- The Washington Times - Friday, May 18, 2001

Our countrys premier law-enforcement agency, the FBI, is proving to be an unreliable element in the criminal justice system. Waco and Ruby Ridge displayed a militarized agency willing to use deadly force against women and children, and subsequent cover-ups showed an agency determined not to be held accountable.

Confidence in the FBI received another blow when a whistleblower revealed that the fabled crime lab often fabricated evidence to help prosecutors obtain convictions.

Now it has come to light that FBI agents intentionally concealed evidence and kept an innocent man in prison on a murder charge for 30 years. One of the FBI agents responsible, H. Paul Rico, showed no contrition whatsoever when he replied to questioning from the House Government Reform Committee on May 3: "Would you like tears or something?" It was enough to cause Rep. Christopher Shays, Connecticut Republican, to say: "I think you should be prosecuted. I think you should be sent to jail."

The following week the FBI was forced to admit that it failed to turn over to Timothy McVeigh´s defense attorneys 3,000 pages of documents, photographs, tapes and other materials. This withholding of evidence is being called a "slip-up."

With the federals providing this kind of example, are things better at the state and local level? Unfortunately, the answer is no.

Virginia Commonwealth Attorney Robert Horan will not release DNA evidence for testing that could substantiate the claim of innocence by convicted rapist James Harvey. Harvey´s case has been taken by Barry Scheck, Peter Neufeld and their colleagues at the Innocence Project sponsored by the Benjamin Cardozo School of Law in New York City.

Instead of cooperating in righting a possible wrongful conviction, the Commonwealth attorney is appealing U.S. District Judge Albert Bryan´s court order to release the evidence for testing.

Mr. Horan´s response to possible injustice is all too typical of the criminal justice system. In their recently published book, "Actual Innocence," lawyers Scheck and Neufeld tell the stories of innocent persons wrongfully convicted by mistaken identification, false confessions, crime lab fraud, jailhouse snitches, lying "expert witnesses," incompetent or uninvolved defense attorneys, and police frame-ups.

Ever since the von Liszt experiment in 1902, criminologists have known that eyewitnesses are as likely to be wrong as right. Despite the undeniable fact that an eyewitness is no better than a flip of a coin, police, prosecutors and juries put great weight on eyewitness evidence even in cases where suspects have unshakable alibis.

False confessions arise from any number of known reasons. Yet, once police get a confession even one they invent prosecutors take for granted the reliability of the confession.

When it recently came to light that Fred Salem Zain, serologist for West Virginia´s crime laboratory, had been convicting innocents for years with fabricated "scientific evidence," the state quietly made some million-dollar settlements hoping to keep the lid on the large number of wrongful convictions. Mr. Zain intentionally convicted innocents with false testimony, and West Virginia intentionally tried to suppress the extent of the injustice.

The American public, especially "law and order" conservatives, must come to grips with the fact that our criminal justice system increasingly serves causes other than justice. Finding a suspect and convicting him is more important to many police and prosecutors than getting the right man. Anyone who doubts the sad truth of this will be shaken by the case histories in "Actual Innocence."

Wrongful conviction has become so prevalent that a number of law schools sponsor pro-bono innocence projects. In rape cases and other cases where DNA evidence can play a role, there is hope for the wrongfully convicted. But for a large number of offenses, all hope ends with conviction.

The ease with which innocents can be railroaded is scary enough. But the obstructions that prosecutors raise to the release of inmates known to be innocent reveals an inhumanity that is frightening. For example, the 26 innocent adults framed by a crazed detective and corrupt Child Protective Service officers in the Wenatchee child sex abuse witch hunt had to be pried loose one by one from the claws of prosecutors.

The justice system is loaded against the wrongfully convicted. In sex offender cases, the system will not admit to any possibility of wrongful conviction. A person who maintains his innocence cannot qualify for parole.

Consequently, the wrongfully convicted serve longer terms than the guilty. "Getting tough with crime" has encouraged a results-oriented culture among police and prosecutors that leads to wrongful convictions. Redressing this wrong requires an alliance between conservatives and liberals. Will the Federalist Society lend its weight to the effort to spring exculpatory DNA evidence from the Virginia Commonwealth Attorney´s lock box?

Paul Craig Roberts is a columnist for The Washington Times and is nationally syndicated.


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