April08_innocence Project

guilty until proven innocent Innocent until proven guilty works, except when it still leads to a wrongful conviction. Several UNC-CH law students work with the Innocence Project to free inmates who never should have ended up in prison. • photos by hannah taylor • design by faye fang & kelly giles

by lindsay britt

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April 2008

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WAYNE ALLEN DAIL spent 18

years in prison for a crime he didn’t commit. The court, which wrongfully convicted him of firstdegree rape, first-degree sexual offense, first-degree burglary and indecent liberties with a minor, sentenced him to life in prison. With unending support from the N.C. Center on Actual Innocence and the Innocence Project, Dail was freed. On Aug. 28, 2007, he left his prison cell behind to someone much more deserving. “It was the Innocence Project that was paramount to my exoneration,” Dail said. “Many students looked through my case through the years, and it ended up at the N.C. Center on Actual Innocence. Had it not been for the Innocence Project and the Center, I would most likely still be in prison today instead of on the sandy beaches of South Florida.”

WHAT IS THE INNOCENCE PROJECT?

The UNC-Chapel Hill Law School Innocence Project works in conjunction with Duke University Law School and five other law schools in the state. The project works under the direct supervision of its umbrella organization, the N.C. Center on Actual Innocence, which is funded by the Z. Smith Reynolds Foundation, Interest on Lawyers Trust Accounts and the N.C. Bar Foundation. The law students work pro bono, reviewing hundreds of innocence claims from inmates and tackling those cases that match the center’s criteria. Most cases chosen for further review are felony cases that hold years of jail time. In most circumstances, the inmates have no legal representation. “We want to help the people who are in the most need of help,” said Christine Mumma, director for the N.C. Center on Actual Innocence. Rich Rosen, professor of criminal law and criminal procedure at the UNC-CH School of Law, first founded the UNC-CH Law School Innocence Project in the late 1990s. It soon became apparent that the Duke and UNC-CH projects were duplicating each other’s work and wasting resources. Now the center, located in Durham, delegates the cases to the separate law schools to ensure that the student volunteer efforts are used as efficiently as possible.

IN STUDENTS’ HANDS

“I read a book by John Grisham called ‘The Innocent Man’ before I started law school, so I knew that when I got here the Innocence Project is what I wanted to get involved in,” said Nicholas Farr, a first-year law student from Greenville, S.C. Whether they are inspired by a Grisham novel or an in-depth investigative journalism class taken during their undergraduate years, approximately 40 UNC-CH law students currently work with the project. Student volunteers gain investigative experience that extends beyond the classroom

setting, and they feel that working with the project is well worth their time. Students sift through approximately 1,500 letters from inmates across the country who have the same stories: They are innocent. Certain red flags for possible innocence include cases in which conviction is based primarily on identification, cases in which defendants turned down a plea bargain and letters that proclaim complete innocence. “We look for people who say that the crime didn’t happen or they were not the one who committed the crime,” said Kellie Mannette, a second-year law student from Wake Forest and co-president of the UNC-CH Law Innocence Project. “That’s one of the biggest criteria.” After the center assigns a case to UNC-CH’s Innocence Project, the student volunteers study the trial transcripts to look for links, such as new evidence, that were missing from the original trial. “We usually tell the students that their goal is to find things in the case that were not available to our trial that we can bring back into court,” Mannette said. According to Farr and his case partner, Jonathan Jones, a first-year law student from Zionsville, Ill., project members are currently reviewing a trial they were assigned at the beginning of the year. The transcript, documented in 700 pages, is one of the shorter ones the project has been assigned. “We are just looking for avenues in our case that we may be able to find that would show whether or not this person is truly innocent of the crime for which he has been convicted,” Jones said. “Even if it ends up being something where you can’t find what you need to help that person, you have at least given their case another set of eyes.”

A CALL FOR CHANGE

Mumma realized that though the center’s work was helping to correct judicial errors, it was time to be proactive. She worked with the N.C. General Assembly to write three criminal justice procedure bills, two of which became effective on March 1, 2008. Had these three bills — the Eyewitness Identification Reform Act, the Electronic Recording of Interrogations Bill and the updated DNA Testing and Preservation Bill — been in effect when Dail’s case began, it is likely he would not have been convicted, and he would not have missed spending 18 years with his son. “The great thing about the exoneration cases is if you can say that there is a silver lining at all for anybody who has been wrongfully convicted, it’s that they do provide examples for why these changes are important,” Mumma said. The Eyewitness Identification Reform Act formalizes procedures taught in basic law enforcement training. Rather than doing a simultaneous photographic line-up of possible suspects, the witness now sees them one at a time. That eliminates the possibility of the witness

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“Had it not been for the Innocence Project and the Center, I would most likely still be in prison today instead of on the sandy beaches of South Florida.” -Dwayne Allen Dail

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exercising relative judgment when choosing which suspect better matches his or her memory. “More important are the independent administrators,” Mumma said. “The person who is running the line-up doesn’t know who the suspect is. This way they can’t inadvertently, or in rare circumstances advertently, give cues such as coughing to the witness.” Also included in the act is a concept that has been implemented in scientific experiments for years. The line-up is conducted as a double-blind test. Neither the witness nor the administrator knows whether the suspect is even included in the line-up. This relieves unnecessary pressure for witnesses since they aren’t required to identify someone. “We are trying to take what scientists have learned about memory and put it into practice in the law,” Mumma said. Dail believes a guided misidentification played a major role in his wrongful conviction, along with tunnel vision from law enforcement and the district attorney’s office. “All the way through the appeals courts, the crimes that I was convicted of were so horrific that a person really does not get the same look that other cases may get,” Dail said. “Nobody wants to overturn a child sex

April 2008

charge without concrete evidence, much more concrete than what is used when they convict.” The second bill, which allows interrogations in homicide cases to be recorded, is an important baby step, Mumma said. In the past, sometimes investigators just recorded the confessions, but now the entire interrogation must now be on file. Eventually, Mumma would like for all violent felony interrogations to be recorded. The updated DNA Testing and Preservation Bill revamps an existing bill that has been in effect since 2001. Rather than just applying to law enforcement officers, anyone who has custody of evidence is responsible for preserving it until the convict and others associated with the case are released from incarceration. “We have numerous cases at the center where people are claiming evidence,” Mumma said. “If we could get access to that evidence, we would be able to resolve that question of innocence or confirm their guilt.” In Dail’s case, evidence that was assumed destroyed was found in a misplaced box years later. This single piece of evidence contained enough DNA to prove his innocence. If it had been properly stored, as required by the updated bill, an injustice could have been avoided. “It’s not just about protecting the innocent, it’s about getting the guilty,” Mumma said. “Gaining public confidence in the justice system — that is what all the bills are for. Every time someone is wrongfully convicted, there is the other on the streets committing more crime.”

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