Lara Bazelon | an excerpt adapted from Rectify: The Power of Restorative Justice After Wrongful Conviction | Beacon Press | 24 minutes (6,738 words)
The National Registry of Exonerations is a small, nonprofit research project founded in 2012. What the project lacks in manpower it makes up in zeal, documenting every known exoneration dating back to 1989, the first year that DNA exonerations were recorded in the United States. Staff members collect detailed information about each case from court documents and news reports, provide a comprehensive narrative about the case, and break down the data into numerous categories, including gender, race, geography, crime of conviction, factors that contributed to the wrongful conviction, and whether the case involved DNA. The registry’s website provides detailed graphs that set out the cause or causes of the wrongful convictions and chart their frequency over time.
On March 7, 2017, the registry released a report summarizing the data it had documented since its founding: 1,994 exonerations. (The number is now above 2,100.) Seventy-eight percent of the exonerations did not involve DNA evidence. This finding surprises many people, as it seems at odds with the way that crime is prosecuted on popular television shows and in movies, where the perpetrator inevitably leaves behind a tiny but undeniable bit of himself. Skin follicles are collected from under the victim’s fingernails, blood or semen is retrieved from a stain, a trace of saliva is lifted from a soda can or cigarette butt. In fictionalized accounts, diligent detectives and technicians rapidly collect and analyze this trace DNA evidence. More often than not, when the episode concludes, the bad guy has been conclusively identified, apprehended, and locked away.
The reality is much messier and more complicated. Even when DNA exists, backlogs and bureaucracy mean that it can take months, if not years, to test. Crime labs also come to erroneous conclusions, often because the technicians are incompetent, overwhelmed, or even corrupt. In 2010, at a San Francisco crime laboratory, a technician stole some of the cocaine she was supposed to be testing, resulting in a scandal that led to the dismissal of seventeen hundred pending criminal cases. Five years later, in the same laboratory, two other bad apples — a technician and her immediate supervisor — were discovered to have committed misconduct so serious it required the San Francisco district attorney’s office to review fourteen hundred criminal cases. Both employees had failed DNA proficiency testing examinations administered by a national crime lab accrediting agency a year earlier, but had kept their jobs. At least one found conclusive DNA matches where none existed.
San Francisco is just one example. Similar and worse corruption has been exposed in Massachusetts. In April 2017, state authorities overturned twenty thousand convictions after a crime lab technician was caught falsifying test results; in November of the same year, another six thousand convictions were thrown out when it was discovered that a lab technician in a different laboratory was on drugs when she performed the testing.
Even if DNA evidence is competently collected and properly tested in every case where it exists, it will do little to stem the rising tide of false convictions. And it is a tide — a rising one.
But most crucial, and most fundamentally misunderstood, is the fact that there is no DNA to test in the vast majority of criminal cases. What this means is that even if DNA evidence is competently collected and properly tested in every case where it exists, it will do little to stem the tide of false convictions.
And it is a tide — a rising one. In 2014, a record-setting 147 people were exonerated. That record was broken in 2015, when 160 people were freed. It was broken again in 2016, when the number rose to 168, an average of more than three people per week. In a 2017 report, the National Registry of Exonerations came to this sobering conclusion: “Exonerations used to be unusual; now they are commonplace.” Yet, “the record numbers of exonerations we have seen in recent years have not made a dent in the number of innocent defendants who have been convicted and punished.”
Experts believe that the men and women who have been exonerated are only a small fraction of those who deserve to be. Many wrongful convictions remain hidden or, if known, unprovable. According to the National Registry of Exonerations, “By any reasonable accounting, there are tens of thousands of false convictions each year across the country.” A 2015 study by the University of Michigan found that 4.1 percent of those on death row were falsely convicted, and conservative estimates in noncapital cases range from 2 to 5 percent. According to the federal Bureau of Justice Statistics (BJS), in 2015 — the most recent year that BJS data were available — there were approximately 1,530,000 people in prison in the United States. Using the most conservative estimate of wrongful convictions — 1 percent — means that on any given day, 15,300 innocent people are sitting in prison. If, as with death row inmates, it is 4 percent, that number climbs to 61,200, which is roughly the capacity of Soldier Field, the stadium where the Chicago Bears play football.
In 2015, the National Registry of Exonerations released a comprehensive report titled The First 1,600 Exonerations, which analyzed the data by crime, causation, race, gender, and geography. Fifty-five percent of the first sixteen hundred exoneration cases involve false testimony — not mistaken identifications, but flat-out lies. Witnesses lie for many reasons: some to protect themselves or someone else, some because law enforcement has coached, coerced, or promised them a reward. Some witnesses lie out of plain malice. Lying under oath is perjury, which is a state and federal crime, though it is among the least prosecuted.
Hannah Quick is one jarring example. In 1981, three Hispanic men — William Vasquez, Amaury Villalobos, and Raymond Mora — were convicted of burning down a Brooklyn building Quick owned. Left inside to die were Elizabeth Kinsey and her five small children. The night of the fire, Quick told the jury, she was awakened by the whispers of Vasquez, Villalobos, and Mora outside her door. Through her bedroom window, she watched them leave the building. Quick said that she heard an explosion and ran from the building as it burst into flames.
Quick was a shady character. A drug addict and known liar, she herself had been charged with using her apartment — located on the first floor of the same building — as an opium den where people came to use the heroin she sold them. And Quick had every incentive to deflect attention away from herself. She could have been held liable for the unsafe conditions that likely had led to the fire: what the New York Times described as “an illegal hookup to the electrical grid” and allowing the addicts who used her apartment to light candles when they got high. But the jury believed her. On November 24, 1981, Villalobos, Vasquez, and Mora were each convicted and sentenced to twenty-five years to life.
In 2014, on her deathbed, Quick confessed to her daughter that she lied about what she saw and sent three innocent men to prison. Vasquez (blind from untreated glaucoma) and Villalobos had been released on parole two years earlier, after more than three decades behind bars. At sixty-six and seventy years old, respectively, they celebrated with their families at their exoneration hearing, held on December 16, 2015. Mora could not. He had died in prison in 1989. His widow and daughter came in his stead, holding a framed photograph taken of him before he was sent away. Collectively, the three exonerees had served seventy-one years in prison.
An additional 34 percent of wrongful convictions among the first sixteen hundred arise from good faith but mistaken eyewitness identifications. These often occur in rape cases. While many involve cross-racial identification, not all do. On June 7, 1998, Clarence Elkins and his wife, Melinda, were living in Barberton, Ohio, with their two young sons when they received horrifying news. Melinda’s fifty-eight-year-old mother, Judith Johnson, had been beaten, raped, and murdered in her home, and Melinda’s six-year-old niece, Brooke Sutton, had been raped and beaten to the point where she lost consciousness. But Brooke survived and told police that the killer “looked like Uncle Clarence.” Based on Brooke’s statement, Elkins was arrested. In 1999, after Brooke identified him in court, he was convicted of both rapes, Judith’s murder, and given a life sentence.
Brooke’s identification was the only evidence against Elkins, and there was reason to doubt its validity from the outset. Not only was Brooke a small and traumatized child, but the police had interviewed Judith’s neighbor, convicted felon Earl Gene Mann, shortly after arresting Elkins. According to the detectives’ notes, Mann asked, “Why don’t you charge me with the Judy Johnson murder?” In 2002, three years after Elkins was sent to prison, Mann was convicted for raping three girls, all under the age of ten.
The most recent and dramatic unraveling of junk science has been in the area of hair analysis… Experts believe that there are at least twenty-one thousand cases — state and federal — that used this discredited science and therefore must be reexamined.
But in a stroke of luck that followed years of unending misery, Mann landed in the same prison as Elkins. Melinda, who had long suspected Mann, urged Elkins to collect any evidence he could find. In 2005, Elkins retrieved one of Mann’s discarded cigarette butts and mailed it to his attorneys at the Ohio Innocence Project at the University of Cincinnati College of the Law. The DNA on the cigarette butt matched the DNA left at the crime scene. Brooke Sutton had long since recanted, stating that the police had coached her testimony. But the local prosecutor dug in and refused to agree to Elkins’s release. Under pressure from the Ohio attorney general — the top prosecutor in the state — Elkins was released on December 15, 2005. Three years later, in 2008, Mann pleaded guilty to aggravated murder, attempted murder, burglary, and rape in the crimes against Judith Johnson and Brooke Sutton. He was sentenced to life in prison without the possibility of parole.
Elkins and Melinda divorced shortly after his release. “The media expected us to be happy,” she told reporters, “but it was at that point that I started grieving for my mom.” Elkins, who told the US Senate Judiciary Committee in a written statement that, after several stints in solitary confinement, “I pretty much lost my mind,” won several settlements in the millions of dollars, but most of the money went to Melinda, their sons, and his attorneys. Elkins has remarried. After suffering periods of unemployment and setbacks from post-traumatic stress disorder, he is trying to start a new life.
A shocking 45 percent of the documented sixteen hundred wrongful convictions are the result of bad acts or omissions by police and prosecutors. This misconduct turns what is supposed to be a level playing field into a ski slope, with the state gliding to victory by running over the defendant’s right to a fair trial. It includes, but is not limited to coercing, coaching, or threatening witnesses; physically beating defendants until they give false confessions; neglecting to turn over exculpatory evidence or actively hiding it altogether; making false representations to the court and to the jury; and committing perjury. The percentage of false convictions arising from official misconduct often overlaps with percentages involving perjury; that is, many wrongful convictions are due, at least in part, to false testimony that is coerced or partially fabricated by the police.
Consider Debra Milke. In 1989, she was a divorced single mother living in Phoenix, Arizona, with her four-year-old son, Christopher, and roommate James Styer. On December 2, 1989, Styer left their apartment with Christopher, ostensibly to take him to the mall to see Santa Claus. Instead, he picked up his friend Roger Scott. Styer and Scott drove the little boy deep into the desert where they shot him three times in the back of the head and left him in a ravine. They reported Christopher missing, but under questioning by the police, Scott confessed and led them to Christopher’s body. The lead detective, Armando Saldate Jr., suspected that Milke was involved after Scott apparently implicated her in one of his statements.
Milke was taken to a police station and put in a cell. Saldate entered, placed her under arrest, and proceeded to interrogate her. No one else was present in the room or observed the interview. Ignoring the instructions of his supervisor, Saldate did not tape-record it. According to Saldate, Milke waived her right to remain silent and her right to an attorney before providing a full confession, stating that she masterminded her son’s murder.
Because there was no physical or other evidence linking Milke to the crime and no independent way to verify Saldate’s account, the trial boiled down to “he said, she said.” Saldate testified to Milke’s confession, but neither Styer nor Scott would implicate her. Milke denied any involvement in her son’s death, testifying that Saldate had ignored her requests for a lawyer and fabricated her confession. The state’s case was dependent on Saldate’s word, so it was crucial to bring out any facts that might show he was an unreliable witness. Milke’s trial lawyer subpoenaed Saldate’s personnel file, but the trial prosecutor refused to provide it and the trial judge quashed the subpoena. In the end, the jury believed Saldate’s account. Milke was convicted of murder, conspiracy to commit murder, child abuse, and kidnapping. In 1990, the judge sentenced her to death.
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Years later, after spending thousands of hours searching old court records, Milke’s lawyers were able to show that Saldate was a liar and a reprobate long before and well after Milke’s trial. In 1973, internal affairs for the Phoenix Police Department had disciplined Şaldate after he released a female driver with a possible outstanding warrant in exchange for sexual favors and then lied about it to his superiors. In 1986 and again in 1989, Saldate lied to a grand jury, which forced the judges in both cases to dismiss the indictments.
In 1990 — the same year Milke was convicted and sentenced to die — a judge threw out another case after Saldate admitted that he lied under oath and continued to question the defendant after he invoked his right to remain silent. That same year, a different judge threw out a confession that Saldate had obtained through “flagrant misconduct.” In 1984 and 1992, Saldate obtained so-called confessions from defendants who were in the hospital, semiconscious and seriously injured. In one case, the defendant did not know his own name, the year, or the name of the president of the United States. In the other case, even Saldate admitted that the suspect was “in pain” and possibly had not responded to the reading of his Miranda rights “because of the medication he was on.”
The jury in Milke’s case knew nothing about Saldate’s lengthy history of doing whatever it took — including perjuring himself — to obtain so-called confessions from the men and women in his custody. In 2013, twenty-three years after Milke was sent to death row, the Ninth Circuit overturned her conviction. Even then, the state vowed to retry her, deterred only when the Arizona Court of Appeals forbade it, calling the case “a severe stain on the Arizona justice system.” Saldate, now retired, has never been charged or convicted of any crime. According to Phoenix City records, he was collecting a monthly pension in excess of $4,300 as recently as 2014.
Prosecutors also commit misconduct. Often, it is the result of overzealousness, inadvertence, or negligence, as win-at-all-costs prosecutors are often rewarded with promotions and many offices lack the resources to properly train them in their constitutional and ethical obligations. But sometimes prosecutorial misconduct is calculated and even malicious. The two most notorious cases in recent memory — and perhaps not coincidentally, among only a handful in which the prosecutor faced consequences — targeted innocent white men.
In 2006, Michael B. Nifong, then the district attorney for Durham, North Carolina, indicted three Duke University lacrosse players for raping an African American stripper who had danced at a team party. When the woman was unable to identify her attackers, Nifong showed her photographs only of lacrosse players, an extremely suggestive practice that violated the guidelines of his own office. The players all had strong alibis, which Nifong discounted. When the DNA evidence did not point to the defendants, Nifong withheld it from them. Even after the woman changed her story, Nifong insisted on going forward with the kidnapping charges.
The case made national headlines from the start because of the salaciousness of the crime and the fact that the defendants were white and largely came from wealthy families. This distinguished them from the vast majority of people accused of serious, life-ending crimes. The money bought them excellent lawyers, who diligently investigated the allegations and were able to disprove them, sparing the men the horror of convictions that could have sent them to prison and labeled them lifelong sex offenders.
When Anderson Cooper asked, ‘How many of you believe that an innocent client went to jail because you didn’t have enough time to spend on their case?’ every single hand went up.
The case remained in the spotlight for months, and political pressure on Nifong mounted. Before the defendants could be brought to trial, Nifong was forced to turn the case over to the state attorney general, who concluded that all three lacrosse players were innocent and Nifong was a “rogue prosecutor.” After the charges were dropped, the North Carolina state bar brought charges against Nifong and disbarred him. Then Nifong was himself prosecuted for withholding DNA evidence from the defense and lying about it in court. He received a one-day jail sentence.
Most people do not have the resources the Duke lacrosse players had. For Michael Morton of Williamson County, Texas, justice proved elusive for twenty-five years. In 1985, Ken Anderson, then the district attorney and a former Texas Prosecutor of the Year, charged Morton with the murder of his wife, telling the jury that Morton masturbated over her dead body before leaving the house to go to work. Morton was convicted and sentenced to life in prison.
Anderson obtained the conviction by withholding crucial evidence that showed Morton was not the killer. He never told Morton’s attorneys that Morton’s young son, Eric, told his grandmother that a “monster with a moustache” had killed his mother while his father was not home, or that the victim’s mother told police in a recorded phone call that Morton could not have committed the crime after recounting Eric’s statement. Other vital leads — the sighting of a stranger and a green van, the use of the victim’s credit card in the days after the murder — were never followed up. In 2011, Morton was released after the Innocence Project demanded the retesting of a bloody bandanna found a hundred yards from the crime scene. The results matched those of the true attacker, Mark Alan Norwood, who had gone on to murder another woman under similar circumstances. For most of his life, including when he killed Morton’s wife and at his arrest decades later, he had a droopy horseshoe-shaped moustache.
Meanwhile, Ken Anderson had become a judge. At the insistence of Morton’s lawyers, a special court of inquiry was convened to investigate Anderson. At the end of the process, a judge ruled that Anderson had broken state law and committed perjury by lying to the court. After Anderson was convicted and sentenced to serve ten days in jail, his license to practice law was revoked and he resigned from the bench.
While it is true that Nifong and Anderson were disgraced and prevented from practicing law, their respective one- and ten-day jail sentences are paltry in comparison to the massive damage they caused, particularly Anderson. Yet, these are exceptional cases because there was any punishment at all. The majority of prosecutors who commit misconduct are never disciplined, much less disbarred or charged with crimes.
Nearly one quarter of the sixteen hundred exoneration cases involve what we now know to be “junk science” — that is, methods of analyzing physical evidence to implicate a specific person or diagnose a particular type of crime that are deeply flawed and, in some cases, are based on little more than guesswork and conjecture. Junk science — usually physical in nature and often explained by seemingly well-credentialed experts — is a particularly pernicious kind of evidence because it is so persuasive to jurors, who are fed a steady diet of crime-show procedurals that portray these methods as unfailingly accurate and central to catching the bad guy.
Examples of junk science include expert testimony that bite marks on a victim’s body were almost certainly made by the defendant’s teeth; that a hair found at a crime scene can be examined under a microscope and linked to a particular person; or that fire patterns inside a burned building point to arson rather than an accidental fire. After decades of its use in state and federal courtrooms across the country, much of this “science” has been called into question as error-prone, empirically unverified, and based on false assumptions or outright speculation. Yet junk science has led to convictions that haunt the public as wrongful.
Take Cameron Todd Willingham. So-called arson experts were used to convict Willingham of setting a fire that killed his three small children in Corsicana, Texas, in 1991. Year later, lawyers for Willingham were able to present compelling evidence that these “experts” had no idea what they were talking about. But the state declined to review the case. All of Willingham’s appeals were denied, and he was executed on February 17, 2004, at the age of thirty-six. Questions about his case continue to swirl. In August 2009, the Chicago Tribune reported: “Over the past five years, the Willingham case has been reviewed by nine of the nation’s top fire scientists — first for the Tribune, then for the Innocence Project, and now for the [Texas] commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.” (The state also relied on a jailhouse snitch, who told the jury Willingham confessed. He later recanted.)
The most recent and dramatic unraveling of junk science has been in the area of hair analysis, that is, expert testimony that hair found at the scene of the crime is similar to or indistinguishable from the defendant’s hair based on characteristics such as its color, texture, and length. (This is different from DNA evidence retrieved from a hair follicle, which embeds the hair in the skin and can point conclusively at a single perpetrator.) In the 1990s, the United States Department of Justice undertook an investigation into allegations that some of the hair analysis work by an FBI crime lab was error-ridden.
Over the years, the investigation expanded, morphing into an indictment of an entire system of collecting, testing, and relying on so-called hair science evidence. In April 2015, the Washington Post published this shocking disclosure by the Justice Department: “Of 28 examiners with the FBI’s Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.” In thirty-two of the cases, the defendants received the death penalty. By the time the news became public, fourteen of them had been executed or died in prison. Experts believe that there are at least twenty-one thousand additional cases — state and federal — that used this discredited science and therefore must be reexamined.
Group exonerations are alarming for three reasons. First, they are underreported… Second, it is profoundly disturbing to realize that individual or small-group misconduct can have such exponential impact.
That is what happened with Kirk Odom’s case in 2009. A black man, he was convicted in 1981 of raping, robbing, and sodomizing a white woman in Washington, DC, and then sentenced to a minimum of twenty years in prison. Odom, who was raped in prison and contracted HIV, was paroled in March 2003, but forced to register as a sex offender, which placed severe restrictions upon where he could live, work, and travel.
The victim identified Odom, and the state bolstered the conviction with what appeared to be irrefutable forensic science. An FBI special agent told the jury that a hair found on the victim’s nightgown was microscopically indistinguishable from Odom’s hair and that he had found such matches only ten times over decades of performing thousands of such tests. Not only was the FBI agent’s testimony grossly exaggerated, it was unsupported by his own notes, which identified the nightgown hair only by color, length, and the part of the body it appeared to come from.
Once the federal investigation into the FBI lab became public, Odom’s lawyers demanded that the evidence collected at the crime scene, including the offender’s semen and the supposedly indistinguishable nightgown hair, undergo rigorous DNA analysis. The retesting resulted in a genetic profile of the rapist that categorically excluded Odom and pointed to another man. A judge exonerated Odom and signed a certification proclaiming his innocence on July 13, 2012. It was Odom’s fiftieth birthday. More than thirty years had passed since his conviction, twenty-two of which he spent in prison. Because the statute of limitations had long since run out, the real perpetrator could not be prosecuted.
In the case of Villalobos, Vasquez, and Mora — convicted of starting the Brooklyn opium den fire because of Hannah Quick’s perjured testimony — prosecutors also relied heavily on junk science to convince the jury that the fire had been deliberately set. Adele Bernhard, the lawyer who advocated successfully for Villalobos, retained an expert named John Lentini to pore over the old forensic evidence. Lentini explained, “The science of fire dynamics was poorly understood in 1980, and much of what was believed by well-meaning investigators was, unfortunately, false.” He concluded, “If today’s standards and knowledge of fire dynamics were applied to this investigation, the results would have been significantly different.” Bernhard and her co-counsel approached prosecutors at the Brooklyn County district attorney’s office. After reexamining the case, they came to the same conclusion: the fire that Quick testified the men had set deliberately was almost certainly an accident. It wasn’t a question of having convicted the wrong people, the district attorney explained, but rather convicting them of “a crime, which did not in fact occur.”
Thirteen percent of the first sixteen hundred exonerees falsely confessed to crimes they did not commit. Understandably, this statistic is difficult to accept. “Innocent people do not confess,” prosecutors often tell juries, an assertion that carries enormous weight because, as a matter of logic and intuition, it makes perfect sense. What sane person would ever admit to committing a heinous crime unless he was guilty? Yet, people do.
There is no single explanation for this phenomenon, but many of the people who give false confessions are vulnerable to police coercion because they are young, unsophisticated, poorly educated, of below-average intelligence, or some combination of the four. The law allows police to lie to suspects, and many suspects admit to wrongdoing after being told they will be allowed to go home, avoid charges, or plead to a minor offense.
A recent example involves the notorious Central Park jogger case. In 1989, five young black and Latino teenagers, ranging from fourteen to sixteen years old, confessed to raping a young white woman out for a nighttime run in New York’s Central Park, then beating her and leaving her for dead. At trial, the defendants insisted that they were innocent. Their lawyers argued that the boys’ admissions were the result of hardball tactics by detectives desperate to make an arrest in a city convulsed with fear over images of marauding groups of black and brown youths out to wreak havoc and assault innocent civilians.
All five teenagers were convicted and sentenced to lengthy prison terms. In 2002, DNA retested from the jogger’s rape kit identified a single unrelated suspect who then confessed, stating that he acted alone. The defendants, now adult men known as “the Central Park Five,” were exonerated. They sued the city of New York and, in 2014, received a global $40 million settlement.
Police coercion usually involves psychological tactics that prey on a vulnerable suspect, but it can also be physical. Severe beatings that detectives in the Chicago Police Department administered to black suspects throughout the 1980s and 1990s under the direction of Lieutenant Jon Burge were so common that the state of Illinois set up the Torture Inquiry and Relief Commission to investigate them. One victim was Shawn Whirl, who, in 1990, was arrested and charged with the murder of a cab driver on Chicago’s South Side. Whirl explained that he had jumped into the victim’s cab after being chased by gang members after falling and scraping his leg; the cabbie, he said, dropped him off at his girlfriend’s house. The torture commission found that a detective working under Burge’s direction handcuffed Whirl to the wall, gouged at the open wound on his leg with a car key, hit him repeatedly, used racial epithets, and put a bag over his head to drown out the sound of his screams.
But the torture commission did not issue its finding until 2012. In the interim, Whirl, charged with first-degree murder and facing the death penalty, had pleaded guilty and received a sentence of sixty years. His first three petitions to overturn his conviction were denied for lack of evidence. In 2015, the Illinois appellate court granted Whirl relief. At that point, Burge had been convicted of lying under oath about denying the existence of his torture regime and was serving his own prison term. The detective who had interrogated Whirl, meanwhile, invoked his privilege against self-incrimination when asked about the tactics he had used to secure the confession. Whirl, who had no criminal record before his arrest, was released after serving twenty years in prison.
In 2012, the National Registry of Exonerations found that 17 percent of non-DNA exonerations involved poor defense lawyering. According to Samuel Gross, the cofounder of the registry, the actual percentage is likely much higher: “[W]e believe that many of the exonerated defendants — perhaps a clear majority — would not have been convicted in the first instance if their lawyers had done good work.”
Most exonerees were represented by public defenders or other court-appointed lawyers. It is no secret that indigent criminal defense in this country is in crisis and has been for decades. In December 2004, the American Bar Association published a groundbreaking, comprehensive study entitled Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice. The report, which was written to coincide with the fortieth anniversary of the Supreme Court’s landmark decision establishing the right to counsel in Gideon v. Wainwright, is a stunning indictment: “[G]laring deficiencies in indigent defense services result in a fundamentally unfair criminal justice system that constantly risks convicting persons who are actually innocent of the charges lodged against them.”
As the fifty-fifth anniversary of the Gideon decision approaches, little has changed. Indeed, it is arguable that the problems afflicting the delivery of indigent defense services are even more dire. Derwyn Bunton, the chief district defender for Orleans Parish in New Orleans, instructed his deputies to stop taking serious felony cases in January 2016. By requiring Bunton’s staff of fifty to handle twenty-two thousand filings a year, the state had made it impossible to investigate any of the cases, much less mount a defense. Instead, the public defenders at Orleans Parish resembled workers on an assembly line that swiftly delivered poor people, mostly African Americans — to prison regardless of guilt or innocence.
The average time spent by an innocent person behind bars is nine years and three months.
In an opinion editorial for the New York Times, Bunton said that his decision came after a troubling development in a particular high-profile case. Following a mass shooting in Bunny Friend Park on November 22, 2015, that left seventeen people injured, police arrested thirty-two-year-old Joseph “Moe” Allen, based on eyewitness identification. Allen was jailed, and bail was set at $7 million. His family was able to hire a lawyer and investigator who retrieved a video from a Walmart in Houston, Texas, which showed Allen and his pregnant wife shopping for baby clothes when the crime occurred. The prosecution dismissed the charges, and Allen was released after spending twelve days in jail.
Reading about the case, Bunton realized Allen would have faced far greater jeopardy had he been assigned one of his public defenders, who lacked the time and funds to obtain the video footage before Walmart would have erased it in the regular course of business. Bunton wrote, “That would have left an innocent man to face trial for his life for what was labeled an act of domestic terrorism’ by the mayor of New Orleans.”
Allen was lucky, considering the circumstances. Having an alibi and the means to corroborate it meant he was not convicted. Unfortunately, for defendants who lack access to paid attorneys, the price of freedom is set too high. In April 2017, with Bunton’s prohibition still in place, nine of the Orleans Parish public defenders were interviewed by Anderson Cooper on 60 Minutes. When Cooper asked, “How many of you believe that an innocent client went to jail because you didn’t have enough time to spend on their case?” every single hand went up.
Consider Alabama, which has no statewide public defender system and largely leaves the representation of the poor to the discretion of individual judges, who decide whom to appoint and what to pay. The results can be catastrophic. Anthony Ray Hinton was charged in 1985 with robbing and killing two convenience store clerks in Birmingham, Alabama. A third clerk, who was shot and survived, identified Hinton in a lineup. Police detectives collected two bullets from each crime scene. A search of the home Hinton shared with his mother turned up an ancient .38 caliber gun she stored under her mattress. Forensic experts from the Alabama Department of Forensic Sciences concluded that all six bullets from the three crimes were fired from Mrs. Hinton’s revolver.
The linchpin of the state’s case was the forensic evidence. Seeking to counter the prosecution’s experts, Hinton’s court-appointed attorney asked for money from the court to hire his own expert. The trial judge gave him a thousand dollars, stating that “if it’s necessary we can go beyond that.” But Hinton’s attorney made no additional motions. Instead, he used the thousand dollars at his disposal to hire the only expert who would testify at that price. The cross-examination was withering. The witness had little expertise in bullet comparisons. Because he had only one eye, he had to get help from the prosecution experts when operating the microscope to perform the necessary tests.
On September 17, 1986, Hinton was convicted of both murders. In December 1986, he was sentenced to death. Decades later, Hinton’s postconviction lawyers retained three renowned firearms experts to review the evidence against Hinton. All three found that there was insufficient evidence to conclude that any of the six bullets had been fired from Mrs. Hinton’s revolver. In 2014, the US Supreme Court reversed Hinton’s conviction and death sentence due to the poor performance of his trial attorney. In preparing for the retrial, experts retained by the prosecution came to the same conclusion as Hinton’s postconviction experts: there was no match. On April 2, 2015, almost thirty years after he had been convicted and sentenced to die, the state of Alabama dismissed all of the charges against Anthony Ray Hinton and he was freed.
Then there are exonerees who died before their names could be cleared. In addition to Raymond Mora — one of the men exonerated in the opium den fire case — there are at least thirteen people on record who have been exonerated posthumously. One of them was Timothy Cole, an African American army veteran who was a student at Texas Tech University in Lubbock, Texas. A white rape victim named Michelle Mallin picked his photograph out of an array that was highly suggestive. Cole’s photograph was the only Polaroid picture; the others were mug shots. Cole was the only suspect facing the camera; the others were in profile. In 1986, Cole was tried and convicted based on the victim’s positive in-court identification and an expert’s testimony that his blood type, A, matched the blood type of the rapist. Cole was convicted and sentenced to serve twenty-five years in prison.
Nine years later, Jerry Wayne Johnson, a prisoner who was serving ninety-nine years for two rapes, wrote letters to the police and prosecutors in Lubbock County in which he admitted to raping Mallin. Johnson’s confession was corroborated by the striking similarity between his rape convictions and what had happened to Mallin. His letters were ignored.
In 1999, Timothy Cole died in prison due to complications from asthma. Johnson then wrote to a judge, making the same confession. The judge also ignored the letter, but it eventually made its way to the Innocence Project, which successfully sought DNA testing on the Mallin rape kit. The DNA was a match to Johnson. Mallin, shattered by the news, worked with Cole’s attorneys to ensure that his name was cleared. Cole was posthumously exonerated in 2009 and officially pardoned by Texas governor Rick Perry in 2010.
Group Exonerations and the Role of Race
The registry keeps a second, parallel list of “group exonerations,” which occur when a single corrupt police officer or a gang of officers systemically plant evidence, perjure themselves, and commit other crimes to frame innocent people.
In 2017, the registry released a report, Race and Wrongful Convictions in the United States, which found 15 group exonerations totaling more than 1,840 people in 13 cities and counties in the United States. The best-known group exoneration is the Rampart scandal. From 1990 to 2000, a gang of Los Angeles police officers in the Rampart division routinely framed innocent people and then lied in court to convict them. In some instances, this occurred after the defendant had been shot and wounded by an officer; the evidence was then planted at the crime scene to suggest that the suspect had been the aggressor. When the officers’ crimes were brought to light, 156 convictions were thrown out and the Los Angeles Police Department was placed under a federal consent decree.
The most egregious group exonerations, however, are also among the most obscure. These include two separate group exonerations in Philadelphia-one in 1995–1998 and another in 2013-2016 — in which corrupt police officers targeted a total of 1,042 innocent people.
Group exonerations are alarming for three reasons. First, they are underreported; according to the National Registry of Exonerations, “[T]here are clearly many more false convictions of drug defendants who were framed by police than we have identified in these 15 groups.” Second, it is profoundly disturbing to realize that individual or small-group misconduct can have such exponential impact. It is difficult enough to comprehend a single case of wrongful conviction involving a corrupt police officer. It is quite another to be told that some police officers are serial predators, returning over and over again to the communities they were charged with protecting to extract new victims.
Third, the group exoneration population is overwhelmingly black and Latino, leading to the inescapable conclusion that the targeting is racially motivated. Corrupt police officers train their sights on people of color for a number of reasons, including that they are more likely to be poor and disbelieved. But the main reason, according to the registry, is that law enforcement efforts concentrate disproportionately on minority populations. African Americans, who constitute only 13 percent of the US population, make up the majority of group exonerees and nearly 50 percent of exonerated individuals. “Race is central to every aspect of criminal justice in the United States,” the registry reports. “The conviction of innocent defendants is no exception.”
In the vast majority of cases, the criminal justice system gets it right. The witnesses who lie or make mistakes, the police and prosecutors who commit misconduct, the defense lawyers who fall down on the job, the experts who testify using junk science are a small percentage of the men and women in these professions who ably perform their jobs.
Yet, the number of exonerations, the reasons why they happen, and the people to whom they happen reveal grotesque and shameful problems with the way that we administer justice in the United States. The average time spent by an innocent person behind bars is nine years and three months; a significant number of exonerees have spent decades in prison. Wrongful convictions are not isolated instances. They happen in every state; they happen multiple times a week. In 2015, the National Registry of Exonerations’ report The First 1,600 Exonerations delved into the data it had collected on more than a thousand exonerations. As a group, the exonerees in the report were imprisoned for more than 14,750 years. According to report author Samuel Gross, since the year the report was published, more than four hundred men and women have joined the list.
We say we have the best criminal justice system in the world. But like any system, it fails, and when it does, the failures are spectacular. The work of the innocence movement has exposed many of these failures and provided the narratives and propulsive energy behind many important reforms. But there is more work to be done, and not by the lawyers. Too often, the voices of the harmed go unheard, and they speak a brutal truth that should not be ignored.
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Lara Bazelon is a writer and associate professor at the University of San Francisco School of Law, where she is the director of the Criminal Juvenile Justice and Racial Justice Clinics. A 2016 MacDowell Fellow and a 2017 Mesa Refuge Langeloth Fellow, she is the former director of the Loyola Law School Project for the Innocent. Bazelon is also a nonresident fellow with Brandeis University’s Schuster Institute for Investigative Journalism. Her writing has appeared in the New York Times, Atlantic, Washington Post, Politico, and Slate, where she is a contributing writer and has a long-running series about wrongful conviction cases. This is her first book.
Longreads Editor: Dana Snitzky