E-Mail This Article to a Friend Let us now praise framed-up men (continued)

IT WOULD TAKE three modest reforms to prevent the overwhelming number of wrongful convictions that take place in the Commonwealth. And it wouldn’t be hard to enact the appropriate legislation and implement new procedures. Indeed, attorney Carol Donovan of the state’s Committee for Public Counsel Services (CPCS), which provides free legal representation to indigent criminal defendants, has already done the work of drafting the necessary bills. The proposed statutes would reform eyewitness identification procedures by mandating basic steps to ensure that a victim or witness makes his or her own identification without hints from police and prosecutors; require that police electronically record interrogations of suspects in order to have a reliable record of what the person says and to detect suggestive or coercive questioning techniques (indeed, it would be wise to record all station-house and many other interrogations, including those of witnesses); and provide prisoners with post-conviction access to evidence in police and prosecutors’ custody. (This last measure would protect convicts from the Catch-22 of having to provide evidence of innocence in order to win access to the very files containing evidence of innocence that prosecutors improperly withheld from the defendant prior to trial.)

At a November press conference after last year’s exoneration of Shawn Drumgold, CPCS head William Leahy urged Governor Romney to establish an official commission of inquiry into the causes of wrongful state convictions, a step supported by Fisher, the national Innocence Project, and the Boston-based New England Innocence Project. The governor, unfortunately, favors a different kind of blue-ribbon investigative body. Just two months earlier, in September of 2003, he appointed members to the Governor’s Council on Capital Punishment. Their task? To determine whether procedures for implementing a Bay State death-penalty statute could ensure "scientific accuracy." (See "Stopping Government’s Culture of Death," Editorial, September 26, 2003.) Thus, instead of using his prestige and resources to reduce wrongful convictions throughout the system, the governor is frittering away time, resources, and attention in a futile search for perfection in a death-penalty system that would apply to only a small number of cases. (In any event, it is unlikely that the legislature will adopt the death penalty, making Romney’s death-penalty obsession even less relevant to the overall goal of avoiding error.)

Unlike Romney, at least one prosecutor has finally felt the need to say something other than "see, the system works" every time a convict — often against fierce prosecutorial (and sometimes judicial) resistance — is finally exonerated after years of wrongful imprisonment. Suffolk County district attorney Daniel F. Conley announced last month that he and newly appointed Boston Police commissioner Kathleen O’Toole would create a task force made up of police, prosecutors, and defense attorneys to examine the recent cases of wrongful convictions and make recommendations for change, particularly in the area of eyewitness identification.

But Conley’s tepid move toward reform is too little, too late. Improving eyewitness identification procedures is not rocket science. It’s been known for decades which identification procedures truly test a witness’s actual recollection of the crime and which ones suggest to the witness that a particular suspect was present. When police present witnesses with a photo array or a line-up and include the suspect along with others who have vastly different appearances, or when police subtly suggest who in the line-up is "our suspect," the resulting eyewitness identification can be more often wrong than right. When witnesses are asked to describe the person they claim to have seen committing a crime when the crime scene was dark and the suspect is of a different race than the witness (interracial identifications are notoriously unreliable), the ID isn’t worth a damn. In fact, studies have shown eyewitness identifications to be error-prone even when viewing conditions are optimal. Federal guidelines have existed since 1999 for improving identification procedures; the state of New Jersey has already adopted them, and Massachusetts could do the same but hasn’t, although Conley now says he is considering doing so.

WHAT WE CLEARLY need is a statewide innocence commission, with power to subpoena witnesses, probe cases, determine the causes of wrongful convictions, assign blame and responsibility, and recommend meaningful reforms, including procedures for holding police and prosecutors responsible for knowing misconduct. Right now, when courts exonerate a wrongly convicted defendant, the matter is usually allowed to stop there; the errors, and those who committed them inadvertently or intentionally, are almost never the subject of subsequent investigations (much less corrective measures). In only the rarest of cases is an exoneration followed by an investigation into the culpability of those responsible for the miscarriage of justice. After Albert Lewin was exonerated in 1989 for the murder of a police officer, for example, officers who perjured themselves were prosecuted. But that’s only because Lewin’s lawyers, unusually tenacious Boston defense attorney Max D. Stern and his associates, put together a compelling dossier demonstrating a long-standing pattern of police perjury in affidavits for securing search warrants. When, in light of this record, the Supreme Judicial Court excoriated the Boston police for "perjurious and fraudulent conduct," the district attorney had little choice but to take action, for the case was a page-one scandal day after day.

This shouldn’t be. The failure to disclose certain facts that would affect a jury’s view of the credibility of prosecution witnesses needs to be taken more seriously. Cops who provide witnesses with money, drugs, free room and board at hotels, dismissal of charges against them or loved ones, and other such amenities, without disclosing it to the defendant and the court, should be administratively or even criminally prosecuted, for at some point undisclosed witness incentives can readily turn into witness bribes or incentives to commit perjury. Prosecutors who intentionally fail to disclose this and other exculpatory evidence in their files — such evidence is required to be turned over to defendants, according to the US Supreme Court — should be punished for such legal and ethical infractions, including the loss of their licenses to practice law. It’s time for accountability.

If the CPCS’s proposed legislation is not enacted, a statewide group of criminal-defense lawyers plans to appeal directly to the Supreme Judicial Court. Andrew Good, president-elect of MACDL, has proposed a plan to file a petition with the SJC, asking the court to implement certain reforms on its own authority. (Disclosure: I work in the same law firm as Good.) The group would ask for a rule that interrogations of suspects in custody be electronically recorded. (Such a judicially imposed requirement is hardly revolutionary. The Supreme Court of Minnesota, for example, enacted the measure in 1994, and Alaska’s court has done the same. In 2002, Illinois became the first state to require such procedures by statute. And individual police departments around the country have adopted a taping requirement as a matter of departmental procedure, including, for example, the departments of Broward County, Florida, and Santa Clara County, California.)

MACDL will also ask for court-imposed reforms in eyewitness identification procedures, as well as easy access to evidence in prosecutors’ and police files. And it will seek the appointment of a judicially run innocence commission with real investigative power. At Suffolk Law School’s graduation last year, SJC chief justice Margaret Marshall gave a commencement address in which she expressed support for the innocence agenda. Her words were perhaps prompted by the presence of Neufeld and Scheck on the dais to receive honorary degrees. Was that a fleeting moment, or will Marshall and her fellow justices eventually respond forcefully to the extraordinary embarrassment currently caused by our broken system?

Harvey A. Silverglate is a lawyer with the Boston firm of Good & Cormier and a frequent contributor to the Phoenix. He can be reached at has@harveysilverglate.com. Additional research by Carl Takei.