This compelling story in the New York Times slipped past me.  I was on the road in Louisiana for eight days and didn’t have the luxury of surfing the net.  Non-DNA exoneration is becoming the primary focus of the criminal justice reform movement.   For one thing, we are rapidly running out of testable DNA.  Jeff Blackburn with the Innocence Project of Texas believes that good DNA cases will be difficult to find within a year.  Barry Scheck, director of a national Innocence Project, thinks good cases will be available for another decade if advocates are willing to move beyond their own backyards. 

The truth, I suspect, lies somewhere in between these perspectives.  The DNA-exoneration phenomenon will slow from a torrent to a trickle over the next five years, then fade from view altogether.  

The Times article focuses on Plan B, non-DNA exoneration projects that build on the foundation established by DNA exonerations.  “Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes wrong, and people sometimes confess to crimes they did not commit.”

But why do witnesses get it wrong, and why do people sign false confessions?  The article doesn’t get into that, so I’ll give you a quick run-down.  More often than not, it is because witnesses feel pressured by investigators and prosecutors.  Weak-minded people who have been badgered for hours will often sign whatever is placed in front of them just to make the ordeal stop. 

As we have seen, inmates facing virtual life sentences will admit to almost anything if there is a dramatic time cut on the table. 

Tragically, even well-intentioned witnesses get it wrong.  An excessive eagerness to help the prosecution, especially in cases involving horrifying violence, prompts witnesses to remember whatever the authorities need them to remember. 

Memory isn’t like a snap shot or a video reconstruction of an actual event.  We remember scattered impressions which the mind weaves into a coherent narrative.  Memories are thus subject to suggestion and manipulation.  Let a witness know the right answer and the mind works overtime to produce a memory consistent with that answer.  As the face of the perp du jour becomes firmly imbedded in the mind witness confidence grows.  Witnesses no longer remember the actual event; they remember an artificial reconstruction of the event shaped by suggestion.

The Times article notes that non-DNA exoneration projects are rare.  In New York State, for example, not a single innocence project focuses on non-DNA cases.  The reason is obvious.  “Cases that lack what many call the “magic bullet” of DNA often require cumbersome investigations, including finding and re-interviewing witnesses or poring over thick files to find anything vital that a trial lawyer might have missed. Even when crucial evidence is uncovered — witness recantations or exculpatory statements that were ignored by prosecutors — judges, juries and prosecutors often treat it with skepticism.”

One compelling case of non-DNA exoneration, the article notes, “came six years after a panel of federal judges, having considered much of the same evidence, ruled that though it had ‘a nagging suspicion that the wrong man may have been convicted of capital murder,’ it could not overturn the conviction of the man, Darryl Burton, because of numerous procedural impediments.

Those working for non-DNA exonerations work to change the judicial culture.  The Times article highlights the work of Dallas County DA, Craig Watkins.  Unlike his infamous predecessor, Henry Wade, Watkins believes that “The duty of the district attorney is to seek justice.  Justice means we right the wrongs of the past.”

If every DA operated out of that philosophy there would be no need for groups like Friends of Justice.  We focus on jurisdictions where a very different prosecutorial mindset prevails.  Our challenge is to alert the public to what is happening, and we do that by allowing normal folks to peer behind the smoke and mirror show presented at trial to the process of manipulation and intentional distortion that all too often passes for an investigation.

Investigation is part of that process–that’s why I spend so much time on the road.  But getting the facts straight is only part of the process.  Locating the wrongfully accused and wrongfully convicted in space and time is also part of the story.  Who are these people, we ask, and how did they get caught up in the machinery of wrongful conviction?  We introduce you to the family and friends of the wrongfully accused.  We talk about the history of a particular jurisdiction and the unique culture at work in the courtroom.  We try to get the mainstream and alternative media to ask the right questions and pursue the right answers. 

Work this narrative strategy long and hard enough and the truth breaks free. 

The Times article ends with a disturbing quote from Daniel S. Medwed, a professor at the University of Utah who studies wrongful convictions: “One thing we’ve learned by studying these cases and litigating these cases is it could really happen to anybody. Nobody is immune.”

That’s kind of true and kind of misleading.  DNA exonerations suggest that wrongful conviction impacts people of color to a grossly disproportionate degree.  According to the Innocence Project, the 249 people exonerated on the basis of DNA included 150 African Americans,71 Caucasians, 21 Latinos, 2 Asian American and 5 whose race is unknown.  Poor people, the unemployed and underemployed, and folks with a history of drug dependency are also at heightened risk. 

Hopefully, future articles on the exoneration issue will pay more attention to the racial dynamics at work in these cases.