Have you noticed that the system of justice in this country is shutting down, piece by piece by piece? We have long noted the deleterious effects of “tort reform” here in Texas, where insurance companies are ever bolder, and injured workers and consumers have fewer and fewer rights. But there is a shutdown in criminal justice, as well. A Frontline documentary on PBS, “The Case for Innocence,” gives the most chilling case histories in a stupid and tragic trend in criminal justice.
DNA identification, which has become more sophisticated by the year, is the greatest advance in criminal detection since the fingerprint. It has enabled the system to put away criminals who otherwise would have gotten off scot-free and to find perps years after the crime when their DNA shows up after an unrelated arrest. Short of a truth serum, this is the best thing that could happen for the criminal justice system. The problem is, DNA evidence sometimes shows that the system messed up and nailed the wrong person for a crime. In fact, it happens depressingly often. The notorious inability of prosecutors to admit that they are ever wrong is a fact of life. What is far more horrifying is the refusal of judges and courts to look at evidence that proves innocence. Can you imagine how that must feel–to be in prison for a crime you didn’t commit and to finally be able to prove it, only to have a court refuse to consider the evidence?
Most of this is a consequence of a noxious law that Congress rushed through after the Oklahoma City bombing. Called the Anti-Terrorism and Effective Death Penalty Act of 1996, the law was aimed at the ability of federal judges to second-guess state courts and at the ability of prisoners to file endless habeas corpus claims challenging the constitutionality of their convictions. (“Habeas corpus” is a Latin phrase meaning “you have the body” and goes back hundreds of years in common law as well as being in the Constitution. It means that if you can show you were unfairly tried, you have a remedy through the courts.) True, the right has been abused for nitpicking purposes by some lawyers, but to effectively abolish the right is a dreadful abrogation of freedom. Where in the world are the militia folks now that we need them? Where are all those right-wingers who claim freedom as their most cherished possession?
The trouble with the ’96 law is that it was poorly written and has been subject to conflicting interpretations by the lower courts. The law says that a federal judge can reverse a state court conviction only if it was contrary to federal law or if it applied federal law in an “unreasonable” way. The Fourth Circuit, one of the most conservative courts in the country, has ruled that this means state courts have applied the law in ways that “all reasonable jurists would agree is unreasonable.” As Justice Ruth Bader Ginsberg pointed out, reasonable jurists always disagree on constitutional issues.
The new film The Hurricane, with Denzel Washington, is about a case in point. Rubin “Hurricane” Carter, a contender for the middleweight boxing title, was wrongfully convicted of a 1966 triple murder. He spent nineteen years in prison before he was finally released. The movie depicts the conviction as a frame-up by one racist cop, but as Selwyn Rabb, who originally covered the story for The New York Times, wrote: “The actual story is more harrowing because it exposes an underlying frailty in a criminal justice system that convicted Mr. Carter not once but twice. The convictions were obtained not by a lone, malevolent investigator but by a network of detectives, prosecutors and judges who countenanced the suppression and tainting of evidence and the injection of racial bias into the courtroom.” Under current interpretations of the 1996 law, Hurricane Carter would not be free today.
The most thoughtful comment in the PBS documentary came from a law professor concerned about the criminal justice system’s refusal to consider its own errors. He pointed out that in most other systems, when something goes horribly wrong–a plane falls from the sky, a type of car begins bursting into flames, a hospital patient dies from gross malpractice–there is a system in place to deal with the error. There are investigations, reports, and ultimately corrections made to prevent recurrence. In the criminal justice system, there are only denials and strenuous efforts to prevent the exculpatory evidence from being presented in court. The ease with which our criminal justice system can nail the wrong person has been painfully demonstrated time and again. (Henry Lee Lucas, the serial liar, provided one of the most bizarre examples. He claimed to have committed more than 600 murders. Police in twenty-six states closed the books on 229 murders, and he was convicted of eleven of them before it occurred to anyone to wonder if he was telling the truth. Physical evidence against him was found in two cases. The state of Texas managed to convict him for a murder committed while he was quite demonstrably in another state and had to let him off Death Row.)
Perhaps the saddest and most terrifying finding in “The Case for Innocence” is that in the sixty-some-odd cases in which innocence has been proved by DNA and the accused finally freed, none of the cases has been reopened.
Molly Ivins is a former Observer editor and a columnist for the Fort Worth Star-Telegram. Her new book, with Observer editor Louis Dubose, is Shrub: The Short and Happy Political Life of George W. Bush. You may write to her via e-mail at firstname.lastname@example.org.