The Innocence Factor

As commenter, Richard Locicero brought up in the last thread, the notion of execution—lethal injection or no lethal injection—becomes even dicier when viewed in the light of the growing number of exonerations.

Because of my gang reporting, I know of a smattering of cases in which people are serving time for crimes they didn’t commit. (And, of course, I also know of a number of other situations where people didn’t get caught for crimes they did commit.)

There is, however, one instance in particular that continues to haunt me.

I’ll get to that in a minute, but first some more recent news:

On Monday of this week, the 200th person exonerated through the use of DNA evidence was officially cleared . His name is Jerry Miller and he spent 25 years in prison for a Chicago rape, which he didn’t commit.

Here’s what the AP said about the case:

The details of the latest exoneration are typically nightmarish: Jerry Miller served 25 years for a rape conviction and had already been paroled when DNA tests showed he could not have been the man who attacked a woman in a Chicago parking garage.

Yet more alarming even than the individual stories, is the fact that the number of newly discovered wrongful convictions in the United States is growing at an increasingly rapid clip.

What’s also troubling is how common these exonerations have become since the first reversal in 1989. It took 13 years to reach the first 100 DNA exonerations, but just five to double that number. For prosecutors and judges, as well as defense attorneys, the exonerations raise a larger question: How many others, innocent of their crimes, are behind bars?

Advocates for extensive changes in the way cases are investigated and prosecuted see the 200 as the tip of a huge iceberg and use the word “epidemic.”

Prosecutors bristle at the characterization. They agree that a single person wrongly convicted is an injustice that can’t be tolerated, but see the problems as few, far between and fixable.

Well, maybe. While “epidemic” is a bit extreme, there is a growing uneasiness among many working in and around the criminal justice world who suspect that, as forensic technology becomes more sophisticated, and more and more states begin forming “innocence commissions” to examine claims of wrongful convictions, it’s likely that exoneration numbers are going to increase substantially

In California alone, more than 200 people have been cleared of major crimes—rape, murder and the like—using DNA but also other methods—as it many cases there is no DNA evidence.

The truth is, it doesn’t take a major crime for a false conviction to have a near-ruinous effect on someone’s life.

In an emblematic example of this principle, earlier this month, a Northern California man named Kenneth Wayne Foley was cleared of a burglary conviction that had him locked up for nine years.

And for every case cleared, there are a string of cases pending.…or awaiting a legal champion.

As I mentioned earlier, I’ve been following one of those cases myself. It has to do with a 32-year-old man named Danny Cabral whom I first got to know early in 1991. I was researching a book on gangs, and he was a likeable fifteen-year-old homeboy with the nickname, “Stranger” struggling to pull back from street life.

In the summer of 1994, when he was two months passed his 18th birthday and, by then,trying to figure out how to be a father to his 2-year-old daughter, he was convicted of first degree murder for shooting a man dead in a street robbery gone bad. Right now Danny is serving life without possibility of parole.

His daughter will turn sixteen in October.

Here’s the deal: Danny had nothing whatsoever to do with the murder. The reason I know this with absolute certainty is part of a far longer story (and one that I’ll write about it in the future.) But, suffice it to say, I know, without doubt, who did did kill the guy.

Which brings us back to the original subject at hand.

Because the killing was committed in the course of a robbery, it was a potential special circumstances case. In other words, the prosecutor could have asked for the death penalty.

He didn’t. And, as a result, with any luck, Danny Cabral may one day be on that exonerated list.

Otherwise, after 13 years… he’d likely be dead of lethal injection.

I think about that a lot.