by Mary Eisenhart
On May 5, 2006, a Virginia jury awarded Earl Washington Jr. a $2.25 million judgment against the estate of state police inspector Curtis Reese Wilmore, having found that Wilmore, who died in 1994, had deliberately fabricated the evidence that sent Washington to Virginia’s Death Row in 1984.
Washington, a young, mildly retarded African American man, was tried, convicted, and sentenced to death for the 1982 rape-murder of a young mother in Virginia. The only evidence against him was a “confession,” extracted a year after the fact and consisting entirely of elements spoon-fed to Washington – who happily deferred to all authority figures by way of compensating for his disability – by law enforcement. Inexplicably, his defense attorney failed to point this out at trial, or to present evidence of Washington’s limitations at the penalty hearing.
Washington came within nine days of execution in 1985, surviving only because a New York law firm took his case pro bono and secured a stay of execution.
“Everything that could go wrong, did go wrong,” Innocence Project Co-Director Peter Neufeld, one of Washington’s legal team, said later in an NPR interview. “His lawyer did a bad job. There was police and prosecutorial misconduct, and there was a coerced confession from a man who was retarded.”
By the early ’90s, DNA testing had made it clear that Washington could not have been the rapist-murderer, yet he languished on Death Row until 1994, when an outgoing governor commuted his sentence to life imprisonment. Six years later, another governor gave Washington a full pardon. After nearly 18 years in prison, most of it under sentence of death, Washington was free – but his parents, who’d stood by him when he went to prison, had long since passed away.
To date, despite the fact that DNA evidence has pointed to another man in police custody, there have been no other arrests in the case. Neufeld told NPR that while normally prosecutors would be eager to seek an indictment with such evidence, to do so here “would require a public admission that Earl Washington was completely innocent, and that an innocent man was almost put to death.”
Outrageous as Washington’s case appears, it’s far from unique. DNA evidence has conclusively exonerated hundreds of prisoners to date, many of whom had been awaiting execution.
When DNA testing first emerged as a viable forensic tool in the early ’90s, Neufeld and colleague Barry Scheck, both veteran defense attorneys and professors at the Cardozo School of Law at Yeshiva University in New York, saw it as an opportunity to address the problem of wrongful conviction. In 1992 they launched the Innocence Project at Cardozo, as a legal clinic that put law students to work pursuing justice for the falsely imprisoned.
The Rex Foundation was an early supporter of the Innocence Project with a grant of $10,000 in 1995. IP had come to Rex’s attention via Jonas Kant, who was then working with the group; Jonas was also the son of Rex board member and Grateful Dead attorney Hal Kant, who became a strong advocate.
“With regard to violence, I’m a law and order kind of guy,” says Hal Kant, currently Rex advisory board member emeritus and still a strong supporter of the Innocence Project. “Which makes it incumbent upon me to help make sure the innocent are not convicted.
“‘Better 100 guilty should go free than one innocent be convicted’ is an essential aspect of American justice,” he adds. “The Innocence Project has led the way in getting the innocent exonerated. It also teaches law students to be suspicious of government, prosecutors and unjust laws – while respecting the judicial system, which is the best there has ever been.”
IP director of development Audrey Levitin notes that in the years since 1995, the Innocence Project has grown from a startup legal clinic to “a leading organization in the effort to strengthen the fundamental integrity and truth-revealing function of our criminal justice system.”
Now an independent 501(c)(3) nonprofit, the Innocence Project continues to train Cardozo students (over 500 to date) in its legal clinic. Besides its legal work, IP now has a policy department working to bring reforms to the criminal justice system. In addition, it’s inspired a national network of more than 30 organizations engaged in innocence-related work.
And slowly, change is coming. “After years of a singularly ‘tough on crime’ approach in criminal justice, the paradigm is starting to shift,” Levitin says. “The work of the Innocence Project and the exonerations of innocent people have shifted the national debate about crime from a discussion of rights, which was not capturing mainstream support, to a discussion about innocence, which is – and by so doing have created an historic opportunity for bringing greater integrity to criminal justice.”
We recently spoke with Ms. Levitin about the Innocence Project’s current work, the need that drives it, and what people can do to help.
Rex: How widespread is the problem of wrongful conviction, and what are its causes? Has it always been there to this extent, or is it a new problem?
IP: It is impossible to estimate how many wrongful conviction cases there are nationally, but since 1992 the Innocence Project has received thousands of letters from inmates across the country who are trying to win their freedom. Today, we continue to receive an average of 250 new letters each month from inmates writing to us for the first time.
After more than 10 years of working to free the innocent, the IP has identified many of the systemic causes of wrongful convictions. Chief among them are:
Mistaken eyewitness identifications
Careless or disreputable forensic science
Use of jailhouse informants or snitches
Police and prosecutorial misconduct
Poor defense lawyering
These problems are not new and have always plagued our justice system, but in earlier eras, when wrongful convictions were overturned, those cases were seen as exceptional and not indicative of widespread problems. However, the IP’s pioneering work with DNA has proven that wrongful convictions are not isolated or rare events.
DNA exonerations have created a wealth of cases that can be studied, where innocence is not in dispute because it is supported by objective scientific evidence. Research has revealed a handful of disturbing causes that are common throughout the majority of these cases and proven that these trends are endemic. In response, the IP has crafted a forceful plan for reform to address these issues.
Rex: How do you decide which cases to take on?
IP: The IP has one standard for accepting cases: if biological evidence from a case still exists and that evidence could be subjected to DNA testing, would that testing yield conclusive proof of innocence?
The IP does not require that the biological evidence be found and secured before we accept a client. Our Cardozo law students take on the task of tracking down evidence once a case is accepted.
The Innocence Project does not accept or reject potential clients on the basis of their previous criminal records or their character. In essence, our process is blind, based only on the facts of the case.
Rex: Is there any common pattern in those cases, beyond a defendant who says he’s wrongfully convicted?
IP: Those who have been exonerated span the spectrum of America’s racial, economic and ethnic diversity. The IP’s clients include a Marine corporal from California, a 20-year old truck driver and volunteer firefighter from Virginia, a college student and army veteran in Texas, and a Cuban-American immigrant.
Rex: Once you’ve taken on a case, what do you do, and who does what work?
IP: Once we decide to take on a client, the search to track down the biological evidence begins. Cases are assigned to one of our three staff attorneys based on geographic location. Attorneys then divide their cases among the Cardozo clinic students assigned to them.
Clinic students have a variety of cases in different stages of investigation and litigation. With a new case, the first task is to determine what evidence might exist and set about finding it. Because many of our cases are 10, 15, or even 20 years old, and because there are no uniform regulations for the storage and preservation of evidence in states or even between local jurisdictions, the evidence search stage can take many months and often years. Once evidence is located, our attorneys can move forward with a motion for DNA testing and other litigation.
Rex: What factors affect the outcome of the cases you take on, and how long does it take to achieve that outcome?
IP: The IP faces numerous hurdles in litigating all of our cases. The search for evidence in a case can take many years and often ends with the discovery that crucial evidence has been destroyed or has degraded after having been kept in unsuitable storage facilities. Because the IP works in all 50 states and has a limited travel budget, the vast majority of student inquiries must be conducted over the phone and through correspondence with police departments, courthouses, and storage facilities.
Furthermore, while over half of states have some form of post-conviction DNA testing statute, in many, our clients face an uphill battle to win access to the evidence from their cases. Prosecutors are able to prevent testing due to highly restrictive state laws that exclude many prisoners and force defense attorneys to enter into lengthy litigation. These delays can thwart efforts to prove innocence, again putting biological evidence at risk of being destroyed or becoming too degraded for testing.
As a result of the unique factors in each case, the length of time it takes to achieve an exoneration can vary from a year to as long as a decade.
Rex: Have there been instances when after all your work, the evidence conclusively proved your client guilty? And, if so, does this discourage you from the overall mission?
IP: Yes, in approximately 40% of our cases that reach the testing stage, results come back with a positive inclusion. The Innocence Project makes clear to every client that the results are based on science and will reaffirm guilt when that is the case. We have accepted that inclusions are part of the process.
Rex: In many cases, your wrongfully convicted clients are released after decades in prison. What difficulties do they encounter in getting their real lives back? What resources do they have to help with the transition? What happens to them long-term?
IP: Exonerees face enormous challenges upon release, including an immediate financial crisis if no family is available or able to help. As time goes by exonerees face a lack of job opportunities and adequate housing, and often experience post-traumatic stress.
Most people are shocked to learn that exonerees in the majority of states do not receive reentry services (for housing, jobs, education, financial support, substance abuse treatment, psychological services, and more) provided to prisoners on parole. They must fight to have their conviction records expunged and often need to file lawsuits to get any type of monetary compensation.
Many exonerees have been able to successfully rebuild their lives with the help of family members and friends, but there are also those who are still in need of help. This issue is of great concern to all of us at the IP, and the organization has recently taken steps to address it. This year, our Board of Directors voted to create an Exoneree Emergency Fund, which provides small needs-based grants of up to $10,000 to exonerees, as well as other funds for long-term support. In addition, we have hired a part-time social worker to act as a caseworker for exonerees in need.
Rex: What resources do you need to do your work, and how do grants and donations help? What can individuals do to help?
IP: Since its inception, and with the start-up support from friends such as the Rex Foundation, the Innocence Project has built its organizational capacity to 27 full-time employees. Currently, our greatest needs are for more attorneys and policy experts. Grants and donations from individuals make it possible for us to expand our staff, and support the exoneree fund.
We also rely on the generosity of our valued volunteers and clinic students, and especially the many law firms who offer pro bono support in some of our most complex legal challenges.
If we had more resources we could focus more on public education about our criminal justice system and outreach to prisoners in states where we have very little correspondence relative to their prison population. For example, in 2004 only 50 of the over 3,000 letters we received that year came from Mississippi, a state with a harsh prison system. With more resources, we could find out why some prisoners can’t or don’t write to us.
More resources would also allow us to take on more cases and devote time to pursuing important legal challenges to current standards of eyewitness identification and forensic evidence that often hamstring our work. Legal rulings that help remedy these problems can have a powerful impact, and also take effect immediately.
Rex: Do you see any hopeful signs of the problem of wrongful conviction being addressed at a systemic level?
IP: The collective force of DNA exonerations has galvanized public support for progressive reform of the criminal justice system – a trend that was unimaginable just a decade ago. Enormous progress has been made on several fronts to reform the causes of wrongful convictions and make all Americans safer from wrongful prosecution. Now, close to 40 states have some kind of post-conviction DNA testing law.
Several states and major jurisdictions across the country have adopted our recommended reforms to eyewitness identification procedures, and more are engaged in pilot programs to test their effects. Crime lab misconduct has been uncovered and led to the lab being shut down in the city of Houston, which sends more defendants to death row than any other county in the country. Audits of lab work are being conducted there, as well as in Virginia and Cleveland.
These are just some of the victories that have been won, and the IP is determined to capitalize on the growing momentum for change sparked by DNA exonerations.
Exonerated Prisoner Thomas Doswell
Pennsylvania, 19 Years
After spending 19 years behind bars for a rape he didn’t commit, Tommy Doswell was set free. He’s now pursuing a music career.
On August 1, 2005, Tommy Doswell was reunited with his family after spending almost 20 years in prison.
Doswell was convicted of rape in 1986. His case involved a troubling identification procedure: When his photograph was shown to the victim, it was marked with an “R” to suggest he was a rapist, though he had never been convicted of any sexual assault.
Doswell first contacted the IP in 1996, hoping that DNA tests could prove his innocence. While he waited to win testing, he turned down parole four separate times because he refused to admit guilt in a crime he didn’t commit. His evidence was finally tested in 2005, conclusively proving his innocence.
Since his exoneration, Doswell has spent time with his two sons, who were toddlers when he went to prison. Both are now grown men. He has also successfully pursued his music career. In the fall, he opened for blues legend B.B. King in Pittsburgh.
Exonerated Prisoner Robert Clark
Georgia, 24 Years
Robert Clark and some of his supporters on the day of his release: (l-r) Innocence Project Co-Director Peter Neufeld, Cardozo law student Annie Eisenberg, Robert Clark’s son Rodrickus, Robert Clark, IP staff attorney Vanessa Potkin, Cardozo law student Emily Robb.
Robert Clark was wrongfully convicted in 1982 at the age of 21 for the rape of an Atlanta woman.
A week after the crime, Clark was spotted driving the victim’s car and arrested. Initially, police did not consider him a suspect because he did not match the victim’s description of her attacker as 5’7″ (Clark is over 6’1″); Clark told police he got the car from a friend, Tony Arnold, who at 5’6″ was closer to the victim’s description. Yet, once the victim picked Clark out of a lineup, the police narrowed in on Clark and never investigated Tony Arnold.
After 24 years, DNA testing proved Clark’s innocence and he was released in December of 2005.
The test results also identified the likely perpetrator as Tony Arnold, after a CODIS DNA database search of the evidence matched his profile. Arnold has been in prison since 2003 and was due to be released in January 2006 until these results came to light. After the CODIS match to Arnold, the Innocence Project also learned that he had been matched to two other unsolved Georgia rapes in 2003, yet had never been charged with either crime.
Today, Clark is employed at an Atlanta warehouse company and is working towards his GED.
Actual Innocence; Barry Scheck, Peter Neufeld, Jim Dwyer; (ISBN 0451209826)