Always the Innocent are the First Victims.


If an alibi and the absence of a criminal record aren’t enough to keep you out of prison, then surely DNA evidence should be enough. Right?

Thirty-five years ago, a 9-year-old boy was raped in a field near his Lake Wales home. Five months later, a 19-year-old man was convicted of the rape and sent to prison for life.

Now, DNA tests show he was the wrong man.

“Thirty-five years is a lifetime. We hope the state won’t prolong James Bain’s incarceration,” said Seth Miller, executive director of the Innocence Project of Florida.

Of the 245 people in the United States exonerated by DNA evidence since 1989, not one has spent as much time in prison as James Bain.

Even if 35 years isn’t a lifetime, it’s long enough.

The state may not be able to properly compensate Bain for all those years spent behind bars but it can start making things right by releasing him, promptly, and then going through the sort of painstaking review process of similar convictions that’s going on in Dallas County under the leadership of District Attorney Craig Watkins.

Moving forward, I’m curious to know why the state refused his request for DNA testing four times before finally relenting on the fifth time. This, you would think, should be a matter of standard procedure. Was it a lack of money? Was it apathy? Was it a refusal to acknowledge a wrong might have been committed?

I think I already know some of those answers. I’m from Texas, after all.

But we need to ask these questions, and we need good answers, because we need to do better.

Anyway, Bain’s plight brought me back to this head-scratching excerpt from Jonah Goldberg, who somehow convinced a publishing company to fork over $1 million for insightful ponderings like this:

In debates with readers, colleagues, college audiences, et al. the monitor on my internal respect-o-meter flat-lines every time I hear someone say, for instance, “better ten guilty men go free than one innocent man be punished.”

… how come it’s better that ten guilty men go free? When we translate the principle to reality, we’ve got to pick a threshold number. So why not say it’s better that 50 guilty men go free? Or, say, two guilty men? Is 10 a special number? Or is it just easy to say? Or haven’t you thought about it all? Most often, people haven’t thought about it all.

So let me ask you, why not set free two million guilty men?..

With all due respect (I guess), his respect-o-meter needs a major overhaul.

The reason it’s better that “ten guilty men go free” or two or 2 million, is because if we – as a nation – get comfortable with the idea of locking up innocent men (and women) on dubious premises and flawed evidence, then none of us are safe.

Especially black men.

Some 90 percent of false convictions in the rape cases involved misidentification by witnesses, very often across races. In particular, the study said black men made up a disproportionate number of exonerated rape defendants.

The racial mix of those exonerated, in general, mirrored that of the prison population, and the mix of those exonerated of murder mirrored the mix of those convicted of murder. But while 29 percent of those in prison for rape are black, 65 percent of those exonerated of the crime are.

You might be a part-time janitor on probation for burglary. You might be a college student who spent two years in the Army.  While you’re out two-timing 30 miles away, your girlfriend could turn up raped and murdered.*

Now imagine the wrongly convicted is … white.  (c) Jake Tyler Brigance

Look, I kid, but this isn’t a game.  The stakes in the courtroom are much too high to tolerate error and then doubling down on that error and then making a cute contrarian argument in the Weekly Standard while relying on your respect-o-meter.

It ain’t Jonah Goldberg’s flatline that I’m worried about.

* Yeah, a lot of those examples are from Texas. It’s almost certainly not a coincidence.


Joel Anderson —blackink —  writes about sports, politics, crime, courts, and other issues far beyond his competence at BuzzFeed. He has worked at media outlets in Texas, Oklahoma, Louisiana and Atlanta and contributed to a number of publications, including The Root and The American Prospect, among many others.
  • lsn

    So let me ask you, why not set free two million guilty men?

    Surely the question should be reversed – why not incarcerate 2 million innocent men?

    I’d like to see how he answers that.

    I have to say I’m glad DNA testing is working to free some wrongfully convicted people in the US. Here we seem to have had the opposite problem recently – cross-contamination has lead to at least one wrongful conviction and a complete review of testing and evaluation procedures. Part of the problem here is definitely the “CSI effect” – I don’t think juries in general understand the procedure well enough to know of the potential problems and therefore aren’t able to evaluate the evidence presented sufficiently well, so they take it as being infallible, just like on CSI.

  • steve

    Craig Watkins is GREAT btw. I would love to work for him. Saw him speak once. He’s really the best big city prosecutor out there.

  • GreenbackCafe

    In light of so many people being wrongly convicted in Texas, I am surprised there is not an on-going exodus from that state.

    Sorry to offend any Texas natives reading this but, in light of the endemic injustice there, I refuse to even set foot in Texas, let alone live there.