Antonin Scalia

How Many More Are Innocent?

America's 250th DNA exoneration raises questions about how often we send the wrong person to prison.

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Freddie Peacock of Rochester, New York, was convicted of rape in 1976. This year he became the 250th person to be exonerated by DNA testing since the technique was first used in 1989. According to a new report by the Innocence Project, those 250 prisoners served a total of 3,160 years; 17 spent time on death row. Remarkably, 67 percent of them were convicted after 2000, a decade after the onset of modern DNA testing. The glaring question: How many more are there? 

Calculating the percentage of innocents now in prison is a tricky and controversial thing to do. The certainty of DNA testing means we can be positive the 250 defendants listed in the Innocence Project report didn't commit the crimes for which they were convicted. But there are hundreds of other cases in which convictions have been overturned due to a lack of evidence, recantation of eyewitness testimony, or police or prosecutorial misconduct, and where no DNA evidence exists to definitively establish guilt or innocence. Those were wrongful convictions because there wasn't sufficient evidence to overcome reasonable doubt, but we can't be sure all of the accused were actually innocent. 

Most prosecutors fight requests for postconviction DNA testing. That means the discovery of wrongful convictions is limited by the time and resources available to the Innocence Project and similar legal aid organizations who fight for tests in court. It's notable that in one of the few jurisdictions where the district attorney is actively seeking out wrongful convictions—Dallas County, Texas—the county by itself has seen more exonerations than all but a handful of individual states. If prosecutors in other jurisdictions were to follow Dallas County District Attorney Craig Watkins' lead, that 250 number would be significantly higher. 

Still, some officials aren't impressed. One of the more farcical attempts to underplay the growing number of DNA exonerations came in a concurring opinion that Supreme Court Justice Antonin Scalia wrote in the 2005 case Kansas v. Marsh. Scalia began by dismissing the idea that an innocent person may have ever been executed in America, explaining that if such a tragedy had occurred, "we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby." 

Since then the abolition lobby has been shouting about Cameron Todd Willingham, the probably innocent man who was executed in Texas in 2004. But Scalia's argument also betrays a lack of familiarity with how anti–death penalty groups work. While the justice is right that proof of an executed innocent would be good rhetorical fodder for the abolitionists, legal aid groups aren't about to waste their limited resources hunting down mistaken executions when there are living, breathing innocents still to be discovered. Moreover, in many jurisdictions, prosecutors destroy case files after an execution, making any post-execution investigation rather difficult. 

Scalia also cited some math from Josh Marquis, an Oregon prosecutor who has held various executive positions at the National District Attorneys Association. Marquis crunched his numbers at a time when there had been about 200 DNA exonerations. He arbitrarily multiplied that number by 10 to come up with 2,000 wrongful convictions. Marquis then took every single felony conviction over the previous 15 years as his denominator and came up with a meager .027 percent wrongful conviction rate. Move along, America. Nothing to see here. Your criminal justice system is performing just fine. 

But that figure is ridiculous. First, the subset of cases in which DNA testing can prove (or disprove) guilt is exceedingly small. It is generally limited to most rape and some murder cases. You can throw out the entire body of drug charges and nearly all burglaries, robberies, assaults, and other felonies. As University of Michigan law professor Samuel L. Gross wrote in the Annual Review of Law and Science, "By this logic, we could estimate the proportion of baseball players who've used steroids by dividing the number of major league players who've been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League—and maybe throwing in football and basketball players as well." 

If the aim is to calculate the percentage of people who claim they're innocent and who actually are, you might throw out all cases decided by a guilty plea too. But this can get tricky. According to the Innocence Project, more than a quarter of DNA exonerations included a false confession or guilty plea. The plea bargaining process also induces innocent people to plead guilty to lesser crimes to avoid charges that carry longer prison terms. 

The Innocence Project cites a study by the Seton Hall law professor D. Michael Risinger that puts the share of innocents in prison at 3 percent to 5 percent. But that study looked only at capital crimes, and it's a much-debated question whether you can extrapolate data from death penalty cases and make assumptions about conviction rates in lesser crime categories. (Those who argue that non-death penalty conviction rates would be higher note that there's more pressure on prosecutors and jurors to hold someone accountable in murder cases. Then again, defendants tend to have better representation in capital cases.) But even dropping below the study's floor, using the 2008 prison population, a 2 percent wrongful conviction rate would mean about 46,000 people are incarcerated for crimes they didn't commit. 

Whatever the percentage, DNA testing has exposed some glaring flaws in the system, calling into question traditional assumptions about the value of eyewitness testimony, forensic evidence, confessions, and the appeals process. (In several cases where a defendant was later exonerated by DNA testing, appeals courts not only upheld convictions but noted "overwhelming evidence" of the defendants' guilt.) Since we now know because of DNA testing that misconduct by police and prosecutors produced wrongful convictions in many high-profile murder cases, it is probably safe to assume that similar problems have led to the wrongful conviction of routine drug defendants. The difference is that there is no test to clear those people's names. 

Scalia wrote that an exoneration "demonstrates not the failure of the system but its success." But these 250 DNA tests aren't proof that the system is working. They're a wake-up call telling us that it isn't. Instead of falling back on groups like the Innocence Project to serve as unofficial checks against wrongful convictions, cops, prosecutors, judges, and lawmakers should be thinking about why there's so much work for these organizations to do. 

Radley Balko (rbalko@reason.com) is a senior editor at reason.

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  1. Good. The post-conviction safeguards are working.

    1. I am really trying to figure out how this comment makes sense in the context of the article. Any help?

      1. T U L P A

      2. Deadpan sarcasm. Really funny, too.

    2. Riiiiighhht! If after the conviction new evidence proving innocence is discovered, and:

      (a) if the innocent person is released having only lost, say, 20-30 years of his life in prison, well, the system WORKS, because sending innocent people to prison for half their lives is only a trivial error and not really an injustice at all!

      (b) if the innocent person has already been executed, like Jesse Tafero, whose head caught fire in the electric chair (a few years before it was revealed that the witness against him had been the actual killer), why, no problem, because dead people can’t appeal, so their convictions can’t be overturned, so on the legal record they remain officially “guilty”, the facts be damned!

      (c) if the innocent person is still in prison and even death row, we can leave him/her there to rot and even be executed, according to Herrera v. Collins, 506 U.S. 390 (1993), because newly discovered evidence of innocence showing that a conviction is factually incorrect is not grounds for habeas relief; on which basis, Herrera was sent to the electric chair still protesting his innocence to the last.

      1. Case (a) is going to happen whether you have the death penalty or not; and from trying experience on this site, I know that these articles are primarily used to beat the anti-death-penalty drum. That was the purpose of my comment.

        Case (c) is outrageous. I agree that if significant new exonerating evidence comes up before execution that evidence should be reconsidered.

        1. But case (b) can only happen while the death penalty exists.

          The DP makes error utterly irreversible.

          You can’t “release” anyone from death.

          1. Tough shit.

            1. “Tough shit.”
              Hey you’re right, I never looked at it that way.

          2. Spending 20 years in prison isn’t reversible either.

            Yes, there is obviously more to lose if you’re executed rather than simply being a victim of state-sanctioned kidnapping. That’s why the post conviction safeguards have to be strongest in death penalty cases (as they are!). But don’t pretend that there’s a qualitative difference between executing innocents and locking up innocents from age 25 to age 50 and then releasing them with an apology.

            1. So you perceive no “qualitative difference” between being alive and being dead?

          3. True, but you could always prosecute those who put an innocent person to death, especially if there was malpractice or perjury involved.

        2. Case (c) is outrageous. I agree that if significant new exonerating evidence comes up before execution that evidence should be reconsidered.

          So what changes in the law would you propose?

      2. A) Whats your point?
        B) Whats your point?
        C) OK, that is bad.

        Many more people get off scott free or get a slap on the wrist. Shit happens.

        1. I have to agree with this insightful comment. The US locks up more of its’ citizens than any country in the world with the exception of China. The conclusion is obvious: Americans are the most evil people on the face of the earth. We really should be ramping up the executions of our countrymen for the safety of everyone. JohnD is obviously the most American amongst us (therefore the most evil) logic dictates that he go first. And If you happen to be innocent “Tough Shit,” right? I mean we’ll all be safer when everyone is dead or in prison.

          1. “The US locks up more of its’ citizens than any country in the world with the exception of China.”

            Really? Or are you lying about china?

  2. DNA is Da Bomb dude.

    Lou
    http://www.logfiles.net.tc

  3. Seems like this is the last hurrah if your fucked by corrupt cops, judges and politicians.

  4. Let God sort ’em out. That’s my philosophy. (That’s sarcasm) and the philosophy of most “law and order” types.

  5. Freddie Peacock of Rochester, New York, was convicted of rape in 1976.

    In 1976 I was a snot nosed 12 year old. It would be five years before I moved to Rochester NY. I graduated high school, went to college, dropped out of college, joined the military, was discharged from the military, went to work, lost my job, dropped back into college, graduated college, and got a job having never heard of Freddie Peacock. Since then I’ve lived in four different states.

    fuck

    1. Well, rape is a serious crime – particularly if, you know, someone actually DOES it – but isn’t 34 years (!) in prison an adequate sentence for it?

      All kinds of (real) murderers get out sooner than that.

      Shoplifters in California, of course, can get a life sentence, but that’s California.

  6. I was not using DNA exoneration (which come in mostly rape cases) but a number from a paper prepared by Professor Samuel Gross. He and I both presented and later published at a symposium at Northwestern Law School in Chicago in 2004.

    As a journalist and skeptic I think you’ll agree that facts matter.

    Gross and his team did an exhaustive search of cases from 1989 to 2003 and identified about 385 cases that they determined the defendants were exonerated. Some were based on DNA but other were simply a retrial with a not guilty verdict or what I call “prosecutorial fatigue,” the prosecutor just gives up after 20 years and dismisses. I agree that he probably didn’t capture every exoneration even though that word is very powerful. It means innocent…didn’t do it. So for purposes of the title of your piece – enumerating the innocent – I rounded up to 400 and multiplied it by a factor of 10 to 4000. Then I compared that to two numbers: first number of felonies in that 14 year period, about 15 million or narrowed it to just “willful murder” and “forcible rape” as the FBI defines those offenses, which were almost exactly 10 percent of the larger number – 1,500,000. Using the 10X multiplier and just using the murder and rape crimes we come out with a .0026% error rate or said another way a rate of 99.74% “rightful” convictions. My point, adopted by Justice Scalia with whom I disagree on most cases, was that the wrongful conviction rate is very small, nothing like the 3 to 5 percent posited using nothing more than a finger in the wind. And I don’t believe for a minute that there are 4000 innocent men in prison right now for rape and murder. There are some and that number is unacceptable. The question is what do you do about it.

    That doesn’t miminize the injustice if you are a loved one is in the .26 of 1 percent who is wrongly convicted. And it certainly doesn’t mean everything is just fine and there aren’t MANY reforms that would make the justice system fairer to all parties, accused and victims. If I thought 3 to 5 percent of the people I convicted were innocent I’d quit my profession. The worst thing for a prosecutor is not losing a case. That happens all the time. The worst thing would be sending an innocent person to prison, or worse to death row. Have innocent people been sent to death row? Yes, about 30 since 1976. But the reason the Willingham case is such a big deal is that Scalia was right. If there was conclusive proof that an innocent person was executed it would be a very big deal. The issue in the Willingaham case is whether the deaths were the result of arson. DNA won’t help and we will never know for sure in the Willlingham case, no matter what the NEW YORKER says.

    But for 14 years the poster boy for wrongful execution was Roger Coleman, featured on the cover of TIME Magazine in 1992, the year he was executed.
    Google his name and even now you’ll find hunderds of claims that he was innocent of murdering and raping his sister-in-law. But in January of 2006 there WAS post-conviction, even post-mortem, DNA testing and a Canadian DNA lab both sides agreed to said that the chances were 1 in 19 million that it wasn’t Coleman. In 2000 NEWSWEEK ran a photo of Ricky McGinn 12 times across its cover and his lawyer, Barry Scheck testified before the US Senate on June 13, 2000 about his case. I know because I was there, also testifying. The bill offered that year did not pass but a better one that almost everone agreed on did pass – with the support of the National District Attorneys Association.

    But in June of 2000 George W. Bush was Governor of Texas and it was in the full heat of the presidential campaign. Scheck convinced Bush to do all that a Texas Governor can do – grant a single 30-day delay – in order to test a tiny spot of what was thought to be semen on the underwear of 12-year Stephanie Flannery, McGinn’s stepdaughter. But after the testing there wasn’t any more talk about McGinn by NEWSWEEK or Scheck because the post-conviction DNA testing using newer, more accurate STR technology established beyond any reasonable doubt that McGinn has not merely murdered Stephanie, but raped her.

    Do these examples mean that we shouldn’t spend more money of adequate dense lawyers and better investigation? Absolutely not.
    I’d love it if one-tenth of the money spent on the Iraq War was spent to improve our justice system.

    1. If I thought 3 to 5 percent of the people I convicted were innocent I’d quit my profession

      You should. In my experience that’s a perfectly plausible number, and your suggestion of 99.74% accuracy in criminal justice proceedings is so ludicrous a number that one would have to be an utter ideologue as well as a innumerate fool to buy it.

      Prosecutors are scum. Er…wait, sorry, I’m sure some aren’t sadistic gloryhound bastards. Say 0.0026%.

      1. You should. In my experience that’s a perfectly plausible number, and your suggestion of 99.74% accuracy in criminal justice proceedings is so ludicrous a number that one would have to be an utter ideologue as well as a innumerate fool to buy it.

        There is a ginormous difference between “accuracy in criminal justice proceedings” and false convictions.

        Also, your lack of actual experience behind bars shows. You don’t believe that 99% of the people in jail are guilty? Good for you, you have obviously never been in jail for more than the briefest of periods. Spend a week behind bars, ANY bars, from juvie to maximum security federal prison, you are unlikely to ever meet an innocent person. I am sure there are a few, but under 1% sure fits with my dozen of personal experiences.

        1. Your dozen of personal experiences?

          Oh, I am so impressed.

          Well, I’ve not been an inmate, but I’ve visited friends in confinement. One friend, he’s dead now, was repeatedly arrested, mistaken for a rapist whose face in ATM photos his own face did resemble (but the DNA did not match), released, re-arrested by the next squad that saw him, re-released, and so forth. Ray died in his cell (held on another charge) the day before he was to be released again ? they’d caught the fellow who’d actually done what Ray was being held for. Never tried or convicted for one single damn thing. Hadn’t expressed any suicidal feelings; he knew he was getting released the next day; but so did his guards. You figure it out.

        2. Everyone in prison claims to be innocent. Damn few are.

          1. And your factual basis for such certainty in stating this is… ?

          2. “Everyone in prison claims to be innocent. Damn few are.” [citation needed]

            1. I’ve worked at a prison for over five years, and this is a bullshit theory. Most of the guys come to me to get legal copies and complain not about their innocence. Most of them complain about their sentence. They just want less time for what they did. Not too many claim complete innocence, but the few that do often have some real evidence that makes me think that the system for appeals needs work.

              Someone with a life sentence gets hardly any help from most of these groups, doesn’t get the automatic appeals available for the death penalty criminals, and still dies in prison. I would imagine that this group would have a higher error margin, since the evidence wasn’t there to put the guy to death for the conviction. I’d say that the lower the penalty, the more incorrect convictions and sentences there are.

              I’d say 90% get what they deserve, 9% got a sentence that is close to what they deserve, and 1% got a raw deal. It’s a pretty good system we have, but there needs to be a better system for figuring out what went wrong when it does.

  7. I do not care one bit how many guilty of capital crimes are put to death. Kill ’em all. Child molesters should also be offed to stop the likely chance of recidivism.

    I do not think there should be any death row inmates who have not had evidence DNA tested. Surly this is not to much trouble or expense when there is a life involved. There should be no time limit and prosecutors should be focused on justice and not a scorecard. There is a life involved. This should be required in a humane, just, evidence based society. There is a life involved.

    1. DAnna: I do not care one bit how many guilty of capital crimes are put to death.

      There is so often a regrettable looseness, an imprecision, an ambiguity, in such phrases, that it is needful to point out the difference, indeed the grave disjunction, between:

      (1) those who are found guilty [=convicted] of capital crimes
      and
      (2) those who are actually guilty of capital crimes.

      You may, of course, not care about the deaths of either. Many do not. You evidently didn’t care enough to draw the distinction.

      I am the grandson of a woman who was executed by a Soviet firing squad after being found guilty of a capital crime: trying to harbor a refugee from Lenin’s first purge in 1921. Was she actually guilty as well? I think so, I hope so, and I have been tremendously proud of her all my life in believing so. Yet somehow I do care deeply about the fact that she was put to death, along with so many others.

      And also about the millions who were put to death for the capital crimes, of which they were found guilty, and were indeed guilty, of being Jews or Gypsies within the grasp of the Third Reich ? who had outlawed their very races.

      Yet you do not care one bit how many such people are put to death? Despite knowing how recklessly “capital crimes” have been defined and prosecuted over the years? What a light and easy and carefree life yours must be. Or what a thoughtless one.

    2. May you never be falsely accused of child molestation, as has occurred in the past to others and appears to be happening to Tonya Craft now. If such a predicament ever befalls you, may the evidence used against you also be as weak and unconvincing as it is in her case.

      I say this because if you were to find yourself in such a situation, you might rethink saying all child molesters should be executed. After all, if you were to be convicted, even though you may be innocent, your punishment would still be the same as those who are truly guilty.

      And therein lies the problem with the death penalty. There’s always room for error. The vast majority of us will never face the consequences of being falsely accused or of misconduct by an agent of the state, but that doesn’t mean it can’t happen – or that we shouldn’t allow for the possibility that it may be happening to others.

      If there is a God, may he bless the Innocence Project.

      1. May you never be falsely accused of child molestation, as has occurred in the past to others and appears to be happening to Tonya Craft now. If such a predicament ever befalls you, may the evidence used against you also be as weak and unconvincing as it is in her case.

        I say this because if you were to find yourself in such a situation, you might rethink saying all child molesters should be executed. After all, if you were to be convicted, even though you may be innocent, your punishment would still be the same as those who are truly guilty.

        And therein lies the problem with the death penalty. There’s always room for error. The vast majority of us will never face the consequences of being falsely accused or of misconduct by an agent of the state, but that doesn’t mean it can’t happen – or that we shouldn’t allow for the possibility that it may be happening to others.

        If there is a God, may he bless the Innocence Project.

        So what do we do?

        Abolish the criminal justice system?

    3. No government can be trusted with the responsibility of executions.

      1. No government can be trusted with the responsibility of executions.

        Or aerial bombings, since both result in death.

    4. Yes I’m serious, and don’t call me ‘Surly.’

  8. Beyond the number of exonerations, what is troublesome is that the reasons leading to false sentencing are always the same. Sloppy police work, under-performing defense, prejudice against defender, prison snitches etc..

    1. And while those innocent people are doing time or dying, the actually guilty are… where? Doing what? Running around free, committing more crimes, while those innocents are paying for them?

      While Freddy Peacock was serving 34 years for a crime he hadn’t committed, where was the man who committed it, and what other crimes did he get to commit during those 34 years?

      Consider the case of falsely convicted Rolando Cruz and Alejandro Hernandez: sent to death row in Illinois for the rape and murder of 10-year old Jeanine Nicarico; won appeals due to an unfair trial; but were retried and reconvicted. They would surely have died in prison if it had not come out that the police and prosecutors had known and kept secret that another man, Brian Dugan, had already confessed to that rape and murder before the second trial.

      Dugan is known to have committed other rapes and murders, and is suspected of still others as well. Yet these officers of the law were willing to knowingly pin his crimes on two innocent men.

      This case was one of the reasons cited by Illinois Governor Ryan for his issuing a “moritorium” on the death penalty, after Cruz and Hernandez were finally released from prison.

      It was just too clear that such a matter of life and death demands more reliability and less fallibility than the state had shown itself capable of.

      1. If cops and prosecutors don’t catch anyone then they will appear ineffective, and the people will demand that they be replaced.

        If they put innocents behind bars then they will not only look good because they caught someone, they will have further work to do because the guy they didn’t catch will commit more crimes.

        So there is an incentive to convict the innocent.

        1. Well, there should be consequences to putting innocent people in jail IF… IF..you can prove beyond a shadow of doubt that the person really was innocent and the police or prosecuters hid evidence. .. Maybe they should serve what ever time the innocent person served.

          1. I agree. But since I’m just an idiot, I guess that makes you an idiot as well. Or maybe you’re an asshole. Yeah, I think you’re just an asshole. And a hairy smelly one at that.

          2. Well, there should be consequences to putting innocent people in jail IF… IF..you can prove beyond a shadow of doubt that the person really was innocent and the police or prosecuters hid evidence. .. Maybe they should serve what ever time the innocent person served.

            Here is a better idea.

            Strict liability.

            Look it up.

  9. It is not the job of prosecutors to put the guilty party behind bars, it is their job to put someone behind bars.
    Anyone. They don’t care who.
    The People want someone to be punished, so someone will be punished.

    If that means knowingly putting innocent people behind bars, so be it.

    As an aside, I do find it curious that many supporters of the death penalty oppose abortion on the grounds that it involves the killing of the innocent, and many supporters of abortion oppose the death penalty on the grounds that it involves the killing of the innocent.

    1. JK, you are an idiot. There is no moral equvalance to murdering millions of babies to the death of a handful of “possibly” innocent people put to death after being tried and found quilty by a jury of their peers.

      1. I would think that it would be more consistent to support or oppose both.
        But what would I know? I’m just an idiot.

      2. By the way, if you think there is a presumption of innocence then you are a complete and total idiot.
        The presumption is guilty. Why would the prosecution have gone through the time and expense of bringing an innocent person to trial?
        No, they are in fact considered guilty and it is up to the defense to prove them innocent.
        And if you can’t afford a good defense, your options are to plead guilty to a lesser charge or face the full penalty.
        There is no presumption of innocence.
        That’s a crock of shit. Kind of like your head.

      3. I agree that these are very different scenarios. If you kill a few innocents you are a murderer but if you kill millions you are a conqueror… right?

  10. All of the above, minus the rude ad hominems, are reasons why governments should not be allowed the death penalty. If most folks where armed, trained in the use of those arms, and – maybe more importantly – believed they had the inalienable privilege to kill another person in defense of themselves or of another or to prevent the commission of a crime, fewer crimes deserving death would occur. The problem isn’t that all criminal defendants claim innocence; or that trials go astray because of publicity, inherent problems in witnesses’ identification, corrupt or racist prosecutors/cops, or any of the other obstacles to not executing an innocent person. The problem is simply this: we cannot trust anyone in a government job to do this particular thing honestly, fairly and in accordance with notions of justice. Governments have a track record of wholesale murder when allowed to decide who gets to die and for what. Look at the most recent incident of that student being clubbed nearly to death and the video, first, being conveniently “lost” then found but with the critical two minutes erased. And who was the cop in charge of the video? Wife of one of the cops who beat the daylights out of the kid. Will she be disciplined? Laugh out Loud. Come on, forget your fancy theories: we cannot trust them therefore there should be no death penalty. Any other consideration is merely icing on the cake of disapproval.

    1. All of the above, minus the rude ad hominems, are reasons why governments should not be allowed the death penalty.

      Is the execution of an innocent person qualitatively worse than the incinerations of innocent people in Dresden and Tokyo in the 1940’s?

      1. Depends on who is executing the innocent person.

        Is it qualitatively worse for one to have their eyes torn from their sockets by an friend, or for another to have the same done by an enemy?

        The friend, it involves the emotional trauma of betrayal in addition to the physical trauma.

        1. Depends on who is executing the innocent person.

          Is it qualitatively worse for one to have their eyes torn from their sockets by an friend, or for another to have the same done by an enemy?

          The friend, it involves the emotional trauma of betrayal in addition to the physical trauma.

          The additional factor is insufficient reason to do away with the death penalty (unless you want the government to also stop bombing enemy-occupied cities like Tokyo, Dresden, or Jenin.)

  11. Here’s a simple solution:

    If it can be proven that a Prosecutor knowingly withheld evidence from the defense, before, during or after trial (no time limit), that Prosecutor is immediately, and permanently, disbarred nationwide.

    As for the cops thing, I believe if critical evidence goes “missing” while in the possession of the Police, in a case involving the Police as defendant, it should be legally assumed that the contents of said evidence are exactly as stated by the victim/prosecutor, etc.

    I believe everyone would be a LOT more careful then, and the laws would be pretty easy to write up. Tough to get them passed though, I would bet.

    1. That would be as just as is unlikely.

      The problem isn’t all the fault of the police and prosecutors.

      Scalia is actually someone I like (beggars can’t afford to be choosers, and pickings are slim these days) despite his flaws, he recognized a big part of the problem in this statement: “”The first instinct of power is the retention of power,..”

      So a big part of the blame lies with the people ourselves, as I will explain….

      We have had no interest of concern as long as the constitutional rights denied and limits overstepped haven’t personally affected our own lives.

      That’s a real winning strategy. Brings to mind that First they came for.. statement. My point is it’s always been our obligation to understand our Constitution and to hold the powers to it. If not, as Scalia pointed out those with power will instinctually hold on to it, and the corollary, of course, is it’s the drive of those with power to strive to expand it.

      Most of the Founders well realized this, that’s why they gave us constitutional republic with many built in safe guards, as long as we paid attention and prized our liberties above all other things it should’ve lasted a very long time.

      The fact that even highly intelligent Americans believe we have a democracy is proof we abandoned our obligations some time ago. As some may know, the vast majority of the Founders held very negative views on democracies. We certainly are not and never were a democracy.

      “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote!” ?Benjamin Franklin, 1759

      So which is it? False beliefs, false security, false democracy, and freedom from our obligations, – or Liberty?

      We as a people chose the former, now we will pay the steep price for our foolish choice.

      1. Heck, I’m Canadian and even I know you are a Republic, not a Democracy.

        As for tyranny of the masses, and the suppression of “unpopular political thought”, as a Mens Rights Activist I am more than passing familiar with the concept.

        The main thrust of my point was not that people are basically good OR evil…simply that fear of repurcussion is the ONLY thing that keeps those in power, in check. Your Ben F. quote nicely sums that concept up..

        Frankly, I’m a little shocked that the political elite is getting away with all they are (as a Canadian, I see both of your political parties to be largely indistinguishable, so it’s not just “seeming that way” to you guys).

        I guess if you keep the masses policing each other over “hate speech” or “unpatriotic behaviour”, none of them notice that BOTH political parties are rolling back your civil liberties at light-speed.

        The real culprit here is the American People. For example, your prison population went from about 500,000 in 1960, to over 2.8 million in 50 years.

        This is a direct result of “The War on Drugs” AS WELL AS the “War on Deadbeat Dads” as well as “zero tolerance” policies and the creation of thought-based crime.

        Your society is a carbon copy of the USSR, sans Berlin wall, in a whole host of ways, that seem to be ever-growing.

        Yet, Americans continue to see who has the most “white guilt”, which victim-class deserves more of the pie, and other completely useless pursuits, as the best use of their time.

        Given my particular activism, and the pig-headed reaction usually received, I can only conclude that your country, and society, largely deserves the quality of representation you have.

        Journalism USED TO work as a counter to political power, but now? Well, I wonder if the LA Times has released that videotape yet? Your Media is even more of a biased Propaganda Conduit than the media here…and that’s saying something.

        Considering a major newspaper can literally hide damning evidence about a Presidential candidate, and still have citizens buy their product, boggles the mind….

  12. We hear a lot about DNa exonerations, but little about DNA convictions. The Innocence project never speaks of them. So, how many people have been proven to be the crook by DNA? Or is it only good for getting you off?

    1. You’re surprised that an organization called the Innocence Project doesn’t publicize convictions of those who are actually guilty? Well hold on to your hat but it gets even worse. Did you know that the National Organization for Women directs less than 1% of its funds towards lobbying for causes for men. It’s shocking I know.

      1. Actually, here’s a case where the Innocence Project, having cleared the falsely convicted man who spent 23 years in prison for a crime he hadn’t committed, went ahead and found the man who had committed it.

        Milwaukee Journal, May 10, 2010

    2. I understand perfectly, Petronius.

      Perhaps you’d like to step into the cell vacated by one of the exonerated and continue doing their time for them. Just until the guilty party no one is even looking for is caught, of course.

      It’s always so much easier when the it is someone else who is chosen to make the sacrifice, to feel the suffering, to know the loss, to have their life taken from them.

      Wouldn’t you agree?

  13. “He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.”

    Too bad Gilligan broke the damn compass. It appears we have been traveling in a circle this whole time.

  14. The worst thing about this, which isn’t even mentioned in the article, is that the REAL perp is still out there! Well, maybe not the worst. Those poor convicted souls have had their lives ruined.

  15. “If it can be proven that a Prosecutor knowingly withheld evidence from the defense, before, during or after trial (no time limit), that Prosecutor is immediately, and permanently, disbarred nationwide.”

    Oh, Factory, we’re light-years from that standard.

    The Illinois police and prosecutors who deliberately concealed Brian Dugan’s confession of raping and murdering 10-year-old Jeanine Nicarico, in order to pin the rap on Cruz an Hernandez, should have gone to prison for obstruction of justice. They paid no such penalty. Only the “little people” do hard time.

    The Texas prosecutor and judge (both married to other people) who concealed, and flatly denied, their love affair, despite the judge ruling on the prosecutor’s cases, not only paid no penalty for the deception or the judge’s failure to recuse ? but the defendant sentenced to death in one such case could not even win a new trial due to this appearance of bias, as he’d “waited too long to appeal” (the truth had only recently been established in law when the two adulterers had finally been put under oath).

    The present Supreme Court is not about to require judges to avoid the appearance of bias, of course ? not after so many Justices refused to recuse themselves in Bush v Gore despite having immediate family members employed by the Bush campaign, or otherwise previously expressed clear loyalties.

    1. Please forgive the short response, but I have to ask the question…

      Why is there a Statute of Limitations on Innocence for ANY crime/sentence?

      1. The reason given is the importance of “finality” or “closure”, to end what might otherwise be endless appeals.

        I’d suggested that the titles of the Supreme Court’s officers should be changed from “Justices” to “Finalities” to reflect their true priorities…

        … since by definition this “finality” or “closure” would prevent re-opening any case to fix errors discovered later, such as the actual innocence of the convicted person. In short, it would presume all verdicts and sentences infallible, and render them uncorrectable.

        “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” ? Finality Scalia, August 17, 2009, dissenting, In Re Troy Anthony Davis. See the case summary in Wikipedia.

  16. What strikes me hardest is the recognition that most law cases do not involve DNA, but the likelihood of mis-identification is as great in them as in rape cases. Those wrongfully convicted defendants will never be exonerated, however. It is only the prevalence of DNA evidence in rape cases that has allowed us to see how often face recognition, even in an intimate setting, can be wrong. Anyone who is not disturbed about this isn’t thinking. I have been a defense attorney for over thirty years, and I have seen many defendants, faced with witnesses who are positive they recognize them as the perpetrators of the crimes, plead guilty to get better sentencing deals because they realize the witnesses will be believed. So even guilty pleas don’t necessarily mean they were actually guilty. We badly need a serious recognition in our courts, including standard jury instructions on the subject, that facial recognition is one of the least trustworthy kinds of evidence, not the best as most people assume.

  17. Petronius, what in the world are you talking about? If you’re not hearing about DNA convictions, then you aren’t listening. Newspapers will mention them. Cable networks like A&E and TruTV have a lot of programming featuring cops. So, you’re pretty full of it.

  18. You do realize that by exonerating a male of rape you are bringing the victims sexual activity into question. This is typically because the claim is that more than one man’s DNA was present.

    Feminists will not be happy with the “she’s a slut” defence.

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