Proving innocence

Potentially innocent people are languishing in prison for lack of anyone to re-look at their case...
Potentially innocent people are languishing in prison for lack of anyone to re-look at their case, says Bridget Irvine, a law graduate and forensic psychology PhD student who is research co-ordinator for the Innocence Project New Zealand (IPNZ), based...
Teina Pora spent more than 21 years in prison for the rape and murder of Susan Burdett, before...
Teina Pora spent more than 21 years in prison for the rape and murder of Susan Burdett, before his conviction was quashed by the Privy Council last week. Photos by ODT.
The Innocence Project would be willing to assist Peter Ellis (pictured in 2010) in a bid to...
The Innocence Project would be willing to assist Peter Ellis (pictured in 2010) in a bid to overturn his convictions for sexual abuse against children, project research co-ordinator Bridget Irvine, of Dunedin, says.

Teina Pora's case spotlights the likelihood more potentially innocent people are locked up in our prisons. Bruce Munro talks to members of the Innocence Project who are working hard to get cases re-heard but say much more needs to be done.

Outside an office somewhere on the University of Otago campus, Bridget Irvine unlocks a door, enters and closes it firmly behind her.

The office is nothing special - desk, computer, table, lots of files and file boxes.

But only a handful of people, all of whom have signed confidentiality agreements, are ever allowed access.

This is the headquarters of Innocence Project New Zealand (IPNZ), the nerve centre of a volunteer organisation investigating cases of potentially innocent people incarcerated in New Zealand prisons.

Ms Irvine (28) is called the research co-ordinator.

In reality, the law degree graduate and forensic psychology PhD student oversees the day-to-day operations of the national project; managing active cases, liaising with clients behind bars and co-ordinating volunteers.

She is the only paid member of the project. Employed for 20 hours a week, she has to juggle the demands of the role with her fulltime doctoral studies.

Right now, she is gearing up for a final, busy push on a case; ''tying up loose ends'' on new evidence that an imprisoned individual who maintains their innocence has indeed been wongfully incarcerated.

Ms Irvine says it will be a few months before the oroject is ready to disclose who the person is and talk about the case.

''It is the nature of the work, with everyone working pro bono [for free], that it takes time,'' she explains.

If the person is successfully exonerated, it will be one more name on a growing list of wrongful convictions brought to light.

The most recent was Teina Pora.

Last week, Mr Pora, who spent more than 20 years in jail for murdering Susan Burdett in her Auckland home, had his conviction overturned by the Privy Council in London.

Delivering the council's judgement, Lord Kerr said Pora's ''frequently contradictory and often implausible confessions'' combined with the diagnosis of FASD [foetal alcohol spectrum disorder] leads to the conclusion that ''reliance on his confessions gives rise to a risk of a miscarriage of justice''.

Although the Innocence Project was not involved in Mr Pora's case, it vividly illustrates why the organisation exists, Ms Irvine says.

''[It] has shown that it has taken an independent group to show the conviction was not safe and could not stand. A lot of those cases had been fighting in New Zealand and not making any headway.''

Globally, estimates of the number of innocent people convicted vary from 6% to 16% of the prison population.

''No-one knows the extent of the number of wrongful convictions. But any number is too large in my opinion,'' she says.

The Innocence Project has been running in New Zealand for several years.

In late 2012, it relocated its main office from Victoria University of Wellington, to the University of Otago.

While the project is still a joint venture between the two academic institutions, the funding, volunteers and leadership are largely Dunedin-based.

Key personnel are law faculty dean Prof Mark Henaghan, senior psychology lecturer Dr Rachel Zajac, university vice-chancellor and psychology researcher Prof Harlene Hayne and Victoria school of psychology Prof Maryanne Garry.

''When it was based at Victoria it was just in the psychology school, whereas here it is shared between psychology and law,'' Ms Irvine says.

''All of our volunteers are ... law students, generally in their fourth or fifth year of their law degree. Most are also working towards a psychology degree, but some are doing the forensic analytical science course or another science course.''

Two main criteria determine whether or not IPNZ takes on someone's case.

Applicants must have already appealed their conviction, and they must maintain ''factual innocence''.

''We don't do the semantics; we don't take on cases where they are arguing it was manslaughter rather than murder,'' Ms Irvine says.

''It has to be a case where the convicted person maintains that they did not commit the crime.''

Cases like that of Peter Ellis.

Mr Ellis was convicted on 16 charges of abusing children in his care at the Christchurch Civic Creche.

After a trial in 1993, he served about seven years jail and was released in 2000.

He has always maintained his innocence. His supporters have argued he was convicted on unreliable evidence from children interviewed in a leading way.

Mr Henaghan, a co-director of the project, says Prof Hayne and a number of Otago law students have worked for free on the case in the past.

''Once a case has been through the system you have to do a hell of a lot of work in order to show there is something the system has missed,'' Prof Henaghan says.

''Because the system doesn't like to admit it is wrong.''

Ms Irvine says the project is not working on Mr Ellis' case at the moment.

But that could change.

''I do know Peter's keen to have another go. And if everything falls in line, we're happy to assist him in that,'' she says.

When they take on a case, Ms Irvine calls on her volunteers - about 10 a year who each give about three hours a week.

They read through the case, looking for what could be holes, and then delving deeper into the legal, psychological and forensic implications.

Has the science changed?

Would it have been helpful to have had an expert's input?

Were there documents that were not disclosed ... ?

''Half the challenge is getting a case reopened. And the threshold for that is showing you have fresh evidence,'' Ms Irvine says.

''That's the strength of an Innocence Project. Because they are often connected to a university, it gives access to expertise or research that the public generally is unaware of.''

Dr Zajac, a co-director of the project, says research shows the three most common contributors to wrongful conviction are eye-witness mis-identification (73% of cases), faulty forensic science evidence (50% of cases), and false confessions (29% of cases).

''Eye-witness errors occur because memory doesn't work like a video recorder,'' Dr Zajac says.

The way the event is witnessed, how investigative interviews are done and how photographic line-ups are conducted can all affect and even impair memory and reporting, she says.

Sometimes forensic evidence is not properly validated or misinterpreted. And jurors do not necessarily have the skills to critique forensic evidence, she adds.

''Most of us find it surprising to hear that people confess to crimes they did not commit, but it happens with concerning frequency,'' Dr Zajac says.

''Some suspects are pressured by investigators into making a self-incriminating statement, while others confess in the absence of any police pressure.

''In New Zealand, at least nowadays, we do a much better job of suspect interviewing than in many other parts of the world.''

As well as the student volunteers and the directors, the project can call on a dedicated group of academics and professionals throughout New Zealand who also provide their expertise pro bono.

The process, because it depends on volunteers and professionals doing this as an add-on to their studies and work, can take years.

If it uncovers fresh evidence pointing to the person's innocence, the next step is petitioning the Governor-General for him or her to ''exercise the Royal Prerogative of Mercy''.

If successful, it can result in the Governor-General granting a pardon, reducing the sentence, or referring the case back to the courts for reconsideration.

There is always the potential for miscarriages of justice.

A decade ago, former High Court Judge Sir Thomas Thorp estimated there were at least 20 innocent people in jail here in New Zealand.

Others think the figure could be much higher.

But this country has no equivalent of England's and Scotland's independent commissions whose function is to investigate cases where there is doubt about the rightfulness of convictions.

Here, the Innocence Project is the only instrument filling this gap in New Zealand's legal system.

But members of the project, and others including Sir Thomas, think it is not a task that should be left to a volunteer organisation.

Sir Thomas has repeatedly called for the government to establish an independent Criminal Cases Review Commission (CCRC).

But to no avail. Successive Ministers of Justice have maintained New Zealand's justice system can adequately deal with alleged miscarriages of justice.

This week, in response to a question from the Otago Daily Times, Justice Minister Amy Adams reiterated that view, saying the small number of successful appeals show the system is working as it should.

''Establishing an independent body to deal with miscarriages of justice applications would essentially just replicate the process already available through the Royal Prerogative of Mercy,'' Ms Adams says.

Prof Henaghan sees it quite differently.

New Zealand needs a body that is independent of both the political and the court process, Prof Henaghan says.

''Because both have a vested interest in saying the system is fine, as we saw in the Teina Pora case,'' he says.

This country's justice system does ''pretty well'', but no system can get it right all the time, he says.

''The system does not like to reflect on itself.''

He cite's the example of the late British Judge Lord Denning who, commenting on the case of the Birmingham Six who were convicted and imprisoned for a pub bombing and then acquitted 16 years later, said, ''It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned''.

''It's just awful. He was a judge,'' Prof Henaghan exclaims.

''As they say, the only way for democracy and freedom to survive is through eternal vigilance.

''It won't survive by saying 'Oh, the system's fine'. You have to be vigilant and have ways of checking and balancing the whole way through.''

In the meantime, the number of potentially innocent individuals locked up continues to mount and the Innocence Project's workload grows with it.

''Jonathan Krebs, Teina Pora's lawyer, has three cases on his books which he wants our help with,'' Prof Henaghan says.

''He says these sorts of cases are popping up more than one would like to imagine.''


International Innocence Network
The Innocence Project New Zealand (IPNZ) is a member of the international Innocence Network.

• Member organisations give free legal and investigative help to tackle the causes of wrongful convictions and to help people seeking to prove they are innocent of crimes for which they were convicted.

• Most of the network's 60 members are based in the United States. Eleven other countries have projects, including Australia, France, New Zealand, Taiwan and the United Kingdom.

• In 2013, the work of network member organisations globally led to the exoneration of 31 people imprisoned for crimes they did not commit.

• Since 1992, the work of the project in the US has led to the exoneration of more than 320 people, including 18 who were on deathrow.

Below are examples of cases with which the Innocence Network has been involved. - 

Dwaine George

• Dwaine George (30) was jailed for life in 2002 for the shooting of 18-year-old Daniel Dale, in Manchester, England. He served 12 years behind bars on a life sentence before being freed last year, in large part due to the work of students and staff involved in the Cardiff Law School Innocence Project. In 2013, Cardiff became the first university innocence project in the United Kingdom to successfully have a case referred to the Court of Appeal after submissions on Mr George's case to the Criminal Cases Review Commission (CCRC). Late last year, after almost 10 years of investigative work by students and academics on dozens of cases in innocence projects in more than 20 universities throughout England and Wales, Cardiff became the first appeal success.

The appeal focused on new guidelines that cast doubt on using small particles of gunshot residue as evidence. In December, the Court of Appeal announced its decision that Mr George's conviction for murder was unsafe.

- Source: Cardiff Law School Innocence Project


Ronald Cotton

• Ronald Cotton was exonerated in 1995, after spending more than 10 years in prison for crimes he did not commit. His convictions were based largely on an eyewitness mis-identification made by one of the victims. In 1984, an assailant broke into Jennifer Thompson-Cannino's apartment and sexually assaulted her. Later that night, the assailant broke into another apartment and sexually assaulted a second woman. Ms Thompson-Cannino first chose Mr Cotton as her attacker in a photo line-up. Soon after, she chose him again in a live line-up.

He was convicted of both rapes and two counts of burglary, largely on the basis of the eyewitness account.

In 1995, the assailant's semen was DNA-tested. The sample showed no match to Mr Cotton, but showed a match with a convict who had earlier confessed to the crime to a fellow prison inmate.

In July, 1995, the governor of North Carolina officially pardoned Mr Cotton.

Mr Cotton and Ms Thompson-Cannino met after his exoneration. They are now good friends and leading advocates for eyewitness identification reform.

- Source: Innocence Project United States


Barry Gibbs

• In 1988, Barry Gibbs was convicted of the murder of a Brooklyn prostitute.

During the police line-up, the witness who observed the perpetrator dispose of the victim's body identified Mr Gibbs as the perpetrator despite physical differences in stature and weight. Based on the eyewitness and the testimony of a prison informant, he was convicted.

Nine years into a 20-year sentence, Mr Gibbs contacted the Innocence Project for assistance in obtaining DNA testing to prove his innocence. Despite repeated searches for physical or biological evidence in the case, none could be found. Some of the evidence in the case had been reported as destroyed, other items were never found. In 2005, police began investigating Louis Eppolito, the detective assigned to the case, for alleged ties to organised crime. In a search of Mr Eppolito's house, officers found Mr Gibbs' police file. Investigation by the Innocence Project led to evidence of Mr Gibbs' innocence. The witness recanted and said Mr Eppolito had threatened him if he did not identify Mr Gibbs in the line-up and in court.

Mr Eppolito was later convicted of eight murders and other offences committed on behalf of the Mafia. Mr Gibbs was exonerated in 2006, after serving almost 19 years in prison.

- Source: Innocence Project United States



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