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Let us now praise framed-up men
Innocence commissions are being established all over the country. It’s high time the Bay State followed suit.

THOSE WHO’VE spent time examining our criminal-justice system know how easy it is for an innocent person to be erroneously convicted. They can also identify the systemic defects that account for the majority of false convictions — namely, flawed eyewitness identification procedures, overly aggressive police interrogations, and questionable deals with suspects and witnesses. Yet people in a position to change the system — our leading politicians, law-enforcement officials, prosecutors, and judges — refuse to do anything about it. Many want to protect their people, their turf, and, in some cases, themselves. Others labor under the misguided notion that if the public learns what’s wrong with how criminal law is enforced, confidence in the system will be shaken. So innocent people continue to be convicted, and when a small portion of false convictions is exposed, prosecutors and judges claim that "the system works."

But we seem to be reaching a tipping point for reform. Two years ago, North Carolina Supreme Court chief justice I. Beverly Lake established the North Carolina Actual Innocence Commission. The commission, the first of its kind in the country, examines investigations and prosecutions resulting in wrongful convictions — just as the National Transportation and Safety Board does after an airline crash. It then makes recommendations for change to prevent such mistakes from happening again. Last year, Connecticut became the first state to create such a commission by legislative statute. Also last year, Judith Kaye, chief justice of the New York State Court of Appeals, informed some members of the bar of her intention to create an innocence commission. The state of Wisconsin has established a study group to examine the logistics of setting up an innocence commission. Proposals to do the same are under active consideration in Minnesota and Arizona, according to Barry Scheck, co-director of the New York–based Innocence Project, a nonprofit legal clinic at Cardozo School of Law that takes on prisoner appeals in which post-conviction DNA or other scientific tests can prove innocence.

Locally, the Massachusetts Association of Criminal Defense Lawyers (MACDL) plans to petition the Massachusetts Supreme Judicial Court to create an innocence commission if Governor Mitt Romney, Attorney General Tom Reilly, and our legislature fail to do it on their own. Given the recent spate of exonerations of wrongfully imprisoned innocents around the state — which have received unprecedented coverage in Boston’s two local dailies — there seems no better time than now to set up a statewide system to examine where police and prosecutors have gone wrong in individual cases. And to make recommendations for real systemic change.

BOSTON UNIVERSITY law professor Stanley Z. Fisher published an article two years ago in that school’s Public Interest Law Journal examining all the "known cases of wrongful convictions in Massachusetts courts" since 1800. He demonstrated that wrongful convictions occur just as frequently in Massachusetts as they do in other states. He summed up his findings thusly: "A rising tide of prisoner exonerations, a significant number of which have relied upon DNA testing, has revealed how miscarriages of justice can result from deficient practices of police interrogation and eyewitness identification, inadequate disclosure of exculpatory evidence, acceptance of unreliable ‘junk science’ and ‘snitch’ testimony, and ineffective assistance of counsel."

Fisher’s conclusions were presaged two years earlier by the groundbreaking book Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted (Doubleday, 2000), authored by Scheck and Peter Neufeld, who co-directs the Innocence Project, and Pulitzer Prize–winning journalist Jim Dwyer. The book recounts some of the exonerations resulting from the Innocence Project’s work (to date the project has freed 143 wrongfully convicted prisoners) and draws the same general conclusion as Fisher: our system of criminal justice is deeply flawed, and the time has come to reform it.

The most recent Massachusetts exonerations, as determined by court proceedings in each case, illustrate this need:

Anthony Powell: wrongly convicted in 1992 of rape because of a faulty eyewitness identification. Exonerated in 2004 on the basis of DNA evidence after 13 years of incarceration.

Stephan Cowans: wrongly convicted in 1998 of shooting a police officer because of an erroneously matched fingerprint. Exonerated in 2004 after DNA testing proved that the fingerprint analysis was wrong (for reasons not yet fully determined). Cowans spent six years in prison.

Shawn Drumgold: wrongly convicted in 1989 of killing a 12-year-old girl in a gangland shooting gone awry. He was freed from prison in 2003 after a hard-hitting investigative report by then–Boston Globe reporter Dick Lehr spurred a court hearing examining new evidence. Although prosecutors maintain, against the overwhelming weight of the evidence, that Drumgold may still be guilty (but not so demonstrably guilty that they’re going to retry him), the hearing forced them to admit that the original investigation in the shooting had been rife with police and prosecutorial error (which they deftly avoided labeling misconduct). Drumgold spent 15 years in prison.

Some other (but hardly all) notable cases of wrongful convictions over the past two decades include the following:

Christopher Harding: wrongly convicted in 1990 of murdering a police officer. Exonerated in 1998 when police testimony in another defendant’s trial produced discrepancies with previous police testimony at Harding’s trial.

Donnell Johnson: wrongly convicted in 1996, on the basis of "mistaken" eyewitness testimony, of killing a nine-year-old boy; released in 2000. His conviction was re-examined when a gang member involved in the shooting, then facing separate drug charges, told prosecutors that Johnson had nothing to do with the shooting of the boy. Johnson spent five years in prison.

Kenneth Waters: wrongly convicted in 1983 of murder based on false testimony and exonerated by DNA evidence in 2001. He served 18 years in prison.

Henry Tameleo, Louis Greco, Peter Limone, and Joseph Salvati: wrongly convicted in 1965 of a mob-related murder. Although FBI agents knew the four men were innocent, they refused to intervene in the prosecution. Tameleo and Greco died in prison. Salvati was released in 1997 when then-governor William Weld commuted his sentence; Limone was released in 2001 after a federal investigation into FBI misconduct in the handling of South Boston crime boss James "Whitey" Bulger rendered the conviction untenable.

In all these cases, highly questionable police and prosecutorial work, tactics, or testimony came to light that merit further investigation, and perhaps action beyond mere exoneration of the wrongly convicted. It does not appear, however, that prosecutors and judges are particularly willing to do this. If those who do not remember history are doomed to repeat it, surely the same can be said of those who don’t want to delve too deeply into that history in the first place.

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Issue Date: April 9 - 15, 2004
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