May 7, 2004

 SPECIAL REPORT: JUSTICE DENIED
 A Call for Commission on Wrongful Convictions
 By Maggie Mulvihill and Franci Richardson

 Alarmed that Boston is second only to Chicago in wrongful convictions, Bay 
 State attorneys are seeking a formal ``Innocence Commission'' to review 
 nearly two dozen cases in which the wrong man was imprisoned.

 ``We have a very disturbing level of frequency of these cases for the size 
 of our state,'' said Andrew Good, president-elect of the Massachusetts 
 Association of Criminal Defense Lawyers.

 The 400-plus group of attorneys, headed by Good, is preparing a formal 
 petition to file with state officials - including Attorney General Tom 
 Reilly and Supreme Judicial Court Chief Justice Margaret Marshall - that 
 would lay the groundwork for such a panel.

 The MACDL is hoping the SJC will take the lead in establishing such a 
 panel, as high courts in other states have done recently, because by law 
 the SJC has ``broad powers of superintendency'' over the Massachusetts 
 judicial system.

 That is where the problem of wrongful convictions ultimately lies, Good 
 said.

 ``It's evidence that convicts people. It's evidence that unconvicts 
 people. The power to control what evidence is received in courts is with 
 the courts, with the judges,'' Good said. ``The right defendant is not 
 going to jail. The wrong defendant is sitting in jail. It's a double 
 miscarriage of justice.''

 The commission, as fashioned by MACDL, would have subpoena power and would 
 be comprised of law enforcement officers, experts on DNA testing and 
 eyewitness identification, prosecutors and defense lawyers.

 It would review in detail what went wrong in the cases of 22 Bay State men 
 wrongfully convicted since 1982 and establish reforms to prevent similar 
 mistakes in the future, Good said.

 The Herald and Fox 25 reported in detail this week on the wrongful 
 convictions of 17 men in Suffolk County during the past two decades. Most 
 of those cases were investigated by Boston police.

 But innocent men from towns dotting the commonwealth also have fallen 
 victim to the state's flawed criminal justice system:

 ** Dennis Maher served 19 years in prison for two rapes and attempted rape 
 in Lowell and Ayer. His innocence was established when a volunteer law 
 student found two boxes of misplaced evidence in the basement of the 
 Middlesex courthouse, including one victim's underwear.

 New DNA tests proved Maher was not her attacker and he was freed in 2003.

 ** Angel Hernandez served 13 years for the aggravated rape of a Chicopee 
 woman in 1987. He was exonerated in 2001 through DNA testing.

 ** Kenneth Waters was convicted in 1983 of murdering a woman who 
 frequented the diner he worked at in Ayer, and served 18 years. His 
 sister, a waitress, put herself through law school and labored on his case 
 for years, finally finding in 1999 in a courthouse basement a box of 
 evidence containing blood samples that were tested for DNA. Waters was 
 exonerated in 2001. He died in a fall six months after his release.

 ** Eric Sarsfeld was convicted of the 1986 rape of a Marlboro woman and 
 served 9 1/2 years in prison. He refused to admit his guilt in prison in 
 exchange for early release. DNA tests in 2000 exonerated him.

 ** George Reissfelder - aided by then-attorney John F. Kerry, now the 
 presumptive Democratic nominee for president - battled his 1967 murder 
 conviction until 1982, when a priest revealed a dying inmate said 
 Reissfelder was not involved in the slaying. Reissfelder served 16 years 
 in prison. He died of a cocaine overdose in 1991.

 If state officials approve a plan for an Innocence Commission, they would 
 be following other states that have established formal panels to review 
 wrongful convictions, including North Carolina and Connecticut. Similar 
 proposals are in the works in Texas and New York.

 ``It's like when the plane crashes, you send the (National Transportation 
 Safety Board) in,'' said Robert Feldman, a Boston attorney and co-founder 
 of the New England Innocence Project. ``Or when a patient dies on the 
 operating table, there's an investigation. But there has not been the kind 
 of examination of these wrongful convictions to give us full answers as to 
 what has happened.''

 NEIP lawyers have helped clear six wrongfully convicted Massachusetts men 
 with new DNA testing since the project started in Boston in 2000.

 Political will for such a panel appears to be building.

 Boston police Commissioner Kathleen M. O'Toole, who has already begun 
 implementing reforms in the BPD because of its role in some of the 
 wrongful convictions, said she'd get behind such a panel. ``Anything that 
 gets to the truth, I'd support,''she said.

 O'Toole sent out a department-wide e-mail commenting on the findings in 
 the Herald/Fox 25 series.

 ``As painful as it is sometimes, the Boston Police Department welcomes 
 fair scrutiny,'' O'Toole wrote. She said on her watch the department will 
 do ``everything humanly possible'' to prevent wrongful convictions.

 The Rev. Eugene Rivers said yesterday he has asked for a meeting with 
 O'Toole to discuss the cases.

 Rob Warden, director of the Center for Wrongful Convictions at 
 Northwestern University Law School, said every state should set up such a 
 review commission.

 ``If there is anything that we have been taught by DNA, it is that the 
 criminal justice system is dysfunctional and we really ought to look at 
 why it is dysfunctional,'' Warden said.

 Men who served needless years in jail want to be included in any Innocence 
 Commission established in the Bay State.

 ``Pull us in,'' said Shawn Drumgold, 38, who served 15 1/2 years for the 
 1988 murder of a Roxbury girl. The real shooter has never been caught. 
 Drumgold was released from prison last year.

 ``Ask me any questions you want to ask me. I think that's where the 
 problem is at. We get silenced. Once it hits the media, the (district 
 attorney) makes a statement, the police officers make a statement and the 
 lawyer makes a statement. The defendant is never heard.''