Books for the Holidays
There’s a growing library of serious journalism devoted to men and women wrongly convicted by the American justice system.
The stories of false rape accusations are attracting readers and some very talented writers. The first book recommended here, Actual Innocence, is a journalistic and legal classic. It was one of the first, recent powerful indictments of the criminal justice system in the United States. It also helped start The Innocence Project, an important part of the national effort to make the justice system more just.
The second book, Picking Cotton, came out last year and it tells the riveting story of a woman who falsely accused her alleged attacker – through a mistake – and then took complete moral and legal responsibility for her unfortunate actions. This book is filled with authentic, reluctant heroes who saw a bad situation for what it was and who took it upon themselves to bring about change. The main villain is the real rapist who committed his crimes in the first place and who then allowed an innocent man to pay for them.
Actual Innocence: When Justice Goes Wrong and How to Make it Right (NAL Trade, 2003)
By Barry Scheck, Peter Neufeld and Jim Dwyer
(This review is courtesy of Amazon Books and the New York Times)
While you may find “Actual Innocence” in the “true crime” section of your bookstore, this is not your typical fare of a more or less well-written and soon-to-be-TV-movie account of a harrowing crime, or series of crimes.
And while the book undeniably shows the hands of two lawyers who know how to craft a closing argument, and a Pulitzer Prize winning journalist, this is at heart, as the authors point out – and disturbingly so – a “work of nonfiction.”
“Actual innocence” is an account of the work of Scheck’s and Neufeld’s “Innocence Project,” describing some of the Project’s most prominent and successful cases, and a scathing condemnation of the shortcomings of the American system of criminal justice – particularly, under the Supreme Court’s holding in Herrera v. Collins, 506 U.S. 390, 404 (1993) (Rehnquist, C.J.) that “a claim of `actual innocence’ is not itself a constitutional claim.”
Under Herrera and the cases following it, a federal court can reject a defendant’s petition for relief even if it is based on proof of innocence, even if that proof is, as in the cases represented by the Innocence Project, of a scientific nature (DNA evidence showing that the defendant cannot have committed the crime he has been convicted of), and even if the deadlines for submitting that proof are so short that it is virtually impossible for a defendant to present evidence obtained post-conviction in time for a consideration at least in the state court system, which review has to precede a review by the federal courts.
In Herrera, the Supreme Court upheld a Texas death sentence after the defendant had missed the state law’s 30-day deadline to get a new trial based on new evidence. And while that particular case involved questions of the reliability of circumstantial evidence, admissions of guilt and eyewitness identifications (briefly, at night and without live testimony by one of the witnesses), these exclusionary rules apply regardless of the type of evidence presented.
In the cases that Scheck, Neufeld and Dwyer describe here, this sometimes meant that DNA evidence which, due to scientific advances, had only become available years after the conviction, was not admitted, even if it conclusively proved that the wrong person had been convicted.
The defendants were left to petition for executive clemency, which is discretionary and, more often than not, depends on the amount of political pressure exercised.
It is often argued, particularly by proponents of the death penalty, that the criminal justice system functions well, and that even in the best system, regrettable errors cannot be prevented. The authors of “Actual Innocence” make a compelling case for the contrary. Even if a lawyer’s shortcomings in the representation of his client may, in theory, lead to the reversal of a conviction, the bar here is almost as high as that for the presentation of proof of innocence.
In Texas, e.g., not even a lawyer sleeping during the trial or showing up drunk is considered ineffective and, like in other states, most mistakes made out of inexperience with the handling of murder/felony trials will not be enough to support a reversal, either.
Moreover, scientific evidence, such as a “DNA fingerprint,” is often not available to indigent defendants, who are most likely to be hurt by inefficient trial attorneys because they lack the means to hire counsel experienced and sophisticated enough to handle a trial of that nature.
These more often than not are the ingredients of a cocktail which, without timely and forceful intervention, can be as lethal as the death penalty itself; even if there is not, in addition, abuse on the prosecutorial side – failure to fully investigate and/or disclose the evidence available in the case (including exculpatory evidence), racial bias in the jury selection, misconduct by scientists acting as the government’s experts, etc.
It is often argued, particularly by proponents of the death penalty, that the criminal justice system functions well, and that even in the best system, regrettable errors cannot be prevented. The authors of “Actual Innocence” make a compelling case for the contrary.
Even if a lawyer’s shortcomings in the representation of his client may, in theory, lead to the reversal of a conviction, the bar here is almost as high as that for the presentation of proof of innocence.
In Texas, e.g., not even a lawyer sleeping during the trial or showing up drunk is considered ineffective and, like in other states, most mistakes made out of inexperience with the handling of murder/felony trials will not be enough to support a reversal, either.
Moreover, scientific evidence, such as a “DNA fingerprint,” is often not available to indigent defendants, who are most likely to be hurt by inefficient trial attorneys because they lack the means to hire counsel experienced and sophisticated enough to handle a trial of that nature.
These more often than not are the ingredients of a cocktail which, without timely and forceful intervention, can be as lethal as the death penalty itself; even if there is not, in addition, abuse on the prosecutorial side – failure to fully investigate and/or disclose the evidence available in the case (including exculpatory evidence), racial bias in the jury selection, misconduct by scientists acting as the government’s experts, etc.
I think we have all seen, repeatedly, TV reports on persons released from prison, sometimes only days before their execution, based on belated proof of their innocence. All of these cases expose, in differing ways, the inherent weaknesses of the criminal justice system.
While I have not been practicing in the U.S. long enough to echo the verdict handed down by the Scheck, Neufeld and Dwyer, who declare this country’s criminal justice system “a shambles,” many facts recounted by them ring true to me even now. I also stop to consider if not only a Democratic president (Clinton) imposes a moratorium on the death penalty but a Republican governor, a declared proponent of capital punishment, takes the same action and orders an investigation because “since the reestablishment of the death penalty in Illinois in 1977, there have been persistent problems in the administration of the death penalty as illustrated by the thirteen individuals on death row who have had their death sentences and convictions vacated by the courts” and “the number of death sentences and criminal convictions being vacated or overturned has raised serious concerns with respect to the process by which the death penalty is imposed.”
(Illinois Governor H. Ryan, Executive Order Creating The Governor’s Commission On Capital Punishment, May 4, 2000).
Of course, not every claim of innocence is justified. But any criminal justice system should be able to allow for the presentation of conclusive proof of innocence, regardless how belatedly. And while the question of guilt or innocence may not dominate the discussion on the recent developments in the McVeigh case – to many people, even those otherwise opposed to the death penalty, the poster child for its application – I am not exactly comfortable with the assessment by President George W. Bush, who in 6 years as governor of Texas oversaw more than 150 executions, that McVeigh “is lucky to be an American.
This is a country that will bend over backwards to make sure that his constitutional rights are guaranteed, as opposed to rushing his fate.” (N.Y. Times, May 12, 2001.) http://www.innocenceproject.org
Picking Cotton: Our Memoir of Injustice and Redemption (St. Martin’s Press, 2009)
(This review is from Kirkus Review and appear on the Picking Cotton website.)
A rape victim and the man she falsely accused—in good faith—collaborate to share an important, affecting story of fatally mistaken identity.
Thompson-Cannino was a college student at Elon College in1984, when a knife-wielding man broke into her Burlington, N.C., apartment and raped her.
She saw him clearly and escaped the apartment before he could harm her further. After working with a police sketch artist and examining mug shots gathered by police, she identified 22-year-old Cotton, who was convicted by a jury and sentenced to life in prison. He maintained his innocence from the time police approached him, but nobody except his family believed him.
Sophisticated DNA testing did not exist in the mid-’80s, and few people inside or outside the criminal-justice system understood the unreliability of eyewitness identification, especially across racial lines. (Thompson-Cannino is Caucasian, Cotton African-American.)
Convicted prisoners rarely receive attention when claiming innocence from their cells, and they usually lack the money, the legal assistance and the support network to make their assertions heard. Cotton didn’t have much money, but he drew strength from his family and found unusually receptive lawyers willing to represent him pro bono in time-consuming, seemingly hopeless post-conviction proceedings. Journalist Torneo alternates between the first-person narratives of Thompson-Cannino and Cotton.
When Cannino heard that a DNA test had set Cotton free after 11 years in prison, she was stunned and guilt-ridden.
After seeing a TV documentary about how eyewitnesses make mistakes, in which Cotton said he wondered why he’d never heard from the woman responsible for his wrongful incarceration, she arranged to meet him.
Despite the nervousness of her relatives and the anger of his wife, they built up mutual trust, became friends and eventually began traveling together to educate audiences about flaws in the criminal-justice system.
Injustice and redemption are overused words, but this heartfelt joint memoir justifies its subtitle.
http://www.pickingcottonbook.com
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