IN AMERICA / By BOB HERBERT
July 18, 1999, New York Times, Op-Ed

One way or another Vincent Jenkins will be freed from the Green Haven Correctional Facility in upstate Dutchess County, where he has served nearly 17 years of a life sentence for a rape he didn't commit.

The question now is when.

DNA tests have ruled out Mr. Jenkins as the man who attacked and raped a woman in a nature preserve in Buffalo in 1982.  But it is easier to learn to fly by flapping one's arms than it is to get a district attorney to admit having sent an innocent person to prison.

So lawyers from the office of Erie County District Attorney Frank Clark told me on Friday that they will not oppose Mr. Jenkins's release on his own recognizance.  And they will not oppose any motion in state court to have his conviction vacated.  But they will continue to oppose the effort by Mr. Jenkins's lawyers to have a Federal judge rule that he should be freed because his innocence has been established.

Got that?

This is a case in which the victim has said for 17 years that she was attacked by one man, and one man only, and that he ejaculated.  And DNA tests, done in collaboration with the county's own experts, have ruled out Mr. Jenkins as that man.  And still the D.A.'s office is unwilling to concede that a tragic error occurred, and that the wrong man was convicted.

Most Americans would be shocked to learn how many innocent people are behind bars in this country.

Mr. Jenkins is represented by the New York City lawyers Eleanor Jackson Piel and Barry Scheck.  Mr. Scheck noted that the F.B.I. has been doing DNA testing in rape and rape-homicide cases since 1989.  "They only get the cases when there has either been an arrest or an indictment," he said.  "Then they do DNA to confirm or exclude the person.  In 25 percent of the cases where they can get a result, they exclude the primary suspect."

Think about that.  In one out of four of those cases, the wrong person gets arrested.  These are cases that carry extraordinary prison sentences, and in some cases the death penalty.

Said Mr. Scheck: "How many of those people would have been convicted had there been no DNA testing?"

If even 1 percent were convicted, that would translate into thousands of innocent people in prison, he said.

"Then you ask the question, 'What about all the other cases that don't involve biological evidence?'  It's not like people who are making identifications in rape cases are far less accurate than someone who makes an eyewitness identification in a purse-snatching, or a robbery, or any other crime."

This is not a subject that the criminal justice system has been willing to honestly engage.

Mr. Scheck is the co-director, with Peter Neufeld, of the Innocence Project at the Benjamin N. Cardozo School of Law in Manhattan.  The two men have pioneered the use of DNA testing in criminal cases.

Mr. Scheck said 64 people -- more than half of them with the assistance of the project -- have had their convictions overturned as a result of DNA testing.  In eight of those cases, the convicts were on death row.

Mr. Scheck said thousands of others "have been exonerated after an arrest, in the middle of a trial, things like that."

Those thousands represent only a small percentage of the individuals wrongfully arrested and imprisoned for serious crimes.  Mr. Scheck said that in 70 percent of the Innocence Project cases, the evidence he would like to test can't be located.

In the Jenkins case, Ms. Piel and Mr. Scheck have asked a Federal judge to rule that their client is innocent, and that therefore his imprisonment is a violation of his constitutional guarantees of due process and protection against cruel and unusual punishment.

A ruling in their favor would be groundbreaking.  It would be the first time a Federal court cited innocence as the constitutional basis for ordering the release of a prisoner.  It would establish that imprisoning an innocent person was in and of itself a constitutional violation.

The reluctance of prosecutors to admit that they have sent the wrong person to prison -- even after incontrovertible evidence has been produced -- is a huge problem.  That, and the cumbersome procedures of state court systems, makes it perversely difficult to secure the release of the innocent.

Ms. Piel, Mr. Scheck and Mr. Neufeld are trying to find a better way.