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.''