On the trail of the innocent

Since the Innocence Project was set up in the US, DNA evidence has resulted in the release of hundreds of wrongfully convicted prisoners, many of them on death row. Now the scheme is coming to Ireland

A FORMER death row inmate in Tennessee was acquitted of murder earlier this month – 22 years after he was sentenced to die and three years after the US Supreme Court raised repeated questions about his conviction.

Paul House was cleared of all charges relating to the rape and murder of Carolyn Muncey in 1985, and freed from jail, after DNA evidence unearthed by a group of law students from the Innocence Project in New York.

The Innocence Project is a non-profit legal clinic, founded by Barry C Scheck and Peter J Neufeld in 1992 and affiliated with the Benjamin N Cardozo School of Law at Yeshiva University in New York. The project is a national litigation and public policy organisation dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice.

Many of the cases dealt with by the Innocence Project in the US involve prisoners on death row or those serving life for very serious offences, including murder and sexual assault.

Now the Innocence Project is coming to Ireland. In September, the law school at Griffith College in Dublin will introduce a pilot project for final-year law students which will review claims of wrongful conviction and miscarriage of justice in this country for the first time.

The dean of law at Griffith College, barrister David Langwallner, says the project will enable a select group of students from the law faculty to partake in a post-conviction review of a criminal case in response to claims of wrongful conviction.

“We want to mirror the American and Canadian experience and find out if there are examples of people wrongfully convicted in Ireland,” he says. “Only last month, a Galway man had a wrongful conviction overturned and declared a miscarriage of justice. We want to know if there is somebody – most likely serving a sentence in prison – who is actually factually innocent.”

Langwallner was referring to the case of 34-year-old Michael Feichin Hannon, who was wrongly convicted of sexually assaulting a 10-year-old girl in 1997. His conviction was overturned after his accuser admitted nine years later that she had made up the allegation.

THERE HAVE BEEN 238 post- conviction DNA exonerations in the United States since 1989, 17 of which involved people who had served time on death row. The average length of time served by those exonerated was 12 years and more than half were African-Americans.

Since 1989, there have also been tens of thousands of cases in which prime suspects were identified and pursued in the US until DNA testing (prior to conviction) proved that they had been wrongly accused.

For more than 15 years now, the Innocence Project has worked to prove that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed. The concept has spread from the US to Canada, Australia, the UK and now Ireland.

Last year, a young Cork woman uncovered the evidence to set an innocent man free from prison in Detroit after serving 26 years for a crime he did not commit. Niamh Gunn had been working as a law intern at the Innocence Project in New York when she came across the case of Walter Swift and was immediately struck by the discrepancies in his file.

After spending 26 years in a Detroit prison for a rape he never committed, Swift finally walked free on May 21st, 2008, thanks to the evidence uncovered by Gunn and the Innocence Project.

A practising barrister who also lectures in constitutional law and jurisprudence at the King’s Inns and is a member of the Garda Disciplinary Tribunal, David Langwallner first came across the Innocence Project while doing a Masters at Harvard.

“It’s very important that students learn basic clinical lawyering skills, such as correspondence, negotiation, consultation with clients and critical thinking, earlier in their careers,” he says. “And the Innocence Project is almost like the perfect vehicle for teaching students all of the classical skills that they will need.”

Students on the Griffith College programme will work under the supervision of a qualified and practising lawyer, who will be working in conjunction with the director of the Innocence Project. They will be final year law students and there will be no additional charge for those selected on the course. At the end they will get a certificate.

They will review all aspects of the chosen case from the original investigation to the final appeal, providing them with invaluable work experience in the field.

The college has drawn up a comprehensive policy on selection of cases for review. This involves a filtering process taking into account a number of factors, such as whether or not the claim being made is “frivolous” or “vexatious” or merely a crank claim, and whether the claim has been in substance dealt with by the legal system.

We are not in a position to know how many cases we will get initially and we will be rolling the project out gradually. If we get 500 cases, for example, we will have to cherrypick to some extent. We will be prioritising cases where the consequences to the individual are extreme, such as a case where a person is in prison and likely to be serving a sentence for some time.”

Langwallner says that no case will be rejected out of hand but each case will be reviewed by a student who will then report back to their supervisor. The supervisor must then come to a determination as to which cases fall within the assessment criteria and will be proceeded with.

Once the review has been completed by the team, Langwallner explains, a recommendation will be made as to whether the case should be brought before the courts once more or no further action taken.

He points out that incorrect identifications are the leading factor in wrongful convictions, contributing to more than 75 per cent of the 238 wrongful convictions in the US overturned by post-conviction DNA evidence.

“There is also the possibility that a person has been coerced into admitting a crime he/she did not commit or that evidence was fabricated ,” he says. “We can’t rule out the possibility that the guards have fabricated a story against somebody, as has previously happened in this country, and it is also possible that we will find examples of bad lawyering by the legal profession, as has happened in the US.

“It stands to reason, statistically, that there are people within prison in Ireland who would be factually innocent.”

LANGWALLNER IS keen to stress that the Innocence Project will not replace the existing legal structure in Ireland, but act as a support for it. He is also anxious to get the support of the Bar Council for the programme. (A spokesperson for the Bar Council said they had received documentation on the project from the college and the matter is under “active consideration” by a committee.) And while the service is being provided by the students and staff at Griffith College pro bono, Langwallner says they would welcome partnerships with other organisations such as DNA Ireland.

“We are not replacing the existing hardworking solicitors and barristers in this country and we must be very conscious not to trespass on what they are doing,” he explains.

“If, after assessment of a particular case, we reach a point where we think a miscarriage of justice has taken place, we will inform the client and suggest they consider getting independent legal advice. The client can then take the documentation from us and give it to their own solicitor.

“All we are trying to do is provide a support service for the legal structure, which works very well in other jurisdictions where miscarriages of justice have taken place.”

Guilty until proved innocent: three cases

In 2007, Curtis McCarty was exonerated based on DNA evidence after serving 21 years in prison, including 16 on death row, for the murder of Pamela Kaye Willis (18) in 1982 in Oklahoma city.

Barry Scheck, of the Innocence Project, says the case of McCarty, who was convicted and sentenced to death twice for the same murder, was one of the worst cases of government misconduct in the history of the US criminal justice system

After serving 14 years on death row in a Texas prison for a murder he did not commit, Michael Blair was exonerated in 2008 when a series of DNA tests proved his innocence. Blair was the 17th person in the US exonerated by DNA testing after receiving a death sentence.

Blair was convicted of the murder of seven-year-old Ashley Estell, who vanished while watching her brother play a soccer game in Plano, Texas, on September 4th, 1993. She was strangled to death and her body was found the next day by a roadside.

Through the Innocence Project, Blair was exonerated based on eyewitness misidentification and invalidated or improper forensic science. The real perpetrator has not yet been found.

In 1989, Steven Barnes was convicted in upstate New York of the murder of 16-year-old Kimberly Simon, based on questionable eyewitness identifications and three types of invalidated forensic science. Nearly two decades later, DNA testing obtained by the Innocence Project proved his innocence, and he walked out of the courthouse a free man on November 25th, 2008, at the age of 43.