THE BLOG
07/06/2010 12:56 pm ET Updated May 25, 2011

Should Judicial Mistakes Weigh Heaviest on the Poor?

In the movie, The Shawshank Redemption, where the two protagonists, Red, played by Morgan Freeman, and Andy Dufresne, played by Tim Robbins, initially meet on the prison yard, there is the following exchange:

Andy: "I'm Andy Dufresne."
Red: "The wife killing banker, why did you do it?"
Andy: "I didn't, since you asked."
Red: "You're going to fit right in."

According to Red, everyone was innocent at Shawshank Prison. The line seemed as absurd on the sliver screen as would such claims in real life. But our prison system -- maybe not at the rate of inmate hyperbole -- does incarcerate the innocent.

George Toca may very well be among this dubious list.

Toca, now 43, was 17 at the time of his arrest in the 1984 shooting death of his best friend, Eric Batiste. He has been held at the Louisiana State Penitentiary at Angola since his conviction in 1985.

In what began as an armed robbery gone bad, Toca was convicted based on misidentifications by two eyewitnesses. It remains doubtful that Toca was even at the scene of the crime.

The witnesses described the shooter as between 5 feet 10 inches and 6 feet tall and weighing 140 pounds. Toca is 5-foot-5 and weighed less than 125 pounds at the time of the shooting.

Moreover, there was an individual at the scene who fit the description offered by eyewitnesses, who has been identified by multiple witnesses, including several of his friends, as the real shooter based on confessions he made to them.

The Innocence Project New Orleans, a nonprofit that represents individuals with provable claims of innocence who have been sentenced to life, has gathered evidence on behalf of Toca since 2003. Its efforts have strengthened the case that an innocent man has languished behind bars for 26 years.

Jeanetta Batiste and Joyce Dolliole, the mother and aunt of Batiste, are also advocates for Toca's release. But the momentum to free Toca is met with opposition from the state, which remains deaf to the compelling evidence.

Several weeks ago, a state judge rejected pleas to release Toca after 26 years of incarceration.
"I guess the judge didn't believe any of the 10 witnesses who testified," said Emily Maw, an attorney representing Toca through Innocence Project New Orleans immediately following the judge's ruling.

To his credit, Toca has remained hopeful and diligent during his incarceration, having recently graduated from New Orleans Baptist Theological Seminary.

Beyond the black and white contours of guilt and innocence, what binds Toca to many others who may be wrongly incarcerated is poverty.

In Louisiana, and other places, when defendants cannot afford a lawyer, the state pays for them to have one for their trial and for their first appeal -- the direct appeal -- which is focused on procedural matters.

Unless they are sentenced to death, after the direct appeal, they are essentially on their own. It is during the legal process after the direct appeal that the individual, if he or she has been wrongly convicted, has the opportunity to revisit the evidence.

Death row inmates get lawyers funded by the state for the entire legal process, which explains why roughly 33 percent of the state's exonerations since 1990 have been death row prisoners.

But for everyone else, particularly for the indigent, the point at which they could revisit the evidence to prove their innocence in court is exactly the point at which the state no longer provides legal assistance.

No one in Louisiana has ever proven his or her innocence after the direct appeal without a lawyer. Void of legal representation, those wrongly convicted, and given a life sentence, will most likely die behind bars.

Since there are no perfect institutions, I can accept the possibility of mistakes in our judicial system. Should those infractions weigh heaviest on the poor?

It's medieval to think such could be the case anywhere in 21st century America. But this is one of the hidden taxes levied almost exclusively on the indigent. The Innocence Project New Orleans provides Toca with his last pencil thin line of hope.

Without that scant hope, one is left only with the two options Red provided Andy when he entered Shawshank Prison.

You either "Get busy living or get busy dying."