February 25, 2000
BOOKS OF THE TIMES
'Actual Innocence': DNA Tests and the Road to More Reliable
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
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
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.