Says Pete Weitzel, "There is a societal presumption that police and prosecutors don't bring a case forward without compelling evidence. The motives of the police are not questioned. We want to have faith in our law enforcement. It's important to our sense of security." In the Baker case, he says, "A man is arrested because he has a shotgun shell in his car. Now forensic experts say it wasn't a shotgun but a [handgun] bullet. Normally, all the evidence would be kept by a police department, but it wasn't. You can only hope that the court-appointed attorney takes possession of all the information he could get in a case like this, that he got copies of all the evidence. But that goes back to the quality of the court attorney and the amount of money the court allows for processing information."

And court-appointed attorneys rarely hire an investigator, Weitzel says. "It takes more time, costs more money, requires court approval, and the judge doesn't want to pay for it. In fact, if the court-appointed attorney taps too deeply into the court budget, then the attorney may not be invited back to work for the court again."

Moreover, interviews for jury selection and the closing arguments in a trial are not necessarily included in court records. "The Constitution requires that the defendant have a lawyer and a means for appeal," Coleman says, "but unless requested by the prosecutor or defense attorney, court reporters do not always prepare transcripts of closing arguments. Unfortunately, there apparently was no such request in the Baker case."

In fact, appellate courts generally don't receive the complete trial record when they hear an appeal. It therefore becomes nearly impossible for the appellate court to judge the quality of the defense, what was said or not said on behalf of the defendant. "How can you judge an attorney's strategy when you don't have their opening or closing remarks?" asks Weitzel.

Wrongful convictions with far fewer questionable factors than Henry Baker's case have become increasingly common, Coleman says, because courts that are overwhelmed with the volume of cases begin to ignore the manner in which they are prosecuted and defended. "We have tolerated a system that takes shortcuts, police and prosecutors who cut corners, and judges who tolerate that."

Even when there is biological evidence, it cannot always be trusted. "Some forensic scientists have been known to 'dry-lab' evidence, actually creating evidence or writing up reports on tests that were never conducted on blood, hair fiber, or DNA," says Theresa Newman, the associate dean. "These circumstances arise when the test requested may exceed a lab technician's competence, but that person wants to keep his or her job."

While a number of costly procedural reforms are being proposed, the bottom line is a strong deterrent to change, particularly when state budgets are severely strapped. Coleman argues that we nevertheless need to invest in training more professional police and prosecutors--or, as he puts it, "people who don't approach it like a game."

A number of other measures may remedy future cases, but what about the wrongfully convicted who remain in prison? Last year, Cardozo's Peter Neufeld told an interviewer from the University of California-Berkeley that, while DNA evidence has "shaken the foundations of eyewitness testimony" and has created more willingness among police to implement reforms in that particular arena, the request to revisit closed cases still meets with enormous resistance. While hospitals are constantly auditing their practices, personnel, and standards, or the National Transportation Safety Board investigates "if a plane falls from the sky or a train is derailed," Neufeld says, "you can't believe how difficult, if not impossible, it is to get the law-enforcement apparatus to go back and do those kinds of audits. They just won't do it."

Coleman contends that the people who run the system have largely managed not to participate in the debate. "They have dismissed complaints about wrongful convictions by saying that those who complain are just against the death penalty. But for every innocent person who is in prison, there is a guilty person out on the street. We are not protecting the public with these verdicts."

Law student John Guild agrees. "It doesn't matter what your political persuasion is--liberal, conservative, pro-law enforcement, or if you're primarily concerned with the poor and downtrodden of society. Who wants someone who is innocent to stay in prison while the guilty person goes free?"

In the case of Henry Baker, no ruling in his favor at this point can retrieve the years he's spent in prison. "I was stunned to realize that this man has been in prison longer than I've been alive," says Montgomery-Blinn. As a result of her work with the Innocence Project and her acquaintance with Baker, she's still trying to decide which side of the system she'll work in--criminal defense or prosecution. "It may seem odd," she says, "but I figure if I work with the prosecution, I could do it well. It will be a matter of prevention of a case like this."

Eubanks '76 is a frequent contributor to the magazine.