Freeing the Innocent

 Published on Saturday, March 7, 1998
 © 1998 Madison Newspapers, Inc.

 Byline: Rob Zaleski

Nobody likes to admit it, confided Ted Welch, the disarmingly candid local polygraph expert, during an interview.

 But innocent people get trapped in the criminal justice system all the time. They get trapped for a variety of reasons, he  pointed out -- but more often than not it's because they were victims of mistaken identity.

 ``The poor suckers,'' he shrugged, ``just happened to be in the wrong place at the wrong time.''

 And that's truly unfortunate, he surmised. Because once someone gets trapped in that maze, they usually have one hell of a  time trying to find their way out.

 ``But what are you going to do?'' he said. ``The system's flawed.''

 Oddly enough, as Welch made those remarks, I found myself thinking about the movie ``The Fugitive'' --- more specifically,  the look of disbelief on the face of Dr. Richard Kimble (played by Harrison Ford) when it suddenly dawns on him that he's a  suspect in the brutal slaying of his own wife. And how he's then forced to endure a nightmarish series of setbacks before  finally proving his innocence.

 But, of course, that was Hollywood's slant on the system's fallibility.

 Now when I reflect on what Welch told me last November, I can't help but think of Anthony Hicks and Willie ``Tuna''  Raines, two victims of the system whom I profiled in this space the last two Saturdays.

 Or the 45 other innocent men who have been released from U.S. prisons on DNA evidence since 1987.

 Raines, 40, and three companions spent 18 years in maximum security prisons in Illinois after being convicted of the  gruesome murders of Larry Lionberg, 29, and Carol Schmal, 23, in 1978. Three other men have since confessed to the  crimes.

 Hicks, 34, spent 4 1/2 years behind bars after being convicted in the rape of a 26-year-old Madison woman in 1990.

 In fact, Hicks passed two polygraph tests administered by Welch that he had taken voluntarily -- which Welch believes  proved beyond any doubt that Hicks was wrongly convicted.

 To be sure, this is profoundly disturbing stuff.

 How many other innocent people, one wonders, are rotting away in U.S. prisons this very moment? Or, more disturbing yet,  how many have been legally shot, hanged, fried, gassed or killed by lethal injection over the last couple centuries?

 Marie Varriale, a forensic scientist in the state crime lab's DNA section, says she's hardly surprised that 47 prisoners have  been proven innocent by DNA testing -- and she suspects the numbers will continue to rise as DNA ``profiling'' becomes  even more commonplace over the next few years.

 So does Jerry Hancock, assistant district attorney in the state Attorney General's Office who helped set up the state's first  crime labs for DNA testing in Milwaukee and Madison in 1994.

 ``No, I'm not surprised that it's being used to acquit as well as convict people,'' he says, ``because DNA is 100 percent  reliable science.''

 Of course, he adds, ``like any kind of forensic evidence, it's subject to human error. But if the science is done properly, DNA  can provide absolute confirmation of identity.''

 Which is without question an extraordinary development, says Walter Dickey, a University of Wisconsin law professor and  former secretary of the state Department of Corrections.

 But the fact that DNA tests have led to the release of 47 convicts raises another disturbing point that many in the criminal  justice system aren't eager to talk about -- not publicly anyway, he says.

 That is, just how shockingly unreliable eyewitness testimony really is.

 For example, as Associated Press science editor Matt Crenson recently reported, eyewitness testimony helped convict 24 of  the 28 people described in a 1996 National Institute of Justice report whose cases were later overturned by DNA evidence.

 And yet, many eyewitnesses in such cases refuse to even consider the possibility that they may have made a mistake, Dickey  notes.

 In the Anthony Hicks case, the victim -- who has since moved out of the state -- insisted to the very end that it was Hicks  who had beaten and raped her in her west-side Madison apartment.

 Just three months ago, two brothers imprisoned for 13 years in Bessemer, Ala., for kidnapping and rape were freed after  DNA tests indicated they were not the attackers.

 But the day they were freed, the victim, now 31, told reporters, ``They were guilty 13 years ago and they're guilty today. I  will not rest until these animals are left where they belong.''

 Understand, nobody's suggesting that the eyewitnesses in such cases are lying, Dickey says. Just that their memories aren't as  accurate as they would like to believe.

 Imagine, however, the long-term effects this might have on the system, he says.

 Realizing that eyewitnesses are notoriously inaccurate, juries may be reluctant to convict a suspect unless there is DNA  evidence that proves the suspect is guilty.

 That's good in one sense -- because it will ensure that no innocent person is sent to prison, Dickey says.

 But it also could mean that more guilty individuals will be acquitted -- especially if no DNA evidence exists.

 ``It's worrisome,'' Dickey says.

 Indeed it is.

 But as criminologists ponder those ramifications, here's another issue the justice system needs to immediately address: how to  fairly compensate those poor souls who have spent a large chunk of their adult lives behind bars for crimes they never  committed.

 Neither Anthony Hicks nor Willie ``Tuna'' Raines, for instance, has yet to receive a nickel from the states of Wisconsin and  Illinois, respectively, for being wrongly incarcerated.

 That's not merely worrisome.

 That's tragic.

Eyewitness ID
Truth in Justice