Panel discusses wrongful convictions and Maher case

April 27, 2007

The Schuster Institute for Investigative Journalism and the Justice Brandeis Innocence Project hosted Righting Wrongful Convictions: A Dialogue between an Exoneree and his Prosecutor Tuesday, where wrongly convicted man Dennis Maher spoke alongside his prosecutor.

I was a really angry person, but when I got out, I figured that if I carried that anger with me, I wouldnt be able to live the life I wanted to live, said Maher, the 127th person exonerated after his conviction for a crime he did not commit. Former army sergeant Maher was wrongfully convicted of two rapes and an attempted rape in Middlesex County in 1984 and spent some 19 years in prison for the crimes DNA proved he did not commit. Maher spoke to the Brandeis community as part of a panel including former Massachusetts prosecutor James Carney;

defense attorney Robert N. Feldman of the New England Innocence Project;

defense attorney John Swomley and his client, future exoneree Bernard Bee Baran.

The documentary After Innocence introduced the audience to Maher and to the problem of righting wrongful convictions in general. The film featured some seven exonerees, including Nick Yarris, who turned to activism after spending 26 years on death row in solitary confinement;

Wilton Dedge, who spent 23 years imprisoned for rape in Florida even though exculpatory DNA evidence was acknowledged for three years;

and Jeffrey Scott Hornoff, a former Warwick, R.I. police officer who spent 8 years in prison for a murder he did not commit.

The film and the discussion both emphasized the other difficulty that comes with wrongful conviction: the exonerees return to society. Most of the men featured in the film were having a very hard time being in society after their incarcerations because they do not have access to any of the healthcare or job placement services to which parolees are entitled. The majority of exonerees are also not being compensated for the time they spend in prison, and several have outstanding civil lawsuits against the states that falsely incarcerated them.

Since the film, Maher has spoken to many state legislatures and bodies of law on behalf of his fellow and future exonerees. Since speaking to the Maine and Vermont state legislatures, both states have created compensation and exoneration laws benefiting the wrongly convicted after release.

James Carney, once the prosecutor who convicted Maher in two separate trials, also spoke. Carney has since become a defense attorney who frequently speaks for the wrongfully convicted. Describing Mahers case, he said I was presented with the cases of three women who were sexually assaulted;

two grabbed in Lowell, with the same M.O. Each woman looked at a different photo array and all selected Denniss [Mahers] photo from the separate photo array they looked at. Separately, I arranged for three lineups to occur. Each woman saw a different lineup on a different day and each woman identified Dennis. I had corroborative evidence.”

Carney added that his attorney barely asked any questions of the witnesses to defend Dennis. When Dennis was convicted, he received a sentence of ultimately life in prison. After the sentencing, I met with a former colleague and told him about this case and said that I have no specific basis to believe that I have the wrong guy, but if someone can take a look at this case and develop exculpatory evidence, I would take it to a new trial He had the worst attorney Ive ever seen.”

Many years later I heard an effort was being made for Dennis to have his DNA compared to that of the rapist, and that my old office was frustrating that effort. I wrote a letter to the then-district attorney, stating all the things I knew about the cases and that I expected her to do the right thing,” he said. “Two days later, they said that they withdrew all the cases. I went to the courthouse and sat I nthe back of the room and I tried to be part of the wallpaper when it was over, I asked the chief court officer if I could meet with Dennis briefly, and he was brought to me, and I asked Dennis for his forgiveness and he gave it to me.

Maher was freed because of the work of the New England Innocence Project, an effort to prove the innocence of men and women wrongfully incarcerated in Massachusetts. Attorney Robert N. Feldman, of the Project commented about the causes of wrongful conviction: There are five or six big ones. Bad lawyering is one of them. Then, the highest percentage of DNA cases are based on a mistaken eyewitness identification. I think that the stats are about fifty percent for Innocence Project cases that had mistaken identification as part of their evidence jury studies show that its powerful evidence, finger-pointing.”

Therere other reasons too, bad science: scientists testifying about hair comparisons, based on microscopic hair analysis, fingerprint analysis, ballistics. Snitch testimony is an issueoffers of leniency are a perverse incentive for the truth. Then theres police or prosecutorial misconduct. Lots of cases dont involve it, but theres a percentage of exonerees who have false admissions of guilt, due to torture or other means. In Massachusetts, theres another hurdle to pass after we get them out: when you sue the state for compensation, you have to prove that your civil rights were violated.

Faculty member and associate director of the Schuster Institute for Investigative Journalism Pam Cyntrynbaum said, It is equivalent in journalism-based innocence projects. We can only take cases where absolute innocence is plausible. We also evaluate the educational value, and the witnesses. If the witnesses are dead, we have to pass on the case.

Florence Graves, director of the Schuster Institute, said, Neil Rafaeil of the New England Innocence Project was blown away when he heard that we were starting an innocence project at Brandeis. He said that he had a closet full of non-DNA cases gathering dust. Pams current case is one of those cases. They handed it to us. We found a way to use the vetted ones they already had.

Maher wasnt the only exoneree on the panel. Bernard Bee Baran has been released on bond pending his new trial. Originally convicted during the child molestation scare of the early 1980s, the openly gay Baran has been fighting his conviction for many years. Baran has been released this year following the recantations of his alleged victims and the rediscovery of videotapes detailing the coercion of witnesses in the case following the death of the district attorney who prosecuted the case. Baran was also a victim of bad lawyering. His attorney requested $500 and no other payment;

in return, he came into court in the same suit several times, drunk, and asked few questions of the prosecution during the trial. Baran said, I think hes now doing civil cases in West Springfield.

Barans attorney, John Swomley, said of his case, Bees case was helped tremendously by the Globe. When people read this stuff, they get compassionate and their wallets open up. Student journalists are even better. Because they have more timepros might misfire, and students have the time to write thoroughly and do the research and they wrote a soup-to-nuts story about him for the Phoenix and anyone can swipe it and the article can breathe beyond you.

Swomley and Carney are both trying to change the system that is wrongfully convicting these men. Swomley says, It involves the journalists out there: you represent someone individually in the criminal justice system with your best effort to get an acquittal or whatever you can to get them post-conviction relief. Its talking to the press, to the education. Its calling when someones being grossly misrepresented and calling them out. Its part of your job. And its part of our ethics.

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