June 7, 2003 Rough Justice by Rachel Nowak An Interview with Peter Neufeld of the Cardozo Innocence Project

Peter Neufeld

How many people have been exonerated by the Innocence Project?

Since we started post-conviction DNA testing in the US, 130 people have been exonerated in total, including 12 people who had been languishing on death row. The Innocence Project was counsel for about 65 per cent of them.

Do you have any idea how many innocent people are still incarcerated?

When they do pre-trial DNA testing of individuals who have been arrested on the basis of other evidence, such as identification, confessions and circumstantial evidence, between 25 and 30 per cent are excluded, and in most cases they are innocent. No one is suggesting that 25 to 30 per cent of people in prison are innocent, because a lot of people would have been acquitted or the charges would have been dismissed. But it certainly suggests that in this country alone there are thousands of innocent people languishing in prison. The reason it is so important to reform the system is that even today, when DNA testing is fairly routine, biological samples that are suitable for DNA testing exist in only 10 to 15 per cent of all violent crime cases. If we don't reform the way other evidence is collected and treated then there are going to be plenty more wrongful convictions.

Is the US an exception?

There are wrongful convictions everywhere in the world. The US probably has one of the fairest criminal justice systems, but nevertheless we have seen how easy it is to make mistakes. It is certainly terrible to execute people who are innocent but it's not a hell of a lot better keeping them in prison for the rest of their lives. If you are innocent you are innocent and you don't belong there.

How did you feel when you came to the realisation that huge numbers of people were being wrongly convicted?

I thought it was ridiculous. It's counter-intuitive. Take confessions, for instance. As a public defender in this city, if I was told that my client had signed a confession I basically thought that was the end of the case because I couldn't imagine why an innocent person would admit to a crime he didn't commit. But we now know, through the gold standard of DNA testing, that lots of people confess to crimes they didn't commit. It may be coercion. It may be that they are tired and impatient and they just want the questioning to end. Some of the people are mentally retarded or have another mental infirmity.

The Innocence Project was involved in the case of the Central Park jogger in which five teenagers were exonerated of rape after serving up to 12 years in gaol. They had all admitted to the crime...

That was extraordinary because they even had their parents in the room part of the time. But the police are very good at what they do. In this country they are allowed to use trickery during the interrogation. You tell people, "Your buddies have already told us you did it. We're going to make you the heavy unless you tell us that you were on the sidelines and that it was really your buddies that did it." And they go, "OK. I'll give you that." Twenty-five per cent of our cases involve false confessions. In other countries, they require the entire interrogation, not just the confession, to be tape-recorded, but not here.

What else needs changing?

The way identifications are conducted. When the victim looks at line-ups or photo arrays, studies indicate that if the perpetrator is not in the group, the victim will make a relative selection. She will say to herself: who among these six pictures looks most like the fellow who assaulted me? One way to remedy that is to show one picture at a time, or in line-ups to make one person come out at a time.

Does hair analysis work?

People have been comparing hair samples under the microscope to solve crimes for the past 75 years. In 17 of our wrongful conviction exonerations, hair evidence played a critical role in sending an innocent person to prison or death row. In a recent study conducted by the FBI, in 11 per cent of cases where leading hair experts found a match, mitochondrial DNA found there wasn't a match. In medicine, if you had an 11 per cent false positive rate you might use such a test for screening purposes, but I don't believe you would make life-and-death decisions on it.

What about fingerprints?

Things that work very well in a research laboratory, when you are dealing with pristine samples, don't work as well when you are out on a crime scene. Most of the time there are smudges, there are partial fingerprints. Whenever human judgement becomes critical to the decision making there is much more opportunity for garbage.

What would you accept as good forensic science?

Certain chemical analyses for the presence of illicit drugs, certain toxicology examinations. In other words, the kind of forensic tests that have applications in clinical medicine, that have been peer reviewed and gone through rigorous evaluation. Things that were simply developed for the courtroom, for criminal investigation, most of the time it's junk. Forensic science is nothing less than oxymoron.

Did the OJ Simpson murder trial hold back the use of DNA evidence?

No. What we were arguing in that case was that DNA testing itself can be very reliable. But the results are only as good as the integrity of the evidence before it gets to the lab. Since the police department admitted mishandling all the blood evidence, repeatedly, one could not have confidence in the integrity of the case. Perhaps the one silver lining in the whole Simpson case is that crime laboratories all over the US didn't want to be perceived as being like the Los Angeles police crime laboratories, which looked like a bunch of bumbling idiots, so they have tried to clean their own house.

What are other countries doing to improve their criminal justice systems?

Canada is the first country in the world to have "innocence commissions". What they do is truly marvellous. They will perform a post-mortem on the case of a man who was wrongly convicted and find out what went wrong and what they can do to reduce the likelihood of it happening again in the future. That is what you do in science, that's what you do in medicine, that's what you do in every other institution where life or liberty is at stake. We don't do it in the US when it comes to criminal justice, and that is appalling.

What sort of people end up wrongly convicted? Could it happen to me?

Fifty per cent of the people we have exonerated had never been arrested before. Most are male - we are most successful in cases where there has been a sexual assault and DNA testing involving semen. Disproportionately, they tend to be poor and so have less competent lawyers representing them when they are wrongfully charged. There is a racial disparity. In the US, most rapes of white women are committed by white men and of black women by black men. Only about 10 per cent of sexual assaults are cross-racial. Yet approximately 60 per cent of all our wrongful convictions were black men wrongly convicted of sexually assaulting, or sexually assaulting and killing, white women.

Have you ever taken on a case thinking the person was guilty and then found out they were innocent?

In about 50 per cent of all the cases we take to the laboratory, the DNA exonerates them. In about 50 per cent of the cases the DNA confirms guilt. We had two guys a few years ago who went to the laboratory the same week. One fellow was the most pleasant, lovely, supportive, young man. Sent Mother's Day cards to the students, talked about how he couldn't wait to get back to his ailing grandmother, could not have been nicer. And the other fella was a real nasty son of a bitch, cursed out the students, was furious with everybody, talked about crimes he would commit if he could only get out. The students were convinced that the first person would be excluded by the DNA and the second person implicated. Just the opposite occurred. The beauty of the science is that it topples the common intuitions that we rely on to make important decisions.

One of the things we've been trying to do in this country is to carve out a constitutional right to post-conviction DNA testing. We have experimented with that theory in several federal courts, with mixed success.

Why are people opposed to post-conviction testing?

It is hard for people to admit they made such costly mistakes, mistakes that sent innocent people to prison for 10 or 15 years, or resulted in them being executed. Mistakes that resulted in a victim at first experiencing closure and then learning 10 years later that this guy is innocent and the real perpetrator might still be out there. The victim has to admit that she played a role in sending this person to prison. All these things play a role in the psychology of prosecutors and police who are opposed to reopening these old cases with DNA testing.

In your book Actual Innocence you describe a case where a woman who, as she was being raped, told herself, "I'm going to get you." She looked at his face and tried to remember every detail - and then picked the wrong guy...

Picked the wrong guy, and even after the right guy was identified with a DNA match and convicted, she said: "To this day, when I close my eyes, the person I see in my brain is the innocent guy."

But she accepts that he is innocent?

She accepts it because she is a brave woman who understands the science. But many of these victims don't accept it at all, even in those cases - about a quarter of all our exonerations - where we identified the real perpetrator.

How did you get interested in the quest to prove the innocence of wrongly convicted people?

I came from a kind of politically progressive, activist family. My father supported the Abraham Lincoln Brigade, men and women who volunteered to try to save the Spanish republic from the fascists. My mother was very involved in the civil rights and anti-Vietnam war movements, and she was the national president of the American Ethical Union, a federation of humanist societies. My folks always said that you do well by doing good.

Are you proud of what you have done with the Innocence Project?

Yeah. Thousands of people now are concerned about the quality of justice and realise that it is within our grasp to radically transform it. The reason we have had success where other efforts have failed is that DNA is a kind of gold standard of innocence, so people cannot dispute these cases. And we cannot minimise the importance of the police knowing that every time they send an innocent person to prison the real bad guy is still out there committing crime. We are getting law enforcement agencies to really seriously look at how these reforms can enhance their integrity, their performance. It's an unprecedented alliance between the likes of us and the guys in blue caps.