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Until proven innocent

The Innocence Project in the US raises questions for New Zealand's justice system.

This kind of thing is John Grisham's bread and butter. In 1980, Luis Diaz was sentenced to "life plus" after being identified as Florida's "Bird Rd rapist" who attacked 25 women between 1977 and 1979. Diaz was found guilty of eight of those crimes after being singled out by one of his victims when he refilled his car at the gas station where she worked. However, there was a problem with her evidence. Diaz is six inches shorter and 60 pounds lighter than the offender she described to the police. That original description was matched by other victims' police reports, along with the telling detail that the assailant spoke accented English.

Diaz spoke no English - no fewer than 25 people testified to that during his trial. But two policemen took the stand and swore that he had spoken English to them. "And the jury believed the police," Colin Starger says, "which is not uncommon. You like to think that the police are upholding the law and wouldn't lie."

Starger, in New Zealand recently, is an attorney for the Innocence Project, a US not-for-profit organisation devoted to using DNA evidence to overturn wrongful convictions. Last year, he used just such evidence to get Diaz freed. Diaz had served 26 years for crimes he didn't commit, protesting his innocence all the while. He has received no compensation. The real Bird Rd rapist has not been found.

During his three years with the Innocence Project, Starger has overseen two exonerations and been involved in another three. "It's a wonderful feeling. Your client is really the one that's done all the work in advocating for himself and getting you to pay attention. Then science has done its bit by showing the truth of the matter, so all you've had to do is facilitate it. But when the state has fought you at every turn, it feels all the more sweet."

Since 1992, the original branch of the Innocence Project, based at New York's Yeshiva University, where Starger works, has freed 183 wrongfully convicted prisoners. They only take cases where DNA testing should prove the silver bullet.

Other branches of the Innocence Project, along with similar movements in the US, have exonerated countless others. The students of Illinois's Northwestern Journalism School famously uncovered evidence in the late 90s that led to Anthony Porter walking free just two days before he was to be put to death. Illinois Governor George Ryan an-nounced in 2003 that he would com-mute all death sentences to life in prison.

"There are 14 people that have been exonerated off Death Row," Starger says, "and the prospect that an innocent person might have been executed, or could be executed in the future, is one that gives pause to even the staunchest advocate of capital punishment."

Although the Innocence Project has no official stance on capital punishment, Starger says its use of DNA to secure exonerations has caused movement on the issue. Illinois still has the death penalty, despite its not being used right now, but New York State has scrapped its death penalty bill, probably permanently.

But the real value of DNA exonerations, he says, is in raising awareness of the fallibility of the system. In New Zealand the courts' ostensible infallibility has been challenged in the cases of Arthur Allan Thomas, David Dougherty and Rex Haig.

Sir Thomas Thorp, a former High Court judge, estimated this year that some 20 wrongfully convicted citizens remain behind bars. Thorp recommends we adopt something similar to Britain's Criminal Cases Review Commission.

Starger says that although DNA evidence is the key to freeing the wrongfully convicted he deals with, the reasons for their convictions are depressingly similar. Sometimes, he says, "you just know that, had a person been convicted of the exact same crime but had come from a wealthy part of society, he wouldn't have been convicted in the first place".

Mistaken eye-witness identifications; racist, classist juries; under-resourced state defence lawyers who perhaps don't really care - the first chapters in the Innocence Project's exoneration stories all read the same. And that, Starger says, is where DNA can be a double-edged sword. It removes doubt, but it also removes the drive to ask tougher moral questions about the justice system.

Recognition of the system's fallibility is key, "because we can begin to ask other questions. You can say, if the system wasn't getting it right on the most basic thing that everyone agrees upon - which is that only people who are culpable of crimes should be punished for them - if they weren't even getting that right, then what else are they not getting right?"

Back in 1992 when the project started, he says, people were convinced that they would work themselves out of jobs in a short time. Instead, with the two million-plus prison population in the US, and some of the longest sentences in the world, Starger imagines that he'll be busy for a good few years yet. "Even if you have a wrongful conviction rate of half of one percent, you would still be looking at over 10,000 people ... Anecdotally, based on my experience, that's a very conservative number."

He routinely deals with cases from the 80s, and sometimes late 70s, when the most sophisticated DNA testing was ABO blood-typing. Twenty-five percent of the population may have blood type A, but a match between the accused, the semen in the rape kit and an eye-witness identification was enough, in many cases.

The Innocence Project's clients have served, in total, hundreds of years behind bars and yet most come away with no compensation, as most states have no mandatory requirements. The exonerated person could sue, but he or she would have to show deliberate mishandling of the original case to have any luck.

Starger says that many of those freed are surprisingly at peace, "or at least say that they are, but the demons often take over. Alcoholism, drug abuse, are not uncommon among exonerees."

There are success stories - those who've maintained family ties throughout tend to do much better upon their release. But "even for people who are guilty, the experience of prison is fairly brutal and dehumanising. For someone who's innocent, that's coupled with the knowledge that they in no way deserve this."

A catch-22 ensues: refusal to admit guilt, take responsibility and "rehabilitate" means no sympathy from parole boards. If, for the sake of getting parole, an innocent party owns up and is released, they could scupper their chances of appeal later. Starger has a client in Alaska who did just that: the state has used his admission as a reason to block access to DNA evidence from the trial. Starger won the right to have testing in the federal courts, but Alaska is appealing higher. "We're fighting it out in the media. We get some victories, we come back, but it makes it difficult, that's for sure."

The US criminal justice system has probably become more accurate, he says, as science has become more advanced. But more just? "Unfortunately, I think the answer is no. There's a difference between an accurate criminal justice system and one that is really about justice."