Through the legal looking glass. (Up front: news and opinion from independent minds).

The appellate court dialogue reads like the Red Queen's demand, "Sentence first, verdict afterward." Hearing a death row. inmate's appeal, Justice Laura Stith of the Missouri Supreme Court displayed exasperated incredulity when questioning Assistant State Attorney General Frank Jung. According to a February 24, 2003, New York Times article Stith said, "Are you suggesting that even if we find Mr. Armine actually innocent, he should be executed?" Jung replied, "That's correct, your honor." A second justice, Michael Wolff, recast the question to make sure he had heard Jung's reply correctly. He asked, if DNA evidence proved a convict's innocence, should the state nonetheless execute her or him if there was no procedural error at his trial? Again, Jung said yes.

Decent respect for the opinion of humankind should deter even a rule-conscious lawyer from such an outrageous response. But it isn't so; Jung's view is prevalent among prosecutors. In fact, according to an Innocence Project spokesperson, prosecutors resisted DNA testing in a majority of reopened cases that ultimately resulted in acquittals of convicted prisoners. In these cases, judges had to order the investigations reopening the cases despite prosecutors' protests. Rockne Harmon--an Alameda, California, district attorney--argues the prosecutor's case by upholding the law over sentimentality. According to an August 6, 1994, article in the New York Times, Harmon said, "Once someone's convicted and has exhausted his appeals, it is assumed that he is guilty.... The reality is pretty cruel and harsh, but that's the law."

To a layperson unimpressed with the omniscient majesty of the law, Harmon's refusal to be confused by irrefutable facts--thereby allowing innocent convicts to rot in prison or even to be executed--appears to be not merely cruel and harsh but dementedly stupid. His opinion can be explained, however, by his dual role as bureaucrat and lawyer, combining the worst vices of each. As a bureaucrat, Harmon displays the determination to minimize work and protect his reputation; as a lawyer, he views his vocation as a transcendent game. Instead of serving as a means to the desirable end of dispensing justice, the rules become an end in themselves.

Some prosecutors actively suppress DNA evidence. Virginia prosecutors hid a possibly disastrous mistake following the 1997 execution of Joseph O'Dell, convicted in 1985 for rape and murder. Convinced that O'Dell's continual protests of innocence were credible, death penalty opponents sought a posthumous DNA test on a vaginal swab from the victim. Timothy Lynch, director of the Cato Institute Project on Criminal Justice, said that Virginia officials not only rejected the request, they also burned the DNA evidence, thus precluding the possibility of any future test. This methodical destruction of evidence can only be attributed to the prosecutors' fear of being exposed as executioners of an innocent man. If they were confident of vindication, why would they have destroyed evidence that could have ended all doubt about the justice of their actions?

The advent of DNA, which legal scholar Keith Findley calls "the scientific arbiter of truth" in the California Western Law Review, Volume 38, opened unprecedented opportunities for evaluating the quality of the U.S. criminal justice system, and the results have been anything but reassuring. False eyewitness identification is the chief source of wrongful convictions, but prosecutorial corruption also plays a major role.

The extreme adversarial nature of the U.S. legal system, in contrast with the inquisitorial system prevalent in continental Europe, is evidently a factor in unjust U.S. verdicts. Courtroom battles in the United States are fought with ferocity unequaled in other industrial democracies, and truth is often a casualty. Unethical prosecutors who withhold exculpatory evidence from defendants have their counterparts in unethical defense attorneys who stretch the rules beyond their breaking limit. A horrible example was when DNA expert Edward Blake, at the 1995 O. J. Simpson criminal trial, masterminded the defense team's obfuscating attacks on the prosecutors' DNA evidence. After the trial, however, Blake admitted that the incriminating evidence against Simpson was "unassailable." Simpson's lawyers kept Blake off the witness stand, for his truthful answers would have demolished a key part of their defense strategy. (The Fifth Amendment permits defense attorneys to suppress incriminating evidence against their clients.)

For obvious reasons, prosecutors are held to a higher ethical standard in their search for truth. But investigations of wrongful conviction have revealed instances of prosecutorial corruption--notably, in keeping exculpatory evidence from the defense, falsifying forensic laboratory evidence, and using perjured testimony in efforts to get spurious convictions. Prosecutors' reluctance to accept scientific proof of innocence also reflects the long-waged war between law and science. This war raged even more fiercely in the past. In 1736, over the protests of the Scottish Presbytery, the British Parliament repealed its statute treating witchcraft as a capital crime. The coexistence of England's marvelous seventeenth-century scientific achievements with a legal system still mired in the grossest superstitions of antiquity highlights the vast intellectual gap between science and the law. And though the gap has narrowed in the past three centuries, it still exists.

The antiscientific attitude characterizes conservative justices on the U.S. Supreme Court. If George W. Bush gets his way in appointing "strict constructionist" interpreters of the U.S. Constitution, the Supreme Court will probably have a majority of justices ready and able to aid prosecutors fighting convicted criminals' claims of actual innocence. The president's models of judicial propriety--Justices Antonin Scalia and Clarence Thomas--tipped their hands in a written opinion in Herrera v. Collins. This 1993 case involved a dubious claim of actual innocence, unsupported by scientific evidence. Scalia, however, offered an opinion that went beyond the issues under review in Herrera v. Collins. He indicated that he would reject any claim of actual innocence, including the irrefutable proof sometimes provided by DNA evidence, as grounds for reopening a previously tried case. "There is no basis in text, tradition, or even in contemporary practice ... for finding in the Constitution a right to demand consideration of newly discovered evidence of innocence brought forward after conviction," said Scalia with Thomas' concurrence. Writing the six-to-three majority opinion rejecting Leonel Torres Herrera's appeal, Chief Justice William Rehnquist took a similar, if less definitive, stand than Scalia and Thomas. Rehnquist said, "A claim of innocence is not itself a constitutional claim," implying that a person convicted in state court could appeal to a federal court only by challenging the state court's procedure, not its verdict. According to Barry Scheck and Peter Neufeld in their book Actual Innocence, Rehnquist did, however, duck the question of whether "truly persuasive" proof of innocence could reopen a case.

The three dissenters in Herrera v. Collins rebutted Scalia via logic derived from the Eighth Amendment's ban on cruel and unusual punishment by Justice Henry Blackmun. In previous decisions, the Court had ruled that death is an excessive punishment for rape. If execution is excessive punishment for a man who has committed the heinous crime of rape, then surely it is excessive punishment for a man who has committed no crime at all. Blackmun's reasoning won the concurrence of current justices John Paul Stevens and David Souter. Another current justice, Sandra Day O'Connor, agreed with the minority: "The execution of a legally and factually innocent person would be an intolerable event." And Justice Anthony Kennedy concurred.

In defense of their position, prosecutors charge prisoners with frivolous claims of innocence, which waste limited criminal justice resources. Joshua Marquis, cochair of a district attorney's capital litigation committee, also charges death penalty opponents with inflated statistics on wrongful convictions. He says that only 20 to 25 percent of the convicts who are released--based on what the Death Penalty Information Center calls evidence of innocence--are truly innocent. Another death penalty supporter, Ken Scheidegger of the Criminal Justice Legal Foundation, has a similar complaint. According to a February, 24, 2003, New York Times article, he said that, "One hundred cases were removed from death row and not successfully reprosecuted. That's not the same thing as being proven innocent."

To claim that a not guilty verdict isn't equivalent to proof of innocence is technically correct but, more importantly, irrelevant. In the second century, Roman Emperor Antoninus Pius made a gigantic leap forward in criminal law when he ordered that defendants were to be assumed innocent until proven guilty. This pioneering concept reversed several millennia of primitive prosecutions. It took more than another millennium to put this principle into practice in British courts, but it was finally accepted as the basis of all civilized nations' legal systems. Nearly two millennia after the presumption of innocence became an axiom of Roman law, is it possible that death-penalty proponents are still not convinced of its necessity?

C. W. Griffin is a consulting engineer, serving as an expert witness in construction litigation, and an author. This article is adapted from his unpublished book, Law v. Justice: The Case for Legal Reform. He has authored ten books, including Cleaning Out Congress: The Case for Term Limits (1992) and Taming the Last Frontier: A Prescription for the Urban Crisis (1974). He has also published articles in the Atlantic Monthly, Harper's, the Nation, the Reporter, the Saturday Review, and the Washington Post.