Throwing a lifeline to the next Donald Gates

By James Trainum
Sunday, March 28, 2010

In 1994, as a new homicide detective with the D.C. police, I came close to sending a woman to prison for murder on the basis of a false confession I obtained from her. So I know something about what J. Brooks Harrington, the prosecutor who in 1981 put away Donald E. Gates for a rape and murder he didn't commit, meant when he told The Post this month: "I can't express how sick this has made me feel."

The suspect in my case was luckier than Gates. An unshakable alibi came to light before she could be tried. But even though Gates spent more than a quarter-century behind bars, he was lucky, too. If not for the discovery of a scrap of DNA evidence, long overlooked, he would still be in prison.

As science has advanced, stories like Gates's have become more common, but they are only the tip of the iceberg. Wrongful conviction claims in cases with no DNA evidence remain a nearly impossible uphill climb. Even with overwhelming evidence (including DNA), the adversarial system used in most jurisdictions puts unnecessary obstacles in the way of justice. And in cases where the truth does come to light, rather than learning from its mistakes, law enforcement usually sticks its head in the sand, waits for the bad publicity to go away and returns to business as usual, making the same mistakes again and again.

It shouldn't take luck to reverse this kind of injustice. Gates's case and thousands like it across the country highlight the desperate need for a review of the criminal justice system as a whole. Some jurisdictions have already begun this process by establishing Innocence Commissions.

Set up by legislative act or the judiciary, these commissions are designed to draw upon the experience of prosecutors, defense lawyers, law enforcement officers, judges, legislators, scholars, forensic experts and crime victims and their advocates. In the District, such a commission could operate much like the domestic violence and child fatality review boards already established by the D.C. Council, which analyze the circumstances surrounding deaths in the hope of finding ways to prevent them in the future. A D.C. Innocence Commission could be empowered to conduct a review of any wrongful convictions that come to light, to determine what went wrong and why. It could also study the legal process to find roadblocks on the path to exoneration. To do its job properly, it would need both investigative and subpoena powers to gather documents, witnesses and other evidence. The commission could recommend changes to practices that could be imposed by the D.C. Council or the courts or be made voluntarily by police and prosecutors.

While discussing the Gates case, Harrington described the "institutional pressure" on prosecutors to win difficult cases. Meant to facilitate the search for truth, our adversarial justice system often degenerates into a battlefield where winning, rather than doing the right thing, becomes the goal. Mistrust on both sides, egos and personal and agency agendas can get in the way of justice. The recommendations of an Innocence Commission could create safeguards in this system, building on laws and procedures already in place to address problems related to eyewitness misidentification, faulty forensic science, false confessions and other areas.

It is also possible to go further. Some jurisdictions, such as North Carolina, have established groups modeled after Britain's Criminal Case Review Commission. These panels, made up of accomplished lawyers, investigators, and forensic and other experts, independently investigate allegations of wrongful convictions and present their findings to the appellate court or a panel of judges for final arbitration. Instead of replacing the current appeals process, such a commission could supplement it by providing another option for claimants or offering independent investigative and expert support for both sides.

Innocence Commissions are a win-win for everyone. When we study our criminal justice system and work to make it better, we not only reduce the chances of convicting the innocent but we also increase our chances of convicting the guilty. We also show the public that the system is strong enough to recognize and fix its own mistakes.

The writer, now retired, was part of the D.C. police's Violent Crime Case Review Project team that located the evidence which led to the overturning of Donald Gates's conviction. He lectures on the causes of investigative failures and how to prevent them.

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