By David B. Hirsch
James Bain was 19 in 1974 when he was convicted of kidnapping and raping a child. He had no criminal record. The child, a 9-year-old boy, identified Bain as the man who attacked him. Years later, the boy testified in a sworn deposition that he had been asked to pick out Jimmie Bain.
Bain spent 35 years in prison. Then the Innocence Project, an organization devoted to freeing the wrongly convicted, got involved. They were able to find physical evidence of the crime: the boy's underwear had been preserved by the police. There was semen on the boy's underwear. DNA tests, not yet available in 1974, proved that the semen did not belong to Bain.
Bain was released from prison last week. He is 54 and has a white beard.
Before you get weepy about our system's ability to fix its mistakes, think of all of the lucky breaks it took for James Bain to get justice.
The boy got older and told the truth.
The Innocence Project had the time and resources to get involved.
The police kept the underwear. They preserved it properly, so the DNA didn't degrade over the decades.
The DNA tests were conclusive (the prosecutor's office repeated the tests done by The Innocence Project's experts. They got the same results).
A prosecutor's office was willing to admit a mistake.
A judge was willing to listen.
And, most importantly, James Bain was sentenced to life imprisonment. He didn't get the death penalty.
If any of these lucky breaks hadn't happened, James Bain might not be free today.
If the last lucky break hadn't happened, he might be dead. The United States Supreme Court didn't invalidate the death penalty for child rape until last year.
Bain was lucky, as well as innocent. Others had no luck at all.
We as a nation have executed 1,188 people since 1976. We don't and can't know how many of them were wrongly convicted. They generally didn't get help from The Innocence Project. They often didn't have lawyers capable of the enormous demands of a death penalty defense. They often didn't have lawyers capable of trying a routine case.
They at times faced dishonest police, prosecutors or judges. They more frequently faced police, prosecutors, or judges who were uncaring or just too damned sure of themselves.
They rarely had the benefit of DNA analysis. A few months ago, the Supreme Court decided prisoners do not have a due process right to DNA testing, even if the tests could prove their innocence.
Of course, DNA analysis doesn't help when there is no physical evidence - a piece of clothing, a gun - to be had. The Supreme Court has decided that police usually have no duty to preserve "potentially useful" evidence. Besides, what happens in, say, a murder case where the gun isn't recovered? There's nothing to analyze. In the vast majority of cases there is no DNA. If there is a mistaken ID, the person convicted is out of luck.
Of course, the unjustly convicted can appeal. They can appeal the prosecutor's errors and the judge's bad ruling. But nobody can appeal a jury verdict on the grounds that it's wrong. Juries have the right to believe falsehoods, because appellate judges are no better at figuring out the truth.
Criminal defendants used to have one last opportunity to get unjust convictions overturned: a habeas corpus petition, requiring a federal court to review a state court conviction for error. But in 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, creating a labyrinth of procedural barriers to getting habeas corpus relief. These days, you need more than a good issue and a good lawyer to get habeas relief. You need a magician.
Last month, columnist D. Allan Kerr wrote in these pages that more crimes ought to be subject to the death penalty in New Hampshire.
Kerr was writing about the Kimberly Cates case, a horrific case in which a mother was murdered and her young daughter badly injured. "If you're a man," he wrote, I want you to try to replace Kimberly Cates in your mind with your own wife, and her daughter with your daughter. ... Now give me your opinion of the death penalty."
Here's mine:
The five young men charged with murdering Kimberly Cates probably aren't rich. They probably can't afford the best lawyers.
There may be eyewitness testimony. But scientists have taught us that eyewitness testimony stinks. So do hair analysis, fiber analysis, fingerprint analysis and many of the other benchmarks for the finding of guilt that we grew up believing in. The National Academy of Sciences published a study this year saying terrible things about all of them.
Even DNA evidence can be contaminated, mislabeled or falsified. There's been a scandal running for years over the Houston crime lab's ineptitude at handling and analyzing the stuff. And, as the New York Times pointed out a few years ago, "More defendants from Harris County, of which Houston is a part, have been executed than from any other county in the country."
The Times' article focused on Josiah Sutton, convicted on the basis of contradictory eyewitness testimony and false DNA evidence. "If this were a death penalty case," said a Houston law professor, "Sutton may well have been executed by now."
So after D. Allen Kerr gets finished thinking about being Kimberly's Cates' husband, maybe he could think about being Josiah Sutton, or James Bain.
The New Hampshire Legislature has established a Death Penalty Study Commission. Some legislators want to end the death penalty. Others want to expand it.
I know our legislators will be thinking about Kimberly Cates. They should be. But perhaps they can spare a thought for Sutton and Bain. What if they were sentenced to death? As it is, their convictions have been erased and they can get on with what's left of their lives. That only works because they're still alive.
When we can guarantee truth and guarantee justice, then maybe we can discuss the morality of the death penalty.
Anybody have any guarantees?
