Posted on Tue, Jul. 20, 2004


McMaster should order changes to protect innocent



NOW THAT DEFENSE attorneys have established a South Carolina chapter of the non-profit Innocence Project, it’s only a matter of time until they come up with an indisputable example of someone our state has wrongly convicted. And then another. And another.

It’s not a question of whether but when because no matter how many safeguards we have, our criminal justice system is operated by human beings, and all such systems make mistakes. The most honest eyewitnesses identify the wrong person; evidence gets lost or overlooked, or misinterpreted; accomplices lie; the accused gets browbeaten into making a false confession. And the wrong person goes to prison — while the actual criminal continues to victimize the public.

The most noticeable value of the Innocence Project is that it voluntarily works to ferret out these mistakes. Its greatest value, though, is its ability to make the rest of us recognize systemic flaws, and correct them.

Even before much work is done in South Carolina, we know of several flaws in our system — flaws that are common across the country: Most wrongful convictions involve coerced confessions, a lack of physical evidence or a reliance on testimony from accomplices and jailhouse informants. To guard against these dangers, inadvertent or deliberate, our state should:

• Require prosecutors to disclose any deals or incentives offered to accomplices or other witnesses.

• Require judges to warn jurors about the risk of false testimony by jailhouse informants and accomplices.

• Prohibit the use of the death penalty when the conviction is based solely on the uncorroborated testimony of accomplices and jailhouse informants.

• Change the way lineups are conducted, so witnesses can’t be deliberately or inadvertently led. That could mean having the lineup conducted by someone who doesn’t know who the suspect is and having that person tell witnesses the suspect might not be in the lineup.

• Require police to pursue all reasonable lines of inquiry, even if they lead away from the primary suspect.

• Require all in-house interrogations of suspects to be videotaped and all outside interrogations audiotaped.

The problems don’t end with the original evidence.

Some police discard physical evidence after the conviction; at the least, we should require that all evidence be preserved until the appeals have run their course.

Worse, our system is set up so that once someone is convicted, guilt or innocence matters less than procedure. Someone who actually committed a crime can get a new trial based on a procedural misstep, while someone who is innocent can’t get a chance to present new evidence to a jury if prosecutors can argue that the evidence should have been discovered earlier. We need a process that allows a judge to consider new evidence if there is a tangible basis to believe it could lead to exoneration.

The courts could make some of these changes, but it’s best for the political branches to decide questions of policy. Since our General Assembly is by design resistant to reform, the attorney general, who is in charge of all criminal prosecutions, should step in. Henry McMaster should prohibit solicitors from bringing charges in cases that don’t meet these guidelines; he should instruct his own attorneys, who handle criminal appeals, to join defense attorneys in seeking new hearings when credible new evidence calls into question the actual guilt of defendants. In so doing, Mr. McMaster can increase our chances of making sure the real criminals are locked away, and increase public confidence in the criminal justice system.





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