Hadassah Magazine Letter from New York: Just in Time

Dec 10, 2003 By: yunews

Dec 10, 2003 -- Two attorneys at Yeshiva University are fighting to free wrongly imprisoned individuals through DNA testing—a calling that fits well with the Jewish ethos. Herman Atkins takes a while to come to the phone. He’s been outside, on this late-summer day, mowing the lawn of his home in Rancho Cucamonga, California, and waiting for the arrival of a new couch. Life hasn’t always been this ordinary for the 37-year-old Atkins. The son of a recently retired highway patrolman, Atkins had been brought up to think the American justice system is “one of the best in the world.” Yet one day in 1986 he was arrested and charged with rape and robbery—and identified in a police lineup. Despite an alibi witness, Atkins was found guilty and sentenced to 45 years. “It was a cold blow, a serious act of treason” from the system he had believed in, says Atkins, who is black. “It also opened my eyes to racism.” Sustained by a belief in his innocence and family support, Atkins remained determined to prove his accusers wrong. His chance came when a fellow inmate told him about the Innocence Project, an organization dedicated to freeing wrongly imprisoned individuals through DNA testing, the most up-to-date scientific method. The nonprofit legal clinic, founded at the Benjamin N. Cardozo School of Law at �� All in 1992 by attorneys Barry C. Scheck and Peter J. Neufeld, provides pro bono services to inmates serving time for serious crimes who might be exonerated through post-conviction DNA forensic testing. And successfully: The project offered direct representation or critical assistance in some two-thirds of the 136 cases of people released from jail across the United States (as of September 1)—12 from death row—since DNA testing began in the 1980’s. These inmates wrongfully served an average of almost 11 years in prison before release. In Atkins’ case, it took a few years for the Innocence Project and California attorney Douglas Meyers to locate the evidence and successfully file a motion to compel the prosecutor to relinquish control of it. DNA testing proved Atkins not guilty (usually it takes four or five years to process a post-conviction DNA case). The project also raises funds to help inmates cover the costs of DNA testing. While legal services are free, “we simply do not have the resources to provide pro bono DNA testing,” says Aliza Kaplan, deputy director of the project. Tests range from $3,000 to $5,000 each, higher if more advanced forms of the technology are used. From a certain standpoint, the work of the project is limited: It handles only cases in which post-conviction DNA testing of sperm, blood, saliva, skin or hair can yield conclusive proof. (In only 20 percent of violent crimes is there biological evidence, according to Neufeld.) “In any scientific test, there are two concerns,” explains Neufeld, “how sensitive a test is—can you use the smallest, oldest sample [and still get results]?—and how discriminating it is. Before DNA, blood serology was used, which was not very discriminating. Much of the time you didn’t get results because the proteins in blood would be swallowed up by bacteria quickly. DNA offers much smaller particles to look at.” Still, it has brought freedom to Dennis Maher, a former Army sergeant from Massachusetts who spent 19 years incarcerated after being convicted of two rapes and one attempted rape. Maher’s convictions were overturned last spring. And to Clyde Charles of Louisiana, who likewise was imprisoned for 19 years on rape charges. And to John Kogut, John Restivo and Dennis Halstead of Long Island, New York, all sentenced for a 1984 rape-murder, whose convictions were vacated in June. DNA testing demonstrates that the chances of an innocent person being jailed are better than one would have thought. A 1992 statement by Dwight E. Adams, director of the Federal Bureau of Investigation Laboratory, indicates that since his agency began such testing in 1988, about 25 percent to 30 percent of crime suspects have been cleared. The project has also put Cardozo on the map. “The Innocence Project represents one of the most important reform efforts in the American criminal justice system today,” says David Rudenstine, dean of the law school. “The project ties in with the values of justice, ethics and compassion, especially for those who are most vulnerable, that run deep in Jewish tradition, even if they’re not unique to Judaism. It’s a good fit that Cardozo and �� All embrace.” Cardozo law students and summer interns have the opportunity to study the law in real-life situations. They assist in actual cases and offer other support to the staff. Of her work on project cases last year, Joni Kletter, a 25-year-old graduating law student from Saratoga, New York, says: “It opened my eyes to everything that can be wrong with the criminal justice system, that arbitrariness and luck play a role. Even if you’re for the death penalty, it’s hard to be against this—getting innocent people out of prison.” The enterprise has become much more than the court of last resort. It has helped organize the Innocence Network, a coalition of more than 25 law schools, journalism schools and public defender offices across the country that assists inmates trying to prove their innocence whether or not the cases involve biological evidence that can be subjected to testing. The network represents what Neufeld calls a “new national civil rights movement.” Because of the work of the project and the network, “the failings of the criminal justice system and the use of the death penalty in the United States are under close scrutiny and an important topic of public debate,” he says. “DNA testing has opened a window into wrongful convictions so that we may study the causes and propose remedies that may minimize the chances that more innocent people are convicted.” Two years ago, Illinois Governor George Ryan issued an executive order creating the Governor’s Commission on Capital Punishment after imposing a moratorium on the death penalty, because mounting evidence showed it was not being applied fairly. Since the reimposition of capital punishment last April, 13 individuals were freed from death row after they were cleared of wrongdoing, five due to DNA testing. The interesting question, observes Neufeld, is what went wrong with the system to begin with. “We’ve done a postmortem and there are a whole series of causes,” he says. Among these “systemic defects” are false confessions; incompetent lawyers; defective or fraudulent scientific evidence; mistaken identification by police officers and other witnesses. Other factors are racism and stereotyping, especially in cases of rape. The project is also working on legislation that would provide statutes in every state allowing for easier access to post-conviction DNA testing; today it is mandated in more than 30 states. (In every state, DNA testing before conviction is now routine.) Still, there are attempts to downgrade the importance of DNA evidence. In an August 29 article in The New York Times, Adam Liptak chronicled growing skepticism among prosecutors of DNA’s efficacy in cases where there is other evidence of guilt. Defense lawyers contend that prosecutors are “more committed to winning than to justice,” Liptak writes. And DNA, in Neufeld’s words, “trumps most of the less reliable evidence.” The battle is especially intense in Florida, where, since October 1, a law bars prisoners from seeking DNA testing for old cases. This move isn’t surprising, since the state has seen more exonerations than any other, though “not all through DNA means,” Neufeld notes. What’s happening, Neufeld asserts, is that after a DNA exclusion is found, prosecutors tend to “invent” new theories; they will speculate, for example, that a second rapist who left no testable evidence helped hold the woman down. “It’s mind boggling that prosecutors who rely on DNA technology on a daily basis are so resistant to use the same technology” for possible exoneration, says Neufeld. “But over 50 percent of the time prosecutors do resist post-conviction DNA testing.” The United States also has a way to go as far as the quality of testing. Though DNA testing today is the “gold standard in forensics,” Neufeld says, the evidence is only as good as the laboratory. There is no national accreditation for labs, only a voluntary professional association and a bill pending in Congress to make accreditation compulsory. And exoneration is just part of the battle. Ian Dumain, who graduates from Cardozo this year, observes that the post-exoneration lives of clients can be depressing. “While some people do well after exoneration, others struggle,” he says. “Just because they’re freed doesn’t mean they go on their happy, merry way.” To ease their way, the Innocence Project is promoting legislation to give wrongly incarcerated individuals compensation, something only 15 states currently provide. “The exonerees don’t want to get rich,” Kaplan says. “They want something to help them get going, an acknowledgment that a mistake was made. It’s important emotionally.” Herman Atkins is one of the lucky ones. He seems to have walked away, in his words, with “no scars—physical or mental,” all too aware others haven’t been so fortunate. Atkins dreams of the day when the perpetrator in his case is found and brought to justice, as happened to Kirk Bloodworth, in 1993 the first man exonerated by DNA evidence. But Atkins has more ordinary dreams: to share a life with his girlfriend; finish his bachelor’s degree and go on for a doctorate. “I’d like to be more of a success story,” he said. “‘Dr. Atkins’ sounds good to me.”

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