Monday, January 30, 2006

The Innocent and the Shammed: The NYT OpEd

In my original draft I had written that, on the promo for the TV show In Justice, "we hear an authoritative voice announce that every year thousands of people in this country are wrongfully convicted." Before the OpEd was published neither the conscientious NY Times fact-checker nor I could find or offer any actual proof that the word "thousands" had been used. It seems that all the material now says "hundreds" -- although I had written "thousands" down after I jumped out of bed when I first heard it about 11:00 at night in late December. We compromised with the languge you'll see I've highlighted in red in the text of the OpEd.

This was after I had called the publicity department for the ABC-TV program "InJustice" and was first blown off by a woman identified as the show's publicist. Later I was transferred back to her. I tried to explain that I was an attorney writing an op-ed that mentioned the show and I wanted to get the language in the promos correct. She then indigantly proclaimed that she had never heard of a writer calling her to get such information and that she had "lots of friends who wrote op-eds." So I politely asked her if she would take a call from an editor at the TIMES. She huffily agreed and I passed the info off to the editor I was working with. He told me she was ducking his calls and so we had to go with the less specific language (now in red).

On January 27th, the day after my OpEd was published, I got my hands on a videotape with the promos. Et voila! Here are the screen shots. I'm working on getting the full promo online.

The Innocent and the Shammed

Published: January 26, 2006

Astoria, Ore.

AS the words scroll across a darkened TV screen, we hear an authoritative voice announce that every year an alarming number of people in this country "are wrongfully convicted." Millions of Americans who watched these promotions in recent weeks knew they were pitches for the new ABC television drama "In Justice." But if they'd been listening from the next room, they might easily have thought from the somber tone that it was a tease for the nightly news or "20/20."

"In Justice" has received dismal reviews. But that hasn't stopped its premise from permeating the conventional wisdom: that our prisons are chock-full of doe-eyed innocents who have been framed by venal prosecutors and corrupt police officers with the help of grossly incompetent public defenders. It is a misconception that has run through our popular culture from "Perry Mason" to the novels of Scott Turow to the recent hit play "The Exonerated."

It was also seen on the front pages in recent weeks, in reporting about Roger Coleman, who was executed in Virginia in 1992 for rape and murder. DNA testing at the time had placed him within one-fifth of a percent of possible suspects, leading to widespread claims that he was innocent. The governor, L. Douglas Wilder, said he would consider commuting Mr. Coleman's sentence if he passed a lie detector test. He failed and was executed.

For more than a decade opponents of the death penalty have held up the Coleman case as the example that would prove that America executed an innocent man. Yet on Jan. 12 the Canadian laboratory that had been sent the last remaining DNA sample in the case announced the results of more advanced testing: it put the odds of Mr. Coleman not being the killer at less than 1 in 19 million. Still, while Mr. Coleman's face graced the cover of Time magazine at the height of the controversy, it is unlikely you will see him on the cover again marking his rightful conviction.

Americans love the underdog. Thousands of law students aspire to be Atticus Finch, the famous fictional lawyer from "To Kill A Mockingbird." But this can go too far: one of the jurors who acquitted the actor Robert Blake of murder last year cited the TV program "CSI" as the basis of her knowledge of what good police work should be. And if we take a deep breath and examine the state of American justice, a very different picture will emerge.

To start, only 14 Americans who were once on death row have been exonerated by DNA evidence alone. The hordes of Americans wrongfully convicted exist primarily on Planet Hollywood. In the Winter 2005 Journal of Criminal Law and Criminology, a group led by Samuel Gross, a law professor at the University of Michigan, published an exhaustive study of exonerations around the country from 1989 to 2003 in cases ranging from robbery to capital murder. They were able to document only 340 inmates who were eventually freed. (They counted cases where defendants were retried after an initial conviction and subsequently found not guilty as "exonerations.") Yet, despite the relatively small number his research came up with, Mr. Gross says he is certain that far more innocents languish undiscovered in prison.

So, let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent — or, to put it another way, a success rate of 99.973 percent.

Most industries would like to claim such a record of efficiency. And while, of course, people's lives are far more important than widgets, we have an entire appeals court system intended to intervene in those few cases where the innocent are in jeopardy.

It is understandable that journalists focus on the rare case in which an innocent man or woman is sent to prison — because, as all reporters know, how many planes landed safely today has never been news. The larger issue is whether those who influence the culture, like an enormous television network, have a moral responsibility to keep the facts straight regardless of their thirst for drama. "In Justice" may soon find itself on the canceled list, but several million people will still have watched it, and they are likely to have the impression that wrongfully convicted death row inmates are the virtual rule.

The words "innocent" and "exonerated" carry tremendous emotional and political weight. But these terms have been tortured beyond recognition — not just by defense lawyers, but by the disseminators of entertainment under the guise of social conscience.

"The Exonerated" played for several years Off Broadway with a Who's Who of stage and screen stars portraying six supposedly innocent people who were once on death row. The play, originally subsidized by George Soros, the liberal billionaire philanthropist, now tours college campuses and was made into a television movie by Court TV.

The script never mentions that two of the play's six characters (Sonia Jacobs and Kerry Cook) were not exonerated, but were let out of prison after a combined 36 years behind bars when they agreed to plea bargains. A third (Robert Hayes) was unavailable to do publicity tours because he is in prison, having pleaded guilty to another homicide almost identical to the one of which he was acquitted.

American justice is a work in progress, and those of us charged with administering it are well aware that it needs constant improvement. But nothing is gained by deluding the public into believing that the police and prosecutors are trying to send innocent people to prison. Any experienced defense lawyer will concede that he would starve if he accepted only "innocent" clients. Americans should be far more worried about the wrongfully freed than the wrongfully convicted.

Joshua Marquis is the district attorney of Clatsop County in Oregon and a vice president of the National District Attorneys Association.

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