Innocence may not be enough
January 9, 2000

'Frontline: The Case for Innocence'

Getting angry at television can be awful. If you hate what you see, you may feel there's little recourse.

 But getting angry because TV informs you, stimulates you, teaches or alerts you is a whole other matter.

 That's the kind of television producer Ofra Bikel makes crucial, well-researched, astutely reported, real-life television about the injustices, inequities and inhumanity of our much-vaunted criminal justice system.

 Bikel's new documentary "The Case for Innocence" will make you boil.

 The true-life saga of wrongly imprisoned inmates premieres Tuesday on public TV's "Frontline."

 "If you're told that innocence doesn't get you out of prison what does that say?" Bikel said recently from New York. She was talking about Roy Criner, arrested 14 years ago in Texas for the aggravated sexual assault of murder and rape victim Deanna Ogg despite the flimsy evidence.

 After a minimal, miscalculated defense Criner was convicted by a jury and imprisoned. By 1996 his only hope of appeal lay with solid advances in DNA testing. He took a DNA test that showed the sperm found in the victim was not his. A second DNA test, conducted by the state, was also negative.

 Yet as you'll see in unsettling interviews District Attorney Michael MacDougal and the Texas Court of Criminal Appeals decided the two tests did not sufficiently prove Criner's innocence.

 By majority vote the appeals court decided not to grant Criner a new trial despite the tests' exclusion of him as a perpetrator.

 In Bikel's documentary you'll see appeals court judge Sharon Keller call the DNA tests "negative evidence."

 But in what to most ordinary folks will seem a twisted catch-22 she tells Bikel on camera that "If (the test) had come back positive it would have been important because it would have been more evidence."

 MacDougal concurs: "It doesn't mean he didn't rape her, it doesn't mean he didn't kill her ... He's still in prison, and he will stay there."


Criner is only one of the chilling cases Bikel presents testaments to the terrible effects of the so-called war on crime and severe new limits on appeals by prisoners who claim innocence.

 She also gives us Earl Washington, a developmentally slow black man convicted of raping and murdering a white woman in Virginia.

 A DNA test excluded Washington's DNA as evidence, in essence eliminating him as perpetrator. Yet Douglas Wilder, Virginia governor in 1990-94, allegedly hid the test results that might have set Washington free while he sat on death row, Bikel concludes.

 Instead Wilder who apparently wanted to seem tough on crime since he hoped to run for higher office commuted Washington's death sentence to life in prison.

 Washington's lawyers saw the negative test results only a few months ago after Bikel secured them.

 "What really interests me about our legal system is the difference between perception and reality," said Bikel, who was born in Israel. In the '70s she was an executive producer for Israeli television and now regularly produces programs on criminal justice for "Frontline."

 "People say this is the best system in the world and I say 'Why is that?' And they say 'I don't know really.'

 "I think in a democracy the public should know what's happening at least know what's going on.

 "Washington the governor hid the results. What can you say? Just one more black guy in prison," she said with bitter irony.

 "I mean, the truth doesn't seem to matter, innocence doesn't matter. Criner will never get out. It's not his semen, it's not his DNA. They're still not letting him out."


Bikel offers one happy ending, however. In 1981 black defendant Clyde Charles was convicted of rape by an all-white jury and sentenced to life without parole in Louisiana's notorious Angola Prison.

 Last year Charles was finally granted a DNA test by Louisiana, through the efforts of Bikel and celebrated criminal lawyer Barry Scheck.

 Scheck, part of O.J. Simpson's winning defense team on his double murder trial, takes pro bono appeals cases through the nonprofit, New York-based Innocence Project.

 As Charles predicted, DNA tests excluded him as rapist.

 He was recently released.

 Good news, yes?

 Bikel: "What bothers me more than anything is the randomness of it all. "The press gets it very wrong 'here comes Barry Scheck and the guy goes free.' "

 In fact, Scheck was interested in a different case when Bikel found Charles through the Innocence Project and persuaded Scheck to get involved.

 "What is horrifying to me is Barry Scheck could have chosen another case. He has thousands of cases in the files, a four- or five-year waiting time. It was luck of the draw."

 Earlier, Bikel's sharp reporting changed other lives. Her searing "Frontline" documentaries "Innocence Lost" (1991) and "Innocence Lost The Verdict" (1993) dissected the twisted case of alleged child abuse at Little Rascal day care center in Edenton, N.C. They prompted the prosecuting attorney to dismiss charges against five of the seven defendants in 1997.

 Now all seven are free, although most spent time in jail awaiting trial.

 "The Case for Innocence" is thornier. It deals with the increasingly unavailable or intransigent appeals process.

 "I wanted to show how hard it is to overturn evidence. DNA for me is a window of opportunity to see how much the (criminal justice) system wants to see its mistakes.

 "Frankly even the lawyers are desensitized to the system. They say 'Well, that's just the way it is.'

 "I'm not saying change our system. Just don't assume that this is the best system in the world and we should trust it completely. Understand the system and how innocent people can indeed be imprisoned. It's horrifying but it's happening."

How the System Works
Truth in Justice