Washington Post, DC
05-03-07
Exonerations Change How Justice System Builds a Prosecution
DNA Tests Have Cleared 200 Convicts
By Darryl Fears
Washington Post Staff Writer
Jerry Miller is the newest poster child of the wrongfully convicted, the 200th to be
exonerated by DNA evidence -- after he spent 25 years behind bars in Illinois for
a rape he did not commit.
But Miller, a black man, hardly stands out in the crowd of the exonerated. Of the
200 people whose convictions have been overturned as a result of DNA
evidence since 1989, 60 percent have been black or Latino, according to the
Innocence Project, a liberal organization that works to free the wrongfully
convicted. Of those exonerated after a rape conviction, 85 percent were black
men accused of assaulting a white woman.
In contrast, black men are accused in 33.6 percent of rapes or sexual assaults of
white women, according to a 2005 Bureau of Justice Statistics study of victims.
"What it says to me is that, ultimately, if you are a black man charged with
sexually assaulting a white woman, the likelihood that you will be convicted, even
if you are stone-cold innocent, is much, much higher," said Peter J. Neufeld, a
co-director of the Innocence Project who asserted that the 200 exonerations "are
the tip of the iceberg."
The overturning of convictions based on DNA evidence is prompting changes in
criminal procedures that reach beyond race. States and cities are starting to
enact or consider laws to change decades-old police methods such as
eyewitness identifications and police interrogations that lead to confessions.
"The exonerations have been an extremely important force in getting the legal
system to recognize there's a problem," said Gary L. Wells, an Iowa State
University psychology professor whose research led to new practices in
eyewitness identification. "I've been working at this for 30 years, and before DNA
they pretty much ignored the studies."
In New Jersey, where four convictions were overturned by DNA evidence, the
state attorney general issued a directive requiring law enforcement agencies to
electronically record police interrogations for all violent crimes to guard against
false confessions, said Paul H. Heinzel, a deputy attorney general for the state.
At least 500 smaller police jurisdictions have begun to tape confessions, and 20
states -- including Maryland, Virginia, California, Florida and Tennessee -- are
considering it.
"Police and prosecutors I've talked to thought it was a good thing," said Sen. Amy
Klobuchar (D-Minn.), a former county prosecutor whose state started taping 11
years ago, after a ruling from its supreme court. "It builds police credibility.
People talked about it being too expensive. But I would put buying a cheap tape
over paying some of these multimillion-dollar wrongful-conviction judgments any
day."
New Jersey also led the way in discarding the old police lineup, in which victims
and witnesses identified suspects first from an array of photographs and later
from an in-person lineup as detectives intent on solving the case stood by,
sometimes offering encouragement. The state now presents individuals -- in
person or in photos -- one after the other so witnesses cannot compare one
member of a lineup to another, making relative judgments "about which individual
most looks like the perpetrator," according to guidelines set by the New Jersey
attorney general.
Bad eyewitness identifications contributed to 75 percent of wrongful convictions
in cases that were overturned by DNA evidence, according to the Innocence
Project. Georgia, West Virginia, Connecticut, New Mexico and Texas, where 25
convictions were overturned by DNA evidence, are now considering legislation
that would similarly change eyewitness identifications.
Miami is considering an overhaul of its procedures, said John F. Timoney, chief
of police. The city now videotapes all confessions. DNA evidence is tested in
every rape case. The city has collected more DNA evidence than its labs can
test. Timoney said he is in discussions with the district attorney over whether to
implement a sequential process for eyewitness identification.
Joshua Marquis, district attorney for Clatsop County, Ore., and vice president of
the National District Attorneys Association, warned against the new eyewitness
procedures. He called the process an unproven fad that could unwittingly set
perpetrators free.
"It's way far from being established that this is the magic bullet," he said, adding
that prosecutors want "eyewitness identification that is valid."
Miller was a young Army veteran and line cook when he was identified as a rapist
and arrested in September 1981. Police said his face resembled the composite
sketch created from the memory of the victim, who was attacked in a parking
garage and stuffed in the trunk of her car by an assailant.
Miller protested, saying he was at home watching Sugar Ray Leonard box
Tommy Hearns in their famous bout. He offered a witness to corroborate his alibi:
his father, who watched with him. "I can remember all of that like it was
yesterday," Miller said. "I thought somebody set me up."
Miller was convicted after witnesses identified him during his trial. Police stored
the evidence, including a slip with semen that led to Miller's exoneration. At a
news conference last week, the Illinois state attorney general apologized.
It was not the first apology after a wrongful conviction. Jennifer Thompson
Cannino apologized to Ronald Cotton, whom she misidentified in 1984 after she
was raped in Greensboro, N.C. Cotton served nearly 10 years before he was
exonerated by a DNA test in 1995.
Cannino, who is white, toured the country with Cotton, who is black, to speak out
against eyewitness identifications and composite sketches. She said police
helped influence her to choose the wrong man.
"When you sit down and look at the choices in front of you, the hundred noses,
the hundred eyebrows, you try to get the best eyes, eyelashes, the best lips," she
said. "When the composite was finished and I was asked, 'Does it look like the
man who attacked you?' I said, 'Yes, it looks like the man.' "
Guided by the composite, Cannino said she picked Cotton out of photographs. "I
did get verbal and nonverbal encouragement: 'Good job. Way to go,' " she said.
"In the lineup, I looked for somebody who looked like the photograph. And
Ronald Cotton was doomed."
In a second trial three years later, she continued to insist that Cotton raped her,
even when the true rapist came forward. DNA testing confirmed the second
man's guilt.
"Thank God the investigator in my case felt that he needed to hold on to
evidence," she said. "Had it not been for that, Ron Cotton would still be in prison
today."