TAINTED VERDICTS LEAVE EVIDENCE DEBASED AND COURTS SULLIED

LAPD scandal: Every part of the system has played a role in the miscarriage
of justice.

The deepest wound caused by the Rampart Division's corruption reaches well
beyond a few out-of-control police officers to the heart of the criminal
justice system: the courts. Every part of the system--prosecutors, defense
counsel, judges and juries--has played a role in the ensuing miscarriages of
justice. Indeed, in some cases, innocent defendants actually have pleaded
guilty, viewing it as more risky to proclaim their innocence than to admit
to something they didn't do, so sure were they that the system was stacked
against them.

What is the cost in human lives of wrongfully convicting innocents? The
staggering numbers of those currently imprisoned due to the war on drugs may
help explain why even a small percentage of error affects large numbers of
individuals. For example, if only 1% of all convictions were unmerited,
approximately 20,000 people would be wrongfully incarcerated, and another
40,000 would be wrongfully on probation or parole.

The legitimacy of criminal verdicts is based on our shared belief that not
only are trials fair but so are their results. Requiring proof beyond a
reasonable doubt conveys how seriously our democracy views a criminal
conviction. Lawyers are fond of reciting aphorisms such as, "Cross
examination is the greatest legal engine for discovering truth," and, "It is
far worse to convict an innocent person than to let a guilty one go free."
The Rampart scandal exposes how far the reality is from the ideal. As we
have learned from this sad ordeal, the guilty in some cases were actually
the police witnesses, not the defendants. Nor would we ever have found out
the truth had an officer not used it as a bargaining chip to reduce his own
criminal sentence.

Even more shocking, the Rampart phenomenon is only one aspect of a larger
attack on the integrity of criminal verdicts. Technology now poses a serious
threat to our ostrich-like determination to deny that anything is wrong.
U.S. Atty. Gen. Janet Reno has acknowledged the importance of DNA in
exonerating the innocent, and lawyer Barry Scheck's Innocence Project
continues to free defendants whose convictions were often obtained because
of mistaken identifications and false confessions.

In capital cases, where obviously errors cannot be corrected after
execution, it is becoming increasingly difficult to deny the presence of
innocents on death row. Illinois Gov. George H. Ryan recently took the
politically courageous stance of declaring a moratorium on executions to
investigate why more people had been released from his state's death row
than had been executed. Yet the legal bars to relief still favor leaving
verdicts intact.

The cause of each injustice varies, but some common themes can be discerned.
Among the most fundamental is this: The war on drugs and the public's cry
for safety at any cost has been given more weight than maintaining the
integrity of our courts. In an era when constitutional rights are considered
to be mere technicalities, the ends can more easily be seen as justifying
the means. In an effort to clean up our communities, too many of us have
been willing to suspend disbelief in drug-related offenses. Meanwhile, some
police officers have progressed from "testilying" in order to convict
defendants they believed were guilty to planting evidence--without regard to
the niceties of guilt or innocence.

The unspoken assumptions were that other officers would remain silent; that
serious challenges by prosecutors, defense counsel and judges would be rare;
and that jurors would accept the police's evidence at face value,
particularly since many defendants and defense witnesses have unsavory
pasts. Nor should it be a surprise in this environment that prosecutors have
increasingly relied on questionable evidence by co-defendants and jailhouse
snitches who bargain for their own freedom as a condition of testifying.

To address these serious problems, Scheck has suggested impaneling a
national commission based on the model followed in the United Kingdom. A
blue-ribbon task force of the American Bar Assn. would be an appropriate way
to ensure that failures in the system provide valuable lessons on how to
prevent future injustices.

In addition, the crisis of confidence caused by the Rampart scandal must be
dealt with closer to home. However, any independent review is bound to fail
if it is aimed solely at the police. Rampart lays bare our worst nightmares
about an entire criminal justice system run amok. What we need now is
leadership, not rhetoric. We might begin by asking why have we spent so much
of our resources prosecuting and incarcerating nonviolent drug
offenders--disproportionately people of color--and not enough ensuring that
only the guilty are convicted.

Myrna S. Raeder Teaches at Southwestern University School of Law and Is the
Immediate Past Chair of the Criminal Justice Section of the American Bar
Assn