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Wrongfully Convicted: the Overrepresentation of the Poor Susan Rutberg Golden Gate University School of Law, [email protected]

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Wrongfully Convicted: the Overrepresentation of the Poor Susan Rutberg Golden Gate University School of Law, Srutberg@Ggu.Edu Golden Gate University School of Law GGU Law Digital Commons Publications Faculty Scholarship 2011 Wrongfully Convicted: The Overrepresentation of the Poor Susan Rutberg Golden Gate University School of Law, [email protected] Follow this and additional works at: http://digitalcommons.law.ggu.edu/pubs Part of the Criminal Law Commons Recommended Citation Rutberg, Susan, "Wrongfully Convicted: The Overrepresentation of the Poor" (2011). Publications. Paper 441. http://digitalcommons.law.ggu.edu/pubs/441 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at GGU Law Digital Commons. It has been accepted for inclusion in Publications by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. 16 SALT final 2/11/11 11:12 AM Page 299 16 Wrongfully Convicted: The Overrepresentation of the Poor Susan Rutberg * Professor Susan Rutberg introduced a panel of her students who presented papers, each focused on an individual cause of wrongful convictions and a proposed solution to this identified problem. The panel illustrated how law school students can use the lens of their inexperience to articulate straight - forward approaches that might reduce the circumstances that produce wrong - ful convictions and alleviate some of the hardship such convictions cause. Over the last twenty years, 255 wrongfully convicted people have been re - leased from American prisons on the basis of indisputable scientific evidence. 1 For all these people, proof of the innocence they had long asserted was gen - erated by DNA testing, often performed decades after their original convic - tions. For many, freedom came only after lengthy legal battles, sometimes decades long. These exonerations of innocent people, many of whom were robbed of significant portions of their lives, are largely due to the work of law students and lawyers working together in law school clinics. The Innocence Project originated at Cardozo Law School in New York City, founded by Peter Neufeld and Barry Scheck in 1992. 2 There are now Innocence Projects in every region of the United States and in Australia, Canada, England, and New Zealand as well. 3 In some ways, a new civil rights movement has been born. The sto - ries of the wrongfully convicted have prompted a much-needed closer look at the criminal justice system, spearheading efforts at reform. Golden Gate Law School was a part of the network of law school Innocence Projects for four years. From 2001 to 2005, the Golden Gate Innocence Proj - ect Clinic operated in partnership with Santa Clara University’s Northern Cal - ifornia Innocence Project. Working under the supervision of Golden Gate 299 16 SALT final 2/11/11 11:12 AM Page 300 300 16 · WRONGFULLY CONVICTED professors, students investigated hundreds of cases. They read letters from prisoners, gathered appellate briefs and old case files, located and interviewed witnesses, and searched for evidence. The course, Wrongful Convictions: Causes and Remedies , originated as the companion seminar to the clinic. Although our clinic closed for lack of funding in December 2005, the Wrong - ful Convictions seminar is still offered every fall. Our clinic’s finest hour was the case of Peter J. Rose, a man who had been convicted in 1995 of the kidnap and rape of a thirteen-year-old girl and sen - tenced to twenty-seven years in state prison. He had served nearly ten years before the clinic won a motion for DNA testing, the results of which eventu - ally set him free in late 2004. 4 The clinic went on to win Rose’s complete ex - oneration: he was declared factually innocent in 2005. Rose’s case reads like a textbook for a course on the causes of wrongful convictions. The record is re - plete with police, prosecutorial, and defense attorney misconduct, including a coerced police interrogation of the young crime victim which led to false identification testimony; exculpatory laboratory evidence suppressed by the prosecutor; inaccurate pseudo-scientific testimony by the county criminalist; and most of all, pervasive incompetent defense lawyering. Despite all this malfeasance, Rose’s convictions had been affirmed by the Court of Appeal and his subsequent writs denied. If not for one piece of biological evidence that had miraculously escaped de - struction, Rose would still be in prison today. The crucial evidence was a swab taken from the victim’s clothing and sent to a Department of Justice laboratory for test - ing by the trial court prosecutor. The lab was unable to obtain a DNA profile at that time and the DOJ simply forgot to return the evidence to the prosecutor. Under then-California law, if the swab had been returned, it would have been destroyed along with all the other evidence in the case as soon as the appeals were finally decided. 5 A lab assistant’s mistake made it possible for a man to prove his innocence. Peter Rose’s freedom depended on persistent lawyering and pure luck. Why do I teach about Wrongful Convictions? I came to full-time law teach - ing after nearly fifteen years of working in indigent criminal defense, first at a community-based poverty agency, the Bayview Hunters Point Community De - fender, 6 then in Bay Area county public defender offices, an appellate defense agency, and, finally, through clinical teaching in partnership with indigent de - fense agencies at law schools in New York and in California. These experiences of direct representation of poor people profoundly af - fected my perspective on justice. In the mid-1970s, I was a new staff attorney at the Bayview Hunters Point Community Defender, a tiny ramshackle law of - fice in the heart of San Francisco’s poorest African American community. With each new client interview, my sense of outrage grew. Each of them, nearly all 16 SALT final 2/11/11 11:12 AM Page 301 16 · WRONGFULLY CONVICTED 301 young African American men, told a similar story: harassment, humiliation, and often violence at the hands of the police. The stories differed only in the details. I learned vicariously what it meant to live “out here in minimum se - curity,” as my clients called their neighborhood, in reference to the constant and very visible presence of police. My clients and their families feared being de - tained, arrested, hurt, or even killed not just for driving while black or brown, but for merely existing as a poor person of color in their own community. It was a full-immersion introduction to what we would now call issues of cul - tural competency. Why should we teach our students about wrongful convictions? The DNA exonerations provide us with a supreme teachable moment: scientific proof that our criminal justice system makes mistakes, proof that guarantees of “min - imum due process” are insufficient to protect against unjust results. In learn - ing about the multiple factors that contribute to wrongful convictions, students develop a truly critical perspective about who gets arrested and convicted, and why. They begin to question whether there can be any truly “rightful” convic - tions under the present American system of justice, and are inspired to be - come the change agents that John Payton so eloquently encouraged us all to become in his keynote address to the Conference. 7 When the stories of the DNA exonerations are told, the impression is often given that “new” evidence proved that the wrong person was convicted and now, “justice” has prevailed. Both concepts —“new evidence” and “justice”— in this context are misleading. The evidence is “new” only in that it hadn’t been brought to light before, but actually it was there all along. The only thing “new” about DNA evidence is that someone finally tested biological material left at the crime scene by the true perpetrator, and the test results excluded the per - son convicted of the crime. The meaning of “justice” can be debated, but surely the word cannot be used to apply to situations where innocent people have been deprived of their freedom for extended periods of time. Exonerations may put an end to injustice but do not create “justice.” If we could be present at the time of each wrongfully convicted person’s ar - rest, and really listened to him, we would hear him saying, loud and clear: “Hey, I didn’t do it! You have the wrong man!” The DNA exonerations give us 255 examples of everything that is wrong with our system. Studying these cases reveals a persistent failure to listen on all levels of the criminal justice system: the police officer who makes an arrest on insufficient evidence; the detective who coerces a confession, or administers a suggestive photo lineup; the crim - inalist who “tests” the evidence to reach a foregone conclusion; the prosecutor who charges a case despite shaky eyewitness testimony; the overworked or cyn - ical defense lawyer who doesn’t pay attention to his client. In each of these sit - 16 SALT final 2/11/11 11:12 AM Page 302 302 16 · WRONGFULLY CONVICTED uations, if someone had been listening, free from the blinders of stereotypes and assumptions, the disaster of a wrongful conviction might have been averted. If someone with skills, passion, and persistence had been listening, maybe the story of innocence would have been heard. I teach about wrongful convictions in order to empower students to expose the problems with the status quo, with the way we do “justice” in America, and in the hope that my students will be - come lawyers who listen to the stories expressed by these too-often unheard voices and work to ensure that they are heard. Why was no one listening to those claiming their innocence? Whose voices are heard in America? Lessons learned from my clients’ lived experiences have taught me that people who come from poor communities and communities of color can become so conditioned to disrespect institutions associated with the dominant culture that they may give up even expecting to be heard.
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