Number fatigue. It’s as insidious as it is understandable. Besieged as we are by ever-more media, numbers numb, even when they are attached to human lives. But take the number 2,000. That’s good and big, and when it represents the number of men and women who have been exonerated by DNA testing since 1989, after years in prison — for dreadful crimes such as murder and rape — it is appalling (as well as, in its own twisted way, wonderful). When that 2,000 number represents innocent people sentenced to prison because of racism and ineptitude, the problems in our justice system take on the sort of significance that is — finally — hard to shrug off. Our criminal justice system is simply criminal.
Ghost of the Innocent Man, a fine debut effort by Boston-area freelance journalist Benjamin Rachlin, and Surviving Justice, also fine and edited by the writer Dave Eggers and the executive director of the Life After Exoneration Program, Lola Vollen (both founders of the Voice of Witness publishing endeavor) examine, from an intimate ground’s-eye view, instances of wrongful incarceration. Ghost takes on the story of a single man, Willie J. Grimes; Surviving, the first-person stories of twelve men and one woman. Besides their subject matter, the books share other qualities: they are plainspoken — frank, yes, but even more potently, unadorned — either when Grimes is speaking, Rachlin is writing, or the other exonerees are telling their stories. The stories are clean and tight, emotionally and psychologically expressive and expressionistic, and easily visualized by the mind’s eye, which fashions the proceedings in Technicolor or black-and-white, whichever pertains.
From one corner comes the argument, from district attorneys and judges and law enforcement, which can be couched as “Let’s see you do better.” Or from former Supreme Court justice Sandra Day O’Connor, who wrote, “Our society has a high degree of confidence in its trials, because the Constitution offers unparalleled protections against convicting the innocent.” That’s the what-all-schoolchildren-learn approach: innocent until proven guilty.
In the other corner is a squadron of civil rights lawyers explaining the cracks in the system: the persuasive, and incorrect, reliance on eyewitness testimony; poorly paid, overworked, sometimes incompetent public defenders; cherry-picking juries; social indifference to the plight of indigent defendants, “particularly non-white defendants.” Haunting the middle are the somewhat runic words of appeals court judge Learned Hand in 1923: “Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.” Unreal until it isn’t.
Of promise is the gladdening story about the Actual Innocence Commission, a mixed group of prosecutors, defense attorneys, and conservative and liberal judges, most of whom wished to draw up a mandate of change to aspects of the legal process, including lowering barriers to DNA testing, testing defense attorney competency, modifying the prominence of eyewitness testimony, banning snitch testimony, eliminating junk science (handwriting analysis, fiber techniques), and “postconviction, nonadversarial process for innocence review.” One wrongly accused man convicted of multiple rapes only got wind of DNA testing from The Oprah Winfrey Show.
Change is difficult, especially when egos get bruised. “Law enforcement, it turned out, didn’t like what DNA testing had done to recast the public’s view of its investigative work.” Little wonder. The circumstances under which these wrongly accused came into the investigative field of view are considered: wrong place, wrong time, wrong skin; had an attitude that didn’t sit well with a sheriff; was wearing a green sweater, matching eyewitness account; was tongue-tied, just like the rapist. It’s so flimsy, impulsive, and rushed-to — one can hardly say “justice.” And why all the deceit and manipulation in the precinct houses as well as the courtroom?
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Both of these books bring the wretchedness of this situation to a boil. Which is nothing to the rage many of the wrongly accused feel every day, less so with Willie Grimes, more so with the storytellers in the Surviving Justice collection: “I tried my best to get the death penalty. I had already been down a long time and I’d seen a lot of other guys there who had life and fifty years without parole — they didn’t have no lawyers or nothing. So I’m thinking, rather than spend the rest of my life in prison, I’m gonna take my chances getting the death penalty for a murder I didn’t commit. If nothing else, I’ll have a lawyer.” (Surviving Justice also has a series of blow-by-painful-blow appendices on the causes of wrongful convictions, the prison experience, and life after exoneration — and if you think that exoneration comes with routine compensation, you have another think coming.)
There are Learned Hands all through these books, people who have been in and out of the lion’s mouth, getting an education in the social contract and human nature, even if it takes them twenty-seven years. And what is the final verdict of these two implacable books? Not only are our prisons overcrowded, they are overcrowded with the wrong people.