleable evidence to prevent its unintentional contamination. It is powerful and compelling testimony when a witness raises his hand to point out an attacker, identifying him as the "evildoer." Unfortunately, science has shown that when not handled with a set procedure, identification evidence is easily corrupted and innocent citizens are mistakenly convicted. In 2001, New Jersey became the first state to adopt these eyewitness guidelines.

Twice-proposed legislation to create the Missouri Integrity of Justice Act in addition to eyewitness evidence protocol includes five additional components:

● Expanded DNA database and independent crime laboratory oversight.

● Jailhouse snitch deal disclosure and registry.

● Recorded homicide interviews conducted in a police station.

● Police certification of evidence to the prosecutor - in 2003, the St. Louis Post-Dispatch reported more than $500,000 found in police evidence lockers.

● Recorded felony interviews of borderline mentally retarded people.

Despite the relatively painless implementation of most of these reforms, they have yet to be enacted in Missouri. The courts might once again be required to overcome some of the most egregious failures of the other two branches of government if justice is to be served.

Stephen Wyse is a local attorney and past chairman of the Missouri Bar Criminal Law Sub-Committee on DNA Exoneration.