Righting the wrongfuls

DNA lessons guide proposed laws

October, 17, 2007

by Sandra Svoboda, Metro Times Detroit

A national movement to prevent, reverse or remedy wrongful convictions has swept into Michigan's Legislature this term with six bills that would reform police investigations, change DNA testing procedures, compensate those improperly imprisoned and clear their records.

If passed, they could make Michigan among the most progressive states in terms of breadth and depth of criminal justice reforms related to "innocence" issues.

"This is something in the criminal justice system that's so much more compelling than a lot of the issues we've seen over the years," says Marla Mitchell-Cichon, co-director of the Innocence Project at Cooley Law School in Lansing. "We'll move forward if people are willing to keep an open mind and make it a better system."

Rep. Steve Bieda (D-Warren) sponsored or co-sponsored all of the measures. He's unsure of their prospects for passage but he does think bipartisan support for such efforts has grown.

"It's been a process of legislators understanding what the issue is," Bieda says.

The first of the bills would make permanent the Michigan law that expires in 2009 allowing for post-conviction DNA testing in certain cases and would expand other opportunities for testing. Another would provide for expunging a prisoner's record if they are exonerated by DNA evidence.

Two companion bills would provide compensation — and make it non-taxable as Michigan income — for prisoners shown to have been wrongfully convicted and incarcerated. Two other measures require videotaping of interrogations for some crimes and more standardized procedures for eyewitnesses viewing suspects in photo or live lineups.

"I can't think of anything more appalling than the state denying freedom to people who have been wrongly incarcerated for several years," Bieda says.

Michigan, like most states in recent years, has enacted laws changing criminal justice procedures in response to the more than 200 exonerations nationwide using DNA evidence.

As advocates examined the wrongful convictions, they found fault in how police handled evidence, if and when DNA testing was available and other investigative problems including mistaken eyewitness testimony, unreliable snitches and false confessions.

"There's a recognition that there can be some things done to tighten up the system and make sure that we don't have a miscarriage of justice," Bieda says.

National efforts

The national Innocence Project, affiliated with the Cardozo School of Law at Yeshiva University in New York, has identified five major reforms that would help prevent wrongful convictions and tracks them as they are enacted by states: access to DNA after conviction for testing, preservation of evidence, recorded police interrogations, compensation for those wrongfully convicted and reform commissions to make systematic improvements. According to the group's research:

-- 42 states have some type of law allowing access to DNA evidence and testing after conviction. Michigan's law allowing this was first passed in 2001.

-- 23 states, including Michigan, have enacted measures mandating preservation of evidence.

-- 22 states have adopted legislation providing monetary compensation for people wrongly convicted. Bieda's bill would make Michigan the 23rd state to do so.

-- 8 states have mandated that police record interrogations. Bieda hopes his bill addressing this issue will have a hearing this session. "We anticipate, I think, getting this through a public hearing opportunity for the public to comment," he says. "We really want to have an opportunity for people in law enforcement and other aspects of government to get a look at this." Various Michigan jurisdictions already videotape some interrogations.

-- 6 states have created reform commissions to study their criminal justice systems and make recommendations for improvements. Michigan has no pending legislation to do so.

In Illinois, where 27 convictions of inmates — five of them facing death — were shown to be wrongful, all five measures have been adopted. In Texas, where 29 prisoners have been freed by DNA evidence, three of the reform laws are in place.

"I do think that telling the stories of people who have been exonerated and writing on the subject and journalists covering the subject makes a huge difference. Then the issue seeps into people's consciousness and then they start moving on it," says Adele Bernhard, a professor of law at Pace Law School in White Plains, N.Y., who works on non-DNA exonerations and tracks state laws related to criminal justice reform.

That's what happened in North Carolina where all five of the reforms exist and nine exonerations have occurred, according to Richard Rosen, a professor of law at the University of North Carolina and a founder of that state's Innocence Project. "We had some highly publicized exonerations. There was a public concern and an official concern that the criminal justice system was being called into question," he says.

Michigan answers

The state's 2001 law allowing for post-conviction DNA testing in certain cases originally expired this year and applied only to people who were convicted prior to the law's adoption and were still in prison. Mitchell-Cichon says legislators limited the law's reach due to fear of flooding the courts with requests. She contends that hasn't happened.

Last year, legislators approved extending the deadline for requesting post-conviction DNA testing until 2009.

This session's proposed legislation would eliminate the deadline entirely and allow some prisoners convicted after 2001 to request testing. The proposed measure also would allow anyone — in prison or released — to challenge their conviction using DNA testing. "That's assuming that you can locate and identify biological matter that can be tested," Mitchell-Cichon says. "It's not very simple to figure out where the evidence might be. That takes a considerable amount of time and is a big part of our investigation in particular cases."

If the DNA evidence supports their innocence claims, the prisoners can ask the courts for a new trial.

"Just because you're excluded by DNA as the source of the biological material doesn't necessarily mean you're going to get out of prison," Mitchell-Cichon says. "The remedy under the current law is not to get out of jail but to have a new trial."

Still, she says, enacting laws such as the six proposed would help reduce the chances of wrongful convictions.

"There's no benefit to anyone to keep a wrongly imprisoned individual in prison. It costs the state money. It gives a false sense that the crime has been solved and you have taken away someone's life," she says.

The House Judiciary Committee plans hearings on the compensation, DNA and record expunging bills Oct. 23. Hearings for the eyewitness procedures and videotaped interrogations have not been set.

On the front lines

As the co-director of the Innocence Project at Cooley Law School in Lansing, Marla Mitchell-Cichon has examined hundreds of cases involving Michigan prisoners seeking DNA testing of evidence in their cases. The most widely covered case was that of Kenneth Wyniemko who, after serving eight years for sexual assault in Macomb County, was cleared of the crime by DNA testing.

Mitchell-Cichon, who helped draft bills to change state policies, recently spoke to MT about the problems prisoners have proving their innocence and continuing their lives:

The causes of wrongful conviction are poor or wrong efforts in the entire process: snitches, crooked cops, crooked prosecutors, coerced confessions, bad science, bad scientists ... underfunded, underpaid, inadequate, ineffective lawyers on both sides of the table. The benefits of looking at these old cases as I do and allowing more opportunities to do DNA testing is we can learn a lot from those cases about these other issues.

In some cases — men and women, mostly men — the science proved they were factually innocent. There was no other explanation for why their DNA was not there. But in probably more cases than I would like to hear, the state dug in its heels and attempted to keep the person in prison, came up with new theories of criminal liability, etc. ...

I think it's very, very difficult for some people to believe that someone who has been exonerated by DNA is actually innocent. DNA science hasn't been around long enough for that to have totally sunk in, that that could be a possibility.

Secondly, if you are the prosecutor in the case or the chief prosecutor for your county, you would never want to believe that a factually innocent person was convicted under your reign. It's very difficult for individuals to separate themselves and their own investment in a case or an office from what the science is telling us. I can empathize with how difficult it might be to think, "God, this may be the wrong person." We cannot let our personal belief about a case or our ego decide the case. We have to let the facts decide that.

I think it's pretty common that individuals who have been proven factually innocent and have been recognized as such by the courts still have all the same concerns after incarceration that guilty people have. They still can't get jobs. They still have a tough time coping in society because of being locked up for so long. Many of them lose everything when they go to prison, which is true for all prisoners. They also don't get benefits that prisoners get when they are released, which is why the compensation bill is so important. At least when you're paroled, you get some government services: housing, counseling. I wouldn't say they're the best served in the world, but the community is offering something to get back on their feet. It's not any easier for an innocent person to transition back into the community than a person who is guilty. It might be more difficult.