REZA POURMOHAMMADI: The Innocence Project is a good example of what can be achieved when great creative minds think outside the box and come up with something that makes a difference in the lives of others. The Innocence Project is 20 years old this year, how’s it going?
PETER NEUFELD: The short answer is that the project has exceeded certainly our own expectations when we first started it. Way back when, we had hoped to look at some old cases of people who had been wrongly convicted and prove their innocence through DNA testing. But once those cases began to mount up, we saw the possibilities of doing much more. For instance, we realized that unless we could change the criminal justice system to eliminate the primary causes of wrongful convictions, then they would persist into the future. So we set out to do something about that. We began working with social scientists and coming up with a list of the primary causes of wrongful conviction. We would deconstruct each of the cases where people were exonerated and do a root cause analysis on what went wrong. We would then work with social scientists and other people to develop strategies to remediate those causes, common sense, empirically based reforms that would make it less likely that innocent people would be wrongly accused in the future. We also began to see the project’s potential as an emerging civil rights movement. To that end, we established a national innocence network, which now has more than fifty projects around the country and projects in ten countries abroad. In the not too distant future, there will probably be twenty-five international projects abroad. People will no longer see this as just an American civil rights issue.
REZA POURMOHAMMADI: How early did this compilation of data records start?
PETER NEUFELD: Well the project started when we began to seriously deconstruct the cases and look at the causes and the frequency of each of those causes; maybe five years after we started, sometime in the mid-1990s. Then, we wrote a book on it called Actual Innocence, which used the power of the narrative because that’s what grabs people more than data, then at the end, throw in a little social science research to give people a sense of the enormity of the problem and that there was a road map for getting it right.
REZA POURMOHAMMADI: Speaking of the data, despite the number of DNA exonerations in the US, there has been a reluctance to form investigative bodies or innocence commissions to investigate and understand the circumstances that lead to wrongful convictions. Why do you think there is a reluctance?
PETER NEUFELD: In Canada, every time there’s a wrongful conviction the government launches a public inquiry. In that public inquiry, which is usually led by a member of the Canadian Supreme Court, they conduct an official root cause analysis with subpoena power and issue a report making recommendations to law enforcement, prosecution and the defense to deal with some of these problems. In the United States, there is not a tradition of public inquiries in criminal justice, which is really quite sad. We have a national transportation safety board that investigates trains crashes and airplane crashes. When there is a scandal at Enron, there will be an independent investigation launched by the federal government. But in matters of liberty and life, for some reason, people in state and federal government have been generally more resistant. There are a couple of exceptions but they are generally outliers.
REZA POURMOHAMMADI: Such as what?
PETER NEUFELD: There’s been a state innocence commission in North Carolina, in California, but they were not singling out cases. In New York right now there is a justice task force that was established by the Chief Judge of the New York Courts to make recommendations to the government, the legislature and the courts as to what changes should be made that will reduce the rate of wrongful convictions. That task force has been meeting now for over a year and came up with consensus recommendations because the task force includes members of law enforcement, prosecutorial services, and the defense and victim services. Nevertheless, the government of New York has at least to date been very resistant to generate legislation that would mandate those reforms. I can tell you that as much as we have exceeded our expectations, one of the personal disappointments is that Texas has given more thought than our home state of New York to prevent the causes of wrongful conviction. Just this week the Chinese government announced that they will mandate the recording of interrogations, which is one of our key reforms and our national campaign. They will mandate the recording of all criminal investigations where the potential penalty exceeds 10 years. On this human rights issue, China leads. That’s something the government should think very seriously about.
REZA POURMOHAMMADI: Has the governor of New York heard from the Innocence Project?
PETER NEUFELD: The governor has heard from the Innocence Project and although he has said that he cares about those issues, when the state assembly advanced those issues during the winter months as part of a broader package being raised by the governor, the governor rebuffed us. That’s an example of some of the successes and disappointments of a state campaign. Some of the fixes in criminal justice will be fought state to state, by their very nature. Our data shows that the most common cause of wrongful conviction is misidentification. The second most common contributing factor is the use of invalid or invalidated forensic science. The third that we’ve been able to document is false confessions. We have a very specific statewide agenda to deal with false confessions, record the interrogations. For misidentifications, the most important thing is to have the line-up conducted by a police office who doesn’t know who is the suspect and which four are the fillers, because even an officer who is ethical or honest may unwillingly or inadvertently communicate to the witness, “hey, what about number three.” The way you prevent that is to have it done blindly. Those are the two reforms we tried to get introduced in New York and we were unsuccessful.
REZA POURMOHAMMADI: As far as recording the interrogations, is it a cost issue? That seems to be a straightforward measure.
PETER NEUFELD: Actually it’s a huge cost saver to record interrogations. For instance, you’re recording this interview. How much money was spent on this recording technology? Not much. There are now 18 states in the country which mandate the recording of interrogations. Not one state noted a fiscal issue in implementing it. If somebody throws that out as a problem, they better back it up with some evidence. To date, they’ve been unable to do so with even a scintilla of evidence. They say it may be difficult to do because of the equipment and logistics of it. To date, not one of the eighteen states that mandates it, said they have had any difficulty whatsoever logistically. People throw out all kinds of red herrings to explain why they can’t do things, but what they should be doing is implementing these changes and improving criminal justice. The third area that we’re focusing on is forensic science, this is not a state campaign, but by nature it has to be a federal campaign. It’s going to require federal legislation and federal policy to improve forensic science. Number one, the forensic methods used in Alabama are the same as those used in Nebraska and New York. There’s no reason why, if it’s science, and you have the piece of evidence that’s being examined, investigators shouldn’t reach the same conclusions in Alabama as in New York. What folks don’t realize is DNA testing is only possible in a small minority of criminal investigations. If there’s a drive-by shooting, there’s no blood splattered on the perpetrator. If there’s a robbery, there no semen deposited on the victim. In all those other cases where violent crime occurs, police will continue to rely on other traditional methods of criminal investigation, such as eyewitness testimony, confessions, informants and other kinds of forensic tools like bite marks, hair and fiber comparisons, and ballistic and fingerprints. Most of these other forensic disciplines have serious problems. Three years ago the National Academy of Science completed a landmark study in which they found that with the exception of DNA testing none of the comparison forensic disciplines had ever been sufficiently validated and demonstrated their readiness for prime-time. What we would like to see happen is 31
to see the same kind of scientific rigor that we expect from clinical medicine, that we require for clinical laboratories, be applied to crime laboratories and forensic science. So for instance just as we have a National Science Foundation and National Institutes of Health that spend substantial sums on basic and applied research, there should be a scientific entity that does that for forensic science. Just as we have an FDA that determines when a pharmaceutical product or medication is ready to be used by consumers, there should be a particular screening entity to decide whether a particular forensic science assay is ready to be used in criminal cases where life and liberty are at stake. This should not be too much to ask. We are hopeful that one day there will be bipartisan support for this kind of legislation. In the meantime, We are working with the White House and a number of federal agencies to fast-track some kind of federal policy that will begin to implement a federal strategy for quality control and quality assurance of crime labs in America.
REZA POURMOHAMMADI: Is there politics involved in this?
PETER NEUFELD: There’s obviously politics involved in all policy decisions made in America. As somebody who teaches law students and tried to read carefully Bush v. Gore, which split along parties, it would be very hard to convince my students that politics does not play a role in what the Supreme Court does. The 5-4 split in the Osborne which found that there was not a constitutional right to post-conviction DNA testing was also divided along ideological lines. That’s most unfortunate because one would hope that innocence should transcend politics, that when you get to the question of actual innocence you’re talking about fundamental moral issues for which there shouldn’t be a consensus, but unanimity. So it’s particularly disappointing when you don’t see that on an issue like this. Nevertheless, as one who’s business is finding a silver lining in cases not won, the New York Supreme Court did recognize in Osborne that there is a procedural due process right whenever the state is going to determine when you are entitled to DNA testing. So, hopefully that glimmer of hope will allow us to prevail in a series of new cases where states are preventing individuals from having a DNA test. In that regard, when I say it transcends politics, I remember arguing a case years ago in the South Dakota Supreme Court on the right to post-conviction DNA testing. Once a year that court would hold oral argument not in its regular court house, but at the University of South Dakota School of Law, so all the students would sit in the audience and watch the oral advocacy. The court wisely would save the juiciest cases for that day. So our case was selected to be on the docket that day. I was arguing for DNA testing and said that just to get tested, the bar should not be that high. After all, it’s just a test, it doesn’t get you out of jail. After we get the test results we’ll see what it means for the case. The attorney general argued that it should be very high. At that time we didn’t have almost 300 exonerations, we had maybe 35 or so. 30 people from prison sentences and 5 from death row. I argued to the court, which was a pretty conservative court, that if you followed the advice of the attorney general then none of these people if they were in South Dakota, would have gotten DNA testing. I sat down and the attorney general stood up and the first question that the Chief Judge asked the Attorney General was “What about what Mr. Neufeld said, would those 35 people have gotten testing here?” The attorney general said they wouldn’t. Then the chief judge’s face turned very red and he said, “You know, there are all these students sitting in the court room who all want to be lawyers because they think maybe they will be able to do something good, make a difference in this country.” He was serious and that was the end of the argument and we won the case unanimously on the right to DNA testing. And so basically, what we are finding is that republicans and democrats, conservatives and liberals, all believe it’s important to get to the truth. Although you have different opinions on crime and punishment, no one believes that it’s right to punish the truly innocent. There are a couple of exceptions on the Supreme Court who make comments that, “if they didn’t do this one, he probably did something else.” But I would like to think that that kind of world view represents the outlier and not the norm.
REZA POURMOHAMMADI: We touched on the expenses and the process. Why do we talk about DNA testing in a post-conviction setting. Why isn’t it part of the investigative process?
PETER NEUFELD: It wasn’t until the 1990s that they began using DNA testing as part of the criminal investigation process in the first place. So most of the cases where we were getting exonerations, predate the DNA revolution. Number two, when they first started using it they used it almost exclusively in sexual assault or homicide cases involving blood or semen. Now, in more recent years, they’ve expanded it to look at hair, skin cells on a gun or object. So the potential for doing DNA testing has applied to the pretrial arena much more recently. In most cases there was no DNA by the nature of the crime. Well just by saying, if we just do DNA we’re not going to have these cases of wrongful conviction anymore, that would be a total misrepresentation. The reason is that there’s still going to be lineups, interrogations, tire marks, ballistics and fingerprints in the future even with DNA. We have to get those other things right and they’ve been wrong for so long. Seventy percent of wrongful convictions involve misidentifications and most of those turn out to be situations where the police inappropriately made suggestive remarks to the witness, leading them into picking the wrong person, who the police suspected.
REZA POURMOHAMMADI: In the example of the 300 plus cases that have been exonerated by DNA testing, on average these people have spent twelve years in prison. Most states don’t provide any automatic assistance to the growing number of people who are serving times for crimes they didn’t commit. What is the Innocence Project’s position on US States taking action?
PETER NEUFELD: The Innocence Project has always made compensating the wrongly convicted a priority. When we talk about compensation we don’t simply mean financial, we also mean enabling them to rehabilitate and then transition back into civilian society. Imagine for a moment how tough it is to be in prison anyway, now think about what it would it be like to be in prison knowing you are innocent and no one’s believing in you. Standing at those bars and yelling at the world that you’re innocent and everybody thinking you’re a madman. It turns out you are innocent. Our clients go through hell. When they get released they have very few opportunities. The typical exonoree has the newspaper headline saying John Smith exonerated, proven innocent, and carries that newspaper around with him. When he applies for a job the employer sees the picture and says I’m really sorry for you but you have twelve years of no work experience and not only that you’ve hung out with some not such nice guys and have probably developed some bad notions. Although I wish you well I’m not going to hire you, issue you a line of credit or rent you this apartment and it goes like that, one after another. What we want is legislation that not only will provide compensation, but will provide medical health services and medical support, because the quality of care they received in prison was almost uniformly substandard and most of them had exacerbated physical conditions that developed while in prison. We want them to have access to vocational training and furthering of their education. That’s the least the state can do on a moral level. You take away someone’s freedom and they’re actually innocent, you should do everything possible to make them whole and you can’t make them whole, but you can go a long way to advance them.
REZA POURMOHAMMADI: How can the public help in this effort?
PETER NEUFELD: There’s a lot that the public can do. Certainly, the public can contact state legislators and contact state legislation and get states to adopt eyewitness reform, recording of interrogations, compensation for the wrongly convicted. They should notify their congressmen to support legislation now being introduced by Senator Leahy and Senator Rockefeller to strengthen forensic science and make the law more liable in this country. All of us get to serve on juries and people have a tendency to assume if it was an eyewitness, the eyewitness must be right. A lot of cases prove the eyewitness is often wrong. People have a tendency to assume almost irrefutably presume, that if somebody confessed he must have done it, because who the heck would confess for a crime he didn’t commit. In thirty percent of these wrongful conviction cases, our innocent clients did just that. People should have a more healthy scrutiny toward all the evidence that is presented in a court of law and not forget the fact that people are involved in all of these evidence gathering matters. Where people are involved, errors occur, cognitive biases present themselves and often catastrophes result. Each of these 290 men and women who lost decades of their lives and in the case of 17 of them almost lost their lives, they were each a catastrophic failure of the system and if we don’t do something to fix it then next time it will be your son, your husband or your brother.
REZA POURMOHAMMADI: You’re an accomplished attorney, you’ve argued before the Supreme Court, you’ve certainly left a positive footprint on the criminal justice system. Law professors use you as an example to inspire their students. What’s next for you?
PETER NEUFELD: What we’re trying to do here at the Project is expand the scope of the causes of wrongful conviction. For instance, one of the most unsettling pieces of information we have is the disproportionate number of black people who have been wrongly convicted of sexually assaulting white women. There is federal data kept by the Department of Justice which demonstrates that most sexual assaults are committed within a race, black men raping black women, white men raping white women. Only perhaps 10-11 percent of all sexual assaults are cross-racial, almost half of all of our wrongful conviction cases involve black men wrongly convicted of sexually assaulting and killing white women. We find that when a black man’s charged, the chances are there will be more of the causes of wrongful conviction present in the case. It’s more likely that they will use a jailhouse snitch to convict him, it’s more likely that they will use a coercion to get a false confession, it’s more likely that witnesses will be told who to pick out of a lineup. So racism is a fundamental cause of wrongful convictions in this country, yet in many ways it’s the most retractable, there’s no simple fix. We intend to explore that in our work and come to a meaningful remedy. This country’s obsession with over criminalization, with putting everybody in prison, even for victimless crime or putting people in prison for minor drug charges is unlike other countries. This is something that needs to be addressed because you can’t spend the money and give attention to fixing the small things if all the money and all the energy is going to expanding prisons and throwing everybody in prison. That’s something else we’d like to address. There are a series of sacred cows that the US Supreme Court has enunciated over the past five decades in criminal justice that we think our data demonstrates are all wrong. We’d like to see those doctrines changed. For instance the criteria used in courts to decide whether or not an adequate identification is reliable is simply not supported by the science. The determination made by the US Supreme Court that judges should only care about whether a confession is voluntary not whether it’s reliable needs to be changed. In a lot of our cases, the lawyers provided inadequate assistance at counsel, yet in the Supreme Court decision a few decades ago Strickland v. Washington they said that a person who is challenging a conviction and had a bad lawyer, not only has to show the lawyer had provided substandard assistance but that they had to show that it would have made a difference had he been a good lawyer. What’s so fascinating is in many of our cases, when they were reviewed for ineffective assistance of counsel, the appellate court found that the lawyers were bad, but it wouldn’t have made a difference because there was overwhelming evidence of guilt. How ironic that the courts were finding overwhelming evidence of guilt in cases where the people turned out to be stone-cold innocent. So there’s something wrong with the methodology that those appellate judges are utilizing to assess the evidence if they are getting it wrong so frequently. These are all now Supreme Court doctrines which have so far withstood the test of time, but we are hoping that the power of our data and all of these wrongful convictions will shed new light on these convictions and get the Supreme Court to change the direction on criminal justice.
REZA POURMOHAMMADI: Hopefully the spotlights will keep shining on these cases and the public’s awareness will increase. Thank you for this. Anything else you would like to share with the public?
PETER NEUFELD: There’s one other aspect that is worth commenting on. Our project started at Cardozo Law School as a clinic. It expanded into a national civil rights movement and now it’s beginning to switch over to international. That’s a very important consequence because at least in the area of justice, very often what the rest of the world sees are the prisons and the detentions in Afghanistan and Iraq, Guantanamo and water boarding. If we can show the rest of the world that there’s a more scientific basis for adjudicating criminal cases so the truth will emerge, then that will be a marvelous thing to export around the world. If we can come up with a process for validating forensic sciences so we only use the most robust methods to catch the guilty and free the innocent, if we can come up with an objectively fair way to conduct lineups so they’re more likely to be reliable, or if we can record interrogations and train the police not to use unduly coercive means to secure a confession and those new methods take root around the world then that will become an important legacy not just of the innocence project, but it will become the rule of the law worldwide and people will think very kindly of our country.
Reza Pourmohammadi practices law in New York City. He represents artists, designers, entrepreneurs and multinational companies on all aspects of U.S. immigration laws. Visit his website at www.newyork-immigration.com35