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Righting wrongs
We need an outside commission to examine how wrongful convictions take place. Mitt Romney’s inane idea to block gays from marrying. Plus, a few post–New Hampshire observations.

Roll call

SINCE 1982, these individuals either have been officially exonerated or had their sentences vacated in Massachusetts:

Stephan Cowans — sentenced in 1997 for shooting a police officer in Suffolk County, under DA Ralph Martin; released in 2004 as a result of DNA evidence.

Ulysses Rodriguez Charles — sentenced in 1985 for rape in Suffolk County, under DA Newman Flanagan; released 2003 as a result of DNA evidence.

Shawn Drumgold — sentenced in 1989 for murder in Suffolk County, under DA Newman Flanagan; released in 2003 as a result of DNA evidence.

Angel Hernandez — sentenced in 1988 for rape in Hampden County, under DA Matthew Ryan; released in 2001 as a result of DNA evidence.

Donnell Johnson — sentenced in 1996 for murder in Suffolk County, under DA Ralph Martin; released in 1999 when new evidence established someone else was responsible.

Lawyer Johnson — sentenced in 1972 for murder in Suffolk County, under DA Garrett Byrne; released in1982 when witnesses were deemed untrustworthy.

Bobby Joe Leaster — sentenced in 1971 for murder in Suffolk County, under DA Garrett Byrne; released in 1986 when eyewitness identification turned out to be mistaken.

Dennis Maher — sentenced in 1984 for rape in Middlesex County, under DA Scott Harshbarger; released in 2003 as a result of DNA evidence.

Neil Miller — sentenced in 1990 for rape in Suffolk County, under DA Newman Flanagan; released in 2000 as a result of DNA evidence.

Marvin Mitchell — sentenced in 1990 for rape in Suffolk County, under DA Newman Flanagan; released in 1997 as a result of DNA evidence.

Marlon Passley — sentenced in 1996 for murder in Suffolk County, under DA Ralph Martin; released in 2000 when new evidence established someone else was responsible.

George Reissfelder — sentenced in 1967 for murder in Suffolk County, under DA Garrett Byrne; released in 1982 when lawyers (including then–defense attorney John Kerry) brought 10 witnesses to affirm Reissfelder’s innocence, and a co-defendant confessed Reissfelder was not his accomplice.

Information from the New England Innocence Project and Boston University professor of law Stanley Fisher’s article, "Convictions of Innocent Persons in Massachusetts: An Overview."

SINCE 1982, 12 people wrongfully convicted in Massachusetts courtrooms have been released from prison (see "Roll Call," below). The latest is 33-year-old Stephan Cowans, who in 1998 was convicted in Suffolk County, under former district attorney Ralph Martin, of shooting a police officer. Attorneys for the New England Innocence Project hired outside experts to analyze the DNA evidence gathered by police during the original investigation. All of it came from the same person — but it wasn’t Cowans. Based on this finding, Suffolk County district attorney Dan Conley asked for re-examination of a fingerprint found at the scene. At trial, police investigators said the fingerprint was Cowans’s. The re-examination of the fingerprint, however, showed that it was not Cowans’s.

How could this have happened? To be sure, we need to convict predators. But sending an innocent person to jail is more perverse than letting a guilty one go. It’s impossible to say how many others there are like Cowans who are still locked up, serving out sentences for crimes they didn’t commit. (Shawn Drumgold, who was released from prison last year after being falsely convicted of murder, states categorically that he knows of others just like him in prison.) But we can be sure that Cowans won’t be the last to be released from jail after evidence proving a wrongful conviction surfaces. And we can be sure that police and prosecutorial blunders — some the result of overzealousness, some the result of human error, and some, sad to say, the result of malfeasance by police and/or prosecutors — are being committed even as you read this, and that innocent people are being victimized.

To its credit, the Boston Police Department has sought help from the Federal Bureau of Investigation and the International Association for Identification to make recommendations to the department to improve the accuracy of its fingerprint analysis. But this doesn’t go nearly far enough. The state must establish an outside commission to scrutinize the details of each of these cases to determine where police and prosecutors went wrong. And given that 10 of these 12 wrongful convictions took place in Suffolk County, particular attention needs to be paid there. Changes to police investigations and prosecutorial tactics must be made on the basis of whatever the commission finds.

It’s such an obvious step to take that one can only wonder if the reluctance to form such a commission stems from the belief that these wrongful convictions are based on more than just an "honest mistake," as Conley characterized the Cowans-fingerprint misidentification to the Boston Globe. Indeed, some of these mistakes could be rooted in illegal cover-ups by individual police officers and prosecutors, who might be indicted on the basis of whatever an independent commission finds. In the Drumgold case, for instance, one of the witnesses who testified against Drumgold was apparently paid and prepped by the prosecutors to lie on the stand — not that there are any moves being made to indict the individuals involved.

We must face these mistakes head-on with thorough investigations that result in real change. The price we pay for locking up an innocent person is too high. Stephan Cowans was robbed of seven years of his life — the time he spent being investigated and tried, plus the time he spent in prison. This is a tragedy. It’s time we seriously investigated how such tragedies come to be. And it’s long past the time we did what’s necessary to ensure that something like the Stephan Cowans case doesn’t happen again.

GOVERNOR MITT Romney’s latest strategy for blocking the civil marriages of same-sex couples — which can take place beginning May 17, after the Supreme Judicial Court’s 180-day waiting period ends — is a simple one. He wants to amend the state constitution so that marriage is linked to procreation and child-rearing. In doing so, he would offer the SJC a solid reason (known in legalese as a "rational basis") for banning same-sex couples from marrying.

So, does this mean — if Romney is successful in getting such an amendment to the state constitution passed — that we can expect his office to file a bill requiring heterosexual couples to undergo fertility testing before they can receive marriage licenses? Or one banning single women over the age of 45 from marrying? Or one dissolving the marriages of couples who do not produce children within, say, five years?

Eric Fehrnstrom, Romney’s director of communications, did not return a phone call for comment.

ONLY THREE Democratic presidential candidates have won both the Iowa and New Hampshire primaries in the last 32 years: Jimmy Carter, Al Gore, and John Kerry. Neither Carter nor Gore had to claw his way up from a 20-point deficit in the polls just four weeks before Election Day, however. Clearly, Kerry is the front-runner as he heads to the South. And a strong one at that. But if we’ve learned anything from the past two weeks, it’s this: anything can happen. So we’re not going to talk about how Kerry is on the verge of wrapping up the nomination. Instead, we’ll offer some observations about conventional political wisdom and where we go from here.

Exit-polling data from Iowa and New Hampshire tell us that Kerry and Howard Dean each won about half the votes of those who rank concern about the war in Iraq as a top priority in the coming presidential election. Conventional wisdom says Dean should have won nearly all those votes, given that opposition to the war helped distinguish him from the pack. But it’s easy to forget that something else elevated Dean above all the rest: his eloquent articulation of liberal outrage against President Bush. Back when Dean was railing against the Bush administration’s excesses on everything from Iraq and the Patriot Act to tax cuts, no one else would say anything negative about the president for fear of being labeled unpatriotic. Well, that’s changed. Kerry and John Edwards have no problems today bashing Bush. This has to be considered a major factor — along with the capture of Saddam Hussein and growing concern about the former Vermont governor’s temperament and electability — in the derailment of the Dean insurgency.

From here on out we’re going to see a lot of hand-wringing over whether the Democratic nominee (particularly if it turns out to be Kerry) can compete against Bush in the powerful South. Forget the South. Leave the Confederate-flag wavers and snake handlers to Bush. A Democrat can win the White House by taking the Northern, Western, and Midwestern states. (See CommonWealth associate editor and former Phoenix staffer Robert David Sullivan’s persuasive analysis of electoral politics at www.massinc.org for a detailed breakdown of how a Democrat can win in 2004.) Best of all, the Democratic nominee can win this way without having to pretend he believes Jesus Christ is the son of God and that personal acceptance of him is the route to salvation and eternal life. And to that, we say, "Amen."

What do you think? Send an e-mail to letters[a]phx.com

Issue Date: January 30 - February 5, 2004
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