January 3, 2000

WASHINGTON  You might think it is a simple matter for prison inmates to walk free when DNA tests prove they are innocent.

 You also might think it is easy for them to at least get permission to have the evidence in their cases retested with modern DNA testing techniques.

You might even think prosecutors and the courts are interested, more than anything else, in justice, in finding the actual wrongdoers, not in keeping apparently innocent people locked up.

 Maybe you believe in the tooth fairy too. Wrongful conviction, it turns out, is not enough to get you out of jail, even when your innocence is supported by DNA evidence.

 Clyde Charles, 46, was one of the lucky ones. He made national news a few days before Christmas when he walked out of the Louisiana State penitentiary at Angola, cleared by DNA evidence, after serving 18 years in jail for a crime he did not commit.

 He was lucky because the evidence had not been lost or destroyed as it has been in countless other cases. He was lucky that the Innocence Project at New York's Benjamin N. Cardozo Law School at Yeshiva University successfully sued Louisiana in 1998 to allow Charles to be retested.

 Cardozo law professor Barry Scheck, who became famous as O.J. Simpson's DNA attorney, helped free Charles and almost 70 other inmates using DNA testing techniques that were not available when the men were convicted.

 Charles was lucky, project attorneys say, that the state did not fight to keep him locked up. Instead, before approving the test, the state required Charles to promise not to sue the state for false imprisonment.

 In Texas, Roy Criner has not been as lucky.

 Criner, 34, is a burly, baby-faced logger who was sentenced to 99 years in prison for the rape and murder of Deanna Ogg, 16, whose body was found in Montgomery County, Texas, in 1986.

 Criner has remained in jail despite two DNA tests in the past three years that refute the testimony that convicted him.

 Criner and Charles are two Innocence Project cases being spotlighted in "The Case for Innocence," a "Frontline" documentary scheduled for broadcast Jan. 11 on WTTW-Ch. 11.

 When "Frontline" reporters interview Texas state officials, including Judge Sharon Keller, who wrote the appellate court's rejection of Criner's appeal, they simply shrug off the DNA results as compelling, but not compelling enough.

 Could he be innocent, an interviewer asks. "Oh, I suppose that's a possibility," says Keller after a slight pause, as if the notion had not occurred to her until that moment. "But he certainly hasn't established it."

 So what if all of the arguments made by the prosecution in Criner's case have been refuted? What if, she offers, Criner had an accomplice that the court did not know about.

 It is not enough that the state no longer has proof that Criner is guilty. Keller says Criner now must establish that he is "unquestionably innocent."

 Such defensiveness on the state's part is all too typical. The sad fact, as one of Criner's defenders puts it, is that "innocence is not a basis for getting out of prison in this country."

 Sadder still is the refusal of many prosecutors to reopen cases after DNA evidence shows the wrong person has been jailed.

 The path to federal appeals also has been squeezed by new federal laws and Supreme Court decisions limiting one's rights to appeal.

 What is to be done? Defenders of the status quo argue taxpayers can't afford to open the floodgates to every inmate who wants a new trial. But taxpayers don't have to. All the states have to do is to pass new laws, rules and procedures that protect prisoners' rights while avoiding frivolous appeals.

 A DNA evidence law passed in Illinois two years ago makes a good model. Among its requirements, the conviction must have occurred before DNA testing was used in criminal investigations. The conviction also must have been based almost entirely on identification by a witness and the evidence to be tested has to have been in the custody of a law-enforcement agency since the trial ended.

 In the meantime, we, the public, should let our governors and prosecutors know that we want justice for victims and criminals, not just big prison body counts.

 One prominent governor, George W. Bush, could make a particularly meaningful contribution by looking into the Roy Criner case.

 True, Bush has a lot on his mind these days. But he does call himself a "compassionate conservative."

Talk is cheap. Actions speak.

How the System Works
Truth in Justice