Reforms are needed to protect the innocent

“Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.

— Reinhold Niebuhr

The Children of Light and the Children of Darkness, 1944 

Justice is fallible. For centuries, there have been innocent men who were wrongly punished, and guilty men who went free.

In the time and place where we are now — New York State in 2009 — we have the opportunity, and indeed the duty, to improve the chances that justice is served.

It would seem that as science has progressed in modern times, justice would be more accessible. But there are no national standards for the content of forensic reports and therefore no requirement of scientific neutrality.

On June 25, the United States Supreme Court, in a 5 to 4 decision, ruled that defendants have a right to cross-examine forensic analysts who handle scientific testing in criminal cases.

“Serious deficiencies have been found in the forensic evidence used at criminal trials,” wrote Justice Antonin Scalia for the majority. He also wrote that such evidence “is not uniquely immune from the risk of manipulation.”

Last week’s Supreme Court decision is a step in the right direction, but it doesn’t go far enough.

The dissenters as well as Scalia cited a National Academy of Science report, documenting far-reaching problems with forensic science and calling for a National Institute of Forensic Science to be created that can set and enforce standards for forensic reports and testimony. Such an institution is sorely needed.

The Innocence Project, based in Manhattan, has exonerated 240 wrongfully convicted people nationwide through DNA testing, using deoxyribonucleic acid from saliva, skin, hair, semen, or blood. In those 240 exonerations, faulty forensic science contributed to the wrongful convictions in about half.

Take the case of Steven Barnes, the most recent of 24 people in New York State to be exonerated by the Innocence Project. He spent 20 years in jail for a rape and murder he did not commit.

“In my case, they had a lot of junk science,” Barnes told our reporter Philippa Stasiuk last week.

Witnesses said they had seen Barnes’s distinctive truck near the place where the body of a raped 16-year-old girl was found. At his trial, according to the Innocence Project, a forensic analyst testified that no fingerprints collected from his truck matched the victim’s. However, three forms of unvalidated forensic science were used against Barnes during his trial.

A criminalist at a state police forensic laboratory testified she had conducted a photographic overlay of fabric from the victim’s jeans and an imprint on Barnes’s truck and determined that the two patterns were similar.

She also testified that two hairs taken from Barnes’s truck were microscopically “similar” to the victim’s hairs and not like Barnes’s own hair. Her lab also compared soil samples from his truck with dirt samples taken from the crime scene a year after the murder and she testified that they had “similar characteristics.”

The Innocence Project points out that microscopic hair analysis, soil comparison, and fabric print analysis have not been validated scientifically. “Because there is not adequate empirical data on the frequency of various class characteristics in human hair, soil samples or imprints,“ it says, “the analyst’s assertion that these items of evidence were consistent or similar is inherently prejudicial and lacks probative value.”

Barnes put it simply and directly when he talked to our reporter. “The lady from the lab talked about ‘similar’ so much that the jury thought it was more than similar. The jury got the impression because they blew the junk science up so big. The lab techs are using big words and the jury thought it was more than similar — they thought it was evidence.”

Barnes, who was convicted when he was 19, spent almost 20 years in prison. While we can’t give those years back to him, we can take steps to reduce the chances it will happen again. Establishing a National Institute of Forensic Science is essential.

We can also, as New Yorkers, push for changes on the state level. One of the many bills stymied by a deadlocked State Senate, already passed by the assembly, would fortify laws having to do with DNA collection and storage and would set up a DNA evidence fund to help police and crime labs process DNA crime-scene evidence.

The bill would also provide another important safeguard by requiring videotaping of custodial interrogations. Half the people in New York who were wrongfully convicted and then exonerated by the Innocence Project had confessed to the crime, points out Joseph Lentol, a Brooklyn assemblyman sponsoring the bill.

He cites the case of Jeff Deskovic to show why videotaping interrogations is important. Deskovic was 16 when his 15-year-old classmate was found raped, beaten, and strangled.

Deskovic became a suspect because he was late to school the day after she disappeared and, according to the Innocence Project, police believed “he seemed overly distraught at the victim’s death, visiting her wake three times.”

Although DNA testing before Deskovic’s trial showed he was not the source of semen in the rape kit, the prosecution continued on the strength of his alleged confession.

After spending 15-and-a-half years in prison, Deskovic was proved innocent by DNA evidence. After his release, semen from the rape kit was tested against the New York State DNA databank of convicted felons and was found to match that of Steven Cunningham, who had been convicted of strangling his girlfriend’s sister after the murder for which Deskovic was convicted.

While Barnes told us the district attorney whose office prosecuted his case — the DA frequents a diner where Barnes now works — never looks him in the eye, the district attorney in Westchester County, Janet DiFiore, did the right thing after Deskovic was exonerated in November 2006.

DiFiore looked the problem in the eye. She ordered a thorough study of his wrongful conviction. The 35-page report, released in 2007, made by outside experts, details failures that are ongoing 16 years after his conviction. Among other failures, the report says, interrogations should be recorded to prevent false confessions.

“Deskovic’s alleged confession,” says the Innocence Project, “occurred after six hours, three polygraph sessions, and extensive questioning by detectives between sessions...During the confession, Deskovic sobbed. By the end of the interrogation, he was under the table, curled up in the fetal position, crying.”

As with Barnes, we can’t give back to Deskovic the many years that were stolen from him. But we do have the power to put into place safeguards that will diminish the likelihood of such unforgivable mistakes recurring. Recording of interrogations has been shown to decrease the number of false confessions and increase the reliability of confessions as evidence. It should be required.

The legislation pending now in New York State could make that a reality. State senators need to set aside their selfish political posturing and pass the bill — numbered S4668 — that could prevent the miscarriage of justice.

In the meantime, we commend the state’s new chief judge, Jonathan Lippman, for the creation of a permanent task force to review New York’s exoneration cases. DiFiore is heading that task force along with Court of Appeals Judge Theodore Jones.

It is the first such permanent committee in the nation, and will report to Lippman on patterns of errors that have led to wrongful convictions while recommending measures for change — both in terms of legislation and court procedures.

DiFiore has said a district attorney should have two goals: ensuring public safety and ensuring that courts practice fair and impartial justice.

If the new task force functions as it is meant to, it will do both. The public will be safer if those who committed crimes are jailed. And the innocent will not be so often shackled.

— Melissa Hale-Spencer, editor