12.
The Innocence Project, an NGO devoted to the exoneration of people wrongfully convicted, puts it plainly: “These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed.”
Back in 1992, when the Innocence Project was founded, DNA testing was a new technology, and co-founders Barry Schenk and Peter Neufeld thought that it could be used to prove the innocence of convicted criminals. At the same time, new research was calling into question the reliability of eyewitness testimony. Schenk and Neufeld had worked as public defenders in the Bronx, where they freed a man named Marion Coakley who had been sentenced to fifteen years. Although multiple witnesses, including his priest, supported his alibi, the victim and another person with her at the time of the event stated that she had seen the face of her attacker. Schenk and Neufeld used DNA testing to prove that Coakley was not that attacker, and his conviction was overturned.
Since 1992, the Innocence Project has freed 173 of the 321 people exonerated by DNA testing in the United States. It is a founding member of the Innocence Network, an affiliation of more than sixty-two independent organizations dedicated to overturning wrongful convictions and improving the criminal justice system. Among other successes, the Innocence Project has helped to reform eyewitness identification procedures to reduce the rate of misidentification in a number of states, including New Jersey, Ohio and North Carolina, and in major cities including Boston, Minneapolis, Dallas ,and others, and helped prisoners with claims of innocence to apply for post-conviction DNA testing in all fifty states.
—
Why do wrongful convictions happen? And how often do they happen?
Across the world, the death penalty is used to target political opposition and religious and social minorities. In South Korea in recent decades, two former presidents have been sentenced to death, political retribution by their successors after power changed hands. It happens to presidents, but much more often to ordinary people. Governments rely on a lack of reporting of these cases, as well as the typically poor quality of public legal defense and a lack of expertise in death penalty jurisprudence on the part of both defense lawyers and the judges. When the accused is poor, the chances of a wrongful conviction soar!
In the United States, a sophisticated and strong democracy in so many ways, wrongful execution is not a rare event, but a “systemic problem.”
I have spoken with wardens, officials, people sentenced to death, relatives of victims and of convicts, police officers and observers, chaplains and spiritual advisers on death row, people in charge of the system, and human rights activists. I have asked them all how many of the people on death row might, in their opinions, be innocent. Their answers have led me to conclude that as many as one out of seven people who are executed did not commit the crime for which they were sentenced to death.
—
“I am sorry.” It is the first thought that comes into your mind when you meet someone who has spent years on death row and is simply innocent.
Whenever I meet a person who has spent a significant part of his or her life on death row, I try to say something like this, simple and true and sympathetic: “I am sorry for what happened to you.”
And every time I get a strange glance and something like the same answer:
“Why?”
“I am a blessed human being.”
“I am alive.”
“I have understood a lot of things about life.”
As Nick Yarris put it to me while walking down the center aisle of the Basilica of Santa Maria in Trastevere after our prayer service one evening, “I was an asshole, a jerk. I am not one now.”
Nicholas Yarris—Nick—is very direct, not ashamed of anything. Tall, bald, and still handsome (he showed me pictures of himself with black hair, pictures from his life “before”), he speaks slowly and calmly, without drama, even if tears well up in his eyes. But I can’t forget the evening of the Cities for Life World Day at the Coliseum. Afterwards, there were five or six of us walking back along the Via dei Fori Imperiali, a road that cuts the Roman Forum in two through what may be the most interesting archaeological area in the world, towards the Piazza Venezia, a sort of crossroads at Rome’s historical center. We were all walking side by side, but Nick was walking backwards. Sometimes he was taking pictures, other times just walking—but backwards. It was a little strange, but none of us said anything about it. I have no right to judge, I said to myself, because there is so much suffering behind it. Then Nick spoke up, as if answering the unspoken questions in our minds. “Do you think it’s strange? That I’m a strange guy? I haven’t seen such a moon for twenty-two years, haven’t seen this wide, infinite sky with stars, or this air. And the Coliseum all lit up. I don’t want to miss one second of this. That’s why I’m walking backwards . . .”
Nick spent 8,057 days on death row, and he read about six thousand books—one every day or two. The rest of the time he tried to keep from being killed by the State of Pennsylvania.
Another friend of mine, Mario Flores, who spent twenty years on death row in Illinois, says that he doesn’t remember how many books he read there: maybe sixty or seventy-five, books about religion, God, and art mostly—“Italian Renaissance art, and Diego Rivera, Frida Kahlo, the Mexican surrealist.”
These two innocents are very different cases. Yarris was a drug user. Flores was a top young athlete from a Mexican-American family in Chicago, who was on track to represent Mexico in diving at the Olympics (and whom his family wanted out of bad circles). He was a ladies’ man who had one foot in the gang culture of Chicago’s poor neighborhoods and the other in the more elevated circles of the school his family had made sacrifices to send him to.
Nick Yarris was arrested on Dec 20, 1981, miles away from the scene of the rape and murder of Linda Craig, who had been kidnapped five days earlier in the parking lot of the Tri State Mall in Delaware, near the border with Pennsylvania. Nick was stopped for a traffic violation; but he was high on methamphetamine, and by the end of that day he was in a Delaware county jail. Bail was set at $100,000.
Mario Flores was charged in November 1984 for a crime that had been committed eleven months earlier, in the early hours of New Year’s Day. Mario was at a New Year’s Eve party at the time, and many witnesses placed him there. But he had loaned his car for the night to two alleged co-conspirators who both testified against Mario and thus obtained immunity from prosecution for themselves. According to the testimony, Mario and two companions were driving in Chicago at 2 am on January 1, 1984, when they pulled over at the scene of a bad car accident and found a man and a woman in a heated argument about the collision. Supposedly, Mario and his companions stepped in to defend the woman, and the man then threatened Mario and the woman. He told them that he belonged to a notorious street gang, and went to his car to get a gun. According to the testimony, Mario then shot the man several times, killing him, and one of his companions stole a necklace from the deceased after the attack. Despite his alibi, Mario was charged with murder in the course of an armed robbery, a crime then punishable by death in Illinois.
Nick’s case, as he relates in the book he wrote from death row, shows how one can get drawn into the world of capital punishment for absurd reasons. It can happen to anyone. Nick was thrown in jail. After a week in jail—a week of “cold turkey” withdrawal from methamphetamines—he tried to hang himself, but was stopped. A few days later he read about Linda Craig’s death in a newspaper that he found in the jail, and although he knew nothing about it, he figured that if he made up a story about the crime and gave it to the police they would let him go. So he invented one about a drug buddy of his doing the killing, a man he thought had died from a drug overdose. But it turned out the man was alive, and disproved Nick’s story.
Now the police turned on Nick and pressured him into confessing the crime himself. It was winter. They made him strip to his boxer shorts, settled him on a mattress, and turned a group of gang members on him. “I was verbally abused, pissed on, covered with freezing water, for days. This was how it started,” Nick explains. Then he was charged with the abduction, rape, and murder of Linda Craig. He had a receipt that showed he was in a store twenty miles from the scene the night the crime took place, and the store’s owner remembered seeing him there. But those pieces of hard evidence were not enough.
The blood on the victim’s clothing was tested for blood group, sub-group, and secretor status. From this test, the prosecution concluded that the murderer had type B-positive blood and a B-positive secretor as well. As it happens, Nick Yarris is B-positive. So is 15 percent of the world’s male population. So was Linda Craig’s husband. And because she and he were unable to have children, they had no reason to use contraception, meaning that the semen found inside her after the rape could well have been his. Even so, Nick was convicted and sentenced to death in 1982.
Mario was nineteen years old when he found himself living in a windowless cell ten feet square for a crime that had nothing to do with him. He had had the support of his family and that was key. They’d sold their house to pay for his legal expenses. Once in prison, Mario studied law by correspondence course and became a licensed legal assistant. He started to defend himself and some of his fellow death row inmates, in four instances helping them get off death row. And he became an accomplished painter, a real artist. Instead of going to the Olympics, he went to Illinois’s death row, where he dove into colors. He had to find a way not to become crazy—to fight and, somehow, to win. “Painting saved my life,” he told me. “I started to create the world I was living in, to make the walls of my cell disappear.”
Two years after he was convicted, Nick considered killing himself again, this time with a razor blade. He failed, and that’s when he decided to fight his wrongful conviction, that he would not rest until every angle had been tried. He decided that he could not cause any more pain to his family. “My oldest brother suffered brain damage in an accident when he was eighteen and became an alcoholic,” Nick told me. “My youngest brother died of an overdose. I was a drug addict myself. Why add to the pain? Why become, as they said I was, a killer, of myself or of other people, someone enslaved by rage? So I decided just to become a man, a different man, a good man. For my parents, for myself.”
A DNA test would have exonerated Nick from the beginning, but in 1982 these tests were primitive and rarely performed. He was convicted and—because the combination of rape, abduction, and murder suggested an extraordinary level of malice—sentenced to death.
Nick first learned of the exonerating potential of DNA in the Philadelphia Inquirer on March 20, 1988—after six years on death row. Through his lawyer at the time, Joseph Bullen, he asked for DNA analysis of the evidence in his own case. Due to the loss or destruction of a great deal of the evidence, and due to the state’s repeated refusal to examine other slides related to the case, it took more than fifteen years for Nick to obtain the results that led to his exoneration.
Nick became the first death row prisoner in Pennsylvania to be discharged by a DNA test.
Nick and Mario each spent more than twenty years on death row, although neither of them had had anything to do with the crime of which he was convicted, or even been near the crime scene.
—
“I thought of suicide almost every day,” Bill Nieves told me. Nieves was an innocent man who was wrongfully convicted and sentenced to death in Pennsylvania, where he spent six years on death row. In 2000 he was exonerated after a retrial—the eighty-seventh person in the US to be exonerated by DNA evidence.
“The most difficult thing is not to accept yourself as the sub-human the system tells you you are every day on death row. In prison, everything around you says that: the shouting, the violence, the low pay for your work, and having to pay a lot of money simply to get treated when you are sick—often getting the wrong treatment. It is natural for the system to do that. Once it’s agreed that you are an animal, a sub-human, the system has no problems getting rid of you when the time comes, sees no contradiction in human beings doing this to you as a sub-human, and no reason to be humane.”
Bill Nieves was convicted of capital murder in 1994, but was released after a new trial in 2000. Compared to Nick, he was lucky. “I know I couldn’t believe it when I received a call from my lawyer saying, ‘They’ve agreed to a retrial,’ and I couldn’t believe the happiness of the other people on death row for me, of the other sub-humans when they heard me shouting, ‘Retrial!’”
I asked him, “How did you feel and what did you do on the first day after your release? “
“I went to my relatives’ place. There was a sofa in the living room for me. That night I didn’t sleep. Not one minute all through the night. Every once in a while I got up and went to the door and turned the handle to check that it wasn’t locked. I knew it wasn’t. But I couldn’t believe it. I did that all night long.”
About the appeals process, Nieves has this to say: “To those of you who believe that the appeals courts weed out unconstitutional convictions, and/or look for instances where someone is saying, `Hey, I can prove my innocence,’ you believe wrongly. The state courts are interested in protecting convictions. The federal court is left to weed through the morass of deceit on either side as appeals proceed. Period.”
Nick Yarris confirmed this. “Starting in 1988,” Nick explained, “I fought to get a court, any court, to listen to me about how I had uncovered facts that showed I could not have committed the crime. Not a day, not a single day went by that I wasn’t pushing to get my case heard. I even filed a federal lawsuit trying to force the state court to hear my claims.”
The court told him he had missed a deadline. “Here I was, a man fighting to be heard, and in the end, this justice, speaking on behalf of the Supreme Court of Pennsylvania, said I should have filed my claims earlier, even though [earlier] this same court had invited me to file it later. To tell me that I hadn’t filed in time was plainly vicious.”
In Pennsylvania, the standard incarceration for death row inmates is solitary confinement. Nick spent twenty-two years in solitary, fourteen without touching another person except for the times he was beaten after breaking the rules. In 2003, Nick’s appeals had been exhausted. He was exhausted. He had given up. He wrote a letter to the governor asking to be executed.
But around the same time there were also new glimmers of light. Dr. Mohammed Tahir, a forensic expert from Indianapolis, joined Dr. Edward Blake of Forensic Science Associates in California to help with the DNA testing in Nick’s case. Results began pouring in. “Nothing was matching me, on the gloves, on the underwear of the poor victim. Nothing,” Nick says.
Nick was exonerated. But he was not yet a free man —his sentence had been compounded as punishment for an attempted escape and crimes committed in flight. “I had to demonstrate that if I had not been a victim of wrongful conviction I would have not committed the crime of trying to escape and those connected to it. The irony is that I had to serve about five more weeks in prison. The guards did not know what to do with me.” In the end, a Florida judge ruled that all the crimes Nick had been charged with merited a prison sentence of seventeen years—precisely the time he had already served.
Now I understand what Nick said to me that night after the prayer service. “I have no time to be unhappy. I cannot let them take away my life now that I am once again a human being. I have no time to be angry.”
He has only one regret: not doing enough for those who are still on death row. It angers him that there is so little interest in making sure the evidence in capital cases is sound, or in finding the real perpetrators of crimes.
Nick is married, and he and his wife, Karen, have a beautiful daughter. They live in London. After winning his freedom, Nick—who was homeless following his release from prison—received a four million dollar settlement from the Commonwealth of Pennsylvania. In this he is a rare exception. Many states, before releasing a prisoner—even one who has been exonerated—require a declaration that they will never be asked for any financial compensation.
“Now I have all the world to live in,” Nick says. “And I have the responsibility to live not just for myself.”
—
Mario Flores too is in love with a beautiful woman. But he has not been given the satisfaction of a complete acquittal.
In 2003, Governor George Ryan was ready to announce the commutation of all death sentences in Illinois to life sentences, and also to admit that some death penalty convictions were not based on solid evidence. “My lawyers and I were told that he would give the final announcement of my wrongful conviction. But we waited and waited, and the press conference never happened. It was too risky to wait any longer. We accepted a commutation of the death sentence to forty years, admitting the crime that I had never committed but had been charged with. I had served for twenty years on death row. After serving half of the days of my sentence in prison, by law I could go out. Which I did.”
On the outside, Mario was treated as an undesirable, despite his innocence. By birth, he was a Mexican citizen, and although he had never lived in that country, the US government deported him there.
Mario lives in Mexico City, “where I am scared for my wife, since there is a lot of violence and she is so kind and beautiful.” He is now a painter, and his art is exhibited all over the world.
“I am not Leonardo, I am not Raphael,” he says. “But I love classical beauty and how it mingles with my pre-Columbian blood and origins, Maya blood that pulses with the need of liberation. I can be a man who has a lot to live for and to give others, a man who has started to live again at forty. To live for my family who never abandoned me. And for the friends I have found afterward. And for my children. And to end the death penalty.”
—
In the beginning there were Barry Scheck and Peter Neufel, co-founders of the Innocence Project. Now there are hundreds of lawyers and activists and groups devoted to reversing wrongful convictions.
And there is a flip side of the exoneration process, which is that it makes it possible to identify the true perpetrators of crimes. Of the 321 post-conviction DNA exonerations in the United States, twenty were of people sentenced to death. About 70 percent are people of color. In 50 percent of cases the real perpetrator was identified thanks to DNA tests. And 60 percent of the wrongfully convicted have been compensated financially. Exonerations have been won in thirty-eight US states and in Washington, DC.
The fact that eyewitness misidentification is the single greatest cause of wrongful convictions in America, the basis of 72 percent of convictions overturned through DNA testing, should make each of us consider the necessity of re-thinking the whole system and abolishing “the ultimate punishment,” the only irreversible penalty. In at least 30 percent of these cases, there were signed confessions too. We often associate eyewitnesses and confessions with high levels of certainty, but we’re wrong.
In all this, it’s worth keeping in mind that the perfect justice system does not exist. This alone is a reason to abolish the death penalty. Nobody should be empowered by the state to take away something that cannot be given back if it turns out that a mistake was made. And if what was taken is life itself?