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The consequences of the prosecution, conviction and incarceration of a person for a crime when he or she is actually innocent or when the evidence of guilt is extremely doubtful is devastating to the individual, the public and the criminal justice system. The vast majority of convictions are proper, however it must be recognized that the number of people who are currently serving sentences for crimes they did not commit is incalculable. It is astonishing that there have been 2500 individuals in the United States reportedly exonerated since 1989. They have served an aggregate of 22,500 years of incarceration. The legal hurdles to correct a mistaken finding of guilt or a coerced plea of guilty are high and possibly insurmountable.

Recently the Appellate Division in an unpublished per curium opinion vacated the 1996 murder convictions of Kevin Baker and Sean Washington because it was concluded that newly discovered evidence called into serious question that their guilt was established beyond a reasonable doubt. The prosecutor thereafter dismissed the indictment because of the totality of the circumstances and the passage of time.

The evidence presented in a two-day trial was questionable and sparse. Defense counsel did not call any witnesses or introduce any evidence. Baker and Washington were sentenced to life in prison with a 60 year period to be served before parole eligibility. The convictions were affirmed on appeal and the petition for certification was denied. In the years following the convictions there were multiple unsuccessful petitions for post-conviction relief, appeals and a petition for habeas corpus in the federal court. The last post-conviction relief was filed in 2013.

In the early morning hours of January 1995, when it was still dark, two individuals were shot and killed in Camden. Baker and Washington were arrested based solely on an identification by an eyewitness, who at the time was under the influence of crack cocaine. Her testimony was factually implausible and laden with inconsistencies. After opening statements, the court conducted a Wade hearing to consider the reliability of the identification testimony. Applications to bar the testimony were denied and the prosecutor presented the one fact witness, the county medical examiner, responding police officers and a police ballistics expert. The defense attorneys had limited pretrial contact with their clients and did not do an investigation or challenge the opinions of the prosecution's experts. During the initial round of post-conviction hearings it became clear that there was evidence that Baker was not at the location and had an alibi witness that was known to defense counsel. The witness was not called because of concern that her credibility would have been attacked.

In 2011 Leslie and Michael Risinger of the Last Resort Exoneration Project, at Seton Hall University School of Law, became involved. With assiduous investigative and legal efforts they were able to find additional evidence supporting Baker's and Washington's innocence. The prosecution did not disclose exculpatory evidence. An additional alibi witness and evidence that could support Washington's non-involvement in the crimes was discovered. Dr. Michael Baden, a prominent forensic pathologist participated without charging a fee. Several firearm experts were engaged and scientifically disputed the eye witness' description of the manner of the shooting and contradicted the prosecutor's experts who claimed that there were two assailants when in fact there was only one. The information that was gathered during the post-conviction hearings supported Baker and Washington's claims of actual innocence and ineffective assistance of counsel but it was still deemed not sufficient by the trial judge to reverse the convictions.

The cases were again appealed. The Last Resort Exoneration Project attorney represented Baker, and prominent criminal defense lawyer Larry Lustberg represented Washington. Raymond Brown, another well-respected attorney, represented as amici curiae four individuals who had previously been wrongfully incarcerated and exonerated after serving 10, 12, 14 and 17 years, respectively.

Linda Mehling and Frank Krack appeared on behalf of an additional amicus, The Innocence Project, which is a nonprofit organization that was formed by Professors Barry Scheck and Peter Neufeld at the Cardozo Law School.

The legal burdens are huge and the pathway is small to vindicate individuals who have been wrongfully convicted of crimes, particularly after the passage of time and when the matters have been previously been reviewed. There is a strong judicial preference for finality.

To establish that a convicted person's constitutional rights were infringed a court must be satisfied that there was either a Sixth Amendment violation of ineffective assistance of counsel or a violation of due process because of a bona fide claim of actual innocence. The appellate court did not address these constitutional issues. If they were the basis for a reversal there probably would have been further appeals and litigation and the continued incarceration of Baker and Washington.

If there is newly discovered evidence that is material to the issue, not cumulative and not discoverable by reasonable diligence beforehand, and is the sort of evidence that would probably change a jury verdict, a court may order a new trial. The record of the trial, the multiple hearings and appeals were painstakingly reviewed by the current appellate judges who reversed the trial court's denial of relief and granted the defendants a new trial. They found that the newly discovered forensic evidence coupled with the non-forensic exculpatory proof that the defense obtained after the trial powerfully undermined the sole eye witness' various descriptions of the shootings. The court objectively viewed that had the evidence been presented it would have probably changed the jury's verdict. We commend this court.

Times are changing, but the exoneration of wrongfully convicted persons is moving at a very slow pace. In April of 2019 Attorney General Gurbir Grewal created an independent Conviction Review Unit which is separate from the Division of Criminal Justice to investigate claims of innocence by convicted persons. Hopefully this is a step in the right direction.

Although some may think that it took courage for the court to reverse the convictions after 23 years, it must be recognized that doing the right thing is not courageous. Were it not for volunteering of superb lawyers, the marshaling of resources, hard work and luck, Baker and Washington would still be in prison today. The inadequacies of the rules regarding post-conviction relief, various procedures, case law, and statutes must be reviewed and addressed. There needs to be a serious and robust discussion of the mindsets of judges and prosecutors. Even though the cost of imprisonment of an innocent person is substantial there is a lack of public and private resources that are necessary to address the problem. When an innocent person is convicted of a crime a felon goes free.

Of note, the decision of the Appellate Division was the day after Christmas on Dec. 26, 2019, and the ultimate release of Baker and Washington was on Lincoln's Birthday,

Feb. 12, 2020.

Editorial Board members Virginia Long, Lawrence Lustberg and Edwin Stern recused from this editorial.