Thanks to Barry Scheck and the Innocence Project Cornelius Dupree Jr. is free from prison after spending 30 years behind bars for a rape he never committed.

As with most exonerations Dupree’s conviction was based upon an eyewitness misidentification. Police showed Dupree’s picture and the picture of his codefendant to the victim and her male friend in a photo array. The victim picked out the pictures of Dupree and his friend while her male friend picked out neither of the pictures. Dupree was sentenced to 75 years for rape and robbery. But now thirty years later Dupree has been exonerated by DNA evidence.

Out of 265 people exonerated by the Innocence Project, 158 of the individuals, like Dupree were African Americans, 80 were Caucasian. 21 were Latinos, two were Asian American and four were of unknown racial background. One study showed that between 1989 and 2004 there were 120 exonerations for those wrongly convicted of rape. Nearly 90 per cent of these were based upon eyewitness misidentification and although only ten per cent of rape convictions involve White victims and Black rapists fifty per cent of the exonerations involved cross racial misidentification.

In that thirty year period Dupree had at least two opportunities to be paroled but that would required him to except responsibility for a rape he knew he never committed. It is not unusual for a parole board to refuse to parole an individual unless they admit responsibility for the crime. Ironically this means that guilty individuals often spend more time in prison than innocent individuals. Another condition of his parole would have been that he attend a sex offender treatment program. As part of the program the innocent man would have had to show recognition, remorse, restitution and resolution. He refused to do this and he was denied parole.

Under Texas law Dupree may get $80,000 for each year he was in prison and a lifetime annuity. He should get a 2.4 million dollar lump sum payment.

Another problem with false identifications is that as a result of Dupree’s conviction the actual rapist has been free for thirty years and we do not know how many rapes he has committed during that period.

Last year the Supreme Court, in a highly unusual move ordered the lower courts to hold a hearing to determine whether Troy Davis, a convicted murderer was actually innocent.

While the Supreme Court often hears direct appeals and appeals involving writs of habeas corpus. these appeals generally involve procedural and legal matters. In the absence of a flawed procedural or legal matter it is generally assumed that the finding of a jury is sacrosanct.

Pursuant to the Supreme Court’s order Judge William T. Moore Jr. of the Southern District of Georgia held an evidentiary hearing allowing Troy Davis to present witnesses in an attempt to show that evidence that was not available at the time of his trial exculpates him.

The court found that Davis presented insufficient evidence that a jury could find by a clear and convincing standard that he was innocent. He provided several types of evidence. Much of the evidence was recantations of evidence presented at trial. But the court found much of the recantations not credible and found the rest of the recantations to be too weak to convince a jury. Davis also presented evidence that another person, Sylvester Coles committed the murder including, hearsay statements by Coles. But again in light of the hearsay nature of the statements the court found it too weak to exculpate Davis. Other evidence was directly exculpatory. But the court found it to be smoke and mirrors and did not find it to be credible.

But prior to making his finding that Davis did not prove his case, Moore found that the Eighth Amendment permitted post trial findings of innocence when new evidence is presented. In a number of cases the Supreme Court has considered the appropriateness under the Eighth Amendment of the death penalty based upon the characteristics of the offender. In such cases the Court has used a two step process.

First, a court “considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. . . . Second, a court must independently determine whether the punishment in question violates the constitution based upon precedent and the court’s ‘understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.’”

As to legislative enactments the court took notes of numerous enactments including those allowing DNA test post conviction to test jury convictions. It pointed out that much of the purpose of our criminal laws is to prevent the imprisonment and execution of innocent people. Therefore Moore found that the Eighth Amendment requires the exculpation of innocent people post conviction. But it found that Troy Davis had not proved his innocence. This is not the last word. The decision will be appealed.

The Supreme Court on an original petition for habeas corpus ordered the US District Court for the Southern District of Georgia to hold hearings and to decide whether evidence developed since the trial of Troy Davis establishes Davis’ innocence.

Troy Davis was charged with and convicted of the murder of an off duty Georgia police officer. Nine witnesses testified for the prosecution at trial. Seven of these witnesses have recanted. This will give a Federal judge the power to listed to these witnesses and other witnesses that have come forward and determine whether or not Troy Davis is telling the truth when he says he is innocent. It will not be an easy job. To meet the Supreme Court’s test Davis will have to “clearly establish” his innocence. This is a much more difficult task than proving, at trial, that there is a reasonable doubt that he is not guilty.

Justice Scalia dissented from the Court’s opinion. He asserts that Davis is guilty and that the District Court is without power to change the result of the trial. Justice Stevens filed a concurring opinion disputing Scalia’s argument. As Justice Stevens points out no court has ever had a hearing to determine the validity of the numerous affidavits challenging the lower court decision. He points out that the lower court may find that restrictions on reversing lower court decisions may not apply to original petitions in the Supreme Court or to findings of innocence either on statutory grounds or on constitutional grounds.

There is good reason not to apply the rules for habeas corpus to findings of innocence. By definitions findings of innocence imply that evidence, not available at trial and only developed post trial, prove the defendant’s innocence. Since the habeas rules apply strict timelines evidence found years after trial would not be admissible in a habeas. Yet this post trial evidence is the very type of evidence one would expect in a claim of innocence. This is particularly important in a case such as Troy Davis’ where he is sentenced to death. As Justice Stevens pointed out we certainly do not want to execute the wrong person.