Straight Talk: Duke Case Shows Justice System's Flaws

By Radley Balko
FOX News
Monday, April 23, 2007

To their great credit, the Duke lacrosse players who were exonerated of rape charges by North Carolina Attorney General Roy Cooper earlier this month understood that for all the hell they've gone through the past year, what happened to them isn't uncommon.

"There seem to be some flaws in the legal system that should be addressed," Colin Finnerty said, "the fact that in North Carolina there are no recordings of the grand jury, and to establish checks and balances on district attorneys."

Reade Seligmann, who had an iron-clad alibi to counter District Attorney Mike Nifong's accusation but was nonetheless dragged through the mud, added,

"I can't imagine what they do to people who do not have the resources to defend themselves."

There's probably some truth to the accusation that the media's initial interest in this case was driven by media bias and "frat boy" stereotypes. But much of the initial interest also likely was driven by the "man bites dog" nature of this story.

Everything was happening in reverse. Here you had a lower-income black woman making accusations against affluent, white men. You had conservatives and law-and-order types rallying to support the defendants, while civil rights activists and criminal justice advocates were finding common cause with the accuser.

In fact, in some way the extensive media coverage may have helped the Duke players. It brought a new level of scrutiny and transparency to this particular criminal justice outrage and kept the media glare on Nifong's every move.

The same week the Duke players were exonerated, another man was cleared of rape charges as well. James Giles was convicted in 1982 of raping a woman in Dallas County, Texas. Giles served 10 years in prison and 14 as a registered sex offender.

He lost his marriage and contact with much of his family and couldn't travel 10 miles outside his home without first obtaining permission. He was cleared by DNA evidence, with the help of the fantastic organization, the Innocence Project.

Giles isn't alone. He's the 12th man in Dallas County to be exonerated by DNA evidence. There are more than 400 others there waiting for DNA tests, and even the district attorney there believes a large percentage of them may be innocent.

"It's a new day in Dallas," said Dallas County's district attorney, Craig Watkins, after announcing Giles' release. Dallas County has a long history of tough-on-crime prosecutors and indifference to criminal justice protections that may have put hundreds of innocents in prison — or to death.

Referring to the old mentality, Watkins added, "if you sent someone to jail who was possibly innocent, it was a badge of honor."

Watkins' quest to clear the names of the innocent is aided by the fact that Dallas County coincidentally has historically preserved blood samples from cases involving violent crime. Most other jurisdictions across the country only recently began doing that.

It's likely of no coincidence that the one jurisdiction where blood samples have been preserved is also one that's finding a shocking number of convictions of innocent people.

If there's one positive that might come out of the Duke imbroglio, it's that the unusual demographics of the parties involved and alliances it spawned may mean some much-needed new scrutiny of the criminal justice system, and win welcome new advocates for reform.

Nifong is by no means the only overly aggressive prosecutor in this country. And Durham is by no means the only jurisdiction where the wrong people have been wrongly accused. As Seligmann suggested, the only real difference may have been that the Duke players had the resources to fight back. Many others don't.

Examples abound.

A 2002 audit of the crime lab in Houston, Texas, found that experts may have given "false and scientifically unsound" testimony in thousands of criminal cases. Subsequent reports showed that crime lab employees often tailored their tests to fit police theories about how a crime was committed. The city is finishing up a $5.5 million review of 2,300 cases, including death penalty cases.

In 2003, Texas Gov. Rick Perry pardoned 35 mostly black residents of Tulia, Texas, who had been prosecuted for drug crimes based on testimony from undercover police officer Tom Coleman. Coleman, once named Texas "Police Officer of the Year," was found to have manufactured evidence from whole cloth.

Just last month in Maryland, self-styled ballistics expert Joe Kopera committed suicide after it was revealed that he lied about his expertise and training. Kopera had testified in hundreds of criminal trials over 40 years, many of which may need to be reopened.

A 2005 audit found critical errors in the sate of Virginia's crime lab, considered one of the best in the country. The audit found that senior-level experts in the lab were too often persuaded by political pressure to secure convictions. The audit was ordered after the exoneration of Earl Washington Jr., a man who served 17 years on Virginia's death row.

These are merely examples from the last several years, and they're by no means comprehensive. Here's hoping that the most vocal critics of Mike Nifong and the Durham justice system that relentlessly pursued the Duke lacrosse players — many of whom don't generally speak out on criminal justice issues — will see the case as more than just an example of media bias or reverse discrimination.

It's merely one very high-profile example of the flaws and inadequacies in our criminal justice system. And it demonstrates why we need strong protections for the accused and transparency, accountability and oversight of the system that accuses them.■

Radley Balko is a senior editor with Reason magazine. He publishes the weblog, TheAgitator.com.

DNA to Clear 200th Person

By Richard Willing
USA TODAY
Monday, April 23, 2007

A former Army cook who spent nearly 25 years in prison for a rape he did not commit is scheduled today to become the 200th person exonerated by DNA evidence, underscoring the quickening pace of overturned convictions, according to the Innocence Project.

The New York-based legal group says the 100th exoneration occurred in January 2002, 13 years after the first exoneration. It took just more than five years for the number to double.

"Five years ago, people said that the number (of exonerations) was going to dry up because there just weren't many wrongful convictions," said lawyer Barry Scheck, who co-founded the Innocence Project in 1992 to help prisoners prove their innocence through DNA evidence. "But clearly, there are plenty of innocent persons still in prison. There's no way you can look at this data without believing that."

David Lazer, a Harvard University public policy professor who specializes in DNA issues, says improved testing technology and an increase in the number of lawyers who are taking on DNA cases should result in a continued increase in the number of wrongful convictions that are set aside.

Convicting an innocent person is "every prosecutor's nightmare," said Joshua Marquis, vice president of the National District Attorneys Association.

The "tiny number" of exonerations suggests that the "epidemic of bad convictions" that Scheck suggests is "fiction," said Marquis, chief prosecutor in Clatsop County, Ore. There were 1,051,000 felony convictions in state courts in 2002, up from 829,300 in 1990, according to the federal Bureau of Justice Statistics.

The exoneration milestone is to be reached today in Chicago, where Cook County prosecutors and Innocence Project attorneys together will petition a Chicago court to set aside Jerry Miller's 1982 conviction, said Tandra Simonton, a spokeswoman for the prosecutor's office.

Miller, 48, was convicted of raping, robbing, assaulting and kidnapping an office worker in a Near North Side parking lot in September 1981.

It is near certain the judge will grant the joint motion, Simonton said.

DNA tests performed by the Innocence Project in March showed that his genetic profile differs from the rapist's, proving that he didn't commit the crime. Miller continued to insist he was innocent even after being paroled last year.

"I really need to hear from the judge — 'your record is clear, we know you didn't do it' — before I feel truly free," Miller said in an interview. "I'm waiting for this to be finally, truly over."

Most exonerations come from cases from the 1980s and 1990s, before DNA testing was available or widely used. DNA was first used in an American criminal court case in 1987. The Innocence Project — which now has 36 affiliates at law schools and law offices across the USA — says its records show all but two of the exonerations occurred in convictions that happened before the year 2000.

Scheck said the "typical" DNA exoneration case has not changed much over the years. It often involves a sex crime allegedly committed by a black man in which the white victim is often the only witness, he said.

Miller, who is black, was identified by two parking lot attendants, who were also black. The victim, who was white, could not identify her assailant.■


DNA Should Clear Man Who Served 25 Years

By Richard Willing

Twenty-five years in Illinois prisons for a rape he didn't commit gave Jerry Miller plenty of time to think about how the criminal justice system works.

It is, he decided, a lot like "a big assembly line."

"Lots of products come off, and most of the time it's OK," says Miller, set to be formally exonerated of rape, battery, robbery and kidnapping at a court hearing in Chicago today.

"But then there's the defects, the one's that are messed up. …You got an assembly line, you're always gonna have some defects."

The Innocence Project, a New York City-based group that uses DNA to clear persons wrongly convicted, says the 48-year-old former Army cook will be the 200th person exonerated by DNA evidence since the technology was first used to clear a convict in 1989.

DNA testing hadn't yet been used in a criminal case when Miller was convicted of the September 1981 rape, robbery, assault and kidnapping of a Chicago office worker in a parking garage north of the Loop.

The woman testified that she had been assaulted by a black man, robbed and raped in the back seat of her car before being thrown into the trunk.

The victim never got a good look at her assailant. Two lot attendants, both black, identified Miller as the man who attempted to drive the car out of the lot but fled when challenged.

A few days earlier, police had briefly detained Miller for acting suspiciously near cars parked in the area.

Miller had an alibi: He was home watching the Sugar Ray Leonard-Thomas Hearns welterweight title bout. Only family members backed up his story.

The jury didn't believe them.

"It was a high-profile case, and they basically had it in their minds to convict me from the start," he says of prosecutors.

Miller appealed his conviction, lost, then began hearing about DNA in the mid-1990s. He sought help from the public defender's office and the Innocence Project. He was paroled last year before testing could be performed on semen stains from the crime scene. Even though free, he says, he insisted on DNA testing to remove the "stigma" of the conviction and to be removed from Illinois' sex-offender registry.

In March, Miller's DNA was shown not to match the genetic profile of the rapist drawn from the crime scene. He says the number of DNA exonerations will grow because there are more innocent people in prison "than you would ever think."

"You know everybody (in prison) can't be innocent, but there's a lot of guys who say they are, and they've got pretty good cases," he says. "But so many of them get discouraged, and they give up."

The second-hardest part of living with a wrongful conviction, he says, is "sticking with your guns" by continuing to insist you're innocent.

The hardest part?

"Getting people to believe you."

Since his parole last year, Miller lives with family in a town outside Chicago, cooks part-time at a restaurant and works as an attendant on a shuttle bus that serves handicapped persons.

He has focused on having his conviction vacated, both to clear his name and to be rid of the restrictions that came with his parole. These include an order that prevents Miller from interacting with children and a Global Positioning System-based monitor that allows parole officers to monitor his whereabouts. "I know I didn't do it, but it's still important for me to hear a judge say so," Miller says. "It's like there's this weight I been carrying around for 25 years, and I'm still carrying it."■