Because many death row cases are overturned thru appeal, and alleged suspects are set free or have already been executed, our system fails the wrongfully accused.

Recent studies and evaluations of true life changing convictions are what we will examine here. We will not try to analyze the system in which convicts these suspects who become victims to the system, but rather the lives of those effected and what happens to them when they are exonerated.

Two thirds of exonerees in the United States come from racial or ethnic minorities. Out of 328 exonerations between 1989 and 2003, 55% were black, 13 % were Hispanic. Convicted by juries that were either all or mostly white. 1 Surviving Justice by Lola Vollen and Dave Eggers, McSweeney’s Books, San Francisco, copyright 2005

“Now and then when I’m asked to say what I think the law is for, meaning what use it actually is for humans, I answer that law is meant to make the little piece of existence that people can actually control more reasonable. The universe will always be full of folly. But we dignify civilization with the hope that our communities will operate by standsards that most of us regard as rational. Which goes to explain why we are so peculiarly horrified by the notion of imprisoning the innocent, or even worse, condemning a guiltless person to death.” 2 Surviving Justice by Lola Vollen and Dave Eggers, McSweeney’s Books, San Francisco, copyright 2005

“At first glance, the group defied all stereotypes we might conjure of those who have served time behind bars, deservedly or not. The five men present were affable, good-humored, gentle even, dressed in sweaters and khakis and loafers. Beverly Monroe, the one woman in attendance, was the epitome of southern gentility- gracious, warm, and impeccably mannered. Among the six of them, they had served seventy years in prison for crimes they did not commit. In tow instances, there had been no crime at all. That these people had served time for murder, for rape, for molestation, was almost incomprehensible.”

“In a living room in Berkeley, California, these six wrongfully convicted Americans sat, discussing their lives before, during, and after their incarcerations. They had been brought together under the auspices of the Universtiy of California, Berkeley Graduate School of Journalism, to begin telling the stories that comprise the book. On the coffee table in front of them.”

Jurors instructions are as follows in a case tried before the court. One may ask, “is this where we go wrong?”

The rule of convenience and necessity declares that, unless it is "unduly harsh or unfair," the "burden of proving an exonerating fact may be imposed on a defendant if its existence is 'peculiarly' within his personal knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient." (In re Andre R., supra, 158 Cal.App.3d at p. 342; accord, e.g., People v. Agnew, supra, "16 Cal.2d at pp. 663-667.) The rule often has been invoked when the "exonerating fact" arises from an exception to a criminal statute. (See, e.g., In re Andre R., supra, 158 Cal.App.3d at pp. 341-342, citing cases; see also Model Pen. Code & Commentaries, com. 3 to § 1.12, p. 192; id., pp. 192-193, fn. 16.) People v. Mower (2002) 28 Cal.4th 457 [122 Cal.Rptr.2d 326; 49 P.3d 1067

"Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs and depending upon moral sic evidence, that is, evidence which comes to you from the mouths of people, is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge. ¶ The law does not require demonstration or that degree of proof which, excluding all possibility of error, produces absolute certainty, {Page 28 Cal.4th 741} for such degree of proof is rarely possible. Moral certainty only is required, which is that degree of proof which produces an abiding conviction in an unprejudiced mind." People v. Cash (2002) 28 Cal.4th 703 [122 Cal.Rptr.2d 545; 50 P.3d 332]

“So many exonerees have spent time behind bars, long periods of time for crimes they did not commit. Despite the above jury instructions and rules and regulations that govern our court system. Beverly Monroe spend seven years in prison for murdering her companion of thirteen years; in fact, he had killed himself. Christopher Ochoa was persuaded to confess to a rape and murder he did not commit, and served twelve years of his life sentence before he was freed by DNA evidence. Michael Evans and Paul Terry each spent twenty-seven years in prison for brutal rape and murder they did not commit. They were teenagers when they entered prison; they were middle-aged men when DNA proved their innocence.”3 Surviving Justice by Lola Vollen and Dave Eggers, McSweeney’s Books, San Francisco, copyright 2005

“There is no amount of money they could give me to replace twenty years of my life... I missed my kids' childhoods. I always wanted to be a father to them. They can't give that back. I missed all of that." -Exoneree Calvin Willis

There are many organizations that volunteer their time to help the wrongfully accused. The Innocence Project at the Benjamin N. Cardozo School of Law was created by Barry C. Scheck and Peter J. Neufeld in 1992 and is one of these organizations. It was set up as and remains a non-profit legal clinic. This Project only handles cases where postconviction DNA testing of evidence can yield conclusive proof of innocence. As a clinic, students handle the case work while supervised by a team of attorneys and clinic staff.

Most of the clients are poor, forgotten, and have used up all of their legal avenues for relief. The hope they all have is that biological evidence from their cases still exists and can be subjected to DNA testing. All Innocence Project clients go through an extensive screening process to determine whether or not DNA testing of evidence could prove their claims of innocence. Thousands currently await our evaluation of their cases.

DNA testing has been a major factor in changing the criminal justice system. It has provided scientific proof that our system convicts and sentences innocent people -- and that wrongful convictions are not isolated or rare events. Most importantly, DNA testing has opened a window into wrongful convictions so that we may study the causes and propose remedies that may minimize the chances that more innocent people are convicted.

As forerunners in the field of wrongful convictions, the Innocence Project has grown to become much more than the "court of last resort" for inmates who have exhausted their appeals and their means. We are now helping to organize The Innocence Network, a group of law schools, journalism schools, and public defender offices across the country that assists inmates trying to prove their innocence whether or not the cases involve biological evidence which can be subjected to DNA testing. We consult with legislators and law enforcement officials on the state, local, and federal level, conduct research and training, produce scholarship, and propose a wide range of remedies to prevent wrongful convictions while continuing our work to free innocent inmates through the use of postconviction DNA testing. 4 http://www.innocenceproject.org/about/index.php, The innocence Network website.

In 2003, Calvin Willis walked out of Louisiana’s Angola State Prison after twenty-two years of wrongful incarceration for a crime he didn’t commit. He had no job, no money, and no apology from the system that took two decades out of his life. Left destitute, Willis had to fend for himself. Two years later, he’s still struggling.

Hundreds of men and women—including 120 on death row—have been released from America’s prisons in the last several years, after incontrovertible proof of their innocence emerged. Their trials were undermined by the myriad problems that plague criminal proceedings—inept defense lawyers, overzealous prosecutors, deceitful interrogation tactics, bad science, opportunistic informants, and faulty eyewitnesses. Their lives were effectively wrecked. Now, finally free, they’re facing a new set of problems, with little sympathy from society.

n 1988, police investigators threatened Christopher Ochoa with the death penalty, and he falsely confessed to a rape and murder he did not commit. Ochoa and his co-worker, Richard Danziger, were sentenced to life in prison; they both served 12 years in the Texas Department of Criminal Justice. When Ochoa was freed, in 2001, he became a law student at the University of Wisconsin, the same law school that worked to bring about his exoneration.

When Juan Melendez moved from Puerto Rico to Delaware at the age of 17, he was looking for a better life. Instead, he found himself hustling on the streets and struggling to make money. In 1984, he was convicted for the murder and armed robbery of a man he'd never met, based on the unreliable testimony of a snitch. He was extradited to Florida, sentenced to death, and served 17 years before previously concealed evidence exonerated him. He now heads "Juan Melendez Voices United for Justice," an advocacy group, and is an avid anti-death-penalty activist and speaker.

Gary Gauger's parents were murdered on their Richmond, Illinois, farm in 1993. He was blamed. During a grueling, manipulative interrogation, detectives temporarily convinced Gauger that he had actually committed the crime. He was found guilty, sentenced to death—and released three years later. A popular speaker on wrongful convictions, he lives on that same Illinois farm, still contending with the psychological effects of his incarceration.

James Newsome was living on the South Side of Chicago when a white grocer was shot to death in a convenience store. Officers from the notoriously corrupt Area 2 police station made Newsome, who is black, their prime suspect. Eyewitnesses misidentified him in a police lineup, and an all-white jury sentenced him to life. He served 15 years before being exonerated by fingerprints lifted from the crime scene and matched to an already incarcerated career criminal. After his release, Newsome won a multimillion-dollar lawsuit against the City of Chicago. He now owns a shoe store there—"Heelz."

When a little girl was raped in Louisiana in 1982, Calvin Willis was blamed for it. Based on the eyewitness identification of a frightened 9-year-old, Willis was convicted of rape and sentenced to life in prison. One of his lawyers had a heart attack; the other was struck dead by lightning. It was only through the help and dedication of a paralegal that Willis was able to raise enough money to have his DNA tested in 2003. After 22 years in Louisiana's infamous Angola Prison, Willis lives in Shreveport. He is awaiting compensation.

In the mid-1980s, a series of child-abuse "witch hunts" swept California. A flurry of prosecutions and convictions resulted, and John Stoll took the hardest fall. He was charged with molesting his own son and several other boys and sentenced to 40 years in prison. He served 19; in 2004, the boys recanted their testimony. For Stoll, who now lives in Oklahoma, the pain didn't end when he was released—he no longer speaks to his own son, who continues to believe he was molested. “I would affirm the Court of Appeal's decision upholding defendant's conviction.” People v. Stoll (1989) 49 Cal.3d 1136 [265 Cal.Rptr. 111; 783 P.2d 698]

In the early 1990s, Virginian Beverly Monroe was convicted of the murder of her longtime companion, who had, in fact, killed himself. Her 22-year sentence was relatively light, but the case against her seems almost incomprehensible. A police investigator persuaded her to sign a hypothetical statement, later construed as a confession, and then convinced a convicted felon whom she had never met to testify against her at trial. After a lengthy and complicated appellate process, Monroe was freed in 2002. She lives in Williamsburg, Virginia.

Michael Evans and Paul Terry were 17-year-old boys when they were convicted of a rape and murder they knew nothing about. Because of the testimony of a neighborhood woman seeking to claim reward money, the two were sentenced to 200- to 400-year sentences. Evans maintained his optimism during his time in the toughest Illinois prisons, but Terry struggled to preserve his sanity. After 27 years, they were exonerated by DNA evidence. Grown men now, vastly changed by the justice system's harsh indifference, both live in Chicago.

David Pope spent 15 years in the Texas prison system for a rape he didn't commit. He was convicted with now-discredited "voice spectrograph" technology that compared his voice to recorded conversations with the actual rapist. After DNA from his case proved his innocence, in the late '90s, Pope stayed in prison for years without a clue he'd been cleared. He was finally released in 2001, after Texas Governor Rick Perry signed his pardon. He now lives in Bolinas, California, and is looking for work.

“ In cross-examining a police officer, appellant's counsel sought to elicit extrajudicial statements made by one suspect to the other. The officer had overheard Harbin tell Stoker that "we were seen leaving the Trade Winds but the police haven't got any evidence and we don't have anything to worry about." The prosecutor objected on the grounds that such hearsay could not be admitted unless counsel made a showing that the declarant was unavailable.” fn. 5 FN 5. Evidence Code section 1230 provides in pertinent part: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true." People v. Pope [23 Cal.3d 412] February 22, 1979

In 1985, Joseph Amrine was accused and convicted of stabbing a fellow-inmate at a prison in Jefferson City, Missouri. When it came time for his sentencing, he campaigned for the death penalty, hoping it would draw attention and legal assistance to his case. It did. In 2003, Amrine was released after witnesses, including jailhouse snitches and guards, recanted their testimony. He now lives in Kansas City and works with the Public Interest Litigation Clinic legal group as a speaker and outreach coordinator.

On a late-fall morning in 1994, a teenage girl was raped in Lodi, California. The girl's aunt implicated Peter Rose, repeatedly suggesting to her niece that he was the assailant. Rose was convicted of rape and kidnapping and sentenced to 27 years, leaving his own children without his support. He served 10 years in California prisons before being cleared by DNA evidence. Rose now lives in Point Arena, California, and works construction. He is awaiting compensation from the state.

Kevin Green admits that, as a Marine, he was "young, dumb, and full of it." He had a rocky relationship with his first wife, Diane, and when she was brutally assaulted by a serial rapist known as the "Bedroom Basher," Green was accused of the crime. He was convicted, based on his wife's testimony, and served 16 years in California prisons before DNA evidence exonerated him. He now lives in Jefferson City, Missouri.

Then:In 1984, Buddy Nickerson was not an angel in the eyes of the criminal justice system. He rode a Harley Davidson with a carefree attitude that would cease in September of that year. Santa Clara County Sheriff’s Department arrested Buddy for two murders and one attempted murder. Overzealous detectives thought they had their man, convinced by Buddy’s carefree history. After three long years fighting for his life in Santa Clara County jail, Buddy was convicted of murder. During his 19 years of unjust incarceration, he lost his mother and his younger brother. Fortunately two attorneys committed to investigating Buddy’s case and due to their efforts, Buddy’s conviction was vacated in March of 2003. Buddy was released on March 24, 2003 after serving 19 years in prison for a murder he did not commit.

Now: Today, Buddy still drives a Harley Davidson and draws support from regular participation in a 12 Step program. He reaches out to others and helps with the healing process of those suffering from alcohol and substance abuse, while also treating his own desires to self-medicate. Buddy has been compensated and just purchased a home in Los Banos. He states: “Life has its ups and downs, its bends and twists… You can look at the bends and twists in the road or you can admire all the beauty along the journey.” Buddy spends quality time today with his family and remains on the journey of healing. 5http://www.exonerated.org/bios/nickerson.php

Hometown: San Jose, California

Seeking: Peace of mind

For those among us who sometimes do not want to see the truth and believe that if someone is accused, and convicted than they must undoubtedly have committed the crime. For those among us who believe that these stories are old and that in our current system these types of errors do not happen or would not be tolerated, please read on:

5/16/06 – After ten years of incarceration for a murder that he did not commit, Douglas Warney is being released today in Rochester, NY.

5/1/06 – Eighteen years after his wrongful imprisonment for a 1988 slaying, all charges against Drew Whitley were dropped by Allegheny County, Pittsburgh Judge Anthony Mariani. The decision came after two rounds of DNA testing showed beyond a doubt that Mr. Whitley could not have committed the crime. For years, Allegheny County prosecutors fought Mr. Whitley's requests for DNA tests on hairs found in the mask and clothing worn by the perpetrator. Last year, after DNA testing proved Thomas Doswell's innocence, who had served nineteen years for a rape he did not commit, the District Attorney reconsidered his stance in authorizing DNA tests for people convicted of major crimes. Mr. Whitley was reunited with his family, including his mother and now thirty-one-year-old son, Marcus Whitley, who said, "He's been gone since I was fourteen; this is like Christmas."

3/31/06 – A federal jury is ordering the City of Tulsa in Oklahoma to pay $14.5 million dollars to compensate Arvin McGee for the 14 years he lost to imprisonment for a rape and kidnapping he did not commit. Mr. McGee was freed in February 2002 after DNA evidence proved his innocence and revealed the true identity of the perpetrator. In response to the verdict, Mr. McGee said “Eight people had compassion to do the right thing and they done it and I wish I could meet every last one of them and shake their hands."

5/8/06, 2:00 PM PST – Channel 11 (Los Angeles area): The Montel Williams show featured the story of Linda Smith, a battered woman whose abusive boyfriend killed her two-year-old child. Linda has been in prison for twenty-seven years despite the fact that her only crime was her failure to protect her child. Linda's other daughter, who was a witness to the crime, is currently trying to get Linda out of prison. Exoneree Gloria Killian appeared in the last segments of the show as an advocate for Linda.

A film made on the subject, AFTER INNOCENCE is a must see to fully experience and understand the problem before us as a society:

AFTER INNOCENCE tells the dramatic and compelling story of the exonerated - innocent men wrongfully imprisoned for decades and then released after DNA evidence proved their innocence. The film focuses on the gripping story of seven men and their emotional journey back into society and efforts to rebuild their lives. Included are a police officer, an army sergeant and a young father sent to prison and even death row for decades for crimes they did not commit.

The men are thrust back into society with little or no support from the system that put them behind bars. While the public views exonerations as success stories - wrongs that have been righted - AFTER INNOCENCE shows that the human toll of wrongful imprisonment can last far longer than the sentences served.

The film raises basic questions about human rights and society's moral obligation to the innocent and places a spotlight on the flaws in our criminal justice system that lead to wrongful conviction of the innocent. The film features exonerees Dennis Maher of Lowell, MA; Calvin Willis of Shreveport, LA; Scott Hornoff of Providence, RI; Wilton Dedge of Cocoa Beach, FL.; Vincent Moto of Philadelphia, PA; Nick Yarris of Philadelphia, PA; and Herman Atkins of Los Angeles, CA.

It also features Barry Scheck and Peter Neufeld, founders of the Innocent Project which has helped to exonerate the more than l50 people freed through the use of DNA testing in the last decade; and highlights the work of human rights activist Dr. Lola Vollen, co-founder of the Life After Exoneration Program. 6 http://www.afterinnocence.com/main_innocent.html

After reading the cases, seeing the film and thinking about the wrongs that have ruined people’s lives, ask yourself the following question:

Because many death row cases are overturned thru appeal, and alleged suspects are set free or have already been executed, does our system fail the wrongfully accused?

1 Surviving Justice by Lola Vollen and Dave Eggers, McSweeney’s Books, San Francisco, copyright 2005

2 Surviving Justice by Lola Vollen and Dave Eggers, McSweeney’s Books, San Francisco, copyright 2005

3 Surviving Justice by Lola Vollen and Dave Eggers, McSweeney’s Books, San Francisco, copyright 2005

4 http://www.innocenceproject.org/about/index.php, The innocence Network website.

5 http://www.exonerated.org/bios/nickerson.php

6 http://www.afterinnocence.com/main_innocent.html