When the Innocent Go to Prison in California, the Guilty Go Free

August 16, 2007 by Natasha Minsker, California Progress Report

DNA evidence has proven that innocent people are being convicted and sentenced to prison in far greater numbers than we ever imagined. Each time an innocent person is wrongfully convicted, the harm falls not only on that person but also on the community and the crime victims, as each wrongful conviction leaves the true perpetrator on the streets to hurt more people.

Convicting the guilty while protecting the innocent is the most fundamental goal of our criminal justice system. Yet, all too often, we fall short.

• Tuesday night, Stephen Colbert interviewed the 200th DNA exoneree, Jerry Miller. Colbert gave him a card on behalf of “society” saying “Sorry.”

• Here in California, Herman Atkins spent 12 years in prison for a crime he didn’t commit—watch his story. So far, no one has apologized to Herman, but a jury did just award him $ 2 million because of misconduct by the Riverside police in his case.

DNA evidence has proven some of our mistakes, but it is not the magic bullet that will prevent these mistakes in the future. DNA evidence is available in less than 15% of cases. That’s why we need to fix the problems that send innocent people to prison.

Three bills currently in the California Legislature would help prevent the most common causes of wrongful conviction:

• Senate Bill 511 (Alquist) will require the electronic recording of police interrogation in cases involving homicides and other violent felonies.

• Senate Bill 756 (Ridley-Thomas) will require the appointment of a task force to draft voluntary guidelines for the conduct of police line-ups and photo arrays to increase the accuracy of eyewitness identifications.

• Senate Bill 609 (Romero) will require the corroboration of testimony by jailhouse informants.

The commission established by the California Senate to investigate the problems with the criminal justice system has recommended all three of these reforms. The California Commission on the Fair Administration of Justice—a group of law enforcement officers, prosecutors and defense attorneys—passed a series of unanimous recommendations and these three bills represent the most basic and most urgently needed changes.

All three bills simply implement the “best practices” of law enforcement across the state and the country. More than three dozen California departments already record interrogations and recording is required by statute or rule of the supreme court in several states including New Mexico, Texas, and Iowa. The Los Angeles District Attorney already requires corroboration for jailhouse informants and the Texas Legislature recently passed a corroboration requirement for some informants. Best practices for eyewitness identification have been voluntarily adopted in Santa Clara County, and are required by law or by rule of the state attorney general in other states, including West Virginia and North Carolina.

These jurisdictions have adopted these practices because they help law enforcement officers do their jobs: convict the guilty.

The reforms proposed here are small steps. For example, unlike other states, the electronic recording bill would not lead to exclusion of confessions that were not recorded; it merely requires a cautionary instruction to the jury. The eyewitness identification guidelines will be voluntary. And the informant bill applies only to jailhouse informants, the most unreliable.

These bills will by no means end wrongful convictions in California. But they will be a significant step forward for California’s criminal justice system. If states like Texas and West Virginia can do it, why can’t we?

Natasha Minsker is an attorney with the ACLU of Northern California who focuses on criminal justice issues.