Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted.

• Author: Rapp, Geoffrey Christopher
• Position: Review

Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. By Jim Dwyer,(*) Peter Neufeld,(**) & Barry Scheck.(***) New York: Doubleday, 2000. Pp. ix, 298. $24.95.

In 1932, Professor Edwin M. Borchard wrote in his classic study, Convicting the Innocent, "In an age when social justice has made such marked advances ... it seems strange that so little attention has been given to one of the most flagrant of all publicly imposed wrongs--the plight of the innocent victim of unjust conviction in criminal cases." (1) In the seven decades since Professor Borchard's observation, the general cause of social justice has surely been advanced as the New Deal of the 1930s and the Great Society programs of the 1960s brought opportunity to previously neglected classes of Americans. Yet over the same period--at least until quite recently--the conviction of innocent individuals has remained a neglected topic among both policymakers and scholars.

In the 1990s, the use of advanced DNA testing has freed many wrongfully incarcerated persons.(2) As a result, scholars(3) and the media(4) have increasingly focused on the conviction of the innocent. It was only a matter of time before the accumulated evidence of wrongful conviction precipitated the first intervention by a political leader: Illinois Governor George Ryan declared a moratorium on the death penalty in February 2000, which is to last until he can say "with moral certainty" that all those sentenced to death in Illinois were truly guilty.(5)

Aimed at a popular audience, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted is sure to raise consciousness regarding the problem of wrongful conviction. Authored by "dream team" and longtime Legal Aid lawyers Peter Neufeld and Barry Scheck, along with journalist Jim Dwyer, the book emerged from Neufeld's and Scheck's work on behalf of the Innocence Project of the Cardozo Law School at Brooklyn's Yeshiva University, where Scheck teaches in the clinical program. Along with Cardozo law students, the two authors have worked to right unjust convictions using a combination of ultramodern science and old-fashioned lawyering.

The book is in part a selection of case studies of some of the sixty-seven people proven innocent by DNA as of August 1999 (p. xiv). I argue that there is a dark side to the authors' focus on DNA, but I do not mean to detract from the force of the anecdotes they relate:(6) Ron Williamson and Dennis Fritz, imprisoned for twelve years and very nearly executed in Oklahoma for a murder they did not commit (pp. 144-56); Robert Miller, sentenced to death in Oklahoma for a rape and murder he did not commit (pp. 95-106); Marion Coakley, wrongfully imprisoned in New York for rape and robbery (pp. 11-34); Walter Snyder, wrongfully imprisoned for seven years for rape (pp. 37-77); Kirk Bloodsworth, sentenced to die for a rape and murder he did not commit (pp. 213-22); Kirk Grier, imprisoned for fifteen years after being wrongfully convicted of beating his wife and slaying his unborn child (pp. 239-44). These stories should be of significant interest to scholars, practitioners, and law students. They make the otherwise cold words of opinions and articles come to life.

But the book sets out to do more than tell stories: Instead, it aims to figure out "what went wrong," and "who did wrong," and to take account of "the innocent person" (p. xvii). The heroes of this story are not the wrongfully convicted--many of whom led difficult, troubled lives(7)--nor even the author-lawyers-themselves, whose "schmoozing, publicity and cajoling" (p. 148) on behalf of the wrongfully convicted are downplayed. If anything, the hero of this story is the DNA molecule.(8) The authors devote considerable space to describing the impact of DNA science on the art of freeing the wrongly convicted (pp. 35-40). By providing virtually unimpeachable evidence of innocence, "[t]he DNA era ha[s] shaken the foundations of the system" (p. 248). Along the way, readers learn the difference between RFLP (pp. 36, 40, 87), PCR (pp. 38, 40, 68, 87, 112), and STR (p. 151) approaches to DNA testing. Readers also encounter a number of prosecutors who resist the introduction of DNA evidence (pp. 93, 111,206, 219), forcing the Innocence Project to fight "long, expensive, and maddening battles" (p. 219).

The authors direct the bulk of their effort to explaining the dimensions of the criminal justice system's tendency to convict the innocent. Twenty-nine percent of the wrongful convictions studied by the Innocence Project involved "hair analysis" (p. 166), a type of junk science (pp. 158-71) used to convict the innocent, in spite of the fact that "[t]he weakness of the field is well established" (p. 162).(9) In addition to junk science, outright phony science played a role in a number of cases (pp. 109-25).(10) Eighty-four percent of the wrongful convictions studied rested at least in part on faulty witness identification (p. 73). Describing how mistaken eyewitness testimony favors wrongful conviction, the authors cull anecdotes ranging from a German professor's experiment in his 1902 psychology class (p. 41) to an NBC broadcast from 1972 (p. 43). Misconduct by prosecutors and police officers (such as concealing exonerating evidence from defense counsel) (pp. 172-82) played a role in a whopping 63% of the wrongful convictions studied by the authors (p. 263). Incompetent or subpar legal representation played a role in 27% of the wrongful convictions studied (p. 187).(11) False confessions (pp. 78-108) played a role in 23% of the wrongful convictions studied (p. 92). Jailhouse snitches(12) played a role in 21% of the cases studied (p. 263). The authors also argue that race (pp. 193-210)(13) and the death penalty (p. 211)(14) played roles in wrongful conviction.

Significantly, these dimensions of the problem do not operate in isolation, but rather reinforce one another so as to multiply the likelihood of wrongful conviction for the most disadvantaged: "[C]riminal investigations can become echo chambers, where answers are shaped by what people believe ought to be true rather than...