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. |