February 25, 2000

BOOKS OF THE TIMES

'Actual Innocence': DNA Tests and the Road to More Reliable Justice

By RICHARD BERNSTEIN

ctual Innocence," by two prominent New York criminal defense lawyers and a columnist for The Daily News, raises a powerful challenge to the assumption that all is pretty much well with the legal system, and that the safeguards against wrongful conviction are adequately in place.

Based on the experience of Barry Scheck and Peter Neufeld, the defense lawyers, "Actual Innocence" details several edifying stories of men cleared of serious crimes. Most often the charge was rape and the penalty a prison term, though some who were wrongfully convicted of murder were sentenced to death. Despite a certain slipshod quality in the writing, "Actual Innocence" is an important, unignorable depiction of the way fallible or, in some cases, careless, malicious or incompetent men and women have caused innocent men to spend years of their lives behind bars.

All but one of the convictions covered by this book's three authors -- the Daily News columnist is Jim Dwyer -- were eventually overturned by posttrial DNA analysis. Sperm or hair samples found after rapes proved that the convicted men could not have committed the crimes. In that sense, "Actual Innocence" is to a great extent a history of the role that DNA testing, which became reliably available in the late 1980s, has come to play in criminal defense work.

But the book has a far wider scope. Its case studies show the various ways miscarriages of justice take place, from mistaken eyewitness testimony to racist presumptions about black male defendants. Most important, "Actual Innocence" offers a cautionary vision of the workings of the criminal justice system in general. As of August, the book says, DNA testing had "provided stone-cold proof that 67 people were sent to prison and death row for crimes they did not commit." But DNA revelations are available only in certain kinds of cases, most commonly when semen has been collected after a rape. "The evidence says that most likely, thousands of innocent people are in prison, beyond the reach of the revelation machine," the authors conclude.

At the heart of this book are several chilling stories of men wrongfully convicted and, after many years and much resistance from prosecutors and judges, exonerated by DNA testing. In one case, a rape victim the authors call Faye Treatser identified her assailant, Walter Tyrone Snyder, during a casual encounter set up by detectives in a police station in Alexandria, Va. Treatser, who never had to identify Snyder in a line-up, was positive of her identification, although later DNA testing proved her to be mistaken. The authors said they had received an instructive lesson in the frequent unreliability of the very eyewitness identifications juries so often find persuasive.

The authors examine other common flaws in the system, including the use of jail-house snitches to obtain supposed confessions from suspects, reliance on incorrect microscopic analysis of hair samples, or just plain prosecutorial sophistry. The authors show troubling but not surprising statistics indicating that blacks are far more likely to be wrongfully convicted than whites.

In one case, Calvin Johnson of Jonesboro, Ga., a black man accused of rape by two different white women, was convicted by an all-white jury and acquitted by a racially mixed jury in another, almost identical case. The main difference was that the all-white jury dismissed testimony from three different people who gave Johnson what would seem to have been a solid alibi. DNA evidence later proved his innocence in both crimes.

Most of the cases presented in detail in "Actual Innocence" were the work of Scheck and Neufeld, whose Innocence Project at the Benjamin Cardozo School of Law in Manhattan seeks the release through DNA testing of people who have been wrongfully convicted. To their credit, Scheck and Neufeld do not put themselves at the center of the stories recounted in their book, which is not a memoir of two legal careers but rather an argument for reforming the criminal justice system. The authors point out, for example, that only two states -- New York and Illinois -- authorize postconviction DNA testing for inmates, and they recommend that other states follow suit. In most of the cases recounted in this book, the exculpatory DNA tests were performed only after Scheck or Neufeld persuaded prosecutors to allow them, usually after delays that lasted years.

While admirably modest in its presentation and vigorous in its findings, "Actual Innocence" is strangely unsatisfying as an exploration of what might be called the psychology of conviction. Some of the cases covered in this book seem to have been so manifestly unfair that they make one want to know whether the presiding judges were awake in their chairs, or whether defense lawyers tried to get the jury's attention.

The authors do speak of the pressure that the heinousness of a crime itself exerts -- how, for example, the rape and murder of a child can lead to such a powerful desire for justice to be done that injustice is done instead. The depiction of the power of that desire is helpful, but the authors of "Actual Innocence" explore only a small number of misjudged cases with those who were involved in them. One wishes they had examined more.

Still, this book remains a troubling portrayal of the criminal justice system from within its well-guarded walls. It is impossible, for example, to read of the terrifying ordeal of Tim Durham of Dallas, wrongly convicted in the rape of an 11-year-old girl, without worrying that a kind of hysteria might be present in criminal trials far more often than we like to think. Durham had 11 witnesses testifying that he was 300 miles away at the time of the rape. In prison, Durham was savagely beaten by other inmates because he had supposedly molested a child. He was eventually released after DNA evidence proved his innocence, but his case makes one wonder how many others are in prison who shouldn't be there.