Tuesday, October 4, 2011

Prosecutor Shares Perspective on Wrongful Conviction Committee Report

Below is the full text of an op-ed in the Harrisburg Patriot-News written by Dauphin County District Attorney Edward Marsico concerning the Advisory Committee on Wrongful Convictions.  Last Friday, I wrote the first in a series of Blogs for The Cautionary Instruction at the Pittsburgh Post-Gazette legal web page Ispo Facto on the subject of the Committee report.

Best way to help wrongly accused is to identify and convict the guilty

Patriot-News Op-Ed
Edward M. Marsico Jr.

As district attorney of Dauphin County, it is my duty to seek justice for all people. No one wants to see an innocent person convicted of a crime he didn’t commit.

No one wants to see a guilty person go free, nor should anyone take advantage of or manipulate the system to achieve an unjust outcome. Recommendations in a report recently issued by a Senate-created Advisory Committee to Study the Causes of Wrongful Convictions could damage the criminal justice system rather than improve it.

The committee effectively said that because it believed 11 individuals — out of 5 million prosecutions — were exonerated, the criminal justice system has to be radically changed.

The faulty assumptions and predetermined conclusions from the academics and criminal defense attorneys that dominated the committee produced a fundamentally flawed report that deserves additional scrutiny.

As a member of that committee, I believe that ensuring convictions are reliable is critically important, but so is making sure that we don’t create even more innocent victims of crime by wrongfully handicapping law enforcement. In fact, the committee never completed its original charge to study alleged wrongful convictions.

Instead, it focused on 11 cases previously highlighted in law journals and permitted claims of innocence to go unchallenged, despite facts that suggest otherwise. In many of these cases, these individuals might have been exonerated, but not all fit the definition of being factually or actually innocent.

Jay Smith is one of the report’s “exonerees” and a familiar case to central Pennsylvanians. He was a high school principal convicted of murdering a teacher and her two children. While Smith had his conviction overturned because of an alleged failure to turn over evidence to support a farfetched defense theory, that ruling did not establish his actual innocence.

In a subsequent civil case, a federal appeals court said “[O]ur confidence in Smith’s conviction is not diminished in the least. We remain firmly convinced of the integrity of those guilty verdicts.”

That is a far cry from being found factually innocent. The committee made incorrect assumptions about police practices and recommended legislation that will dictate broadly stroked policies on how police departments investigate crimes.

Instead of allowing local police to develop their own best practices, the committee wants to mandate how every police department, regardless of size, handles a criminal investigation.

Police and prosecutors want to do the right thing. And I believe they are better suited than the criminal defense bar in making those decisions. For example, in Dauphin County, when attorneys for pedophiles attacked the interviewing process of children who were sexually abused, our Children’s Advocacy Center became the first in the commonwealth to videotape interviews of those children.

Since that time, the false assertions that these children were coached have disappeared. Likewise, when allegations are made that individuals are wrongfully convicted, prosecutors have a history of taking immediate action.

When evidence surfaced that serial killer Joey Miller might have committed a murder for which another man had already pleaded guilty, then district attorney Rich Lewis took immediate action to release that man from prison.

Years later, I worked closely with Patriot-News reporter Pete Shellem when he believed an individual had been wrongfully convicted. We gave Shellem unfettered access to our files, and in two of those cases my office took action to dismiss charges, as did Adams County District Attorney Shawn Wagner in another case Shellem had investigated.

In truth, the criminal justice system deals with overwhelmingly more innocent victims of criminal acts than it does with wrongfully convicted defendants. Every year, innocent people are victimized because of wrongful outcomes in the criminal justice system.

In fact, according to the U.S. Department of Justice, from 700 to 800 of the people arrested each year for murder have a prior homicide arrest. It is even more common for those charged with and convicted of rape to have a prior rape arrest.

Innocent victims of crime should be on our minds when we consider reforms. Changes that benefit guilty criminals through the creation of legal hurdles for cops and victims do not improve our system.

For that reason, my colleagues on the committee who work in law enforcement and represent victims prepared an independent report that further examines the cases involving alleged wrongful convictions and presents measures, including new laws allowing the increased collection and use of DNA evidence prior to trial, a pilot program on electronically recorded interrogations and expanded police training on identification procedures.

We look forward to working with all involved to develop evidence-based proposals that will truly improve the integrity of convictions in Pennsylvania. The best way to clear the wrongly accused and prevent more innocent people from becoming crime victims is to swiftly identify and convict the guilty.

EDWARD M. MARSICO JR. is Dauphin County district attorney and immediate past president of the Pennsylvania District Attorneys Association.

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