What's it like to free the wrongfully convicted ? This article in today's New York Law Journal gives you a nice sense of it.

How sweet it was that day two weeks ago when two young lawyers and the man whose freedom they restored were finally able to do something as simple -- and anticlimactic -- as sit down together over coffee at a deli just around the corner from the Bronx Supreme Court.

Don't miss the two part series in the St. Petersburg Times titled The Innocence Defense:

A little over two weeks ago, Rudolph Holton walked away from death row. This is why he spent 16 years there: Tampa police never pursued a suspect accused of raping the murder victim. A jailhouse snitch said Holton confessed, though later he said he made it up to get a break in his own case. The prosecutor told the jury a hair found on the victim was Holton's, but he couldn't prove it. The judge refused to wait for a key defense witness. To set Holton free, it would take a lawyer who was too young and too reckless to know what she was up against.

Don't miss reading Freedom Row in the New York Times Magazine section today.

"In recent years, DNA evidence has exonerated 123 people in the United States convicted of violent crimes, including 12 who had been on death row. In most of those cases, as with the men photographed on the following pages, the cause of their wrongful conviction was mistaken identification by a victim or eyewitness." "Standard police procedure encourages witnesses to identify suspects through the use of photographs and lineups. This process relies on the assumption of precise visual memory. But through exposure to composite sketches, mug shots, Polaroids and lineups, eyewitness memory can change; victims may think they recognize a face, but it will not necessarily be the face they saw during the commission of the crime."

There are also video clips from "The Innocents," a documentary directed and produced by Taryn Simon, in collaboration with the Innocence Project, featuring interviews with the exonerated prisoners profiled in the magazine.

We wrote an article for non-lawyers explaining wrongful convictions and eyewitness testimony a few years ago that is still available here.

Thomas Breen was a Chicago prosecutor in the 1970's. He prosecuted and won first degree murder convictions of two men who allegedly had killed a nine year old girl.

Breen is now leading the charge to vacate the men's convictions and obtain their release from jail:

I would rather [this case] come back 25 years later and find out I'm dead wrong than those guys spend one more day in jail," he said in an interview. "I don't see anything wrong with correcting your errors when the errors are shown. "If these guys didn't do it--and all the evidence seems to indicate we are dead wrong--then it's devastating."

Larry Marshall, director of the Center or Wrongful Convictions at Norwestern University, whom Breen turned to when he began having doubts about the men's guilt long after the trial, said of Breen:

"Did Tom make a mistake in this case?" Marshall asked. "It certainly appears so now . . . But one way you measure a person's humanity is by how someone remedies mistakes. And by that measure, Tom's actions in this case are heroic." "It's about as noble a thing," Marshall added, "as I can imagine."

We agree. Breen deserves a Champion of Justice award. We hope more prosecutors follow his example. DNA testing, urged by Breen and asked for by Marshall, proved the men were not the culprits.

Now, Breen is struggling to reconcile his actions at the 1977 trial with the results of the DNA tests.

"I'm avoiding thinking about this," he said. "When I begin to think that I caused two innocent people--" His voice trailed off as he was unable to finish the sentence. He pressed his hands to his face momentarily, then looked up.

"There are no words to describe what's been done to an innocent person who has been incarcerated," he said. "I want to believe somehow that we were right, but to do that I'd have to be mentally and intellectually dishonest.

"The only thing I can say that I did good was that I brought this up to somebody who could maybe fix it."

In addition to being a hero, we'd call Breen a true mensch.

From the National Conference of State Legislatures:

The certainty provided by DNA technology has prompted legislators in 25 states to pass laws to allow DNA testing after a conviction, under certain conditions.

Laws vary as to which offenders are allowed post-conviction testing, who pays for the test and whether evidence susceptible to DNA testing must be preserved.

Delaware, Florida, Idaho, Illinois, Maine, Minnesota, New Mexico, New York, North Carolina, Texas and Virginia allow those convicted of any crime to request DNA testing. Arizona limits petitions to those convicted of felonies, as do California, Louisiana, Michigan, Oklahoma and Utah. Some states, including Missouri, Nebraska and Washington, restrict testing to those presently incarcerated or in the custody of the state's department of corrections. And still other states, such as Indiana, Maryland, Oregon and Tennessee, limit testing to those convicted of certain felonies. Connecticut's law allows the use of newly discovered DNA evidence as a basis for obtaining a new trial.

Not all measures mention who pays for the testing. The majority of states that address cost allow the court to order the petitioner to pay for the DNA test. Exceptions, including the ability to pay and whether the petitioner is incarcerated, can shift the cost to the state.

These measures depend upon the quality and availability of forensic evidence, making preservation and storage of DNA evidence an issue before legislatures, as well. Arizona, Indiana, Tennessee and Utah require that evidence be preserved while the post-conviction proceeding is pending. Laws in Florida, Illinois, Louisiana, Maryland, Virginia and Washington require that evidence be retained for a certain time. California, Michigan, Nebraska, North Carolina, Oklahoma and Texas require evidence be kept during the entire incarceration period. Florida, Texas and Virginia retain evidence in capital cases until the sentence has been executed.

Legislation also is addressing standards for storage and what evidence must be preserved. Under a Virginia bill passed this year, evidence must be preserved under standards set by the Department of Criminal Justice Services. The measure also allows preserving samples of the evidence if storage of the entire amount is impractical and bans appeals when testing is denied. North Carolina and Oklahoma also permit representative samples. Other states allow destruction of evidence after the defendant has been notified.

The power of DNA to exonerate has captured the attention of Congress, as well. An Innocence Protection Act has been introduced in both houses, and would require states, in order to receive federal money from the DNA Analysis Backlog Elimination Grant to certify that DNA tests are available to individuals convicted of certain crimes and that evidence has been preserved.

We need Congress to pass the Innocence Protection Act. Contact your Congresspersons and Senators now. With over 265 bipartisan sponsors in Congress, the bill is being held hostage by a few Republicans, most notably Utah Senator Orrin Hatch. Let Hatch and your elected officials know this is an issue of importance to you. Help get this act passed.

Don't miss reading the Washington Post's editorial today Just Repeal It . Virginia has the strictest limitation in the nation on inmates' rights to bring innocence claims before the Courts--claims must be brought within 21 days of conviction.

The Virginia Supreme Court proposed a change in the rule to correct this inequity. But the matter got tossed to the legislature, where the Crime Commission, headed by Rep. Kenneth Stolle of Virginia Beach, has proposed a bill to increase the time limit to a measly 90 days while further study is conducted. The Post correctly states:

The 21-day rule is one of the truly irrational aspects of the commonwealth's criminal justice system. Under its terms, even indisputable evidence of innocence is off limits. After a conviction becomes final, Virginia law simply doesn't care whether it was accurate or not. The General Assembly recently created a narrow exception for biological evidence, but that only raises the broader question of why other compelling evidence of innocence should remain beyond review. To its credit, the Virginia Supreme Court has been troubled by the 21-day rule, and it recently proposed an amendment that would allow courts to consider non-biological evidence after conviction in certain cases as well.

Sen. Kenneth W. Stolle (R-Virginia Beach), who heads the [Crime] commission, has introduced "place-holder" legislation that would relax the rule slightly while the legislature studies the issue. But his place-holder legislation is hardly better than no change at all. And there is no guarantee either that the legislature's final product will be as constructive as the court's proposed rule, or even that inertia will not render the temporary measure permanent.

Mr. Stolle's bill would, if enacted, turn the 21-day rule into a 90-day rule. But in major cases in which Virginia convicts have turned out to be innocent, the critical evidence has never surfaced during the 69 extra days this proposal would allow. Rather, evidence of innocence generally comes to light years later. The fundamental problem is in any rule that, after any arbitrary period of time, keeps imprisoned an innocent person who can prove his innocence. Mr. Stolle says he is willing to be flexible about the interim measure. And if the General Assembly wants to tackle this problem, its involvement is certainly welcome. But it would be a great shame if legislators blocked the Supreme Court's proposal and then dithered or produced no meaningful change.

We have written about this before, here. Thanks to PG for bringing it to our attention today in our comments section.

Here are the stories of the 13 men who were wrongfully convicted and sentenced to death in Illinois since 1977.

Illinois's exoneration rate of 4.9% is the highest in the nation. But other states have a problem as well. From Senator Patrick Leahy's statement today on the blanket clemency order:

Some opponents of reform will argue that Illinois is a special case. But in fact the only thing special about Illinois is that its governor took a hard look at the system. This is far more than 'an Illinois problem.' The death penalty system is fundamentally flawed nationwide. That is why we need national reforms to prevent the sort of terrible choices that governors now face. The bipartisan Innocence Protection Act is a modest and practical package of reforms. Last year more than half the entire House of Representatives cosponsored it. But the House Republican leadership would not allow even a committee vote on it, let alone a debate. The Illinois cases are a wake-up call, telling Congress and the Administration that reforms are urgently needed."

Chicago Tribune Columnist Eric Zorn says that Illinois Governor George Ryan's sincerity is hard to doubt if you do the math.

Any political strategist who suggests that Ryan could reverse his fortunes by crusading against the death penalty will be fired for incompetence. Even supposing that Ryan doesn't care one way or the other about the death penalty, it looks like the absolutely wrong issue on which to launch a comeback, persuade the law to go easy on him and get reporters to stop writing so much about his sleazy past.

Zorn notes Ryan's popularity has dwindled, articles about his alleged misdeeds and the indictments of those in his Administration have multiplied, most people support the death penalty making it an unpopular issue to begin with, even support for Ryan's moratorium has declined. So what gives? What's really motivating Ryan?

That Ryan stayed the course anyway suggests three possibilities. One, he is insane. Two, he has a political and legal death wish. Or three, he really is profoundly, morally troubled at the idea of giving the power to kill to an arbitrary, error-prone system presided over by officials who can't admit when they're wrong and are stubbornly resistant to reform.

Never mind what he says or what his supporters and detractors say. Never mind the promise of international plaudits, the slough of troubles he will wade into when he leaves office Monday or the cohort of chortling cronies he will leave behind in their soft new state jobs.

To see George Ryan's heart on the death penalty, look at the numbers.

We're behind door number three.

"A homeless man who killed himself in a police holding cell hours after he was charged with rape has been cleared of the crime through DNA evidence, police said. Forensic evidence collected after the alleged rape does not genetically match that of Wade Evan Deemer, who hanged himself with his shirt at the West Chester police station in August, investigators said Tuesday."

"It's not his DNA," police Sgt. Thomas Yarnall said. "It appears that he did not do it."

Via Walter In Denver:

"South Dakota Governor Bill Janklow has pardoned libertarian and AIM activist Russel Means. From the Sioux Falls Argus Leader:"

"The Means pardon deals with a felony conviction for riot to obstruct justice. The law was repealed by the Legislature in the late '70s, but with no retroactive provision for those convicted, Means said. He recalls the incident in the Sioux Falls courtroom."

"I refused to stand up for Judge Joe Bottum. There is no crime for not standing up for a judge, but it is a polite show of respect. So he sent in the riot police to deal with us, and we (Means' supporters - W.) beat up the riot police," Means said. "I did my time, one year, three days, 22 hours in the Sioux Falls penitentiary."

We agree with Walter that while Means might have committed other transgressions in his younger days, "The charge for which he was actually imprisoned is bogus. Federal and local authorities pulled out all the stops to try to convict Means of something, anything, but that was the only charge that stuck."

The Chicago Tribune wisely calls for a review commission in its editorial, Four More Terrible Mistakes. In the case under discussion, four men were imprisoned for a murder authorities now know they didn't commit. These were not death penalty cases.

"These were the largely unexplored next layer of the onion, suggesting once again that problems exist throughout the criminal justice system, not just in the way capital punishment is administered." "The case seemed airtight. One man confessed. Two pleaded guilty after they had spent four years in jail awaiting trial. A key witness had provided many details implicating the men."

Only now it turns out the men could not have committed the murder. The confession was junk and the key witness is now charged with making false statements.

"All of these cases cry out for safeguards that must be implemented across the state."

"One is the videotaping of interrogations and confessions taken in police stations. A videotape of the entire questioning process may have provided critical information that would have prevented the wrongful convictions in some of the cases cited above."

"The other is the need for a formal, public review process to examine these accumulating cases of wrongful convictions and other cases where a conviction might be suspect."

"Models already exist. The United Kingdom and Canada appoint retired judges and others to conduct extremely thorough investigations of wrongful convictions. They are accorded subpoena power and stage exhaustive public hearings on various issues that arise from each case."

"County prosecutors in St. Paul, Minn., San Diego and Austin, Texas, have undertaken their own reviews of violent crime cases...."

"Perhaps the best model for Illinois is the National Transportation Safety Board. When planes crash, the independent NTSB swoops in, conducts a thorough investigation by experts and reveals its findings to the public."

This is what Barry Scheck, Peter Neufeld and Jim Dwyer called for in their book, Actual Innocence. It's more than high time we do it.

The Miami Herald is running a series critical of confessions obtained by police in murder cases. The story contends that 38 murder confessions have been thrown out since 1990. (via the Guardroom).