Tony Goldwyn's "Conviction' and the death penalty

You may remember Barry Scheck as the little snub-nosed guy in the O. J. Simpson murder trial who tore apart the Los Angeles County medical examiner’s testimony about O.J.’s DNA traces. Scheck put the evidence on a big screen and, armed with a pointer, displayed one apparent discrepancy after another in the examiner’s report.

Each time the pointer landed in another place, Scheck would say, “What about that, Mr. Fong? What about that?” Johnny Cochran may have had the glove that didn’t fit, but Barry Scheck had a forensic tool kit that savaged the prosecution’s case.

Did O.J. really do it? I’ve always felt that the prosecution’s time line was the Achilles heel of its case. Cochran thought so, too. But the job of a defense attorney is to defend his client, and Scheck did his job brilliantly. Yes, he brought a little show business into it. But, after all, the venue was Hollywood.

Simpson was charged with a horrific double homicide, but the death penalty was never on the table. The D.A.’s office thought that would make too tough a case. Better to save it for the poor schnooks represented by public defenders than a sports hero with a dream team of celebrity lawyers.

Most memorable line

The case came back to me as I watched Tony Goldwyn’s Conviction, which dramatizes the real-life story of Kenny Waters, who spent 18 years in a Massachusetts prison for a murder he didn’t commit. Barry Scheck, whose Innocence Project devotes itself to exonerating the wrongly convicted through DNA testing, got him freed.

The most memorable line in the movie, for me, was the observation that, if Massachusetts were not one of the 14 states in the Union without the death penalty, Waters would have been executed long before his innocence could have been demonstrated.

That brought to mind another fact: An attempt to reinstate the death penalty in Massachusetts several years ago failed by exactly one vote. It wouldn’t have affected Waters, but it certainly would have anyone in a similar case.The death penalty is a lottery, and the odds are stacked in favor of the house. If you’re accused of first-degree homicide in a state jurisdiction, the odds are 36-to-14 you may be charged capitally.

High batting average, but…

If you’re rich, you won’t get the needle; Death Row is also poverty row. The Philadelphia Public Defenders’ Office has a 1.000 batting average in capital cases; no one ever defended at trial by its excellent and dedicated unit has ever received a death sentence. But the odds are 4-to-1 against your getting its services, because the Philadelphia Bar Association, lobbying to keep incompetent attorneys in business, has restricted its services to 20% of all capital cases.

It takes a unanimous verdict to find a capital defendant guilty and impose a death sentence, but the one-third of all Americans who oppose the death penalty can’t serve on capital juries, even if they agree to apply the law without regard to their personal convictions. This is the only form of trial in America where the defendant is automatically denied a jury of his peers.

Kenny Waters was lucky. He lived in Massachusetts. The crime for which he was convicted— first-degree homicide “with atrocity”— would have handily qualified him for execution in any death penalty state.

At that point his luck ran out, though. Waters was convicted on the basis of perjured testimony coerced by the officer investigating the case. The DNA evidence that might have cleared Waters was reportedly destroyed. Once in prison, he became suicidal.

Sister’s devotion

In a made-for-Hollywood script, there’d be one person— female, of course— who’d believe in Kenny and fight against all odds to establish his innocence. Such a person did exist in reality. Betty Anne Waters, Kenny’s sister, put herself through law school to plead his case, and sacrificed her marriage in her determination to clear his name.

A DNA sample turned up. The witnesses confessed their perjury, and one of them recanted. Betty Anne was able to enlist Barry Scheck, whose name carried too much weight to be ignored. District Attorney Martha Coakley— yes, the same Coakley whose botched run for Ted Kennedy’s seat cost the Democrats their supermajority in the U.S. Senate last January— was initially unswayed: When presented with the evidence of Kenny’s innocence, she wanted to charge him instead as an accessory, although no evidence linked him to the crime.

This should be the stuff of Hollywood. But have you ever met a D.A. willing to back off a false conviction?

Scheck proved persuasive here, too, however. Case finally closed.

Betty’s need

In dramatic terms, the crux of Conviction is the relationship between the Waters siblings, Betty Anne and Kenny, cast aside and often separated in an abused and neglected childhood, with no one but each other for comfort and identity. This back-story is essential to the film’s emotional credibility; indeed, in a deeper sense it is the story, for Betty Anne’s belief in Kenny’s innocence lies both in her faith that he is incapable of the brutal crime with which he is charged and her desperate need that this be so. Her own sense of self is inseparable from Kenny’s, and at some level (which she cannot question) she knows that if he is guilty, so is she.

Child actors necessarily play the juvenile parts, but Hilary Swank, who has inherited the hardscrabble roles that Jodie Foster used to play, is utterly convincing in projecting the adult Betty Anne’s need and devotion, and the dogged struggle to which it leads her. Toward the end of the film, as she confronts one of Kenny’s false accusers (a fine turn by Juliette Lewis), her face turns into something very like a blade, and one feels chillingly that she herself could kill to establish her brother’s innocence.

Sam Rockwell’s Kenny progresses from angry young man to embittered lifer; he almost resents Betty Anne’s efforts for the false hope it breeds, but he cannot bring himself to reject her.

The predictable drama of his exoneration (with Minnie Driver as Betty Anne’s sidekick and Peter Gallagher, with his B-list good looks, as a prettified Scheck) is mostly of documentary interest; but then, as the film points out, this is only one of 254 more or less similar stories uncovered by the Innocence Project.

One nagging question

The viewer—or the interested citizen—might want to know why DNA testing isn’t mandatory in all cases where it’s available, and why prosecutors and courts resist a procedure that could reverse miscarriages of justice, some of them involving life and death. The desire to close cases and clear dockets is one explanation; so is the understandable human reluctance to admit error, negligence or, as in the Waters case, something far worse.

On a deeper level, our adversarial criminal court system, with its emphasis on winning and losing rather than finding of fact, is characterized by a competitive, sporting element. When the game is stacked against defendants, as is so routinely the case, it’s hard to call the outcome "justice."