Justice system wrongs too many
Forensic science reform needed, says ex-attorney general
Last updated 5:07 p.m. ET, Feb. 11, 2016
By Alberto R. Gonzales
When I served as general counsel to then-Texas Gov. George W. Bush, I had to tell a rape victim, a young mother who had been sexually assaulted in her bed at knife point while her daughter lay asleep a foot away, that she was wrong. New DNA evidence showed the man she identified as her rapist could not have been guilty. Based on her testimony and invalidated forensic testing, a man was wrongly convicted and spent 12 years of a life sentence behind bars.
That story is not rare. According to the National Registry of Exonerations updated last week, 149 convicted defendants were exonerated last year in 29 states, the District of Columbia, federal courts and Guam, a record. Even one mistake is one too many and a miscarriage of justice for the individual wrongly incarcerated. At the same time, it is also a miscarriage of justice for victims like the one who sat in my office in 1997. For them, the guilty have gone free.
Among my many responsibilities as attorney general of the United States was to do everything in my power to ensure that justice remains blind and is dispensed without regard to skin color or ZIP code. I support tough justice, but to be justice at all, only the guilty must be punished. My experience and growing data on exonerations reveal a troubling picture of American justice today, one that requires action.
Forensic science, which we have long relied upon to determine guilt or innocence in this country, is not as solid a foundation as we thought. Subjective, pattern-based forensic techniques such as bite mark, hair comparison and even fingerprint analysis might not have sufficient scientific foundation. Even certain types of DNA analysis are now open to reasonable questions about their capacity to connect a specific individual to a crime.
A National Academy of Sciences report warns that there is insufficient training and education of researchers, technicians and crime scene technicians and no meaningful reliability testing to explain the limits of these disciplines. Last spring, the FBI acknowledged that for two decades, examiners in an FBI forensic unit gave flawed testimony in virtually every trial in which they offered evidence. Convictions based on testimony that systematically supported prosecutors are now being re-examined.
Legislation to help address concerns over forensic science by mandating uniform standards and accreditation for crime labs is stalled in a Senate turf battle. Congress, law enforcement, the defense bar and the scientific community must work together to end this logjam.
Flawed science is not the only source of wrongful convictions. The police and prosecutors deserve our gratitude for putting their lives and reputations on the line every day, but law enforcement and prosecutorial misconduct are also a factor.
Occasionally, a police officer or a prosecutor makes a mistake, and exculpatory evidence is tainted, destroyed or misplaced. Carelessness and mistakes can be reduced with additional training, supervision and discipline.
The record of past exonerations makes clear that intentional acts to destroy or withhold evidence are not unheard of. Such acts must be met with a swift and sure response. If an officer or prosecutor intentionally does something wrong, that person should be held accountable. No responsible law enforcement official wants to serve with those who do not abide by the law, but the current disciplinary system is not doing enough.
Finally, there is money’s outsized role in the criminal justice system. A person with means is able to immediately hire a lawyer who can help secure bail and negotiate with a prosecutor for a faster and more favorable resolution, while a person without means cannot. Often, those accused and without resources cannot wait for a court-appointed lawyer because spending time in jail can cost their job. They are forced to plead guilty though they have not committed a crime. If we are truly serious about equal justice under the law, we need to find a way for people to have access to counsel earlier in the process.
As the National Registry report points out, a few prosecutors have set up conviction integrity units within their offices to prevent, identify and remedy false convictions. While some of these efforts have been successful, others have not. More must be done.
Ironically, there appears to be more public outrage over the perceived lack of constitutional protections for foreign terrorists held in the military facility at Guantanamo Bay, Cuba, for acts committed overseas than there is for U.S. citizens wrongly convicted in this country. That is a sad commentary. We must be committed to finding solutions to this serious problem if we hope to preserve trust in our criminal justice system.
We owe it to the men and women we have put in prison for crimes they did not commit. And we owe it to the victims, like the one I met with nearly two decades ago. They deserve to see the guilty face justice.
Alberto R. Gonzales, the attorney general and White House counsel in the George W. Bush administration, is the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.