It is hard for most people to imagine being convicted of a crime they did not commit. Yet this scenario is not only possible, but far more likely than it should be. Sometimes it is just a matter of being in the wrong place at the wrong time, or witnesses mistaking what they thought they saw. Perhaps you were the last person to see the victim alive, and the police suspected you and did not follow other leads, or your lawyer did not provide an adequate defence, or the prosecution did not inform the defence of contrary evidence. Or perhaps the evidence was flawed. Many circumstantial cases still result in a conviction, despite the criminal justice system demanding guilt beyond reasonable doubt.
Systemic factors regularly result in the conviction of innocent people: incorrect eyewitness identification, tunnel vision, bad lawyering, withholding exculpatory evidence, incorrect scientific evidence, false confessions, informant/snitch testimony. Eyewitness identification, which can so convincingly influence a jury, is the major factor in wrongful convictions later corrected by DNA evidence in the United States.
Imagine if this happened to you. You know the truth: you are innocent; someone else is not. At least two people know the truth – the perpetrator and you – but to the rest of the world the case is closed and you are guilty. Your innocence is invisible. You can shout and scream to those who will listen but, even if they believe you, what can they do – how can they correct a terrible mistake in a system that has concluded through detailed, sophisticated processes that you are guilty?
The Griffith University Innocence Project was established a decade ago to assist wrongly convicted people in Australia. It is part of an international movement that involves more than fifty pro-bono organisations. Hundreds of innocent people have now been exonerated, most from the United States, but also from England, Canada and elsewhere.
The stories are compelling and heart-wrenching – stories of lives snatched away for years, sometimes decades. Patrick Nicholls told the English Criminal Cases Review Commission: 'It was a nightmare…It lasted twenty-three years. Looking back, I don't know how I'm still here. I used to wake up at night, bathed in sweat, stuck to my mattress…And nobody understood; only the other innocent people in prison – and there are a number of them…You never give up hope, I never gave up hope in twenty-three years.'
Rubin 'Hurricane' Carter was released from prison in 1985, after serving almost twenty years – many of them spent in solitary confinement, for refusing to act like a guilty man – for a triple-murder he did not commit. His story became the film The Hurricane, starring Denzel Washington, and it highlighted not only the tragic circumstances of the conviction and incarceration, but Carter's incomparable spirit. That spirit has been devoted to working for other wrongly convicted people since his release. Rubin endorsed the Griffith University Innocence Project in 2003, and his haunting statement, 'Freedom is something that can be taken for granted. Until it's taken away,' reminded us that the nightmare of being wrongly convicted can happen here.
On 4 January 2011, Cornelius Dupree from Texas was declared innocent after thirty years in prison for rape and robbery – crimes he did not commit. DNA testing finally highlighted his wrongful conviction, thanks to the long-term preservation of the evidence in his case. About a dozen fellow 'exonerees', following a new tradition, waited outside the prison gates to greet Dupree. Another 266 American exonerees have been released with the help of DNA innocence testing. Their experiences have enabled the criminal justice system to learn what went wrong in specific cases, and identify systemic causes of wrongful conviction.
The voices of the wrongly convicted are powerful, and they remind us not to ignore those who claim innocence. They remind us that the system needs to examine claims of wrongful conviction, so that innocent people do not languish in prison or live with the stigma of a wrongful conviction for the rest of their lives. They remind us that they too have been victims of a system that got it wrong.
In April 2002, I attended a wrongful-conviction conference at Harvard University. It was the first time I had heard the stories of the wrongly convicted. I listened to a father, wrongly identified and convicted of rape, who constantly read and researched the law, and eventually obtained a DNA test to prove his innocence. 'Are you sure you have enough blood?' he asked when they finally came to take a sample for the test. He met his daughter when she was fourteen. He had been in prison since she was a baby. Every exoneree has a horror story. As I listened I marvelled at their ability to withstand the injustice and their ability to forgive.
I remember listening to the beautiful Jennifer Thompson describe how she was horrifically raped, survived the vicious attack, and how her eyewitness testimony and incorrect cross-racial identification resulted in the conviction of an innocent man, Ronald Cotton. She described her apology to Cotton, his forgiveness, and the firm friendship they and their families now share. I think of the mother who fought for twenty years to prove her son's innocence, while raising her other children, who had to endure the tormenting comments of others.
I remember speaking to the remarkable Betty Anne Waters, whose story became the Hollywood movie Conviction, released in Australia in February this year. Waters told me of the lengths she went to in her efforts to prove her brother, Kenny, was innocent – putting herself through law school and gaining admission as a lawyer before, with the Innocence Project in New York, achieving her brother's exoneration eighteen years later. He died six months later. She emphasised that no one wins when the wrong person is convicted, and the issues last long after release. The 267 American DNA exonerees spent approximately 3,471 years in prison; seventeen were on death row – and this is the tip of the iceberg. When they are released, many face financial, emotional and psychological trauma and distress, in addition to the practical difficulties of re-entering a world that has significantly changed.
As I listened to these stories, it was apparent just how much time and effort it takes to achieve exonerations. Many won't succeed. I remember thinking that Australia would be different. I was certain that the battle for DNA innocence testing in the United States would not be repeated in Queensland, in Australia. That our more conciliatory system would be reflected in a co-operative approach to uncovering wrongful convictions. That Australia's approach to correcting wrongful convictions would be a model for other countries to emulate.