Other “Misplaced” Commentary About the Merits of DNA Evidence

Yesterday, KC Johnson noted a remarkable editorial in, of all places, the New York Times, extolling the virtues of DNA evidence. The editorial cited numerous wrongful convictions that were overturned, and the paper applauded those states that have set up innocence commissions “to attempt to identify the causes of the wrongful convictions and propose changes to improve the state of justice.”

The editorial concluded by stating:

“The most recent exonerations show how much such commissions are needed. In Dallas, a prisoner was finally proved innocent after laboring for 18 years to win the right to DNA testing and disprove a rape conviction based solely on faulty testimony of a witness. (North Carolina’s innocence commission, led by the state’s chief justice, has already called for police investigators to vet witnesses more carefully.) In New York, a man who spent 15 years in prison on a murder conviction not only proved his innocence, but also tracked the actual murderer through DNA with the help of the Innocence Project at the Benjamin Cardozo School of Law.

"No one knows the depth of injustice hinted at by DNA exonerations. But it is clear that they demand organized oversight and serious reforms of the criminal justice system.”

No one following Nifong's Hoax can disagree with a call for “serious reforms of the criminal justice system.” It would be foolish to believe that Mike Nifong is an isolated rogue prosecutor, who just this one time managed to abuse the system for his own reasons. Many commentators over the past many months have pointed to the Innocence Project as an organization that has uncovered numerous wrongful convictions and gallantly worked to free the falsely imprisoned. Indeed, their record is impressive, and the stories of those they have helped are simply shocking and heartbreaking.

Those of us supporting the players often cite the Innocence Project as evidence that we recognize the injustices that have occurred to others. Others cite the Innocence Project as proof that other injustices have occurred without the attention given to the lacrosse players, thereby questioning the motives of those who seek justice in this case. For example, last week columnist David Hawpe (high school classmate of Houston Baker) wrote,

“What amazes me is that you don't see the same kind of fury when other people are definitively proven innocent of crimes for which they were sent to prison. Where was the right-wing rage last week when DNA testing showed that James Waller was wrongly convicted of raping a 12-year-old boy in 1982?”

As did the New York Times editorial, Hawpe described other overturned convictions based on DNA evidence and stated,

“Thanks to the Innocence Project and other advocates, similar things are happening across the country."

La Shawn Barber admirably and honestly responded to Hawpe’s assertion that “On wrongful prosecutions, the right engages in selective outrage.” In the process, she noted matter-of-factly that Hawpe’s article could have just as easily asserted, “On wrongful prosecutions, the left engages in selective support and reverence for prosecutors and the police.” No doubt, there is an element of truth in what both Hawpe and Barber write about political partisans engaging in selective outrage, or lack thereof, in response to the Hoax.

Surely, however, the Innocence Project was not one of those organizations on the left that engaged in "selective support and reverence for prosecutors and the police,” right? Surely the Innocence Project recognized the Hoax for what it was earlier than most, and has used this incredibly high profile false accusation to call attention to its extraordinary work and noble cause, right?

Unfortunately, co-founder and co-director of the Innocent Project, Peter Neufeld, saw the lacrosse case differently. Like the New York Times, he decided early on that this was the one case where DNA evidence apparently wasn’t relevant. Neufeld was a vocal defender of Nifong's "How does DNA exonerate you?" theory and gave several pull quotes to major new organizations deliberately obscuring the difference between old and cold crimes, and one in which a victim was swabbed for DNA evidence at a hospital by professionals within hours of an alleged attack.

The day after the results of the first round of DNA tests were turned over to defense attorneys and announced to the public, Neufeld downplayed the results. On April 11th, the New York Times wrote:

"Peter J. Neufeld of the nonprofit Innocence Project, an expert on DNA testing, said that in general, an absence of DNA evidence did not necessarily mean there was not a crime.

"There have been thousands and thousands of men who have been convicted in the United States of the crime of rape without DNA and without semen," Neufeld said."

It’s possible to believe that the New York Times pulled one small piece of Neufeld’s statements to support the Hoax, but Neufeld continued with the same theme in later interviews. On April 23rd, after the indictments of Seligmann and Finnerty and after information about Seligmann’s alibi had been revealed, the Washington Post wrote,

“Peter Neufeld of the Innocence Project says, "There's an old saying that the absence of evidence is not necessarily evidence of absence."

This was a rather strange statement for someone who is the co-founder and co-director of an organization whose sole mission is to use DNA testing to free wrongfully accused people. How many innocent people have been convicted by jurors who believed “the absence of evidence is not necessarily evidence of absence?" Is there any statement that is more inconsistent with concepts like “presumption of innocence,” “burden of proof,” and “beyond a reasonable doubt?"

Even after Nifong finally turned over to the defense attorneys the selective results of the second round of DNA tests, which showed no DNA matches linking any lacrosse player to the accuser (and, in fact, showing semen from the accuser’s “boyfriend," though not disclosing matches to at least four other unidentified males), Neufeld continued to give quotes apparently supporting the false prosecution. On May 15th, the day Dave Evans was indicted, ABC News reported,

"The truth is if you speak to crime lab directors, they will tell you that in only a relatively small number of cases is there any DNA evidence," said Peter Neufeld, co-founder and co-director of the Innocence Project, which uses DNA to free people wrongly imprisoned.

"In rape cases, there is an expectation of DNA. But like many expectations, often it is misplaced."

How can these statements possibly be justified coming from the co-founder and co-director of the Innocence Project? How can they be viewed as advancing the causes of the organization? Aren’t they almost verbatim what countless government attorneys have argued on appeal opposing motions for new trials on the basis of DNA evidence? Why would Neufeld repeatedly give such statements to the press, making them publicly available to be cited against his organization in future court arguments? Why has Neufeld not come forward after all that has been revealed to express regret for his public erroneous “reverence for prosecutors and the police” that was used by the press to downplay the dramatic and early revelations that the accuser’s story was a lie and Nifong's prosecution was a hoax? Shouldn’t one expect a different reaction from the Innocence Project? Shouldn’t one expect such an organization to be vigilant against an abuse of prosecutorial power? Doesn't its mission require no reservations about advocating for innocent defendants, no matter who they are or what the New York Times says about them?

How truly disappointing and disconcerting that the only thing Neufeld said about the Hoax that turned out to be insightful and relevant is that “many expectations” are often “misplaced."