The New York Times

June 5, 2000

Better Ways to Find the Guilty

By PETER NEUFELD and BARRY SCHECK

When Gov. George W. Bush of Texas, who had always denied pleas for reprieves from execution, finally granted one last week, he made the right call, acknowledging the importance of DNA evidence and the right of a condemned man to ask for testing. Whether or not political considerations of Mr. Bush's presidential campaign were at work, the prisoner, Ricky McGinn, now has time for the tests that might clear him of murder.

Of course, depending on the results of the tests, Mr. McGinn could wind up eating another last meal in a few months. And the episode throws just a tiny wedge of light onto a criminal justice system that needs to take an unflinching look at the growing evidence of error.

Two other cases last week were far more revealing. In Virginia, Gov. James S. Gilmore III gave permission for advanced DNA testing of Earl Washington, who had already been moved off death row because earlier tests suggested he was innocent of rape and murder. And in Texas, A.B. Butler received a pardon from Governor Bush after spending the last 7 of his 16 years in prison fighting to get the tests that cleared him of kidnapping and rape.

These cases stand for more than the importance of DNA evidence. They reveal how the search for the guilty can go wrong. What matters most is not how these people got out of prison, but how they got in.

We know eyewitnesses sometimes make mistakes. Snitches tell lies. Confessions are coerced or fabricated. Racism trumps the truth. Defense lawyers sleep through trials. Prosecutors and police tell fibs.

Never have these flaws been more starkly exposed than in the last decade, when DNA has freed scores of wrongly convicted people and kept thousands of the wrongly accused out of jail. For the most part, the lessons have been ignored. Of all the statistics tallied by the system, not one shows the number of innocent people sent to prison. Oversight is fundamental for any system in which life or liberty is at stake. We have mechanisms to investigate plane crashes, deaths in hospitals and collapses of buildings. Only the criminal justice system exempts itself from accountability for its mistakes.

Among the bright exceptions to the indifference to accountability is Gov. George Ryan of Illinois, who followed his landmark moratorium on executions with appointment of a commission to find out why 13 men were wrongly sent to death row. New York's governor, George Pataki, has proposed that a committee review all convictions overturned on DNA evidence.

Their findings should be used to make it harder for innocent people to wind up in prison.

And to make it easier for these people to get out, Congress should pass the Innocence Protection Act, which would give inmates the right to DNA tests to prove innocence and would require the preservation of evidence after conviction.

Remember, though, that DNA solves crimes only when there is biological evidence. The quality of old-fashioned evidence can be improved. Eyewitnesses will produce fewer false identifications and just as many correct ones, social scientists say, if police follow a few simple techniques that cut down guessing by witnesses and hints by detectives. False confessions can be curbed by requiring that all interrogations be recorded on tape, as is already done in Minnesota, Alaska, Ireland and Britain.

Convicting an innocent person not only commits a terrible injustice, but leaves a guilty criminal on the streets. Every state and every American has an interest in doing all we can to prevent it from happening.

Peter Neufeld and Barry Scheck are co-authors of ``Actual Innocence.''