With wrongful-conviction cases getting greater attention, now the focus should be reform, organization’s co-founder says
Aliza Kaplan tells her students at Lewis & Clark Law School, “You have to be really open because you never know when the moment or opportunity will arise, and you want to be able to say ‘yes’ or try it out.”
These students are a huge part of Kaplan’s work these days. She is a professor of law at Lewis & Clark and the director of the law school’s Criminal Justice Reform Clinic, a collaboration with the Oregon Justice Resource Center. In 2014, Kaplan co-founded the Oregon Innocence Project, part of the international Innocence Network.
The Oregon Innocence Project gained an enormous feather in its cap when Steve Wax, Oregon’s top federal defender for 31 years, joined its ranks as the legal director in October 2014.
The Innocence Project has gained popular attention through the series “Making a Murderer” on Netflix, in which filmmakers challenge the case made against convicted murderer Steven Avery and his nephew Brendan Dassey. Prior to his murder conviction, Avery spent 18 years in prison for a crime he did not commit and was freed based on DNA evidence brought to light by the Wisconsin Innocence Project.
Kaplan and I spoke in the organization’s Old Town office.
Sue Zalokar: How did the idea to start an innocence project in Oregon evolve?
Aliza Kaplan: There was a failed attempt here in Oregon in the mid 2000s. I heard about it when we were launching this project in 2014. That project never really got off the ground.
When we launched in 2014, we were one of the last states in the country to have an Innocence Project. Today, there is a national project in New York, and almost every state or region is covered by a local Innocence Project as well. I think there are 65 of us, what we call the Innocence Network, including international projects around the world.
The national IP handles DNA cases from all over the country. They are the original project that started in the early ’90s, and then later, other projects started popping up because the demand for help was so great.
S.Z.: Did you always know that you wanted to represent the underrepresented?
A.K.: I went to clerk for a federal judge right out of law school, an amazing opportunity to have. It was the ’90s, and it was really hard to get a public interest job. Beyond my wildest dreams, I ended up at a huge law firm in Boston, a very nice, nontraditional firm.
On my third day of work, one of the partners came into my office and said, “Hey Kaplan, we’re gonna start an Innocence Project out of this office. You and Feldman are going to be working on it.”
I wondered, “Why me?” Because I didn’t do criminal. And he told me it was because I had (experience) with death penalty stuff. Which I had, before law school. I had written a bunch of petitions on behalf of death row inmates because no one else would. They all lost, and they all were executed. That was the extent of my legal experience (in this arena).
Now I teach a class on wrongful convictions. Now everyone knows that innocent people are wrongfully convicted. It’s all over the news.
S.Z.: It’s on Netflix.
A.K.: Right. Back then? Totally not like that at all.
S.Z.: Steven Avery is the subject of the Netflix documentary “Making of a Murderer.” Avery was exonerated through the work of the Wisconsin Innocence Project after being incarcerated for 18 years for a crime he didn’t commit. When he was on trial for a second crime, for which he claims innocence, the project distanced itself from him.
A.K.: I kind of remember those conversations nationally: What do we do if someone we’ve exonerated goes on to commit a crime?
What people have to remember is that innocence projects are nonprofit organizations. We only survive and get to do the work that we do if people fund us and like us and think we’re doing important work.
Certainly, we can all agree and disagree about whether they should have taken Steven’s name off the (list of people exonerated by the Wisconsin Innocence Project), but, and this is my opinion, regardless of what he may or may not have done (once freed), it doesn’t take away his innocence or the work that the Wisconsin Innocence Project did to exonerate him when he was wrongfully convicted.
The individuals who work there are wonderful, amazing lawyers. I’m sure they did what they did in order to be able to continue to do their work.
S.Z.: There’s a petition now, on behalf of Avery.
A.K.: Whether it’s “Making a Murderer” or “Serial” (a podcast from the creators of “This American Life”), what really frustrates me, though I love the attention the issues are getting, is this stuff happens every single day in communities across the country. This is just one story.
If you look deeply at a huge percentage of cases, anywhere, in any state, federal, you are going to find huge problems – with the police work, investigations, with the defense lawyering, with the forensic science, with the eye witnesses. I mean that is why we have innocence projects.
And that’s why reform – not just obsession – is so important.
Avery was certainly innocent of the first (crime), and now, regardless of whether he’s innocent or not, the way he and his co-defendant were treated in accessing confessions and the police work and the lawyering (at least in Brendan Dassey’s case) are deplorable. People should not be convicted on that kind of evidence and treatment.
(Circumventing) constitutional rights and allowing whatever to happen just to get someone behind bars is not what our system is about, or at least not what it should be about.
S.Z.: How are Oregon Innocence Project cases vetted and chosen?
A.K.: Our students are our frontline. We get letters, sometimes phone calls or emails, but usually letters, from an inquirer that says, “I’m innocent” in some form.
The first thing we always do is send back a 35-page questionnaire. We won’t even look at someone’s case unless they’ve filled out this questionnaire. When and if we get it back, our students, under the supervision of Steve Wax and another junior attorney, Brittney Plesser, gather as much information as they can and review it. Then they write up a summary. Under supervision, they make decisions about the next steps.
For example, if someone says, “I didn’t pay my taxes and I’m in jail,” too bad. That’s not an OIP case. Or even, ‘I got murder and I should have gotten manslaughter.’ You’re not innocent.
We are looking for people who are factually innocent.
Before we would ever take on a case, we do an incredible review and investigation. We get the transcripts; we talk to the lawyers; we see if there is science involved. We work it up until we can make a decision either way.
It’s a really slow process. We are not dealing with just DNA cases, where we have to just find the evidence and if we get DNA testing (and it proves innocence), then the person will get out. Many of the cases involve DNA testing, but it’s just one piece of the puzzle.
S.Z.: It seems, as a team, you are deciding if you think this person is innocent and then, can you prove it?
A.K.: Exactly. We have to truly believe the person is innocent. Then, can we prove it?
We have an advisory committee of people who meet monthly, so when we get to a place in a case where we need to make a decision, we’ll bring it to the committee.
The harder point is figuring out how to prove it. Is there something new? That’s usually what we’re looking for. Is there something new that we can go to court with?
Part of the problem with wrongful convictions is even when you have a ton of information that someone is innocent, finding a mechanism to get back in court to prove it (unless it’s conclusive DNA testing) is really difficult.
One of the things we worked on last year was to make changes to Oregon’s post-conviction DNA law. Because the way it was written, it wasn’t in line with the current science.
The other thing we do, and that was really important to the founders of the OIP, is when we consider a case, we are always going to reach out to the prosecution.
In this day and age, unlike 15 years ago, everyone knows wrongful convictions happen. They have happened all over the country – 337 DNA exonerations and over 1,700 cases (including other kinds of exonerations) nationally.
If we can’t get agreement, we will move forward on our own.
S.Z.: How can we tell the good guys from the bad guys? I mean the people working in our criminal justice system.
A.K.: It’s really important for the public to pay attention to these issues. It is really important to follow not just the sensationalism of what’s happening in the news but what is happening with reform and how are people being treated. We want a system that is fair and just. In order to have that and protect innocent people, we have to protect everybody.
That is what is important rather than trying to figure out who is good and who is bad because that evolves and changes and can vary by a case or time.
S.Z.: A few months ago, there was a major scandal in Bend. Nika Larsen, a forensic analyst with the Oregon State Police crime lab is suspected of tampering with evidence.
A.K.: When you look at the number of DNA exonerations, we have been able to study them and ask, “What goes wrong in these cases?”
In “Making a Murderer,” you see a woman who had horrible things happen to her (she was raped and beaten) get on the stand and say, “He did it.” That has happened a lot. There is no bad intent. She really believed that he was the one who did this to her. In many of our cases, it is honestly a mistake.
What we have learned from the 75 percent of the 337 (DNA exoneration) cases where eyewitness misidentification was a part of that.
There are now 30 years of science that show how eyewitnesses get it wrong all of the time.
We have learned from these DNA exonerations that we can’t do things that way anymore. We have to have independent people showing photos, showing lineups. We can’t show six pictures and say, “Which one is it?”
I have had many cases (like that). … All the pictures are black and white; one is in color.
We’ve learned not only from all of these exonerations but also from actual science that tells us our brains, our memories, are not tape recorders.
It’s called system variables and estimator variables. There are a million things that the system does to increase the odds of you getting it wrong, and there are millions of things that just happen because of who you are, the moment and your memory.
We need to act on making those changes and not let these people who have given up so many years of their lives have it be in vain. And for the victim and society, we have to get it right so the real perpetrator of the crime isn’t out there committing more crimes. We have to make the changes. It’s slow, but it’s happening.
S.Z.: How can we better use science to guide the justice system to be, well, more just?
A.K.: Well, locally, we can work harder to make sure that our labs are – what the IP calls for, as does the National Academy of Sciences – independent crime labs.
There is a wonderful example in Houston, Texas. It is the first real independent crime lab, and it was started by the police there. The science is done by scientists using scientific protocols.
S.Z.: Makes sense.
A.K.: This way, the defense and the prosecution have equal access. As it stands now, the science that is being done in individual cases is being done on one side of this adversarial system.
Independence in labs is something we feel very strongly about, especially with our current scandal (in Bend) and the ones that you see around the country.
In general, what you see in a lot of these cases is that law enforcement has relied on a bunch of different types of sciences over the years that have either been discredited or are not always done properly.
Some examples: Bite mark evidence, microscopic hair analysis, bullet-lead analysis. These are all made-up criminal justice science that thousands and thousands of people across the country have been prosecuted on.
With each one coming to light, we learn of exonerations.
One recent example is shaken baby syndrome – something that so many people have been prosecuted under. For many, many years, this science – the medical community even, forget law enforcement – has been pushing this diagnosis.
And five years ago, the American Pediatric Society said, “Whoa. Wait a minute. We can’t do this anymore.” As we learn more about science, we need to be open to making changes in the system.
We know that if someone is mentally disabled, young or another vulnerable population and you keep them in a room for seven hours and you make promises to them and use the Reid Technique …
S.Z.: The what technique?
A.K.: The Reid Technique, which is what our law enforcement applies when interrogating people. Our law enforcement FBI have been using it for 50 years. There have been tons of studies (evaluating) what happens when you apply this under (given) circumstances: when you deny people food, when the person is a minor, all of these things (people confess to things they didn’t do.)
S.Z.: How can people best support what you do at the Oregon Innocence Project?
A.K.: Well, the best way to our work is to give us money. I don’t have any problem saying that.
The other thing is to pay attention to what is happening in our criminal justice system – locally and in a larger scope: our state, our country. These issues are hot right now. They’re big. And if people get mad when they see (injustice in our legal system), they need to act on that.
That means calling your legislators, writing letters; it means donating to organizations that work on reform.
Most of all, people can learn about why things are the way they are, so we, as a society, can make the changes necessary to prevent wrongful convictions but also make our system more fair, transparent and just.
