Fighting Wrongful Convictions

12-14-2009 National:

BU law students focus on freeing the innocent

Stanley Fisher slides open a cabinet door in his office and reveals a couple of file boxes, generic cardboard containers. Inside lies the fate of several souls, New England prisoners who claim they’ve been falsely incarcerated.

This semester Fisher, a School of Law professor of law, and his students have been sifting through the boxes full of court transcripts, police records, and lab reports. They are helping to determine whether the prisoners’ cases ought to be accepted by the New England Innocence Project (NEIP), which has freed more than a dozen innocent inmates since 2000.

“I have one case with one box, another with two boxes, and another with five boxes,” says Fisher, a founder of NEIP and now a trustee.

He slides the door closed and returns to his desk. Looking on from a corner of his ninth-floor office is Dennis Maher. Fisher has invited Maher to speak that afternoon to the law students in his Wrongful Convictions seminar. Maher’s fate, too, once lay in such a box. The bushy-bearded mechanic spent 19 years behind bars for crimes he did not commit: two rapes and one attempted rape in 1983. Branded a serial rapist, Maher served most of his time at the Massachusetts Treatment Center for sexual offenders in the commonwealth’s Bridgewater Correctional Complex.

Maher (right) stands and admires the view from Fisher’s window, the inky ribbon of the Charles River, the lights on BU’s DeWolfe Boathouse, the shadows falling across the jumble of buildings that comprise East Cambridge. “I was released from that building there,” he says, pointing a thick finger. “The one with the orange stripe. Cambridge Courthouse. April 3, 2003” — thanks, in large part, to NEIP lawyers who discovered lost biological evidence in a courthouse basement.

Headquartered at the Boston law firm of Goodwin Procter, NEIP provides free legal representation to those suspected of having been wrongly convicted in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Law students play an important part.

“As the result of the investigation the student does,” Fisher says, “the Innocence Project decides whether there is grounds to appoint a lawyer and try and get the conviction reversed.”

The nation’s first exoneration of a convicted prisoner based on DNA evidence was in 1989 and led to a spate of voided convictions. NEIP this year expanded its scope to include cases where any new evidence has been discovered: false confessions, incompetent counsel or police work, witness recantations. “In many cases, you don’t have biological evidence, like with a drive-by shooting,” Fisher says. “With non-DNA cases, it’s much harder to convince the court they got the wrong person.”

The original Innocence Project, based in New York City, was started in 1992 by Barry Scheck and Peter Neufeld (later part of O. J. Simpson’s defense team) at Yeshiva University’s Cardozo School of Law. In the first year, it received 5,000 letters from prisoners (including Maher). Scheck and Neufeld later reached out to law schools nationwide to enlist professors and students. Fisher heeded the call. Innocence Projects have since sprung up around the country.

Fisher’s interest in wrongful convictions began with the 1995 film In the Name of the Father. “I spent the next summer studying miscarriages of justice in the U.K. that gave rise to the film, which portrayed wrongful convictions, and ultimately exonerations, of alleged IRA agents who bombed pubs in England. That research led me to wonder whether wrongful convictions were a problem in this country.”

In 1997, Fisher (right) began offering a seminar at LAW that explored the convictions of innocent defendants, from the 19th-century’s Captain Alfred Dreyfus in France to the 200-plus prisoners in the United States so far exonerated by DNA evidence, 15 on death row. Topics include false confessions, suppression of evidence, the unreliability of eyewitness identifications, informant testimony, and “junk scientific” evidence, as well as postconviction remedies.

After helping form NEIP in 2000, Fisher affixed a sidecar to his seminar, a clinic that offers students a chance to roll up their sleeves and work on local and regional cases. After an NEIP paralegal examines applicants’ initial questionnaires, cases are assigned to law students for deeper investigation.

“This year I had 13 students who wanted to work on innocence cases,” Fisher says. “I was able to take six.”

Students scrutinize trial transcripts, forensic evidence, motions, and appeals and analyze the prosecution and defense theories. Finally, they conclude with a memorandum for NEIP’s Case Review Committee and participate in related discussions.

“It’s definitely stressful,” says David Levine (LAW’10). “Ultimately, students don’t make the final decision, but our opinions are given a lot of credence and we have to be very careful.”

Levine is part of a three-student team working on a first-degree murder case. The crime took place almost 15 years ago and the inmate is serving a life sentence without possibility of parole.

“It’s heartbreaking,” Levine says. “I believe he is innocent of the crime he was prosecuted for.”

Fisher insists on strict confidentiality, so Levine and fellow researchers Sophie Clavet (LAW’10) and Alexander Knapp (LAW’10) cannot discuss many specifics of the case, not even where it took place.

Their work began with four 20-pound legal boxes.

“It’s become pretty evident that something was clearly afoot,” Levine says. “We have ineffective counsel, new DNA testing procedures that may reveal more evidence, a recanted witness, and possibly people who were never tested and should have been.”

According to the Federal Bureau of Prisons, more than two million people are serving time in the United States. Fisher estimates that between 2 percent and 5 percent are innocent, which works out to between 20,000 and 50,000 wrongly convicted citizens.

“No one becomes a great prosecutor by losing cases,” Knapp says. “You’re being evaluated by your bosses, so you want to deliver what’s considered the best thing, and that’s a conviction. That mentality has almost warped the responsibility of the prosecutor.”

The law students believe the conviction-driven culture of criminal prosecution needs to change. Levine says DNA testing, often challenged by prosecutors, should be unrestricted. Clavet thinks a better tracking system for DNA evidence should be put in place. She points out that defense lawyers, too, can fail their clients.

“You have to be humble and respect the rules and be completely involved, especially with a capital case,” she says. “There have been cases where you have lawyers sleeping at trial. It’s not always about police and prosecutors.”

Maher, taking a seat at the front of the seminar room, knows this well. He has come from work, still in his mechanic’s uniform. He has told his story countless times, testified before state legislatures, and been featured in the documentary After Innocence. But he still chokes up at key points in his narrative, including when he talks about his children, one of whom is named after his NEIP lawyer.

Maher was a 23-year-old U.S. Army sergeant at the time of his arrest in November 1983. Police were on the lookout for a serial rapist who had attacked two women in Lowell and one in Ayer. Maher happened to be wearing a similar hoodie and was stopped near one of the scenes. Cops found pot in his pocket and brought him to the station. He was soon standing in a lineup and fingered by one of the victims. A collection of mistakes -- witness misidentification, shoddy police work, incompetent counsel, misplacement of evidence -- brewed into a nightmare.

He was convicted at two jury trials in the spring of 1984 and sentenced to life. His trial attorney was disbarred soon after. Two years later, Maher was deemed a sexually violent predator and given a civil commitment of life at Bridgewater, which overrode his prison sentences. All of his motions, briefs, and appeals failed. “I came to the conclusion that I was going to die in prison an innocent man,” he says.

In 1993 came a faint ray of hope: the New York Innocence Project accepted his case. When NEIP was formed, it took over representation. But almost 10 years went by before a law student found long-misplaced biological evidence from the Lowell trial in the Middlesex Superior Court basement. In December 2002, DNA test results excluded Maher as the source of the semen on the evidence. The following February, a slide prepared from the rape kit of the Ayer victim was found at the police station. Maher was again ruled out.

“So NEIP lawyer Aliza Kaplan calls me on April 1, April Fools’ Day, and says, ‘When do you want go home?’” Maher recalls, tears rising in his eyes. “So I said, ‘How about April 3, because it’s going to take my parents a while to adjust that it’s over.’”

State Attorney General and U.S. Senate candidate Martha Coakley (LAW’79), who was then Middlesex County district attorney, called the convictions a “miscarriage of justice.” After 19 years in prison, Maher stepped out of the Cambridge Courthouse a free man. Before leaving, a court officer stopped him and said that the original prosecutor wanted a word.

“So I went over and he says, ‘I’m sorry for what happened,’ and I accepted his apology. It went a long ways to helping me get through what I went through. A lot of exonerees are angry and bitter and think society owes them something in return. I’m one of the few to have gotten an apology, and that helped me to live life.”

Maher works at Waste Management, in Woburn, Mass., as a mechanic, even though he has since received several million dollars in compensation and settlements. He is married and has two children; he spends his free time testifying about updating DNA laws and speaking out against the arrest-equals-conviction culture in many prosecutors’ offices.

One student asks whether he is still treated with suspicion once people hear his story.

“They are more shocked than anything else and say, ‘I can’t believe this happens,’” Maher answers. “Well, it does happen. There are 240 DNA exonerees and countless others who got out using a different road, through appeals or motions for new trials. It’s happened all over this country.

“Laws have to change, police departments have to change. You are the ones who can start the change.” ..Source.. Caleb Daniloff