Tuesday, November 25, 2003

Witness for the Prosecution

Good work by Michael Miner in the
November 7 edition of the Chicago Reader::::

"Witness for the Prosecution"

The prosecutors of America have despised the Tribune since they read the first sentence of the first installment of "Trial & Error," a five-part series on prosecutorial misconduct subtitled "How Prosecutors Sacrifice Justice to Win." The opening salvo appeared on January 10, 1999, and the Tribune called it "The verdict: Dishonor." It began, "With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases."

The Tribune nominated "Trial & Error," bundled with a subsequent series on the death penalty, for a 2000 Pulitzer Prize. The entry reached the finals but lost, and the National District Attorneys Association was merely the largest of three groups of prosecutors who wrote the Pulitzer board denouncing it. The president of the NDAA told the board that there was much less to "Trial & Error" than met the eye. The Tribune had reviewed 381 homicide convictions that were overturned. The NDAA said it went back over 221 of these cases and discovered that many were reversed on technicalities. In over half the cases the defendant eventually was retried and convicted of the same or a lesser offense.

"Why does the Tribune use words like 'innocent,' 'exonerated,' and 'free'?" Joshua Marquis, an NDAA board member from Clatsop County, Oregon, asked me at the time. "Because it wants to convey to its readers these were people who did nothing wrong who were snatched up by a corrupt system and thrown in prison."

Marquis, a founder of the NDAA's media committee, courts reporters, and he and I have communicated occasionally over the years. On Sunday, October 26, the Tribune launched a new series, "The Legacy of Wrongful Convictions," and before that day was up Marquis had e-mailed me tearing into it.

"The Tribune is utterly predictable in their 'news' coverage of criminal justice issues," he wrote, "the mantra that our prisons are full of innocents, prosecutors are scum, and only the Trib and criminal defense lawyers will protect innocent Americans."

Marquis is good with invective, but he makes serious points. The most interesting thing about his latest batch is that they have a lot more to do with "Trial & Error" than with "The Legacy of Wrongful Convictions" and demonstrate how easily reporters and prosecutors can talk past each other.

"Crimes go unsolved as DNA tool ignored," as the first installment of the new series was headlined, looked at convictions overturned by DNA testing. Sometimes prosecutors stubbornly insist they had the right guy and won't reopen the cases, reported Maurice Possley and Steve Mills, and often "authorities have not followed up by submitting the genetic profile of the suspected perpetrator" to CODIS, the FBI's national DNA database, where it might find a match. "The failure to seek a DNA match is all the more surprising," Possley and Mills went on, "given that in the cases where DNA was submitted, genetic profiling identified the real criminal more than 40 percent of the time."

To make matters worse, their story continued, CODIS (for Combined DNA Index System) won't accept genetic profiles from Dr. Edward Blake, "one of the nation's most sought-after DNA testing experts." That's because Blake's lab isn't accredited. Blake has no respect for the accreditation process, so he won't jump through its hoops.

"In their front page story about how the Trib researched 'every single DNA exoneration' (which is possible to do because there are relatively speaking so few of them)," Marquis wrote me, "[they] wailed that the 'premier' DNA scientist, Dr. Edward Blake, was being denied access to DNA bases. Missing from their story was the fact that Blake is the close associate of Barry Scheck, and while [Blake's] scientific credentials are unchallenged his objectivity went out the window years ago (see Peter Boyer's article on 'DNA on Trial' in the New Yorker)."

I dug out that nearly four-year-old article. Boyer reported that Scheck was known nationally for his Innocence Project, a campaign to exonerate the wrongly convicted through DNA testing, and that he was also the defense-team lawyer who figured out how to neutralize overwhelming DNA evidence against O.J. Simpson by attacking the way it was collected and stored. Blake was involved in that trial as a consultant. Boyer described him as "a coveted asset in a legal fight, on either side of the aisle," but also as someone whose tendency to get emotionally caught up in legal cases "some find discordant with the scientist's mandate for dispassionate inquiry."

Marquis held it against the Tribune that Possley and Mills didn't go into this backstory. That wasn't the only tangent he found missing. "Even more prominently absent," his e-mail went on, "was the fact Scheck has violently opposed allowing his clients' DNA profiles from being entered into the CODIS database, clearly fearing they'll be identified as having committed some other rape or murder."

If that's true about Scheck, Mills tells me, "it's because he's representing his clients." After all, lawyers don't advise their clients to do things that could incriminate them. But the pretentiousness of the Innocence Project sticks in Marquis's craw. "I think, but cannot swear, that I was actually in some hearing or debate with Barry when this issue came up and remember his objecting to 'exoneration' samples being used for any other purpose than seeking to exclude his client from that particular offense," Marquis wrote in a later e-mail. "It struck all of us on the prosecution side as an extraordinarily intellectually dishonest approach, unless he conceded that his goal was simply to get his client off the hook, not seek the truth.

"That is my biggest gripe. I have nothing against tough defense attorneys who put the state to the test, but that is a very different matter than painting oneself as the 'truth seeker.'"

Finally Marquis brought up the case of Sonia Jacobs. "There are really innocent people who have been on death row," he wrote, "but to be as facile as Possley is with cases like Jacobs is not good journalism."