Innocent, After Proven Guilty

By ADAM COHEN

Oklahoma junior high school science teacher Dennis Fritz never thought he would be convicted of raping and murdering his neighbor, 21-year-old Debra Sue Carter. He had no criminal record, except for driving offenses, and the case against him was paper thin--flimsy circumstantial evidence and the dubious testimony of a jailhouse snitch who claimed Fritz confessed while awaiting trial. Was that really all it took to send a man away for life? "When the jury came back with a guilty verdict, I almost went into shock," says Fritz.

His conviction separated Fritz from his 13-year-old daughter Elizabeth, whom he was raising as a single father. His co-defendant, Ron Williamson, landed on death row and came within days of being executed. Years later, Williamson's conviction was reversed on a technicality. Before retrying him, prosecutors decided to do a DNA test of semen and hair found at the crime scene and compare them with Williamson's. Fritz's lawyers asked them to test Fritz too. Result? The DNA excluded both men and implicated someone else who had never been charged with the crime. Last April, after 12 years behind bars, Fritz and Williamson were freed.

Such stories have become shockingly familiar: a convicted criminal, wasting away in jail with little hope of ever proving his innocence, is set free when a DNA test reveals he couldn't have committed the crime. Vincent Jenkins, who had served 17 years in prison for the rape of a Buffalo, N.Y., woman, was released just last week after DNA evidence showed he was not the culprit. He became the 65th inmate to have a conviction overturned thanks to DNA evidence, including eight released from death row. These numbers are testimony to the fallibility of our criminal-justice system, as well as to the determination of the Innocence Project, an enterprising New York City law clinic that has pioneered the use of DNA to free the wrongly convicted.

The Innocence Project is the brainchild of New York lawyers Barry Scheck and Peter Neufeld. Both gained fame as part of O.J. Simpson's legal "dream team," and Scheck returned to the media spotlight as the defense attorney for British au pair Louise Woodward. But the Innocence Project dates back to an earlier time, when Scheck and Neufeld were overworked and underpaid Legal Aid lawyers in the South Bronx. Like most defense lawyers, they believed the system made mistakes. And earlier than most, they realized that the hot new technology of DNA testing could revolutionize criminal defense by providing scientific proof that their clients were not guilty. After doing DNA testing in a few early cases and organizing a conference, Scheck and Neufeld soon found themselves leaders in the field.

They established the Innocence Project in 1991 as a clinic for students at Yeshiva University's Benjamin N. Cardozo School of Law, where Scheck has taught for more than 20 years. The clinic is a low-key place, hidden away on the 11th floor of an office building on lower Fifth Avenue. Law students hunched up in cubicles pore over case files and draft legal motions. In a corner, boxes are piled high with letters from prisoners pleading to have the project take their case. The law school pays most of the bills; private foundations, including George Soros' Open Society Institute, help with the rest.

When those letters do get opened, students and staff screen the cases using the Innocence Project's criteria: When the inmate was tried, was identity the key issue? (If he admitted he pulled the trigger but claimed it was self-defense, there's not a lot a DNA test can do to help.) Was biological evidence taken at some point? In rape cases semen is generally recovered, and in murder cases there is often hair or skin evidence. But some samples come from less obvious sources: in the World Trade Center bombing case, DNA was recovered from saliva on the back of a postage stamp. And does this evidence still exist? The project has to reject about 70% of the cases that come to it because evidence was lost or destroyed or is otherwise unavailable. Finally, is there a viable theory of innocence? If prosecutors had fingerprints placing the defendant at the crime scene, for example, is there an innocent explanation?

After taking a case, the first hurdle the Innocence Project faces is getting access to biological evidence. New York and Illinois have laws mandating post-conviction DNA testing. But everywhere else, it's up to the prosecutor--the same office that is being accused of sending an innocent person to jail. If the prosecutors cannot be persuaded or cajoled into turning over the evidence, the Innocence Project will go to court to demand it.

About 60% of the samples the Innocence Project sends out for testing come back in their clients' favor. At that point, many prosecutors quickly concede and free the inmate. Earlier this year, the Innocence Project produced DNA showing that Calvin Johnson Jr. was innocent of a Clayton County, Ga., rape he had been convicted of in 1983. In June, the same district attorney who originally sent Johnson away persuaded a judge to free him.

But prosecutors don't always give up that easily. The Buffalo D.A.'s office refused to release Vincent Jenkins even after DNA tests showed that semen recovered from the victim came from two men, neither of them Jenkins. Prosecutors insisted that the victim could have been raped by several men, including Jenkins, but that he didn't ejaculate. The prosecutors later abandoned that unlikely scenario and did not oppose his release.

In addition to taking individual cases, Scheck and Neufeld are lobbying for more systemic change. They want other states to adopt laws like New York's, creating a right to post-conviction DNA testing and requiring the state to pay if the inmate can't afford the $3,000 to $5,000 cost. They also want laws requiring prosecutors to keep DNA evidence at least as long as a defendant remains in jail. Now prosecutors are generally free to throw away biological evidence when they want.

Scheck and Neufeld also want more laws allowing the wrongly imprisoned to sue for damages. Only half a dozen states currently have such statutes, and some have low caps--like California's $10,000 maximum. If Dennis Fritz had slipped and fallen in a government building, he could have sued for millions. After being incarcerated for 12 years for a crime he didn't commit, he can't sue for anything.

The Innocence Project is operating in a shrinking field. The vast majority of its docket consists of old cases, prosecuted when DNA testing was still rare. Now that law enforcement is integrating DNA into its investigative procedures (see box), there should be fewer people convicted despite exonerating biological evidence. But the broader problem addressed by the project--that innocent people are going to jail--shows no sign of ending. Why is the criminal-justice system making so many mistakes?

One reason, the Innocence Project has shown, is that juries often don't require much evidence to convict people of serious crimes. In hindsight, it seems obvious that the case against Fritz--no eyewitnesses, no evidence linking him to the victim and no credible evidence linking him to the crime scene--was painfully weak. So was the case in Tulsa, Okla., against Tim Durham, who spent six years in prison (of a 3,220-year sentence) for the rape of an 11-year-old girl, until DNA cleared him. The jury ignored 11 alibi witnesses who swore Durham was at a skeet-shooting contest when the crime occurred.

DNA is also confirming a point legal scholars have long made: that eyewitnesses are often wrong. "There's a myth that the image is burned in a witness's mind and never forgotten," says Yale Law School lecturer Stephen Bright. "In fact, science says just the opposite." And eyewitness testimony is only as reliable as the eyewitness. Two men sentenced to death for a Chicago murder and then freed by DNA evidence in 1996 were convicted largely on the testimony of a woman with a sub-75 IQ, who later said prosecutors promised to release her from jail if she testified.

Even many prosecutors concede the Innocence Project is performing an important function. Robert Keller, the Clayton County district attorney who agreed that Calvin Johnson Jr. should be freed, says he applauds its work in that case and in others. "My only concern is that we not create the image that there are just tremendous numbers of inmates who have been wrongly convicted," he says. "That isn't the case."

Still, Scheck says one of the most important lessons from the Innocence Project's work is that the system does get it wrong, and more often than people think. One person who doesn't need to be convinced is Dennis Fritz. Now that he's free, he's planning to go to law school--and to start a new career as a defense attorney.