CONVICTION, the heroic true story of an innocent man, wrongfully convicted — Attorney John L. Burris weighs in

Compelling and uncompromising, CONVICTION is the story of siblings Betty Anne and Kenneth “Kenny” Waters.  Early on they shared an impenetrable bond that ushered them through a challenged childhood filled with impish deeds that led to being separated by the courts, thrust into living apart.

Kenny’s rambunctiousness often went into overdrive fueling a pattern of misdemeanor offenses while making enemies along the way.  A failed marriage gave way to a strained relationship with his daughter yet, Kenny and Betty Anne remained as close as their circumstances allowed.

Betty Anne Waters

When the ongoing consequences of Kenny’s misfortunes fall into the hands of a vindictive parole officer, he is wrongfully convicted of murder, which serves as the basis of this film.  Renowned civil rights attorney Barry Scheck of The Innocence Project, who also worked on the O.J. Simpson trial, factors prominently into the telling of this story; Scheck worked alongside Betty Anne (who put herself through law school) to help free Kenny Waters.

I spoke with several of the key players in this film.  Excerpts from our conversations follow--

Pamela Gray, screenwriter

Screenwriter Pamela Gray (Music of the Heart, A Walk on the Moon)

Talk2SV: Several themes are prevalent in this story, among them, perseverance and hope. Of the many platforms that you could have explored beyond perseverance and hope, what rings true of Betty Ann’s journey?

Gray: Betty Ann Waters doesn’t think she did anything special. Betty Ann Waters didn’t have a choice in her mind, ‘I’m going to save my brother, I don’t know how, but my brother is innocent and I’m going to get him out.’  That kind of love, devotion and belief rings true of her.  You see her belief in Kenny but equally Kenny believed in her. “You’re going to go to law school, you’re going to become a lawyer, you’re going to get me out. You will because I know you.”  We all want that kind of relationship; that kind of love and have that profound bond.  And, I think this is a story that will have people asking, ‘Would I do this for someone? Who would I do this for?’  And that is what kept me on track when I got lost in this labyrinth of a plot. This is a love story between a brother and a sister.  This is about Betty Ann and Kenny, who they were to each other as children and, how they traveled this terribly painful journey together.

Talk2SV: Having worked on this story, how has it altered your view of the penal system?

Gray: I don’t think I knew or believed that there were so many innocent people in prison. There’s a line in the movie where Betty Ann says to Kenny’s daughter, “if Massachusetts had the death penalty, your father would be dead by now.”  In all honesty, I thought that some people deserved the death penalty.  But, once you realize that this is a system that can put an innocent person to death, well then, the death penalty can’t exist.  There have been innocent people put to death. Barry Scheck was talking recently about a case coming up very soon.  They’ve got the DNA evidence that proves that an innocent man was executed.  Just the numbers alone, I went to the Innocence Project and you see those mountains of applications and it’s not just people making it up, these are family members who say, “I’ve got a loved one who doesn’t belong in there.”  So, again, on an emotional level, I feel the pain of the injustice on a very different level than I did at the start of the story.

Barry Scheck

I sat with noted civil right attorney Barry Scheck in a hotel lobby during the Toronto film festival to discuss this movie and the work he is doing through DNA discovery to overturn wrongful convictions.

Talk2SV: I was struck by what is clearly an example of love to no degree between a brother and a sister in the telling of this story.  Of course, one expects unconditional love from your parents but to see that kind of uncompromising love displayed from one to another just melted me away. In that regard this film is equally triumphant and sobering.

Scheck: It is especially if you lived it. But what’s so interesting is that Betty Ann is a truly inspirational person and she’s so connected to all the other families that have been through similar kinds of crisis in their lives where they’ve had loved ones convicted and they have to fight so hard to get them out of prison. We now have 258 people who have been exonerated just with DNA testing here in the United States; many in Canada and abroad.  We have 49 other innocence projects here in the United States, 7 abroad. 

Betty Ann has reached out and they’ve reached out to her, all these family members, all these other Kenny’s that are out there. Some in jail and some, thankfully, out so this is a movement, really a civil rights movement that’s taken hold over the last 15 years in a way that I think is quite important for the criminal justice system. What I love about the movie is that I think it hits people in the heart as well as the head.  We have so much legislation pending now in the United States Congress and in states all across the country.  There are many things that can be done to reform the criminal justice system, that don’t just protect the innocent, but they help law enforcement apprehend those who really committed the crime. 

Larry Fuller, center, is freed in October 2006, exonerated by DNA evidence after he served more than 25 years in prison for aggravated rape. He is flanked by Innocence Project lawyers Barry Scheck and Vanessa Potkin (as reported in TIME Magazine, 2007), photo credit, Ron Heflin / AP.

This is the great tragedy in all these wrongful conviction cases that the real person is out there committing more crimes when the innocent person is rotting away in a prison cell.  So, this is a learning moment for the entire criminal justice system and all the things that can be done to prevent or mitigate the conviction of the innocent, also help enhance the capability of law enforcement to catch the real guy.  That is why our movement is really taking hold in an important way.  I spent eight years working to get this made. Because it’s a great story, in some ways emotionally one of the very best stories, but we have a spokesperson here in Betty Ann Waters who I think is going to make a big impact.

Sandra Varner (Talk2SV): The work that you do is bittersweet.  Using DNA discovery to free innocent prisoners and persons wrongfully accused came into popular vernacular during your work on the O. J. Simpson trial back in 1994.  You and law partner Peter Neufeld had started The Innocence Project in 1992 to free such persons. Yet, of the many cases The Innocence Project has processed (some 230), many if not all of the cases are hard fought and encounter innumerable many road blocks on the way to a person’s long awaited freedom.

Scheck: Well, it’s frustrating but we’ve made so much progress and attitudes have changed. But we find that in case after case, yes it’s true, some prosecutors are coming forward and are willing to say, ‘we made a mistake.’  We’ll even set up what we call convictions integrity units as they have in Dallas, in New York, in other prosecutors offices across the country because they want to correct the injustices. At the same time, some people, I think, are foolishly afraid that it’s embarrassing for the system.

What people have to recognize is that only 10% of felony cases have any biological evidence that you can subject to DNA testing.  What about the other 90% of the cases where there’s mistaken eye witness identification or false confessions or bad forensic science or police officers and prosecutors who cross the line or defense lawyers that are not adequately funded or not competent to do the job?   These are all serious problems for the system and when we attack those, it makes it better for everybody.

Talk2SV: When you watch a story like this, you get emotionally invested.   

Scheck: Me too.

Talk2SV: Because you do this work repeatedly, how do you hold up under it?

Scheck: Well, you know, it’s funny you mention that because I find that it’s getting harder not easier because when somebody gets out of jail it’s a big moment.  We’re all in the court and I find myself getting very upset because I start thinking about how difficult it’s going to be for the person that’s been exonerated and their family because there’s all these gaps in years that they have to make up.  All this terrible carnage, frankly, that they experience in every day life and they are all very special people because there’s a kind of spiritual transcendence that they have to have just to survive so, yeah, I find that it gets harder for me, it’s interesting.

Talk2SV: What do you say to young attorneys who may look to follow your example and; are you out on the circuit speaking to younger attorneys?

Scheck: Oh, of course, all the time, I’ve been teaching for 31 years.  The truth is and I bet it’s true for most professions, but it’s certainly true of law, is that it’s a labor intensive enterprise.  You  really have to work hard to be any good at it no matter what field of the law that you chose.  You might as well choose one that gives you energy and passion and that you feel ok with working until 7, 8, 9, 10, 11 at night, and weekends.  If you know that you will have to put all of your heart and effort into something, well, chose something that gives you energy and is worthy of your passions.

 
Oakland-based civil rights attorney John L. Burris,
photo credit, Auintard Henderson and Photographers@Large

Oakland-based civil rights attorney John L. Burris is a contemporary of Scheck’s and had this to say about his work --

Talk2SV: What is your comment about the work being done at The Innocence Project?

Burris: Tremendous work, there are many great people, good people doing great work. Some of them in small places and they don’t get a lot of attention for it. They (The Innocence Project) get a lot of attention for it and it’s well deserved. Because before them, no one was focused on this whole question of what do we do about people who’ve been convicted of crimes and we have reason to believe that they’re innocent?

Now, fortunately, DNA came along and they were able to use a scientific method to go back and do this work. I mean, there is nothing more painful, just think of a person who has been in jail for 20 years who did not commit the crime and no one listens to them. Because everyone says they’re innocent in jail and you can’t figure out who is telling the truth or not. You can’t do everything and solve all problems; you have to focus in on what you can do. They are focused in on this problem and the world’s a better place because they have; most of the people they’ve freed have been black people.

So, it’s a step forward, a giant step forward; unfortunately, it only affects a small number of people, but it’s a very positive development and they certainly are people that I have the utmost respect for.

Bay Area native Sam Rockwell (Iron Man 2, Strictly Business) portrays real-life victim Kenneth “Kenny” Waters in CONVICTION from FOX Searchlight Pictures.

Sam Rockwell (Iron Man 2) is the star of the movie.  The Bay Area native (Daly City) portrays Kenny Waters with equal parts gravitas and restlessness in this stand out performance.

Talk2SV:  I am calling this the year of Sam Rockwell. A number of emotions run the gamut in this film: rebellion, disappointment and hope; was there an emotional touchstone that allowed you to ‘live in’ those areas of emotion for this multi-layered character?

Rockwell: It’s like a lot of guys I knew or went to high school with here in San Francisco.  I think we all know someone a little bit like Kenny but, it’s also, like some of the great roles, like “Mercutio” in Romeo and Juliet or “Johnny Boy” in Mean Streets, the character that DeNiro played.  There are many versions of this guy.  When you watch documentaries, you research prison and it all kind of comes together.  It’s fun to play a character who goes through all of these emotions and; from the script analysis, you plan it out, then you figure out how to go about with each scene.

Talk2SV: So it’s that tactical for you? Is there no emotional touchstone for you?

Rockwell: Oh no, it’s always emotional; it’s very personal, very personal. I mean I talk about it now in retrospect so it’s not as emotional.  My acting technique is all about making it meaningful so and the actors that I admire make it meaningful.  There has been some time between filming so I have digested (the character) but when I see the film, I weep like a baby because I remember the experience and it’s very touching.

Talk2SV: I sat with Barry Scheck and we talked about the work he is doing with DNA discovery and wrongful convictions.  Betty Ann Waters refers to him as her hero.  And your opinion of him? 

Rockwell: Yeah, he’s pretty great.

Talk2SV: Barry Scheck is a hero for all of the people that he’s working on behalf of. He’s doing this work under funded. Having done this film, do you see yourself lending support to his work financially or otherwise?

Rockwell: Well, I would certainly donate some time in talking to people about it.  I’m not rich, but I would definitely care about the Innocence Project and I would do whatever I can to help out. 

TalkSV: As a consequence of working on this film, have your opinions shifted regarding the prison system and; do you think you were more judgmental going into this project and perhaps less coming out of it?

Rockwell: Sure, yeah, I mean of criminals, or ….

Talk2SV: Of people in general…

Rockwell: You know I suppose I think that Betty Ann’s story is so selfless that it’s kind of like a Mother Theresa kind of thing; I mean, what she did is pretty amazing. Yeah, again, I think that I was a little naïve about the system.  I think many people are, you know?  Kenny really got screwed over and it happens a lot.  I don’t think people understand that it happens so much that people are screwed over; people who are innocent, it’s just not right.

Talk2SV: When I mentioned to some that I would be speaking with you, the reactions were very positive.  Your presence in this industry has eclipsed what maybe it had been two years ago. Do you feel the same and, if so, how are you reacting to it?

Rockwell: I’ve had a good year or two, you know, so it’s fun.  I mean, life is good right now. I’ve been a part of some really fun, cool movies.  I’m very lucky, I’m very fortunate and I’ve worked hard.  I’m happy to be a hired gun who is getting hired a lot.

Hilary Swank

Talk2SV: Many feel that it is just a matter of time before you win an Oscar.  Having worked alongside two-time Oscar winner Hilary Swank on this film, do you recognize any traits in her that you see in yourself? And, how far away is the thought of an Oscar for Sam Rockwell?

Rockwell: That’s interesting, the Oscar stuff you have no control of; I’ve gotten awards here and there across the world along with some really great honors.  That’s all very nice, but then you have no control of that and at the end of the day, everybody forgets about it a year later.  So it’s like you just go to work and try to do the best you can.  But, as far as Hilary goes, what I see in her is greatness, whether it’s Oscar worthy or not.  I see a person with great faith and spirit and tenacity.  I see a woman who is a force of nature, she’s a fierce.  She’s like a great athlete who is a great actress.  She is amazing so working with her was exciting, stimulating --like working with any great actor such as Gene Hackman or you name it.  She’s an inspiration for sure as this real woman has been, Betty Ann Waters.  It was thrilling to work with Hilary.

More on Barry C. Scheck &
Peter J. Neufeld, Co-Directors

Barry Scheck and Peter Neufeld co-founded and are Co-Directors of the Innocence Project at the Benjamin N. Cardozo School of Law. In February 2000, Actual Innocence: Five Days to Execution, and Other Dispatches From the Wrongly Convicted, written by Peter, Barry, and Pulitzer Prize-winning New York Times reporter Jim Dwyer, was published by Doubleday. This non-fiction book grew out of the cases and stories of the Innocence Project.

In 1988, Peter and Barry became involved in studying and litigating issues concerning the use of forensic DNA testing. Their work not only shaped the course of case law across the country but helped lead to an influential study by the National Academy of Sciences on forensic DNA testing, as well as important state and federal legislation setting standards for the use of DNA testing. They both serve as members of the New York State's Commission on Forensic Science, a body that regulates all crime and forensic DNA laboratories in the state.

Peter and Barry have litigated and taught extensively in both the "hard" and behavioral forensic sciences. Their trials frequently redefine and expand the parameters of permissible defenses involving forensic psychiatry and laboratory science. Most of this work is pro bono and of public interest. Their cases often result in enhancing public awareness of systemic problems, improving the criminal justice system, and legislative reform.