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Undoing Injustice: If there’s no DNA, You’ll Stay (in prison)

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There’s been a lot of press recently about wrongly convicted men who have been exonerated by DNA evidence. No doubt, the work of the Innocence Project and other organizations that work to overturn wrongful convictions is commendable, and necessary. But what about other people who have been wrongfully convicted, but of crimes for which there is no DNA evidence? For them, exoneration is a distant hope.

Particularly when, like Fernando Bermudez, whose case is profiled in today’s NY Times, they were convicted based on mistaken or even perjured eyewitness ID testimony. Not sure what I mean? The facts of Mr. Bermudez’s case are illustrative: Mr. Bermudez was convicted of a 1991 shooting outside a nightclub in Manhattan’s Union Sq. Five “eyewitnesses” all testified that he was the guy. A husband and father of three, he has spent the last fifteen years in Sing Sing. He has continued to maintain his innocence and to fight for the overturning of his conviction.

Turns out, not only were the procedures used to identify Mr. Bermudez illegal (the eyewitnesses were in a room together and supposedly all conferred about a photo of Bermudez and concluded he may have been the shooter), but all five eyewitnesses have now admitted (and affirmed in affidavits under oath) that Mr. Bermudez was not the shooter but that they were coerced (either gently or by threat) by the investigating detective to point the finger at Bermudez. Witnesses who refused to fold were excused from testifying:

One witness, Nkosi Boyce, later told a federal magistrate that detectives at the lineup had repeatedly asked him about Mr. Bermudez. “They said, ‘Is that him?’ ” Mr. Boyce testified. “I said, ‘It’s not him.’ They asked me again, ‘Is that him?’ I said, ‘That’s not him.’ ”

The prosecution did not ask Mr. Boyce to testify at trial.

Despite the fact that all five major witnesses against Mr. Bermudez have recanted, he remains incarcerated, having lost each of his appeals thus far. Across the board, judges have said that they doubt the veracity of the recantations:

The reason is based in the prevailing wisdom of the American justice system, which views recantations as untrustworthy, acts not of conscience, but of sympathy or bribery or coercion. That view is so deeply ingrained that one judge, rejecting one of Mr. Bermudez’s appeals in 1995, said candidly that five recantations were simply too many to believe.

This encapsulates just how backwards our criminal justice system can be. Statistics show that it’s eyewitness IDs that are unreliable, not their refutations. False eyewitness IDs have been responsible for 75% of the convictions overturned through the work of the Innocence Project.

Yet for Mr. Bermudez, and others like him, the admission by eyewitness IDs that they lied at trial is not enough. Like Mr. Bermudez’s lawyer, I am left wondering what would be sufficient to overturn a mistaken conviction in the absence of DNA evidence. Because if this case is any measure, the burden is insurmountable.

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