Demand more accountability for the wrongfully convicted

By DAVID HOFFMAN
Recently, hidden somewhere beneath the reports about Tiger Woods' extramarital excursions and the University of Notre Dame's hiring of a new football coach, came the news from the Associated Press that, after 35 years in prison, a Florida inmate named James Bain had been cleared by DNA testing. The AP further reported that Bain could have been exonerated sooner had the Florida courts not repeatedly rejected his previous petitions for DNA testing.

Was he lucky!

I say this facetiously of course, because obviously there's nothing lucky about having your life in the hands of a system that would rather exacerbate a lie than seek the truth. But Bain was lucky in three respects.

First, he was fortunate that the crime he was convicted of committing involved evidence subject to DNA testing. Many people are wrongfully convicted of crimes where no DNA evidence exists, thus making exoneration almost impossible.Second, he survived his ordeal, unlike Texas inmate Timothy Cole. In 1985, Cole was offered a plea bargain that guaranteed him probation in exchange for a guilty plea. Insisting upon his innocence, he refused, choosing instead to put his fate in the hands of the criminal justice system, known in attorney parlance as "rolling the dice."

He was subsequently convicted and sentenced to 25 years in prison. He died there in 1999 at the age of 39. It was later discovered that another inmate had confessed to the crime Cole was convicted of, but his confession was ignored by the Texas legal system. Unaware Cole had died, this inmate eventually wrote to Cole's family, again admitting his guilt. DNA testing subsequently proved he was indeed the perpetrator.

Plea bargaining is often criticized on the basis that it treats the guilty too leniently. But, as Cole's case illustrates, it often treats the innocent too harshly. By making people fear the prospect of more severe punishment should they desire to go to trial, plea bargains can compel people to admit to crimes they did not commit.

Third, despite the repeated rejections of his DNA petitions, Bain was somewhat fortunate his ordeal occurred in Florida. Last year that state passed a law awarding wrongfully convicted inmates $50,000 a year for every year of their imprisonment. Texas passed a similar law in the aftermath of the Cole case, paying the exonerated $80,000 a year and offering free college tuition.

But if Bain's conviction had occurred in the state of Indiana, especially within the jurisdiction of the U.S. Federal Court, South Bend Division, chances are he would never receive a penny.Just ask Richard Alexander who, like Bain and Cole, was convicted largely on the basis on faulty eyewitness testimony. Alexander received no compensation for his nearly five and one-half years of imprisonment because Indiana has no laws to compensate the wrongfully convicted, and federal law applies the capricious requirement that, to receive compensation, wrongfully convicted people must prove they were prosecuted in "bad faith."

Professor Gary Wells of Iowa State University has studied the flaws in eyewitness identifications for years, and developed several procedures to make such identifications more reliable. Yet, according to Wells, most of the jurisdictions willing to implement these procedures have prosecutors who are appointed, rather than elected.

Released from the burden of having to trumpet their "conviction rates" to win votes, appointed prosecutors are apparently more receptive to implementing safeguards designed to reduce the risk of wrongful convictions.

Sadly, it appears that, despite Alexander's ordeal, there are no plans to introduce laws in Indiana to minimize the potential for erroneous eyewitness identifications or to compensate those wrongfully convicted.

In fact, officials in St. Joseph County are even trying to enhance the likelihood of wrongful convictions. State Reps. Craig Fry, D-Mishawaka, and Jackie Walorski, R-Jimtown, St. Joseph County Prosecutor Michael Dvorak and the Fraternal Order of Police all have advocated for elected judges based on the premise that appointed judges are too soft on crime. Yet they seem blissfully unconcerned about the fact that elected prosecutors may actually be more apt to engage (or not engage) in prosecutions for political gain, instead of in the name of justice.And where were Fry, Walorski, Dvorak and the FOP's outrage when an appointed federal magistrate denied Alexander any monetary damages?

What people fail to realize is that Alexander could be anyone. As the Indiana laws stand today, a person could lose his reputation, financial assets, liberty, and even his life simply because another person mistakenly, or even dishonestly, points a finger and says, "J'accuse."

Alexander's case also makes it painfully clear that the wrongfully convicted cannot rely on the local federal court for justice. So it's time to demand that the government of Indiana join the modern age. After all, most people, institutions and businesses are normally ready to embrace changes that will make their lives or their operations run more smoothly and reduce the chance of mistakes. And if those people, institutions or businesses fail to make such changes and by this failure cause injury to others, the legal system can hold them financially and sometimes criminally accountable. Yet this same system, at least in Indiana, cannot embrace change itself, and still believes it is unaccountable to those it has wrongfully convicted.

And that is perhaps the greatest crime of all.

David R. Hoffman lives in Mishawaka.