AT LEAST 200 American prison-
One of those is Earl Washington Jr., the Culpeper man who came within days of being executed in 1985 for the rape and murder of a mother of three. Technologically refined DNA testing not only cleared Mr. Washington--he received an "absolute pardon" from Gov. Kaine last month--but also led to the conviction of the real killer.
Better late than never as far as justice is concerned, right? Maybe so, but it would be better to get it right the first time, especially if capital punishment awaits. It's hardly satisfactory that a couple of hundred people have wasted an average of 12 years of their lives in prison while the actual perpetrator continues life as usual, often engaging in criminal activity, on the outside.
His belief that the justice system has failed to examine, in earnest, the circumstances that led to these injustices so rankled University of Virginia law professor Brandon Garrett that he took on the challenge himself. His research points to the frightening likelihood that more prisoners than we think are telling the truth when they claim innocence.
Since DNA evidence testing is available in only 10 percent of violent-crime investigations, 90 percent of such cases rest on more conventional evidence--the same sort of evidence that originally put those innocent 200 behind bars in the first place. Mr. Garrett's findings were reported by The New York Times and will be published in January's Columbia Law Review. They show that many cases were decided on critical evidence or testimony that turned out to be dead wrong. This should raise red flags with prosecutors, defense attorneys, and judges.
Of the 200 prisoners cleared by new DNA evidence, 158 were convicted based on eyewitness testimony. These witnesses were no doubt questioned and cross-examined as to the certainty of their identifications, but they were mistaken 79 percent of the time. In 110 cases, the professor found, forensic evidence turned out to be faulty, but was nevertheless improperly relied upon to gain a conviction. (Blood and hair typing have proved unreliable, and there were apparently some issues with early versions of DNA testing of blood or semen.) Prosecutorial fraud also was found.
Mr. Garrett also warned of depending too heavily on informant testimony. Not only did such testimony turn out to be wrong in 36 of the cases, the new DNA evidence determined that three of the informants were actually guilty of the crimes they tried to pin on someone else.
The research pointed to other judicial-system ills as well, such as the fact that justice is elusive for minorities, in particular, the first time around. While 73 percent of the convicts cleared of rape charges were black or Hispanic, those groups account for only 37 percent of all rape convictions.
Mr. Garrett suggests there are thousands of innocent prisoners who, without the benefit of DNA evidence, will serve their time and, if they ever do get out, will remain lifelong ex-cons. We may have to be satisfied with our imperfect system, but that shouldn't prevent us from striving to avoid life-ruining mistakes.