Pa. looks to form innocence panel

By Jessica VanderKolk, jvanderkolk@altoonamirror.com

A state commission that would investigate at least eight cases of wrongful conviction may widen courtroom interpretations of the state’s post-conviction release and DNA testing laws.

A bill approved by the Senate Judiciary Committee in mid-February would form a 30-member Innocence Commission, whose members would be appointed by the governor, members of the General Assembly and the chief justice of the state Supreme Court.

At least eight cases in Pennsylvania — the closest to this area are in Cumberland and Adams counties and Pittsburgh — involve a person wrongfully convicted and later exonerated after DNA testing, according to the Innocence Project, a non-profit legal clinic in New York City.

The project specializes in post-conviction DNA testing that will yield conclusive proof of innocence.

“People need to understand, it’s not just about innocent people,” said Stephen Saloom, the Innocent Project’s policy director. “It’s about the entire criminal justice system. Everybody benefits when we get it right.”

Although there are exceptions, Saloom said law relating to post-conviction release and DNA testing often are interpreted narrowly in Pennsylvania courts, and prosecutors resist DNA testing in many cases.

There are several reasons for resistance, said Colin Starger, staff attorney at the Innocence Project who works on Pennsylvania cases.

“One reason they give is because they believe they have to be opposed in one case; otherwise, everybody’s going to come out of the woodwork for DNA testing,” he said.

“I think that’s a fairly unconvincing argument. One, that’s not what happens; there aren’t frivolous requests. Two, any frivolous requests would be denied.”

A second reason is there’s a perception that a DNA test request is an attack on the prosecutor or the strength of his case, putting him on the defensive.

“It’s wrong,” Starger said. “DNA testing is not an attack on the prosecutor. It is an acknowledgement that science has advanced and proof not available before is now available.

“DNA testing, as often as not, actually confirms guilt. If someone has confidence in the verdict, he should be willing to put it to the test.”

A good idea

Creating a commission is a “substantial and enlightened” step forward for the state, said John Linn, Penn State Altoona criminal justice assistant professor.

“While I’m unsure as to the number of wrongful convictions existing within the commonwealth, it could at least be argued that even one is too many — especially if that error, or errors, can be corrected,” Linn said.

State Sen. Stewart Greenleaf, R-Bucks/Montgomery, authored the bill. In 2002, he sponsored legislation creating the state’s DNA testing law, providing testing for those who have a “reasonable claim” to innocence.

“That law has been in effect and has been used, and we’ve found we do have people in Pennsylvania — for example, Thomas Doswell of Pittsburgh — who took advantage of that law and was acquitted after 19 years in prison,” Greenleaf said. “We’re not blaming anyone here, and we’re not looking for fault.”

State Senate President Pro Tem Robert Jubelirer, R-Blair, said he supports the idea and voted for the bill in committee.

“I think it’s a pretty good idea in the sense that, with the technology today that we have, we need to learn more about how it’s affecting the criminal justice system,” he said. “It will provide us with an opportunity to do some legislation that will hopefully bring us into the 21st century with these reversals of convictions.”

Defense vs. prosecutors

Cambria County District Attorney Patrick Kiniry said he sees no problem with making the system better.

“Under our system of justice, everyone is innocent until proven guilty with evidence,” he said. “History has shown that, on occasion, innocent people are convicted. If the purpose of the commission is to go over the anatomy of a case to determine what went wrong if, in fact, the person was innocent, that seems like the right thing to do.”

Altoona defense attorney Thomas M. Dickey agreed that any time an opportunity rises to better a system, that’s a good thing.

“It’s a criminal justice system — it’s not a perfect system,” he said. “Despite the downfalls, it’s probably still the best system.”

Starger said the commission has potential and should consider evidence preservation. A lack of evidence claim is one way prosecutors deny defendant DNA tests.

“They could look at how we can find out, once and for all, what evidence does and doesn’t exist in cases and what’s a protocol to find it, so it’s not as random as it is right now,” he said.

Starger said a lack of evidence often closes Innocence Project cases and, in his 21/2 years on the job, about five of the 12 Pennsylvania cases he has worked on have been closed for that reason.

He said a few cases are still ongoing.

Saloom said Pennsylvania would be well served by a commission, noting that North Carolina, California, Wisconsin and other states have successful commissions.

Eyewitness identification

One factor in investigating wrongful convictions is the validity of eyewitness identification of crime suspects.

In a Capitolwire report, some state inmates later found innocent and released said investigating officers shouldn’t be present when victims or witnesses are asked to identify suspects because they may influence those witnesses wrongly.

Dickey said people today are “all about” saving themselves.

“People get persuaded into things, and you might have a real weak witness identification,” he said. “Nobody likes to admit under the microscope they made a mistake; it’s easier to point and years later find out there was an alibi or other things.”

Linn, who studies police ethics, said officers put in a lot of work on many cases that they don’t want to see fall apart.

“A good officer is more likely to accept that errors can occur and move on with their life,” he said. “However, it is the case that sometimes the desire to bring a case to a close can compromise the values of even the best of us.”

Kiniry would rather prosecute a case proven by circumstantial evidence because it doesn’t lie, is not prejudiced, is unbiased and carries more weight then eyewitness testimony.

“People can use their own common sense, tie [information] together and form their own conclusions on whether a person is guilty or innocent,” he said. “I don’t want to believe eyewitnesses are pressured by law enforcement or prosecutors to say something they don’t know; I just think people are mistaken.”

Other problems

False suspect identification is just one problem that can lead to a wrongful conviction.

“As with any jurisdiction, the problem of manufacturing evidence, falsifying testimony, prosecutorial misconduct and inadequate counsel can be highly problematic,” Linn said. “The end effect is to distort our system of justice in a way that is both morally and constitutionally wrong.

“Add to this fact that winning can sometimes overwhelm the fundamental goal of seeking the truth, and you have the potential for wrongful convictions.”

But he said that’s not only the fault of prosecutors or defense attorneys.

“We as a society allow, to some extent, this type of thing to occur,” Linn said.

Compensating innocent

Saloom said Pennsylvania has no law providing compensation to people wrongfully convicted, but it should.

“These innocent people have been forced to serve often the best years of their lives in prison,” he said. “Without assigning blame or fault, we can all agree that these people deserve to be compensated for those years that were taken away from them and given the help necessary to return to their communities as the productive members they want to be and would have been if not for the mistaken conviction.”

U.S. law provides up to $50,000 for each year a person was behind bars and up to $100,000 for each year a person served on death row.

The federal government does not provide compensation for state inmates.

Saloom said society has to consider the emotional harm of a wrongful conviction, the loss of family, the services people need when released, medical insurance, vocational training, access to education and help with transportation and housing.

“Most people, when they’re proven innocent, they’re basically just released and that’s it,” he said. “They need and deserve help putting their lives back together again.”

Greenleaf said the Innocence Commission would not address compensation, but the Senate Judiciary Committee will.

“I think there should be some compensation,” he said. “What [it should be], that’s what the discussion will be.”