CQR Wrongful Convictions Update - Sage Publications

Wrongful ConvictionsIs overhaul of the criminal justice system needed?

Until March 2009, few Americans had heard of

Ronald Cotton, who was convicted in North Car-

olina of raping a college student and served 11

years in prison before being exonerated by DNA

testing. Now Cotton is a household name because of a book

about his case and appearances on “60 Minutes” and NBC’s “Today”

show. As recently as 10 years ago, the proposition that innocent

men and women regularly end up in prison failed to find traction.

Today, thanks to the power of DNA evidence, media coverage

and the establishment of innocence projects, there is general ac-

ceptance that wrongful convictions indeed occur. Dozens of states

have passed laws to prevent wrongful convictions and compensate

those wrongly imprisoned. Defense attorneys and many academics

say wrongful convictions are a recurrent problem requiring substan-

tial changes in the criminal justice system, but prosecutors, police

and other academics say mistaken convictions are such a small

percentage of all cases that the system should mostly be left alone.

I

N

S

I

D

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THE ISSUES ......................347

BACKGROUND ..................356

CHRONOLOGY ..................357

CURRENT SITUATION ..........361

OUTLOOK ........................364

AT ISSUE ..........................365

BIBLIOGRAPHY ..................369

THE NEXT STEP ................370

THISREPORT

Joshua Kezer, 34, is among 235 men and women whoare free today after DNA testing showed they were

wrongfully convicted. Kezer was released in Februaryafter 14 years in prison in Missouri for a murder

the judge said he did not commit.

CQResearcherPublished by CQ Press, A Division of SAGE

www.cqresearcher.com

CQ Researcher • April 17, 2009 • www.cqresearcher.comVolume 19, Number 15 • Pages 345-372

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR

EXCELLENCE ◆ AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

346 CQ Researcher

THE ISSUES

347 • Are wrongful convictionsa serious problem?• Do errors by forensiclaboratories contribute towrongful convictions?• Would systemic reformreduce the number ofwrongful convictions?

BACKGROUND

356 New AwarenessWidespread recognition ofwrongful convictionsbegan in the early 1930s.

356 The Chicago ConnectionJournalists’ accounts ofwrongful convictions inthe 1970s helped triggerjudicial reforms.

CURRENT SITUATION

361 New StudiesBlue-ribbon commissionsaround the country arecalling for criminal justicesystem reforms.

361 Legislative InitiativesMany reforms have beenimplemented, but law en-forcement officials haveblocked others.

OUTLOOK

364 New HopeMany prosecutors are join-ing with innocence pro-jects to seek reform andfree wrongfully convictedinmates.

SIDEBARS AND GRAPHICS

348 Half the States Compensatethe Wrongfully ConvictedBut many of the laws haveshortcomings, the InnocenceProject says.

349 Most DNA Exonerees AreBlackPercentage is double that ofCaucasians.

352 DNA Exonerations SparkReformsLegislative measures to im-prove the criminal justicesystem have been enacted orare under considerationaround the country.

357 ChronologyKey events since 1932.

358 The Case of the Look-AlikeRapistNorth Carolina case showsunreliability of eyewitnesses.

362 Systemic Defects Blamedfor Wrongful ConvictionsMistaken eyewitnesses andfalse confessions top the list.

365 At IssueCan the number of wrongfulconvictions be calculated?

FOR FURTHER RESEARCH

368 For More InformationOrganizations to contact.

369 BibliographySelected sources used.

370 The Next StepAdditional articles.

371 Citing CQ ResearcherSample bibliography formats.

WRONGFUL CONVICTIONS

Cover: AP Photo/Kelley McCall

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April 17, 2009 347www.cqresearcher.com

Wrongful Convictions

THE ISSUESDarryl Burton walked

out of a Missouriprison in 2008 after

serving 24 years for a murderhe did not commit. He hadproclaimed his innocence fromthe day of his arrest in St.Louis. Sixteen years into hisprison sentence, Burton’s hopefor release took an upwardtick when Centurion Ministriesagreed to look into his case.

The nonprofit organiza-tion in Princeton, N.J., wasfounded by James Mc-Closkey, an ordained minis-ter and former business ex-ecutive who has spent thelast 29 years investigating al-leged wrongful convictions.Working with a paid staff offive and a dozen volunteers,McCloskey reviews thou-sands of inmates’ requestsfor assistance every year andselects the few his organi-zation can afford to investi-gate. Entirely dependent ondonations from private individuals,Centurion has played a major role inmore than 40 exonerations. 1

Nobody knows how many inno-cent men and women are serving prisonterms for crimes they did not commit.There is no doubt, however, that sinceDNA testing became accepted as ac-curate some 15 years ago, 235 inmateshave been freed because of the foren-sic technique, according to the Inno-cence Project, a national organizationbased in New York City. 2

But testable DNA material shows upin only about 10 percent of crimes —mainly murder and rape — that leadto arrests. Moreover, in most jurisdic-tions, fewer than 10 percent of allcrimes charged proceed all the way totrial. In cases with trial records, it is

sometimes possible to determine laterthe innocence of a convicted defen-dant. But most inmates end up in prisonby pleading guilty before trial, leavinga scant public record. 3

In the 2006 decision by the U.S.Supreme Court in Kansas v. Marsh, Jus-tice Antonin Scalia, writing a concur-ring opinion to the majority ruling,said the wrongful-conviction rate acrossthe nation is minuscule. 4 (See “AtIssue,” p. 365.) Scalia quoted approv-ingly from a New York Times op-edby Joshua Marquis, the district attor-ney in Clatsop County (Astoria), Ore.,and a director of the National DistrictAttorneys Association. Marquis, citingwhat he considered a misguided studyby a law professor, wrote, “Let’s givethe professor the benefit of the doubt

— let’s assume that he under-stated the number of inno-cents by roughly a factor often, that instead of 340 therewere 4,000 people in prisonwho weren’t involved in thecrime in any way. Duringthat same 15 years, there weremore than 15 million felonyconvictions across the coun-try. That would make the errorrate .027 percent, or, to putit another way, a success rateof 99.973 percent.” 5

In fact, Scalia asserted, nu-merous cases labeled “exon-erations” are nothing of thesort. Instead, they are pri-marily violations of defen-dants’ due-process rights.“Most are based on legal errorsthat have little or nothing todo with guilt. The studies citedby the dissent demonstratenothing more.”

One of the scholars men-tioned critically by Scalia isSamuel R. Gross, a Univer-sity of Michigan law pro-fessor. After studying Scalia’sopinion, Gross called the

.027 percent error rate Scalia cited“absurd.” Gross noted that “almosteverything we know about false con-victions is based on exonerations inrape and murder cases, which ac-count for only 2 percent of felonyconvictions. Within that importantbut limited sphere, we have learneda lot in the past 30 years; outside it,our ignorance is nearly complete.”

Gross argues that cases involvinga plea agreement — and thus notrial — frequently lead to undocu-mented wrongful convictions. Inno-cent individuals plead guilty, Grosssays, because they worry an adversejury verdict will result in a longerprison sentence than the deal offeredby the prosecutor — or even thedeath penalty. 6

BY STEVE WEINBERG

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yFormer inmate Alan Crotzer, left, applauds on Oct. 21,

2008, as Florida Gov. Charlie Crist signs legislationcompensating Crotzer for the 24 years he spent in prison after being wrongly convicted of rape and

robbery. Half the states allow compensation for victims of wrongful convictions.

348 CQ Researcher

A great deal more is at stake withwrongful convictions beyond simply thewelfare of innocent individuals in prison.There is also the sobering reality thatevery time an innocent defendant isincarcerated, the actual murderer or rapistor armed robber might be at large, com-mitting more crimes. Also at stake ispublic trust in the criminal justice sys-tem. Mistrust due to repeated wrongfulconvictions leads to decreased citizencooperation with police and jurorswho disbelieve prosecutors.

Generalizations about the criminaljustice system are difficult to make, be-cause it is not really a unified system.Instead, arrests, pretrial negotiationsand trials are decentralized. The UnitedStates is divided into more than 2,300local criminal jurisdictions, eachserved by an elected or appointedprosecutor (most commonly known asa district attorney), judges and policeagencies. Superimposed onto the localjurisdictions is the federal system, withat least one federal prosecutor (calleda U.S. attorney) and federal judges ineach state. Some jurisdictions have nodocumented wrongful convictions.Others have spawned multiple wrong-ful convictions. 7

The National District Attorneys As-sociation argues that wrongful convic-tions are episodic, not epidemic, andalmost always arise from well-intentionedlaw enforcement work, not from in-competence or dishonesty. If pressedto place a number on wrongful con-victions, district attorneys tend to sayit’s less than 1 percent of all casescharged. Conversely, members of theNational Association of Criminal DefenseLawyers say wrongful convictions areepidemic in multiple jurisdictions andfrequently arise from incompetent ordishonest law enforcement personnel.If pressed, defense lawyers say thepercentage of wrongful convictions isbetween 5 and 10 percent. 8

For its part, the American Bar As-sociation (ABA) acknowledges the re-ality of wrongful convictions. A report


Half the States Compensate for Mistakes

Twenty-seven states plus the District of Columbia and the federal government allow compensation for those wrongly convicted of a crime, but many of the laws have shortcomings, according to the Innocence Project.

N.Y.

Ohio

Texas

Va.

Minn.

Iowa

Mo.

Calif.

Nev.

Ore.

Colo.

Wash.

Idaho

Mont.

Utah

Ariz. N.M.

Wyo.

N.D.

S.D.

Alaska

Okla. Ark.

La.

Ill.

Miss.

Tenn.

Ga.

Conn.

Mass.R.I.

MaineVt.

W.Va. N.J.

Del.Md.

Ala.

Fla.

Wis.

Mich.

Ind.

N.C.

S.C.

N.H.

Kan.Ky.

Hawaii

D.C.

Source: Innocence Project, April 14, 2009

Allows compensation

Does not allow compensation

Neb.Pa.

Compensation for the Wrongly Convicted

The nonprofit Innocence Project says state wrongful-conviction compensation laws have several common shortcomings, including:

• Compensation may take years to receive and is often insufficient to rebuild a life.

• Failing to provide immediate services like re-entry funds, access to job training, educational, health and legal services.

• Failing to provide uniform, statutory access to compensation. For example, some states require “private compensation bills” to be passed in order to compensate an exoneree, which means he must mount a costly political campaign to get lawmakers to pass a bill on his behalf.

• Prohibiting compensation to those who “contributed” to their wrongful convictions, effectively excluding those who falsely confessed or pled guilty.

• Denying additional remedy for those who can prove their wrongful convictions resulted from evident and intentional civil rights violations as opposed to simple, but unintentional, error.

• Preventing compensation for individuals with felony convictions in unrelated cases.


by the ABA’s Ad Hoc Innocence Com-mittee to Ensure the Integrity of theCriminal Process offers numerous rec-ommendations aimed at reducingwrongful convictions. The frequencyof wrongful convictions “underminesthe assumption that the criminal jus-tice system sufficiently protects theinnocent,” according to the report. 9

Increased public awareness ofwrongful convictions, like that of somany other social problems, has beengenerated by the news and entertain-ment media. The public has been bom-barded by exoneree stories in recentyears, including best-selling authorScott Turow’s novel Reversible Errors;the stage play “The Exonerated”; thecelebrated documentary movie “TheThin Blue Line”; the Hollywood drama“Just Cause,” starring Sean Connery andLaurence Fishburne, plus, of course,“CSI” and numerous other televisionpolice procedurals.

Indeed, some prosecutors andjudges refer to the “CSI effect,” inwhich real-life juries acquit defen-dants because the forensic evidencepolice present fails to match the qual-ity of the fictional evidence that TVpolice evidence technicians workingin sophisticated labs uncover — allwithin an hour. 10

The new awareness of wrongful con-victions has led to numerous in-depthstudies of the problem and a wide rangeof enacted and pending legislation inmany states, from new funding for crimelabs to compensation for wrongly con-victed men and women.

Since his release from prison inMissouri last year, Burton, like manyexonerees, has attended occasionalgatherings of other exonerees. In-variably, they exhibit forgiveness re-markable to behold. When theyspeak in anger, it is almost alwaysbecause they say they have never re-ceived apologies from the police of-ficers and prosecutors who wronglysent them to prison, or they havetrouble finding decent jobs, often be-

cause they lack job skills or poten-tial employers wonder if they aretruly innocent. 11

Ronald Cotton was found innocentand released after nearly a dozen yearsin prison in North Carolina for a rapehe didn’t commit. (See sidebar, p. 358.)He forgives Jennifer Thompson-Cannino,the woman whose mistaken testimonyconvicted him, but still feels angryabout the aftermath. In a book abouthis conviction and redemption, co-authored with her, Cotton explains: “Allthose years with bars and razor wirearound me — you’re no better than adog in a cage. After being locked upfor so long, they just toss you out andexpect you to deal with it. I had nomoney, and how could I explain onjob applications where I had been forthe last 11 years?” 12

As legal experts and prisoner ad-vocates study ways to improve thecriminal justice system, here are someof the questions being asked:

Are wrongful convictions a seriousproblem?

Defense lawyers, law professors andother academic researchers and agrowing number of journalists believewrongful convictions are frequent. Po-lice personnel, prosecutors and an ap-parently small number of law profes-sors and academic researchers believewrongful convictions occur in such asmall percentage of cases that systemicreforms are unnecessary.

Although the debate over the sizeof the problem goes back to the be-ginning of the 20th century, it did notbecome high profile until the late1980s, when the use of DNA to de-termine actual innocence or confirmguilt became available. 13 Suddenly,those who believed wrongful con-victions had been undercounted beganto accumulate indisputable proof, whilethose who saw it as a minusculeproblem decided they needed to makea case for their point of view. The

Most DNA Exonerees Are Black

Nearly 60 percent of the 235 convicted prisoners who have been exonerated by DNA evidence since 1989 — when the first exoneration occurred — have been black. That’s more than any other race and more than twice the number of Caucasians.

* Figures do not total 100 due to rounding.


Race of Prisoners Exonerated by DNA Since 1989

African-American

140(59.8%)

Caucasian

64(27.4%)

Latino

21(8.5%)

Asian-American

1(0.4%)

Unknown

9(3.8%)

350 CQ Researcher

debate became entan-gled in the larger con-troversy about themorality and effective-ness o f the dea thpenalty, placing an emo-tional fog over the num-bers discussion.

In 1987, ProfessorsHugo Adam Bedau andMichael L. Radelet wrotea Stanford Law Reviewarticle in which theycited 350 cases of ap-parent wrongful con-victions, some of whichhad placed defendantson death row. A yearlater, in the same pub-lication, lawyers Paul G.Cassell and Stephen J.Markman, who hadserved in the U.S. Jus-tice Department duringthe Republican admin-istration of Ronald Rea-gan, questioned Bedauand Radelet’s data, say-ing many of the 350 didnot qualify as wrongfulconvictions. Reversing aconviction on narrowprocedural grounds isnot the same as freeinga prisoner because of actual innocence,Cassell and Markman said. 14

Within academia, the debate aboutthe accuracy of wrongful convictionstatistics has not abated and eventuallyspilled over into the Supreme Courtand the mass media.

Debates about wrongful convictionsoften focus on the role of local prose-cutors. Researchers from the non-partisan Center for Public Integrity, inWashington, D.C., identified nearly11,500 court rulings from around thenation dealing with allegations of dis-trict attorney misconduct over 30 years.In about 2,000 of the rulings, judgescited prosecutorial misconduct whendismissing charges at trial, reducing

prison sentences or reversing findingsof guilt. 15

Some prosecutors stood out overand over as the targets of those rul-ings, according to the center’s report.For example: “When Larry Johnsonwalked out of a Missouri prison dur-ing the summer of 2002, exoneratedby DNA testing from a wrongful rapeconviction after avowing his inno-cence for 18 years, St. Louis legal com-munity insiders nodded knowingly asword trickled out who had led theprosecution back in 1984 — Nels C.Moss Jr.,” said the report. “Moss, anassistant circuit attorney for the city ofSt. Louis and later a trial prosecutorin neighboring St. Charles County,

earned a well-deservedreputation as an aggressive,effective trial prosecutor.During his 33 years of try-ing cases for the people,however, he simultaneouslywas a recidivist breaker ofthe rules by which pros-ecutors are supposed tooperate.”

According to the center,Moss’ conduct was formal-ly challenged in at least 24cases after he joined thecity prosecutor’s office in1968. In seven of those,judges reversed the convic-tion, declared a mistrial orissued some other ruling ad-verse to the prosecution.The judges ruled that Mosshad reneged during trial ona pre-trial stipulation withthe defense; called thejury’s attention to the de-fendant’s failure to testify,thereby compromising theFifth Amendment rights ofthe accused; alluded to thedefendant’s prior criminalconduct, a violation of therules of evidence; introducedinadmissible material fromthe separate trial of an ac-

complice; promised during jury selec-tion or opening statements to presenttestimony never offered; attacked thetruthfulness of defense counsel; cast as-persions on the integrity of an insani-ty defense; and inflamed jurors’ emo-tions during closing argument.

Moss said he performed his job ag-gressively but legally and expressed pridein his ability to win convictions on be-half of the citizens who paid his salary.Johnson’s exoneration surprised him,Moss said, especially given what he be-lieved had been the credibility of thetestimony by the rape victim. 16

Do aggressive prosecutors such asMoss contribute to a “large” wrongful-conviction problem? Prosecutors and


Dallas County District Attorney Craig Watkins, the first electedAfrican-American district attorney in Texas, is taking unusualaction for a prosecutor: He is reviewing seemingly closed cases

that might have resulted in wrongful convictions, and so far reviews ordered by Watkins have led to

the exonerations of multiple inmates.

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police say no, using theratio of documentedexonerations to arrestsas their starting point.Defense lawyers andlaw professors con-ducting long-term stud-ies see the problem as“large,” or at least sig-nificant, because everywrongful convictionshakes faith in thecriminal justice systemand allows the actualperpetrators to go un-punished.

Critics of the systemhave compared thesituation to airplanecrashes. While mostflights take off and landsafely, the critics saythat crashes often re-su l t i n nume rou sdeaths and should notbe tolerated. The crit-ics note that the Na-tional TransportationSafety Board issues anin-depth report oneach airplane crash, itsfindings enhanced bysubpoena power andindependence from thepolitical process. Why not require anin-depth, publicly available report onevery wrongful conviction by anagency with similar authority? thecritics ask. 17

Marquis, the Clatsop County dis-trict attorney, described prosecutori-al misconduct as at worst “episodic,those few cases being rare enoughto merit considerable attention by boththe courts and the media.” Further-more, Marquis said, when prosecu-tors do err, “the overwhelming ma-jority of prosecutorial errors areharmless, not harmful, meaning thatthere was no malice on the part ofthe district attorney, and that therewas no unjust result.” 18

Do errors by forensic laboratoriescontribute to wrongful convictions?

The major causes of wrongfulconvictions — mistaken eyewitnessidentification, false confessions andfalse informant testimony — are nolonger in doubt. (See sidebar, p. 362.)But concern has grown over the roleplayed by crime laboratories, whichtest evidence gathered by crime sceneinvestigators. The vast majority ofthe nation’s 359 accredited crimelaboratories are located within po-lice agencies. 19

Critics say corrupt or inadequatelytrained crime lab personnel wreak un-told havoc in the criminal justice sys-tem, but police and crime lab officials

say the damage is limitedto only a few renegade em-ployees.

Crime laboratories are nowin the reform spotlight forseveral reasons, includingthe popularity of televisionpolice dramas like “CSI:Miami”; studies of crime lab-oratories, including a mas-sive, congressionally man-dated examination releasedin February by the NationalAcademy of Sciences; criti-cism by advocacy groups;and attentive journalism. 20

Close examinations ofcrime-laboratory proce-dures “have revealed that,in some cases, substantiveinformation and testimonybased on faulty forensic sci-ence analyses may havecontributed to wrongfulconvictions of innocentpeople,” according to theNational Academy report.“This fact has demonstrat-ed the potential danger ofgiving undue weight to ev-idence and testimony de-rived from imperfect test-ing and analysis. Moreover,imprecise or exaggerated

expert testimony has sometimes con-tributed to the admission of erroneousor misleading evidence.” 21

The 2006 report by the AmericanBar Association’s Ad Hoc InnocenceCommittee recommended that crimelab and medical examiner offices beaccredited, examiners certified andprocedures standardized and publishedto ensure “the validity, reliability andtimely analysis of forensic evidence.”

Yet following those recommendationsmight do little to avoid wrongful con-victions due to laboratory incompetenceand fraud as long as the analysts areemployees of law enforcement agen-cies, the ABA said. “Cops in lab coats”

Continued on p. 353

Judge Barbara Hervey of the Texas Court of Criminal Appeals inAustin, which handles death penalty appeals, created a Criminal

Justice Integrity Unit last year to examine and correct problems in the criminal justice system, including mistaken

eyewitness evidence, crime lab unreliability, inadequate defense counsel and coerced or false confessions.

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352 CQ Researcher


DNA Exonerations Spark ReformsOver the last 20 years DNA exonerations have led to a variety of reforms in the nation’s criminal justice system, including the following measures that have been enacted or are under consideration in the various states:


• Access to Post-Conviction DNA Evidence Testing — Without specific laws ensuring “statutory access” to DNA testing to prove their innocence, prisoners can face a protracted legal battle to get access to that evidence and may be denied testing. Forty-six states — except Alabama, Alaska, Massachusetts and Oklahoma — now provide statutory access to post-conviction DNA testing. Three of the four remaining states — Alabama, Alaska and Massachusetts — have introduced legislation to provide access, and Nevada, New York, Ohio and Texas have introduced additional measures to further increase access.

• Forensic Standards and Oversight — The National Academy of Sciences recommended in February 2009 that oversight, research and support for forensic sciences be strengthened and that a National Institute of Forensic Science be created to direct research, establish scientifically validated standards and make sure the standards are consistently applied nationwide. Furthermore, a 2004 federal law required that states seeking federal funds for state crime labs be able to investigate allegations of forensic misconduct, negligence or error. California, Maryland, Minnesota, New York, Texas and Virginia have created forensic science commissions to help ensure the quality and reliability of forensic evidence. Minnesota, Texas and Virginia have introduced legislation to strengthen their commissions.

• Eyewitness Identification Reform — Several states have adopted a range of procedural reforms to decrease inaccurate eyewitness identifications, including:1. Statewide training — Georgia2. Requiring certain reforms shown to increase the accuracy of eyewitness identifications — West Virginia,

New Jersey and North Carolina3. Requiring written policies regarding the use of eyewitness identification procedures — Maryland, Wisconsin4. Establishing a task force to recommend enhanced eyewitness identification protocols — Vermont5. Promulgating “double-blind sequential” guidelines and incorporating them into law enforcement training

— Georgia, New Jersey, North Carolina and Wisconsin. The following local jurisdictions already use sequential double-blind as standard procedure: Denver, Colo.; Northampton, Mass.; Madison, Wis.; Milwaukee, Wis.; Hennepin County, Minn.; Ramsey County, Minn.; Santa Clara County, Calif.

These states have legislation pending that would address eyewitness misidentification: Connecticut, District of Columbia, Hawaii, Kentucky, Massachusetts, Missouri, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island and Texas.

• Criminal Justice Reform Commissions — The following states have created some form of commission to study the causes and remedies of wrongful convictions — California, Connecticut, Illinois, North Carolina, New York, Pennsylvania, Texas and Wisconsin. Efforts to form commissions have been begun in South Carolina and Tennessee. Texas has legislation pending that would strengthen its commission.

• Preservation of Evidence — Twenty-six states have implemented reforms on preserving DNA evidence through the proper retention, cataloging and handling of biological evidence from crime scenes. For a list of the states, go to www.innocenceproject.org/Content/253.php. Legislative reforms on preservation of evidence are pending in Alaska, Colorado, Illinois, Montana, Nevada, New Jersey, New York, Ohio, Oregon, Texas and West Virginia.

• Mandated Recording of Interrogations — Legislation requiring the recording of interrogations has been enacted in Illinois, Maine, Maryland, Nebraska, New Mexico, North Carolina, Wisconsin and the District of Columbia, and state supreme courts have taken action on the issue in Alaska, Iowa, Massachusetts, Minnesota, New Hampshire and New Jersey. Some 500 local jurisdictions nationwide have voluntarily adopted policies to record interrogations. Reforms are pending to mandate the recording of interrogations in Arizona, Arkansas, Connecticut, Indiana, Kansas, Missouri, Montana, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas and Ohio.


have demonstrated actual and allegedpro-prosecution bias in laboratories instate after state, the ABA report said,noting studies that have found perhapsa third of exonerations involve “taintedor fraudulent science.” 22

What happened in West Virginiademonstrates at the extreme how evenone corrupt worker can shake the foun-dation of justice. Starting in the 1970s,Fred Zain, a West Virginia State Policeofficer, was assigned to the crime lab-oratory as a serologist after telling hissupervisors he had a college degree inbiology with a minor in chemistry. Infact, he had not minored in chemistryand had received a failing grade in or-ganic chemistry, bringing it up to onlya D after retaking the course.

With his minimal training as wellas a corner-cutting attitude and a pro-prosecution bias, Zain began actingnot only as a supposed blood expertbut also as prosecutor, jury and judge.If the evidence appeared weak againsta defendant whom Zain consideredsleazy, he made the evidence lookstronger by falsifying test results.

Zain’s dishonesty escaped meaning-ful scrutiny until 1992. By then he hadmoved to Texas, where in 1989 hebegan reprising his role, this time inthe Bexar County (San Antonio) crimelaboratory, where he remained until1993, when signs of misconduct incases there led to his dismissal.

The key to unlocking Zain’s mis-conduct showed up in the case ofGlen Dale Woodall, who had beenconvicted in West Virginia in 1987of two sexual-assault charges. At thetrial, Zain testified falsely that theblood match between a victim andWoodall would occur in only six of10,000 men — especially vital testi-mony, because the remaining evi-dence against Woodall added up tonothing convincing. Maintaining hisinnocence from the start, Woodallpetitioned for his freedom, and anappellate court ordered a new DNA-

testing technique to be applied tothe evidence. As a result, Woodallwas exonerated.

The extent of the damage done byZain had become so evident by 1993that William C. Forbes, the prosecutingattorney in Kanawha County, askedthe Supreme Court of West Virginia toapprove an investigation. The result-ing report by former Judge James O.Holliday revealed a shockingly cor-rupted justice system.

In determining which cases to re-examine, Holliday said evidence of-fered by Zain “at any time in any crim-inal prosecution should be deemedinvalid, unreliable and inadmissible.”Supreme Court justices called Zain’sconduct “shocking,” representing“egregious violations of the right of adefendant to a fair trial. They stain ourjudicial system and mock the ideal ofjustice under law.” At least 134 casesrelying in significant part on Zain’s find-ings needed re-examination. In theend, Zain’s misconduct led directly tothe release of five West Virginia in-mates and one in Texas. 23

In Houston, numerous workers atthe police department crime laboratorycompromised hundreds of cases untiltelevision station KHOU began airingan exposé in November 2002. Withina month, Houston’s police chief com-missioned an outside review of thelaboratory’s DNA and serology units.The chief eventually shuttered the DNA

unit while figuring out how to re-test407 criminal cases that might havebeen compromised. Further review re-vealed compromised cases in the tox-icology unit, so the police chief sus-pended testing there, too.

The failures at the Houston labora-tory carry “implications both for ensur-ing that the guilty are convicted and theinnocent are exonerated,” said an out-side audit report paid for by the citygovernment. “From the perspective ofmaking sure the innocent are exoner-ated, the crime lab failed to performgenetic-marker analyses that, in somecases, might have excluded an indi-vidual suspect as a potential donor ofevidence, such as semen stains relatedto a sexual assault.” 24

Crime laboratory administrators havetended to resist accusations of wide-spread responsibility for wrongful con-victions. John Collins, editor of the in-dependent periodical Crime Lab Report,and Jay Jarvis, associate editor, describethemselves as “experienced accreditationinspectors” with “extensive managementand casework experiences in the foren-sic sciences.” In a rebuttal to the critics,they say statistics alleging frequent crimelab involvement in wrongful convictionsare highly inflated. 25

The experts studying wrongful con-victions for the National Academy leftno doubt that police crime laborato-ries across the nation need more fund-ing to hire qualified staff, train them

Continued from p. 351

DNA Exonerations at a Glance


• Since 1989, 235 prisoners have been exonerated due to DNA evidence.

• Those exonerated served 2,920 years in prison.

• Seventeen exonerees served time on death row.

• Exonerations have been won in 34 states.

• The average exoneree served 12 years.

• The average exoneree was 26 when convicted.

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better, purchase equipment and elim-inate backlogs that allow crimes to gounsolved. 26

The study raised the possibility ofseparating crime laboratories from po-lice agencies. Ralph Keaton, executivedirector of the American Society ofCrime Laboratory Directors/LaboratoryAccreditation Board, opposed such achange. “The recommendation suggeststhat law enforcement agencies tend tobe biased and seek to prove guiltrather than seek the truth,” Keatonwrote. “In actuality, the vast majorityof forensic laboratories that operatewithin law enforcement agencies ex-onerate suspects as routinely as theyimplicate suspects [and] the cost, bothfinancially and in lost productivity, tomake such a transition is too great tomake this the best way to achieve thedesired outcome.” 27

Would systemic reform reduce thenumber of wrongful convictions?

Critics of the criminal justice sys-tem sometimes note that in the finalanalysis human nature causes manywrongful convictions and that, as theadage goes, “You can’t change humannature.” Others, including the Ameri-can Bar Association, counter that itmight be possible, however, to offsetthe influence of human behaviorthrough improved training, legislationprescribing specific protocols duringthe investigative and pretrial stagesand effective discipline for law en-forcement agents who misbehave.

Human nature often plays a role inwrongful convictions when police andprosecutors settle too soon on the iden-tity of the person they think is the per-petrator. That tilt, whether conscious orunconscious, skews their interpretationsof a suspect’s words and actions, lead-ing them to assign guilt while payingtoo little attention to alternate suspects.

The Center for Public Integrity reporton the behavior of prosecutors — whooften use police reports to guide theirimpressions of suspects — provides an

in-depth study on the wrongful murderconviction of Ellen Reasonover, a 24-year-old single mother in St. LouisCounty, Mo. Police and prosecutorslacked leads regarding the murder ofa service-station attendant, and thecrime scene yielded nothing — noforensic evidence, murder weapon, eye-witness testimony or obvious motive.Stymied police asked neighborhoodresidents to provide any informationthey had, however sketchy.

Reasonover was among those whotried to help. She lived near the ser-vice station and had stopped in aroundthe time of the murder to get changeto use at a nearby self-service laun-dry. But police and prosecutors, underpressure to close the case, quicklylabeled Reasonover a suspect for rea-sons that never became clear before,during or after the trial. While in jail,she allegedly confessed to two cell-mates whom she didn’t know. At trial,the conviction before an all-Caucasianjury rested entirely on the testimonyof the cellmates, who had been of-fered reduced sentences for their help.

Reasonover, an African-American,served 16 years for murder before afederal judge released her after evi-dence of police and prosecutor mis-conduct emerged at an evidentiaryhearing. The judge decided if the juryhad known about the deals betweenprosecutors and the jailhouse infor-mants, Reasonover would have beenacquitted at trial. The actual murder-er has never been caught. 28

Part of the systemic reform suggest-ed by the American Bar Association in-cludes the use of jailhouse informants.The ABA report suggests that all lawenforcement jurisdictions “ensure thatno prosecution occur based solely uponuncorroborated jailhouse informant tes-timony.” 29 The ABA report also rec-ommends changes designed to:

• Reduce false confessions;• Improve eyewitness identification

procedures;• Better equip crime laboratories;

• Educate police investigators andprosecutors in new ways to min-imize problems before suspectsare arrested, after suspects are incustody and at trial; and

• Ensure defense attorneys are ed-ucated well enough to provideadequate representation in all cases,especially felonies carrying longprison sentences. 30

In a foreword to the ABA report,Barry C. Scheck, co-founder and co-director of the Innocence Project, notesthat positive changes “in states red andblue, coastal and interior, large andsmall, prove that these reforms andthe issues they address transcend partylines, geographic location and popu-lation size. Indeed, with each passingday more people recognize the sys-temic flaws that have lain dormant inour criminal-justice system, and to ourcollective credit jurisdictions are in-creasingly responding by enacting thenecessary reforms.” 31

Many lawmakers and legal expertssay legislation also could reduce wrong-ful convictions at the federal level, in-cluding amending the Antiterrorism andEffective Death Penalty Act. Congressapproved the law in 1996 to bring greaterfinality to the criminal justice processby limiting inmates’ habeas corpus pe-titions, which seek to give prisoners an-other day in court to appeal their con-victions. In addition to setting timelimits for habeas filings, the law re-quired federal courts to defer to statecourt rulings, unless the rulings areshown to be clearly unreasonable. 32

A law more conducive to repairingwrongful convictions might have helpedBurton after his 1984 murder convictionin St. Louis. Long after his conviction,compelling new evidence of his inno-cence surfaced. A panel of three judgesfrom the Eighth U.S. Circuit Court ofAppeals said it tended to believe Bur-ton’s innocence claim but could donothing about it because the law re-stricting habeas corpus reviews left noavenue to grant freedom.



The Burton ruling noted “a con-founding array of procedural impedi-ments that prevent consideration of themerits of claims, as well as substan-tive barriers that establish modes ofreview utterly inhospitable to prison-ers.” The judges said they understoodthat many of the barriers and imped-iments “represent sound efforts to curbthe groundswell of frivolous and du-plicative habeas petitions.” But, theyadded, “the writ of habeas corpus isnot a one-way path designed to de-feat prisoners’ claims. Rather, our habeasjurisprudence is a balancing act re-quiring careful attention to each of theimportant, yet often opposing, princi-ples at stake. Even as we screen mer-itless petitions, therefore, we must takecare not to shut the door to prisonerswhose claims cause us to doubt thefairness of their convictions.”

Unfortunately, the three judges said,“Burton’s habeas petition depicts atroubling scenario. One cannot read therecord in this case without developinga nagging suspicion that the wrong manmay have been convicted of capitalmurder and armed criminal action in aMissouri courtroom. Since his trial andimprisonment, new evidence has cometo light that shakes the limbs on theprosecution’s case. . . . A laypersonwould have little trouble concludingBurton should be permitted to presenthis evidence of innocence in some forum.Unfortunately, Burton’s claims andevidence run headlong into the thicketof impediments erected by courts andby Congress. Burton’s legal claimspermit him no relief, even as the factssuggest he may well be innocent.”

The judges hoped that Missouri wouldprovide a forum, either judicial or exec-utive, for considering the mounting ev-idence that Burton’s conviction hadbeen procured “by perjured or flawedeyewitness testimony.” 33

But several years passed, with Bur-ton still imprisoned, until digging byCenturion Ministries investigators andskillful maneuvering by the group’s

Finally Free

Charles Chatman (top, middle) leaves court in Dallas on Jan. 3, 2008,after a judge released him and recommended that his rape convictionbe overturned as a result of DNA testing that lawyers say proves hisinnocence. Chatman, flanked by his attorney Jeff Blackburn and hisaunt Ethel Bradley, spent 26 years in prison. After spending 23 years inprison for a murder he didn’t commit, Robert Lee Stinson celebrates hisfreedom last Jan. 30 with two plates of fried shrimp in Wisconsin Dells,Wis. His sister Charlene is at his side (bottom).

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lawyers resulted in a new hearing atthe state level. After the hearing, astate court judge ordered Burton re-leased from prison. 34

Scheck and Peter Neufeld, co-directorsof the Innocence Project, are amongmany of the defenselawyers and legalscholars who criticizedCongress for approv-ing the Antiterrorismand Effective DeathPenalty Act and Pres-ident Bill Clinton forsigning it. “In its zealto achieve finality indeath-penalty litigation,Congress evisceratedthe great writ of habeascorpus, the mechanismused for almost 200years by state prison-ers who wanted afederal court to re-view the justice of theirstate convictions,”Scheck and Neufeldwrote. “This ‘reform’legislation requiresfederal courts to pre-sume state courts areright about many things that state courtsoften are wrong about. Everyone agreesthat it is a terrible thing for an innocentperson to be imprisoned. Far worse,though, would be for a politician to takea moderate line on crime.” 35

BACKGROUNDNew Awareness

A lthough wrongful convictionshave occurred, undoubtedly, since

the beginning of the U.S. criminal jus-tice system, it wasn’t until the early1930s that awareness of their persis-tent occurrence in jurisdictions across

the nation seemed to take root. Theclarion call came from Edwin M. Bor-chard, a Yale University law profes-sor, in his book Convicting the Inno-cent: Sixty-Five Actual Errors ofCriminal Justice.

Borchard knew many readers wouldfind his case studies unbelievable, giventhe overwhelming faith Americans hadin the court system. As a Massachu-setts prosecutor said, according to Bor-chard, “Innocent men are never con-victed. Don’t worry about it; it neverhappens in the world. It is a physicalimpossibility.” But, Borchard respond-ed flatly, “The present collection of 65cases, which have been collected froma much larger number, is a refutationof this supposition.” 36

Lawyer and writer Erle StanleyGardner understood the wrongful-convict ion phenomenon. Bestknown as the author of Perry Masonmystery novels, Gardner devoted asignificant portion of his earnings inthe late 1940s to creating the Courtof Last Resort, a private tribunal that

investigated suspected wrongfulconvictions. In 1952, Gardner pub-lished a book about the effort, pre-senting the story behind exonera-tions he, his staff and a network ofvolunteers engineered.

Among his reformproposals, the idealisticGardner sugges tedplacement of “power inthe hands of the courtsto see that the defenseof each person accusedof a crime is adequate-ly and competentlyconducted. This includesthe power — in fact,the duty — of courts toappoint impartial, com-petent experts to furnishthe court and counselfor both sides with per-tinent technical infor-mation both before andduring trial.” Not evena lawyer with Gardner’sde te rmina t ion andreach, however, coulderase the systemic prob-lems leading to wrong-ful convictions. 37

Throughout the 1960s, ’70s and ’80s,journalists and academic researchers fol-lowed the path trod by Borchard andGardner, publishing case studies of sus-pected and documented wrongful con-victions. The most mammoth effort —covering several hundred defendants— came in a 1992 book by ProfessorsBedau and Radelet and Constance E.Putnam, a writer married to Bedau, InSpite of Innocence: Erroneous Convic-tions in Capital Cases. 38

The Chicago Connection

I n the 1970s Chicago journalistsbegan compiling information that

would, eventually, help trigger reform


Continued on p. 360

The popularity of television police dramas like “CSI: Miami” has helpedput crime laboratories in the reform spotlight. According to a recent

National Academy of Sciences report on crime-lab procedures, “faulty forensic-science analyses may have contributed to

wrongful convictions of innocent people.”w

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Chronology1930s-1950sAcademic researchers and re-formers say wrongful convictionsare more numerous than gener-ally acknowledged by those run-ning the criminal justice system.

1932Yale University law ProfessorEdwin M. Borchard publishes Con-victing the Innocent: Sixty-five Ac-tual Errors of Criminal Justice, aseminal work that raises aware-ness of wrongful convictions.

1952Lawyer and author Erle StanleyGardner, creator of the PerryMason detective series, establishesthe Court of Last Resort, hiringskilled investigators to examineclaims of wrongful convictions.

•

1960s Supreme Courtexpands the reasons convic-tions can be reviewed to in-clude prosecutorial misconduct.

1963Supreme Court’s Brady v. Mary-land decision requires prosecutorsto share exculpatory evidence withdefense counsel.

1964Publication of The Innocents byjournalist Edward D. Radin renewsawareness of the prevalence ofwrongful convictions.

•

1970s-1980sJournalists investigate wrongfulconviction cases, begin tappingwrongful conviction clinics forstories.

1975Reporting by The Miami Herald ’sGene Miller frees Florida death-row inmates Freddie Pitts andWilbert Lee. Journalists around thenation take note of Miller’s storieswhen he wins the Pulitzer Prize.

1982Hysteria over alleged ritual childabuse at day-care centers spawnsnumerous wrongful convictioncases. In California’s Kern County,prosecutors target at least a dozenpurported child sex rings allegedlyinvolving multiple adults abusingnumerous children. Eventually,journalist Edward Humes’ 1999book Mean Justice provides de-tailed accounts of the prosecutorialoverzealousness and wrongfulconvictions.

1983Jorge De Los Santos is freedfrom a New Jersey prison afterbeing convicted of a murdereight years earlier. Prison chap-lain James McCloskey spearheadsthe exoneration after hearing hisinnocence claim. McCloskey startsCenturion Ministries to help over-turn wrongful convictions. Orga-nizations investigating wrongfulconvictions are a fledgling andevolving concept, none servinginmates nationwide.

•

1990s As innocenceprojects and journalism investi-gations expand, lawmakersnarrow legal gateways to post-conviction litigation.

1992Barry Scheck and Peter Neufeldfound the Innocence Project, fo-cusing on DNA-based exonera-tions.

1996President Bill Clinton signs theAntiterrorism and Effective DeathPenalty Act narrowing inmates’ rightto file habeas corpus petitions.

1999Chicago Tribune begins series onflaws in the criminal justice systemthat lead to wrongful convictions.

•

2000-PresentTolerance of wrongful convictionserodes as the number rises.

2000The debut of the CBS-TV crimeshow “CSI” heightens awarenessof DNA and other forensic evi-dence but raises unrealistic expec-tations of prosecutors among po-tential and actual jurors.

2003Gov. George Ryan, R-Ill., a formerdeath penalty supporter, declares astate moratorium on executionsafter learning that more innocentinmates had been on death rowthan guilty ones. The week beforeleaving the governorship, he com-mutes the death sentences of 167inmates and pardons four.

2009New innocence projects arise andestablished ones expand amidst avariety of new studies — exempli-fied by the New York State BarAssociation’s comprehensive reporthighlighting the pervasiveness ofcriminal justice shortcomings. . . .In June the U.S. Supreme Court isexpected to rule on an appeal byan Alaska man, William G. Os-borne, who wants to be able toanalyze DNA evidence used in his1995 conviction for kidnappingand sexual assault.

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R onald Cotton did not rape Jennifer Thompson on a sul-try, summer night in July 1984 in Burlington, N.C. BobbyLeon Poole, a dead-ringer for Cotton, actually commit-

ted the rape.But when detective Mike Gauldin showed six photographs

to Thompson and later summoned her to a lineup includingseven black males, she picked Cotton both times.

At first, Thompson felt unsure about two men in the line-up, one of them holding number four, the other holding num-ber five. She asked the police officer running the lineup toorder each of the men tospeak the words he had spo-ken while assaulting her:“Shut up or I’ll cut you.”After hearing number fivespeak a second t ime,Thompson just knew: “Ilooked at his face. He hada light mustache; his eyeslooked cold. His body waslong and lean. He knew towear brown, I thought, be-cause he knew he had beenwearing dark blue the nightof my assault. And he knewto wear his hair differently.It was him. There was nodoubt in my mind.” 1

Thompson, a senior atElon College, had inten-tionally stayed alert duringthe sexual assault, seeking identifying characteristics of herrapist. She provided a detailed verbal description. She sat witha police artist until she was satisfied with the composite sketch.

At the hospital, a rape kit examination was conducted to col-lect forensic evidence, and police collected additional forensic ev-idence from her apartment, which Thompson kept tidy. Sheseemed like the perfect witness from the prosecution’s standpoint.

During the photo identification and the lineup, police toldThompson the rapist might not show up as part of the mix,and that she did not have to choose anyone. As far as can bedetermined so many years later, the only impropriety involvedGauldin telling Thompson, “We thought that might be the guy.It’s the same person you picked from the photos.” By utteringthose words, Gauldin unintentionally increased Thompson’slevel of certainty before Cotton’s trial.

Another detective told Thompson that Cotton worked at arestaurant near the rape scene. A restaurant manager had calledpolice about Cotton after seeing the composite sketch. The

same detective told Thompson about Cotton’s criminal record,including a prior crime involving intended sexual assault aimedat a white female. Again, Thompson felt validated in her iden-tification of Cotton.

Cotton unintentionally hurt his own defense when he mixedup his dates during voluntary discussions with police, therebygiving an alibi that the prosecutor could disprove. When Cot-ton later tried to set the alibi dates straight, police and prose-cutors — not surprisingly — scoffed.

At trial, the judge refused to allow Cotton’s attorney to puta memory expert on the wit-ness stand who would have ex-plained to jurors that rape vic-tims and other eyewitnessessometimes make mistakes, nomatter how certain they sound.The jurors paid little attentionto the fact that no forensic ev-idence linked Cotton to the rape,and that Thompson never men-tioned Cotton’s scars while pro-viding a detailed identification.

The jurors also had no ideaanother woman who was rapedon the same night, by the sameperpetrator, had failed to iden-tify Cotton but instead pointedto a different man in the line-up — a man who could nothave committed the crime. Be-cause the second rape victim

had failed to identify Cotton, prosecutors did not immediatelyfile charges against him for that assault.

Despite the rulings against Cotton, he refused to seek a pleabargain and plead guilty to a crime he never committed. “De-spite the bars all around me, I was an innocent man. Godknew it, and I knew it, and I would rather die incarceratedthan admit to being the rapist they claimed I was.”

On Jan. 18, 1985, after jurors found him guilty, Cotton wassentenced to life plus 50 years.

Cotton and Poole eventually ended up in the same prison,where Poole was serving time for an unconnected Burlingtonrape. The first time he saw Poole, Cotton thought he lookeda lot like the composite drawing that led to his own arrest. “Ilooked at the short hair, the thin mustache and the mouth thatwasn’t too wide but was full. He was light-skinned, lighter thanme. And it flashed in my mind: the composite picture of thesuspect in the rapes they pegged me for. . . . The guy stand-ing in front of me looked just like him.”

The Case of the Look-Alike RapistNorth Carolina case shows the unreliability of eyewitnesses.

Ronald Cotton, right, pictured in 1984, was released fromprison 11 years after DNA testing showed that

Bobby Poole, left, pictured in 1985, actually raped a college student.

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Others in the prison sometimes confused Poole and Cot-ton, even though Cotton was five inches taller. Cotton askedPoole if he had committed the Thompson rape and the rapeof another woman the same night. Poole said no, but with alook that caused Cotton to suspect otherwise.

Using a standard appellate strategy, Cotton’s lawyer won anew trial on a procedural issue — the judge should have al-lowed the jury to hear that a second woman raped the samenight by a man with the same modus operandi had failed toidentify Cotton. The second trial occurred in November 1987.By then, the prosecutor hadpersuaded the second vic-tim, Mary Reynolds, to ac-cuse Cotton, on the groundsthat she had been too fear-ful during the lineup to iden-tify her actual rapist. Sud-denly, a new trial lookedto Cotton more like a haz-ard than a blessing.

But at the new trial, withthe jury out of sight, thejudge heard testimony fromanother prison inmate thatPoole had confessed to theThompson and Reynoldsrapes. The judge also heardlawyers for both sides ques-tion Poole, who maintainedhe had never committedthose two rapes. The judgedecided the jury would not hear the confession testimony norsee Poole.

However, both Thompson and Reynolds, sitting in the court-room, did see Poole, their actual rapist. They did not recog-nize him, so never wavered from their testimony that Cottonhad assaulted them. After the guilty verdict, Cotton returned toprison — now sentenced to two life terms.

Then in 1992, Richard Rosen, a University of North Carolinalaw professor, became interested in the case. He asked to ex-amine the evidence and obtained a court order allowing evi-dence to be tested using newly available DNA technology. Thomp-son was asked to give a blood sample, because biological materialfrom the rape had degraded. Upset, she complied, and tried notto worry. She knew in her heart that Cotton was guilty and thatthe DNA test would confirm her identification.

She was wrong. In mid-1995, nearly three years after Rosenbegan his re-examination, DNA results cleared Cotton and im-plicated Poole.

Incredulous, Thompson felt extreme guilt that she had takenaway more than a decade of Cotton’s freedom. Two yearslater, working through Gauldin, she asked to meet Cotton toapologize. Both her husband and Cotton’s wife expressedreservations about a meeting, but Thompson felt compelledto apologize in person, and Cotton wanted to hear the apol-ogy face to face.

After that initial meeting, during which Cotton bestowedforgiveness, he and Thompson talked long distance, then metagain. Eventually, they accepted requests to speak about the

wrongful conviction and thereconciliation. They also co-authored a book about theirintertwined lives and todaysometimes travel together tospeak to audiences about thefrequent role of eyewitnessmisidentification in wrongfulconvictions.

“Although Ron had helpedme overcome so much, I stillhad a hard time forgiving my-self for being less than perfect,Thompson says. “This was notlike screwing up a recipe. Themistake I made had impactedpeople’s lives for years, and Ifelt it was my burden to carry.”

Only after hearing Gary Wells,an Iowa State University re-searcher, explain the common

nature of mistaken eyewitness identification did Thompson’sfeelings of inadequacy and guilt begin to fade.

Gauldin, who became chief of police in Burlington, alsotook to heart the lesson about mistaken eyewitnesses. Underhis leadership the police department became the first in NorthCarolina to require sequential proceedings — which allow wit-nesses to see suspects in person or through photographs oneat a time, instead of simultaneously — and double-blind pro-cedures — which prevent police officers dealing with witnessesfrom knowing the identity of the alleged perpetrator, so theycannot provide unintentional or intentional clues. 2

1 Jennifer Thompson-Cannino, Ronald Cotton and Erin Torneo, Picking Cot-ton: Our Memoir of Injustice and Redemption (2009), p. 37. Court rulingson the Cotton case before his exoneration are located at 318 NC 663 and394 SE 2d 456. Other information is from the book unless otherwise noted.See also Jim Morrill, “Rage, Finally Set Free,” Raleigh News & Observer,March 29, 2009, and “What Jennifer Saw,” “Frontline,” February 1997.2 Picking Cotton, op. cit., p. 284.

Ronald Cotton and Jennifer Thompson, shown in 2000, co-authored a book about Cotton and Thompson’s mistaken

testimony. They now give talks together on wrongfulconvictions. Cotton has been profiled on “60 Minutes”

and appeared on NBC’s “Today” show.

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ef for t s , such asvideotaping of policeinterrogations. In1978, Rob Wardenfounded the maga-zine Chicago Lawyer,which year after yearexposed misconductby police and pros-ecutors that had ledto unfair trials andsometimes to wrong-ful convictions. War-den began to achieverecognition outsideChicago after collab-orating with DavidProtess, a freelancereporter and North-western Universityjournalism professor.

During the 1990s, Warden andProtess collaborated on two booksabout instances of actual innocence.In one of the cases, Protess and hisjournalism students played a vital rolein exonerating four men convicted forthe kidnapping, rape and double mur-der of a young couple. The studentsnot only won freedom for DennisWilliams, Verneal Jimerson, KennyAdams and Willie Rainge — the so-called Ford Heights Four — but alsohelped identify the actual perpetrators.In doing so, they helped demonstratethe potential of DNA testing in actualinnocence proceedings. At a forensicslaboratory in Boston, a scientist com-pared DNA from all four defendantswith DNA from the crime scene andfound no matches.

“It was an historic result — the firsttime in the annals of forensic sciencethat multiple defendants had been ex-cluded as sources of semen in a rapecase,” Protess and Warden noted. 39

DNA quickly came to dominatethe wrongful convictions discussion.One of the enlightened prosecutorspresent at the creation was then-SanDiego Deputy District Attorney

George “Woody” Clarke. “Few dra-matic changes have taken place inthe world of solving crime,” wroteClarke, now a Superior Court judge.“Fingerprints were universally hailedas one of the most significant newweapons placed at the disposal oflaw enforcement. But their utility islimited to the relatively few cases inwhich fingerprints are left at crimescenes and can be discovered. Teststo determine whether guns have beenfired by a suspect, hypnosis andeven voiceprints have been used ininvestigations with mixed and con-troversial results. But when [the] sci-ence [of DNA] joined with law en-forcement and the legal system in1986, the justice system began a trans-formation like no other it had everexperienced.” 40

With DNA exonerations becomingalmost commonplace, the Chicago Tri-bune started a remarkable, decade-long run of investigative reporting thatmade a measurable impact in per-suading more and more citizens aboutthe reality of wrongful convictions. InJanuary 1999 the newspaper publisheda five-part series of articles that foundnearly 400 cases where prosecutors

had won homicide con-victions through decep-tion — hiding evidencefavorable to defendants,allowing witnesses to lie,and more. The seriesdocumented cases goingback to 1963 in whichcourts reversed murderconvictions because ofprosecutors bending orbreaking the law. 41

Ten months later, theTribune published an-other in-depth series thatexamined hundreds ofmurder cases in whichIllinois prosecutors,mostly in Cook County(Chicago), had chargeddefendants with a cap-

ital crime and asked for the deathpenalty. The journalists identified 326reversals by appeals courts attributedin whole or in part to the conductof prosecutors. Both series namednames, holding incompetent and venalpolice and prosecutors accountable.Later, Tribune reporters and editorsdelved into wrongful convictionscaused by defense lawyer incompe-tence, out-of-control police, forensicanalysts in law enforcement crime lab-oratories, and more. The investiga-tive pieces continued into 2008. 42

Illinois Gov. George Ryan creditedthe Tribune stories with his January 2003decision to suspend the death penaltyand commute sentences of numerousinmates, including all those on deathrow. “Our system in Illinois is rotten tothe core, arbitrary, capricious, unjust, racistand unfair to the poor, and also to thefamilies of the victims,” Ryan said. Illi-nois has not executed an inmate sinceRyan imposed the moratorium. 43

Other newspapers, magazines,broadcasters and Web sites staffed bytrained journalists — often inspired bythe Tribune investigations — addedto the accounts of wrongful convic-tions elsewhere. 44



Innocence Project Co-Directors Peter Neufeld (left) and Barry Schecktestify early this year at a New York State Bar Association

hearing on criminal justice system reforms that can prevent future wrongful convictions.

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CURRENTSITUATION

New Studies

B lue-ribbon commissions in statesaround the country are conduct-

ing in-depth inquiries into wrongfulconvictions and producing massive re-ports frequently containing detailedsuggestions for reform. Reports issuedby commissions in Illinois, Virginiaand New York state have received es-pecially widespread attention.

The New York State Bar AssociationTask Force on Wrongful Convictions inJanuary 2009 looked at 53 wrongfulconvictions. The 22-member panel in-cluded private-practice lawyers, judges,prosecutors, law professors and a lawenforcement officer.

The commission identified six rootcauses of wrongful convictions andfound that almost every exonerationinvolved more than one of the fol-lowing causes:

• Mistaken identification by the vic-tim or other eyewitnesses;

• Mishandling of forensic evidence,combined with the failure to useDNA testing when available;

• Extraction and use of false con-fessions;

• Reliance on false testimony by jail-house informants;

• Incompetent defense counsel; and• General errors by police officers,

prosecutors or judges.The commission report included

numerous, detailed recommendationsfor change. For example, to halt pros-ecutors from illegally withholding ev-idence that might be favorable to thedefendant (called a “Brady violation”),the report suggests the following steps:“If Brady information relevant to thedefense has not been given to the de-

fense or has been delivered in a lateturnover, or if false testimony is usedat trial, relief on appeal or collateralchallenge should be granted unless thestate shows there was no possibilitythe information would have affectedthe decision.” 45

Another study was undertaken bythe Innocence Commission for Virginia(ICVA), a three-way collaboration in-cluding a regional innocence project,the Washington-based Constitution Pro-ject, a research and reform organiza-tion, and the Administration of JusticeProgram at George Mason Universityin Fairfax, Va. Eleven law firms con-tributed $500,000 to launch the Vir-ginia study in 2003. Two years later,the commission published its report,“A Vision for Justice.” 46

Commission Chairman Jon B.Gould, a lawyer who teaches atGeorge Mason, said the statewidestudy “offers insights into the sourcesof wrongful convictions and recom-mendations for reforms in order toprevent future tragic errors.”

The long list of reform recom-mendations included three meant tominimize premature focusing on aspecific suspect. The first of the threewarned, “Tunnel vision, in which of-ficers jump too quickly to the con-clusion that a particular suspect isguilty or focus solely on one personto the exclusion of other viable sus-pects, is a special danger in law en-forcement. Law enforcement agenciesshould train their officers to docu-ment all exculpatory, as well as in-culpatory, evidence about a particu-lar individual that they discover andto include this information in their of-ficial reports to ensure that all excul-patory evidence information comes tothe attention of prosecutors and sub-sequently to defense attorneys.” 47

In Illinois, the Governor’s Commis-sion on Capital Punishment includednovelist Turow. It made 85 recom-mendations aimed at lowering the num-ber of wrongful convictions. Turow, a

still-practicing lawyer, found the ex-perience surprisingly revealing.

“Many of our findings flew in theface of what I had taken for grantedduring my years as a prosecutor, andeven as a defense lawyer,” Turow said.“For instance, one of the fixed stars ofthe universe of criminal justice is theidea that nobody voluntarily confessesto a crime she or he didn’t commit.For this reason, a confession is re-garded as the best possible evidence,and cops work hard in their interro-gations of suspects to get admissionsto the crime. . . . Thus, the persistenceof purported confessions by innocentpeople in Illinois’ exonerated cases wasa wakeup call to me.” 48

Legislative Initiatives

R eforms recommended by blue-ribbon commissions are spark-

ing proposals for changes in the crim-inal justice system from legislatorsand governors around the nation.Achieving change is rarely effortless,however. Even when influential forcesalign to promote reform, resistancearises — often from within law en-forcement — stalling or blocking leg-islative initiatives.

After the exonerations of two Ohioinmates, for example, the InnocenceProject Blog noted earlier this year, “Abill pending before the Ohio legislaturewould grant wider access to post-conviction DNA testing, require changesto lineup procedures and [mandate] theelectronic recording of interrogations.Some police and prosecutorial organi-zations resisted the changes, saying theywould be costly for police departmentsto implement and generally preventpolice from doing their jobs.”

Gene Rowe, chief of the RichmondHeights, Ohio, Police Department, hadprotested that the bill, if approved,would lead to higher city taxes andcause police officers to deal with ad-ditional paperwork.

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In the face of such opposition,compromise legislation would be bet-ter than nothing, said Republican stateSen. Bill Seitz of Cincinnati. Reducingwrongful convictions across Ohio “istoo important” to wait for the legisla-ture to approve a perfect bill, Seitzsaid. “We’ve got real problems withreal-life people. All I would say toanybody who doesn’t like this bill is:What if it was you in jail for 18 yearsfor a crime you didn’t commit?” 49

Reform proposals that seem non-controversial and affordable gain trac-tion in some locales and languish inothers. Universal acceptance in a na-tion with more than 2,300 local pros-

ecutor jurisdictions and far more po-lice agencies seems hopeless.

Calls for recording interrogations ofsuspects often meet with resistance,although audio recordings wouldseem to be within the budget of everypolice agency, given the revolution inelectronics. Audiovisual recordingequipment is more expensive, but notby much. Yet the overwhelming ma-jority of state legislatures and local lawenforcement agencies have not initi-ated recording of interrogations, de-spite the documented potential for re-ducing wrongful convictions. 50

Legislation requiring recordings hasbeen enacted in Illinois, Maine, Mary-

land, Nebraska, New Mexico, NorthCarolina, Wisconsin and the District ofColumbia, and state supreme courts havetaken action on the issue in Alaska,Iowa, Massachusetts, Minnesota and NewHampshire. In New Jersey action wastaken by the attorney general’s office.Some local police departments, suchas Phoenix, Los Angeles, Denver andHouston, have instituted recordingprocedures internally. 51

The Innocence Project Blog keepspace with reform proposals, as do or-ganizations with a stake in the out-comes, including the National DistrictAttorneys Association and the NationalAssociation of Criminal Defense Lawyers.


DNA exoneration cases provide “irrefutable proof” thatwrongful convictions are not isolated or rare eventsbut arise from systemic defects in the U.S. justice sys-

tem, according to the Innocence Project. 1 During 15-plus yearsof study, the nonprofit legal clinic has identified what it con-siders three major flaws in the system:

Eyewitness misidentification — Police, prosecutors, ju-rors and judges often depend heavily on confident-soundingeyewitnesses. But decades of research show such confidencecan be misplaced. Led by Iowa State University psychologyProfessor Gary Wells, the research suggests simple reforms thatlaw enforcement agencies could implement to minimize eye-witness mistakes, including:

• Using double-blind identification procedures in which noone involved in administering the lineup or photo-spreadknows which lineup member is the suspect;

• Carefully instructing eyewitnesses not to assume that theactual perpetrator is in the lineup or photo-spread;

• Ensuring that all lineup members match the eyewitnessdescription of the perpetrator;

• Having the witness recite how confident he/she was inthe selection immediately upon making the identification,and;

• When possible, videotaping or recording a lineup.Judges should also make wider use of “special jury in-

structions and expert testimony on eyewitness identificationproblems to assist fact-finders in fairly evaluating the evidencein appropriate cases,” according to Wells. 2

Unvalidated/Improper Forensic Science — While DNAtesting was developed through extensive scientific research

at top academic centers, many other forensic techniques —such as hair microscopy, bite-mark comparisons, firearm tool-mark analysis and shoe-print comparisons — have neverbeen subjected to rigorous scientific evaluation. Meanwhile,forensics techniques that have been properly validated —such as serology, commonly known as blood typing — aresometimes improperly conducted or inaccurately conveyedin trial testimony. In some cases, forensic analysts have fab-ricated results or engaged in other misconduct. In February2009, the National Academy of Sciences (NAS) released anunprecedented report finding that many forensic disciplinesare unvalidated or misused. The NAS called for the creationof an independent, science-based federal agency to stimu-late research, set national standards for forensic science andoversee enforcement of those standards.

False Confessions — Studies of wrongful convictions showthat suspects frequently confess to crimes they did not com-mit. Some of the confessors are mentally challenged and thusextremely suggestible to police allegations during questioning.Others naïvely believe interrogators will allow them to returnhome if they admit to guilt. Still other confessors break downunder psychological or physical coercion.

The American Bar Association (ABA) recommends that lawenforcement agencies completely videotape or audiotape cus-todial interrogations, which has received widespread support.Even University of Utah law Professor Paul G. Cassell, a for-mer federal prosecutor and judge who doubts the extent ofwrongful convictions — says “virtual unanimity [exists] . . . thatvideotaping interrogations is an effective solution to the falseconfession problem.” 3

Systemic Defects Blamed for Wrongful ConvictionsMistaken eyewitnesses and false confessions top the list.


Outside the criminal justice system,several organizations track proposedand completed legislative efforts. Forexample, the National Conference ofState Legislatures Web site lists statelegislation enacted. In Illinois, for ex-ample, the legislation:

• “Provides that a defendant mayrequest Integrated Ballistic Identi-fication System testing or forensicDNA testing on evidence not pre-viously requested because the tech-nology was not available.

• Requires any new fingerprint ev-idence that does not match thedefendant or victim to be sub-mitted to the Federal Bureau of

Investigation’s Integrated Auto-mated Fingerprint IdentificationSystem.

• Requires the creation of guidelinesfor all mandated recordings ofcustodial interrogations in homi-cide investigations.” 52

The Innocence Project Web site of-fers model legislation on issues suchas post-conviction DNA testing; preser-vation of evidence (so that it is avail-able to test after the case is otherwiseclosed); systemwide oversight offorensic evidence; improved eyewit-ness identification procedures; video-taping interrogations in their entirety;and the creation of innocence com-

missions to examine the causes of spe-cific wrongful convictions after theybecome public knowledge.

While suggesting changes within thestates, the Innocence Network (an as-sociation of nonprofit legal clinics andcriminal justice resource centers ofwhich the Innocence Project is a found-ing member) also relies on the Fed-eral Justice for All Act, approved byCongress in 2004. The law grantedfederal prisoners claiming innocencethe right to petition for post-convictionDNA testing; established mechanismsto improve the quality of defense lawyerrepresentation in death penalty cases;and required independent investigations

False Informant Testimony — The ABA recommends thatno prosecution proceed “based solely upon uncorroborated jail-house informant testimony.” Prosecutors often make deals withunreliable, self-interested jailhouse snitches, as in the Ellen Rea-sonover case, in which a St. Louis County woman served 16years in prison for a murder she did not commit. The prosecu-tor convicted Reasonover based entirely on the testimony of twowomen she interacted with briefly in jail shortly after her arrest.Both were recidivists with reputations for lying. The prosecutorillegally failed to disclose the deals he made with the informants,and an all-white jury convicted Reasonover, an African-American,coming within one vote (11-1) of a death sentence. 4

Los Angeles Times reporters Ted Rohrlich and Robert W. Stewartexposed the dangers of relying on jailhouse snitches in a 1989series focusing on Leslie Vernon White, a longtime police infor-mant who agreed to show law enforcement officials how easilyhe could concoct believable lies about other inmates.

“Equipped with only a telephone and the last name of the in-mate he did not know, White impersonated police officers andprosecutors and squeezed enough information from law enforce-ment officials to fabricate a plausible confession,” the journalistswrote. “Then he created a phony record showing that he andthe accused had been together in jail.” The reporters also foundcredible evidence that some district attorneys knew their jailhouseinformants were lying but called them as witnesses anyway. 5

White was thus able to circumvent the two-pronged testnormally used by prosecutors to safeguard against false infor-mant testimony: Did the informant reveal details known onlyto the criminal? And did the informant and defendant actuallyspend time together in jail?

In 2004, Illinois began requiring extensive disclosure by the pros-ecution if a jailhouse informant is used as a witness. Disclosuremust include the informant’s complete criminal history, all deals al-ready offered or expected to be offered by the prosecution, thetime and place of statements made by the informant against thedefendant, who heard the statements, the details of how the state-ments were conveyed to law enforcement officers; details aboutany recantations by the informant; previous cases in which the in-formant testified for the prosecution and the nature of promises,inducements or benefits offered by the prosecution in those cases.

1 Affiliated with the Benjamin N. Cardozo School of Law at Yeshiva Uni-versity in New York, the Innocence Project is dedicated to exoneratingwrongfully convicted people through DNA testing and reforming the criminaljustice system to prevent future injustice. At a clinic, law students handle casework while supervised by a team of attorneys and clinic staff.2 See Gary Wells, “Eyewitness Identification: Systemic Reforms,” WisconsinLaw Review, 2006/2, p. 615. Also see “Achieving Justice: Freeing the Inno-cent, Convicting the Guilty,” American Bar Association, Criminal Justice Sec-tion, 2006, p. 29.3 Paul G. Cassell, “Balanced Approaches to the False Confession Problem:A Brief Comment on Ofshe, Leo and Alschuler,” Denver University Law Re-view, 1997, p. 1123. Among the best research on false confessions is RichardA. Leo and Richard J. Ofshe, “The Consequences of False Confessions: De-privations of Liberty and Miscarriages of Justice in the Age of Psychologi-cal Interrogation,” Journal of Criminal Law and Criminology, 1998, p. 429.4 “Achieving Justice: Freeing the Innocent, Convicting the Guilty,” op. cit.,p. 63. Also see Steve Weinberg, “Railroaded,” The American Lawyer, Au-gust 2000. Centurion Ministries includes information about each of its ex-onerations at www.centurionministries.org.5 Ted Rohrlich and Robert W. Stewart, “Jailhouse Snitches: Trading Lies forFreedom,” Los Angeles Times, April 16, 1989, p. A1. Also see Rob Warden,“The Snitch System: How Incentivized Witnesses Put 37 Innocent Ameri-cans on Death Row,” Center on Wrongful Convictions, Bluhm Legal Clin-ic, Northwestern University School of Law, 2002.

364 CQ Researcher


of serious crime-laboratory problemsif the laboratorieswanted to obtainfederal financial as-sistance.

Publication of theNational Academy ofSciences’ massive re-port about crime-laboratory reformmay spawn legisla-tion that would spurthe scientific researchand quality controlsnecessary to enhancethe accuracy of foren-sic evidence.

Some calls for re-form seem to gaintraction throughoutthe states, includinggiving inmates the right to seek post-conviction DNA testing based onclaims of actual innocence. In 2009,South Dakota and Mississippi becamethe 45th and 46th states to approvesuch legislation. Alaska, on the otherhand, has resisted the change, lead-ing advocates of reform to argue ear-lier this year in the United StatesSupreme Court that the resistance isunconstitutional. 53

The issue reached the court in anappeal by an Alaska man, William G.Osborne, who wants to be able to an-alyze DNA evidence used in his 1995conviction for kidnapping and sexualassault. Alaska is one of six states withno law providing defendants or in-mates access to DNA evidence. A rul-ing in the case, argued on March 2,is expected by the end of June.

Obviously, new legislation can-not result in a post-conviction DNAtest if the DNA material has beenmisplaced by law enforcementagencies or degraded due to pas-sage of time or inadequate storagemethods. Thus, comprehensive leg-islation is sometimes the goal of re-formers, who see it as vital to link

the right to post-conviction DNA test-ing with improvements in evidences torage. Reformers have a lsolearned that after passage of the de-sired legislation, state agencies fre-quently lack the money or under-standing to implement the changes.

In an era of state budget deficits, thepush by innocence projects and simi-lar groups to provide innocent inmateswith post-conviction compensation mightface increased obstacles. Earlier this year,Nebraska became the 27th state to pro-vide compensation without requiring anexonerated inmate to sue in court. Likemost existing compensation laws, how-ever, the Nebraska legislation containslimitations that some advocates consid-er inappropriate, such as a low, $500,000cap on compensation for what mighthave been decades of wrongful im-prisonment. Furthermore, many of thecompensation laws deny or scrimp onsocial services to help exonerees read-just to the world outside prison. InGeorgia, without a compensation law,legislators have been debating whetherto grant an individual award to a manfreed after 28 years in prison for a rapehe did not commit. 54

While reformers willcontinue to push fornew legislation in Con-gress and in state legis-latures, those who seekto reduce wrongful con-victions are quite likelyto seek change from thecourts as often as prac-tical. That is especiallytrue when the crafting ofa remedy through legis-lation seems impractical.

A representative ex-ample can be found inthe U.S. Supreme Courtcase of Luis E. Melendez-Diaz v. Massachusetts.The Innocence Networkfiled a joint brief sup-porting the argument ofMelendez-Diaz that he

has a right to cross-examine a stateforensics witness who played a rolein his drug-related conviction. Massa-chusetts courts have ruled that prose-cutors are allowed to submit the foren-sics report into evidence without furtherscrutiny at trial. The rulings rest “en-tirely on a myth of infallibility — amyth that finds no basis in the realityof state forensics practices throughoutthe country,” according to the brieffrom the innocence projects. 55

OUTLOOKNew Hope

T raditionally, police and prosecu-tors have been reluctant to ac-

knowledge wrongful convictions. Butas the evidence mounts of persistentflaws in the criminal justice system,prosecutors, especially, are taking amore realistic view of the flaws andeven sounding contrite more frequently.

Continued on p. 366

Former inmate Alan Newton embraces Cardozo law student Ben Zviti,who helped the Innocence Project bring about his release, on the day ofhis exoneration at the Bronx Criminal Court in New York City in 2006.

Innoce

nce

Pro

ject

no


At Issue:Can the number of wrongful convictions be calculated?Yes

yesSAMUEL R. GROSSPROFESSOR, SCHOOL OF LAWUNIVERSITY OF MICHIGAN

FROM “CONVICTING THE INNOCENT,” ANNUAL REVIEWOF LAW AND SOCIAL SCIENCE, DECEMBER 2008

almost everything we know about false convictions isbased on exonerations in rape and murder cases,which together account for only 2 percent of felony

convictions. Within that important but limited sphere we havelearned a lot in the past 30 years; outside it, our ignorance isnearly complete. . . .

In 1923, Judge Learned Hand wrote in a federal districtcourt opinion that “our [criminal] procedure has always beenhaunted by the ghost of the innocent man convicted. It is anunreal dream.” At the time, with no systematic data one wayor the other, this could be taken as a statement of faith, anexpression of red-blooded self-confidence and optimism.

Eighty-three years later, Justice Antonin Scalia was morespecific in a concurring opinion in the Supreme Court, if lesseloquent. He claimed that American criminal convictions havean “error rate of 0.027 percent — or, to put it another way, asuccess rate of 99.973 percent.” Given what we knew by2006, the charitable explanation for such an assertion is self-deception. . . . If false convictions really were vanishingly rare— 0.027 percent or some other absurd figure — they wouldnot be much of a problem.

That estimate, and similar ones, are based on some versionof dividing the number of known false convictions — exoner-ations — by the total of all convictions, ignoring the fact thatalmost all of these exonerations occurred in a few narrow cat-egories of crime (primarily murder and rape) and that evenwithin those categories many false convictions remain un-known, perhaps the great majority.

By this logic we could estimate the proportion of baseballplayers who have used steroids by dividing the number ofmajor league players who have been caught by the totalnumber of baseball players at all levels — major league,minor leagues, semipro, college and Little League, and maybethrowing in football and basketball players as well. . . . Thereare more prisoners behind bars in the United States for rob-bery than for any other crime — about 20 percent more thanfor murder and nearly three times as many as for rape. Andyet there have been only a handful of robbery exonerationsin the past 25 years. However little we may know about thefrequency of false convictions for rape and murder, we knowfar less about robbery.

Reprinted, with permission from Annual Review of Lawand Social Science, Vol. 4, (c)2008 by Annual Reviews,www.annualreviews.orgNo

JUSTICE ANTONIN SCALIAU.S. SUPREME COURT

CONCURRING OPINION, KANSAS V. MICHAEL LEEMARSH, 548 U.S. 163, JUNE 26, 2006

in identifying exonerees, the dissent [by Justices Stevens andSouter] is willing to accept anybody’s say-so. It engages inno critical review, but merely parrots articles or reports that

support its attack on the American criminal justice system. Thedissent places significant weight, for instance, on the . . . reportcompiled by the appointees of an Illinois governor who had de-clared a moratorium upon the death penalty and who eventuallycommuted all death sentences in the state. . . .

The dissent claims that this report identifies 13 inmates re-leased from death row after they were determined to be inno-cent. To take one of these cases, discussed by the dissent asan example of a judgment “as close to innocence as anyjudgments courts normally render,” the defendant was twiceconvicted of murder. After his first trial, the Supreme Court ofIllinois reversed his conviction based upon certain evidentiaryerrors and remanded his case for a new trial. The second juryconvicted Smith again. The Supreme Court of Illinois again re-versed the conviction because it found that the evidence wasinsufficient to establish guilt beyond a reasonable doubt. . . .

In its inflation of the word “exoneration,” the [Samuel R.]Gross article hardly stands alone; mischaracterization of re-versible error as actual innocence is endemic in abolitionistrhetoric, and other prominent catalogues of “innocence” in thedeath-penalty context suffer from the same defect. . . . Since1976 there have been approximately a half million murders inthe United States. In that time, 7,000 murderers have beensentenced to death; about 950 of them have been executed;and about 3,700 are currently on death row. As a conse-quence of the sensitivity of the criminal justice system to thedue-process rights of defendants sentenced to death, almosttwo-thirds of those death sentences are overturned.

Virtually none of those reversals, however, are attributableto a defendant’s actual innocence. Most are based on legal er-rors that have little or nothing to do with guilt. The studiescited by the dissent demonstrate nothing more. Like otherhuman institutions, courts and juries are not perfect. One can-not have a system of criminal punishment without acceptingthe possibility that someone will be punished mistakenly. Thatis a truism, not a revelation. But with regard to the punish-ment of death in the current American system, that possibilityhas been reduced to an insignificant minimum.

This explains why those ideologically driven to ferret outand proclaim a mistaken modern execution have not a singleverifiable case to point to, whereas it is easy as pie to identifyplainly guilty murderers who have been set free.

366 CQ Researcher

In March, Patricia R. Lykos, district at-torney for Harris County (Houston), is-sued a report explaining the mistaken2002 arrest of Ricardo Rachell and hiswrongful conviction for assaulting a childin 2003. Rachell spent five years in prison.Lykos blamed law enforcement person-nel involved in every step of the case.She and Houston Police Chief Harold L.Hurtt apologized to Rachell, those whoknow him personally and to the citizenryof Harris County. The nine-page reportmight have seemed like no big deal tothe casual observer. But to those whostudy wrongful convictions in Harris Coun-ty and across the nation, it felt like freshair, and maybe the start of somethingmomentous. Prosecutors in the pastrarely admitted mistakes publicly — oronly privately to those whose lives theyhave marked forever.

Naming names of just about every-body responsible, Lykos and Hurtt men-tioned “a series of unfortunate events,blunders and omissions. There was acascading, system-wide breakdown.” 56

Elsewhere in Texas, Dallas CountyDistrict Attorney Craig Watkins hastaken an unusual step for a prosecutor:He and his staff are reviewing seeming-ly closed cases that might have resultedin wrongful convictions.

Indeed, prosecutors increasinglyare willing to collaborate with inno-cence projects to reopen cases —even those that might make the dis-

trict attorney’s office appear foolish,inept or venal. So far, the reviewsordered by Watkins, the first electedAfrican-American district attorney inTexas, have led to the exonerationsof multiple inmates, bringing thetotal to 19 in Dallas County aloneduring the current century. Millionsof Americans learned about the ini-tiative when “60 Minutes,” the CBStelevision news magazine, featuredWatkins in its May 4, 2008, broad-cast. The cases were reviewed in co-operation with the Innocence Projectof Texas. 57

The demonstrated success ofstatewide innocence projects, coupledwith the new atmosphere of hope, isencouraging the creation of new ef-forts in states poorly served by theircriminal justice systems. Start-ups canlook to the low-budget but extreme-ly effective Centurion Ministries andto the largest of the organizations —the Innocence Project — for inspira-tion and procedural guidance.

Montana has recently joined the ros-ter of states served by innocence pro-jects. Montana had to deal with allegedand actual wrongful convictions due toincompetence and dishonesty withinthe state police crime laboratory. InMissouri, the Midwestern InnocenceProject has expanded across the stateand is now working on its first Okla-homa case and eventually hopes to ac-cept cases in four other states.

Innocence projects focusing onwrongful convictions close to homehave banded together without muchfanfare to form what they term TheInnocence Network, now boasting 52members. Investigations of allegedwrongful convictions rarely stop at statelines, because witnesses and docu-ments often must be retrieved acrossthe nation. Members of The InnocenceNetwork assist each other when travelcosts and knowledge of faraway crim-inal justice systems become factors inthe investigations. 58

On Sept. 27, 2008, Darryl Burton,freed from prison in Missouri just amonth earlier, sat in a leafy backyardin Princeton, N.J., under a white tentwith about 125 other partygoers, manyof them other exonerated men andwomen. The party was organized byCenturion Ministries, which had helpedBurton establish his innocence after24 years in prison.

“The Centurion Ministries traditionis to mark every freedom obtainedwith a celebration,” said McCloskey,the organization’s founder.

As for Burton, he commented, “Thisseems surreal. I’m still pinching my-self. This is unbelievable.”

Notes

1 For an account of Darryl Burton’s exoner-ation, see the Centurion Ministries newsletter,Nov. 19, 2008, www.centurionministries.org.Judge Richard G. Callahan issued the opinionfreeing Burton on Aug. 18, 2008.2 The number of wrongful convictions in theUnited States varies depending on the sourceand methodology. Some compilers define “ex-onerations” as cases in which the wronglyconvicted individual played absolutely norole in the crime. Others define “exonera-tions” more loosely, such as when a defen-dant was present at a crime scene, did noth-ing but watch, yet ended up in prisonbecause a prosecutor mistakenly charged himwith firing a gun. The 235 in the count bythe Innocence Project, a national organizationbased in New York City, represent inmates



About the AuthorSteve Weinberg is a freelance magazine writer and bookauthor in Columbia, Mo., who has been writing aboutwrongful convictions for nearly two decades. After turns asa newspaper staff reporter and a magazine staff writer, Wein-berg began freelancing full time in 1978. He is the authorof eight nonfiction books. Amidst his reporting and writ-ing, he served as executive director of Investigative Re-porters and Editors, an international membership organiza-tion, from 1983-1990. Weinberg also teaches a course aboutthe criminal justice system at the University of MissouriJournalism School, where he earned BJ and MJ degrees.


freed from prison after a specific forensictechnique used after conviction showed bi-ological material found at a crime scene didnot belong to them.3 In most, if not all, of the thousands of pros-ecutorial jurisdictions across the United StatesDNA cases constitute only a small percentageof all cases, and the vast majority of cases neverreach trial. See Samuel R. Gross, “Convictingthe Innocent,” Annual Review of Law andSocial Science, December 2008, pp. 173-192.4 The decision is Kansas v. Marsh, 548 U.S.163 (2006).5 Joshua Marquis, “The Innocent and theShammed,” The New York Times, Jan. 26,2006, p. A23.6 Gross, op. cit.7 Steven W. Perry, “National Survey of Pros-ecutors,” Bureau of Justice Statistics, Office ofJustice Programs, U.S. Department of Justice,July 2006.8 In the past decade, the author has inter-viewed staff and dozens of lawyer membersfrom both the National District Attorneys As-sociation and the National Association of Crim-inal Defense Lawyers.9 “Achieving Justice: Freeing the Innocent,Convicting the Guilty,” American Bar Asso-ciation, Criminal Justice Section, 2006, p. xv.10 For a recent reference to the “CSI Effect,”see Max M. Houck, “CSI: Reality,” ScientificAmerican, July 2006, p. 85.11 The author has interviewed and also spo-ken informally to at least a dozen exonerees,including Darryl Burton, Ellen Reasonoverand Joshua Kezer, and has attended gather-ings of exonerees.12 Jennifer Thompson-Cannino, Ronald Cottonand Erin Torneo, Picking Cotton: Our Mem-oir of Injustice and Redemption (2009), p. 220.13 For background, see Kenneth Jost, “DNADatabases,” CQ Researcher, May 28, 1999,pp. 449-472.14 Hugo Adam Bedau and Michael L. Radelet,“Miscarriages of Justice in Potentially CapitalCases,” Stanford Law Review, November1987, pp. 21-179. See also Stephen J. Mark-man and Paul G. Cassell, “Protecting the In-nocent: A Response to the Bedau-RadeletStudy,” Stanford Law Review, November1988, pp. 121-160. The same issue containsa nine-page rejoinder by Bedau and Radelet,“The Myth of Infallibility: A Reply to Markmanand Cassell.”15 “Harmful Error: Investigating America’s LocalProsecutors,” The Center for Public Integrity,2003. For background, see Kenneth Jost,

“Prosecutors and the Law,” CQ Researcher,Nov. 9, 2007, pp. 937-960.16 The author developed the idea for thestudy, then served as chief reporter andwriter, with research assistance from teammembers Neil Gordon and Brooke Williams.Bennett L. Gershman, a Pace University lawprofessor, is almost certainly the leading aca-demic expert regarding prosecutorial mis-conduct. His textbook, Prosecutorial Miscon-duct, is updated annually for the publisherThomson-West.17 “Investigating Forensic Problems in the Unit-ed States: How the Federal Government CanStrengthen Oversight Through the CoverdellGrant Program,” Innocence Project, BenjaminN. Cardozo School of Law, Yeshiva University,March 2009, p. 68.18 Center for Public Integrity, op. cit., p. 110;letter from Joshua Marquis dated July 7, 2003.19 The number is accurate as of April 2009, ac-cording to the self-regulatory organization thataccredits crime laboratories, www.ascld-lab.org.20 See Tom Price, “The Future of Journalism,”CQ Researcher, March 27, 2009, pp. 273-296.21 Strengthening Forensic Science in the Unit-ed States: A Path Forward, National ResearchCouncil of the National Academies (2009).Several committees share authorship of thebook: Committee on Identifying the Needsof the Forensic Science Community; Com-mittee on Science, Technology, and Law;Policy and Global Affairs; Committee onApplied and Theoretical Statistics; Divisionon Engineering and Physical Sciences. Seealso Solomon Moore, “Science Found Want-ing in Nation’s Crime Labs,” The New YorkTimes, Feb. 4, 2009.22 American Bar Association, op. cit., p. 48.23 The Zain case has spawned extensive doc-umentation in court rulings and journalisticaccounts. The most enlightening of all thoseresources is found at 438 S.E. 2d 501 (1993).Also see “Discredited Chemist Fred Zain, 52,Dies,” Charleston Gazette, Dec. 4, 2002, andJanet Elliott, “Lawyers Seek Access to BexarCounty Lab; New District Attorney ReviewsZain’s Work,” Texas Lawyer, Aug. 2, 1999.24 Michael R. Bromwich, “Final Report of the In-dependent Investigator for the Houston PoliceDepartment Crime Laboratory and Property Room,”June 13, 2007, www.hpdlabinvestigation.org.25 John Collins and Jay Jarvis, “The WrongfulConviction of Forensic Science,” Crime Lab Re-port: Media and Public Policy Analysis for theForensic Science Community, July 16, 2008.26 Strengthening Forensic Science in the Unit-

ed States: A Path Forward, op. cit., February2009.27 Ralph M. Keaton, “Don’t Relocate CrimeLabs,” USA Today, April 6, 2009, p. 14A.28 Center for Public Integrity, op. cit., p. 14.For background on the Reasonover case, alsosee Steve Weinberg, “Railroaded,” The Amer-ican Lawyer, August 2000.29 American Bar Association, op. cit., p. 63.30 The primary drafters consisted of ABA staffmember Kristie Kennedy and law professorsPaul Giannelli and Myrna Raeder. The rest ofthe committee included two prosecutors, twojudges, a police crime laboratory director, apolice department administrator, a defense at-torney and three additional law professors.31 ABA Report, op. cit., p. xi. One of themost direct statements about altering humannature can be found in a January 2009 re-port by the New York State Bar AssociationTask Force on Wrongful Convictions: “Policeofficers should be trained to investigate al-ternate theories for a case at least until theyare reasonably satisfied that they are with-out merit,” p. 10.32 David Blumberg, “Habeas Leaps From thePan and Into the Fire: Jacobs v. Scott andthe Anti-Terrorism and Effective Death Penal-ty Act of 1996,” Albany Law Review, 1997.33 The case citation is 295 F. 3d 839.34 Centurion Ministries newsletter, op. cit.35 Barry Scheck, Peter Neufeld and Jim Dwyer,Actual Innocence: When Justice Goes Wrongand How to Make It Right (2003), p. 282.36 Edwin M. Borchard, Convicting the Inno-cent: Sixty-Five Actual Errors of Criminal Jus-tice (1932), p. v.37 Erle Stanley Gardner, The Court of Last Re-sort (1952); the quotation comes from a re-vised edition, published in 1954, p. 331. SeeBarbara Mantel, “Public Defenders,” CQ Re-searcher, April 18, 2008, pp. 337-360.38 Michael L. Radelet, Hugo Adam Bedau andConstance E. Putnam, In Spite of Innocence:Erroneous Convictions in Capital Cases (1992).The U.S. Justice Department lawyers rebuttingthe Radelet-Bedau-Putnam research were PaulG. Cassell and Stephen J. Markman. The firstversion of their critique can be found at 41Stanford Law Review 121 (1988).39 David Protess and Rob Warden, Gone inthe Night: The Dowaliby Family’s EncounterWith Murder and the Law (1993), and APromise of Justice (1998), p. 202.40 George (Woody) Clarke, Justice and Sci-ence: Trials and Triumphs of DNA Evidence(2007), p. 1.

368 CQ Researcher


41 Ken Armstrong and Maurice Possley. “Trialand Error: How Prosecutors Sacrifice Justice toWin,” Chicago Tribune, Jan. 10, 1999, p. A1.42 Among the most significant Chicago Tri-bune series after the January 1999 launchwere by Steve Mills, Maurice Possley andKen Armstrong, and appeared on Dec. 17-18,2000, under the overall title “Executions inAmerica.” The primary headline reads “Shad-ows of Doubt Haunt Executions.”43 The quotation was posted at www.illinoisleader.com, Nov. 14, 2003.44 See Frederic N. Tulsky, “Tainted Trials, StolenJustice,” San Jose Mercury-News, Jan. 22-26,2006.45 “Preliminary Report of the New York StateBar Association’s Task Force on WrongfulConvictions for the Consideration of the Houseof Delegates,” New York State Bar Association,Jan. 30, 2009.46 Jon B. Gould, The Innocence Commission:Preventing Wrongful Convictions and Restor-ing the Criminal Justice System (2008), p. 6.47 “A Vision for Justice: Report and Recom-mendations Regarding Wrongful Convictionsin the Commonwealth of Virginia,” InnocenceCommission for Virginia March 2005, p. 73.48 Scott Turow, Ultimate Punishment: ALawyer’s Reflections on Dealing With the DeathPenalty (2003), p. 28.49 See Innocence Project Blog, March 26,2009, and Jim Siegel, “DNA Bill Hung Up onSide Issues/Law Enforcers Battle Provisions onPolice Lineups, Recordings,” Columbus Dis-patch, March 26, 2009.50 For recent news reports on local proposalsto enact judicial-system reforms designed to pre-vent wrongful convictions and to compensatethose who have been wrongly convicted, seeShannon McCaffrey, “Police Officials Say NoState Eyewitness Law Needed,” The AssociatedPress, as published in the Ledger-Enquirer(Columbus, Ga.), Oct. 1, 2007, available atwww.nacdl.org/sl_docs.nsf/freeform/EyewitnessID041?OpenDocument; and Dave Montgomery,“Fort Worth family pushes for bills to aid thewrongfully convicted,” Star-Telegram (Fort Worth,Texas), April 1, 2009.51 “DNA Exonerations: Transforming theCriminal Justice System,” Innocence Project,Benjamin N. Cardozo School of Law, YeshivaUniversity, April 2009.52 See National Conference of State Legislatures,www.ncsl.org. The criminal justice informationis located at www.ncsl.org/programs/cj.53 The case is District Attorney’s Office v.Osborne, docket 08-6 in the Supreme Court

of the United States. For coverage, see AdamLiptak, “Convict Asks Justice to Find a Rightto DNA Testing,” The New York Times,March 3, 2009, p. A16.54 Michael Newsom, “Law CompensatesWrongfully Convicted,” Sun Herald (Biloxi-Gulfport, Miss.), March 31, 2009; Keffie Sledge,“Josh White Closer to $709,000 Settlement,”Ledger-Enquirer (Columbus, Ga.), March 22,2009; www.innocenceproject.org.55 The Docket number is 07-591 in the SupremeCourt of the United States. See InnocenceProject Blog, June 24, 2008.

56 Patricia R. Lykos, “Rachell Report,” Officeof District Attorney, Harris County, Texas,March 2009.57 Watkins’ words and actions have been cov-ered heavily locally, regionally and nationally.For one of the best accounts, see Zac Crain,“The Last Temptation of Craig Watkins,” DMagazine, March 2009. The initiative receivesprominent display at the district attorney’sWeb site, www.dallasda.com.58 Most innocence projects maintain Websites, such as www.centurionministries.org andwww.themip.org.

FOR MORE INFORMATIONAmerican Bar Association, 321 N. Clark St., Chicago, IL 60654; (800) 285-2221;www.abanet.org. Professional association serving as the national representative ofthe legal profession.

American Society of Crime Laboratory Directors/Laboratory AccreditationBoard, 139 J Technology Dr., Garner, NC 27529; (919) 773-2600; www.ascld-lab.org.Voluntary programs in which crime laboratories can demonstrate that their operationsand facilities meet established standards.

Center for Public Integrity, 910 17th St., N.W., Suite 700, Washington, DC20006; (202) 466-1300; www.publicintegrity.org. Produces original investigativejournalism about public issues in order to make institutions more accountable.

Centurion Ministries, 221 Witherspoon St., Princeton, NJ 08542; www.centurionministries.org. Nonprofit working to exonerate wrongly convicted individuals whohave been sentenced to life or death.

The Innocence Network; www.innocencenetwork.org. Affiliation of organizationsproviding pro bono services to those seeking to prove their innocence.

Innocence Project, 100 Fifth Ave., 3rd Floor, New York, NY 10011; (212) 364-5340;www.innocenceproject.org. Litigation and public policy organization working to ex-onerate the wrongfully convicted through DNA testing and reforming the criminaljustice system to prevent further injustice.

Midwestern Innocence Project, 6320 Brookside Plaza, Suite 1500, Kansas City,MO 64113; www.themip.org. Provides pro bono legal and investigative services towrongfully convicted persons in prison.

National Academy of Sciences, 500 Fifth St., N.W., Washington, DC 20001;(202) 334-2000; www.nasonline.org. Honorific society dedicated to furtheringscience and technology for the benefit of general welfare.

National Association of Criminal Defense Lawyers, 1660 L St., N.W., 12thFloor, Washington, DC 20036; (202) 872-8600; www.nacdl.org. Works to ensurejustice for persons accused of crimes or other misconduct.

National District Attorneys Association, 44 Canal Center Plaza, Suite 110,Alexandria, VA 22314; (703) 549-9222; www.ndaa.org. Professional organizationworking to maintain the honor and integrity of prosecuting attorneys in the Unit-ed States.

FOR MORE INFORMATION


Selected Sources

Bibliography

Books

Clarke, George “Woody,” Justice and Science: Trials andTriumphs of DNA Evidence, Rutgers University Press, 2007.Clarke, a San Diego County judge who spent 21 years as

an assistant district attorney and played a significant role inunderstanding the use of DNA evidence, discusses its powerto catch criminals and exonerate those wrongly charged.

Davis, Angela J., Arbitrary Justice: The Power of theAmerican Prosecutor, Oxford University Press, 2007.A public defender turned American University law profes-

sor explains how prosecutors gained untrammeled power,why they sometimes abuse their authority and what can bedone to control those who overstep the law.

Gershman, Bennett, Prosecutorial Misconduct, secondedition, Thomson-West, updated 2009.A former prosecutor who teaches at Pace University Law

School provides a comprehensive narrative — with case ci-tations — demonstrating the long, repetitive history of ques-tionable behavior by local, state and federal prosecutors.

Scheck, Barry, Peter Neufeld and Jim Dwyer, Actual In-nocence: When Justice Goes Wrong and How to MakeIt Right, New American Library, 2003 (expanded fromthe original edition, published by Doubleday in 2000).Two of the highest-profile criminal defense lawyers in the

nation (Scheck and Neufeld) — who direct The InnocenceProject — join a New York Times reporter to educate read-ers about the causes and impacts of wrongful convictions,with dramatic case studies peppering each chapter.

Articles

Armstrong, Ken, Steve Mills and Maurice Possley, ChicagoTribune, 1999-2008.A long-running investigatory series examines problems in the

judicial system, including various issues involving crime labora-tories (Oct. 11-21, 2004), in articles such as “From the Start, aFaulty Science” and “When Labs Falter, Defendants Pay; BiasToward Prosecution Cited in Illinois Cases.” Other reporters’ by-lines also appeared in the series, including Flynn McRoberts.

Berlow, Alan, “The Wrong Man,” Atlantic Monthly, No-vember 1999.Freelance journalist Berlow was not the first investigator to

survey the wrongful conviction phenomenon in a long mag-azine feature, and others have published magazine featuressince then. But nobody has done it more comprehensivelyor more compellingly.

Moushey, Bill, “Win at All Costs,” Pittsburgh Post-Gazette,

Nov. 22-24 and 29-30, Dec. 1, 6-8 and 13, 1998.Most in-depth investigations have examined cases in the

state courts, filed by local district attorneys. Moushey focus-es on the cases filed by U.S. attorneys. No investigation ofquestionable filings by U.S. attorneys since Moushey’s efforthas attained the same breadth and depth.

Saks, Michael J., and David L. Faigman, “Failed Foren-sics: How Forensic Science Lost Its Way and How It MightYet Find It,” Annual Review of Law and Social Science,December 2008.Law professors at Arizona State University (Saks) and the

University of California-San Francisco debunk the stereotypeof forensic examiners in police department laboratories asobjective scientists.

Reports and Studies

“Achieving Justice: Freeing the Innocent, Convicting theGuilty,” Criminal Justice Section, American Bar Associa-tion, 2006.The 137-page booklet reaches a broad consensus regarding every

major cause of wrongful convictions, then suggests reforms thatit says both prosecutors and defense attorneys ought to support.

“Postconviction DNA Testing: Recommendations forHandling Requests,” National Commission on the Futureof DNA Evidence, Office of Justice Programs, U.S. JusticeDepartment, September 1999.The recommendations in this report by a blue-ribbon commis-

sion a decade ago have taken root in many states and are mak-ing a positive impact. Christopher H. Asplen, an assistant U.S. at-torney, headed the staff, while Shirley S. Abrahamson, chief justiceof the Wisconsin Supreme Court, served as chairwoman.

“Preliminary Report of the New York State Bar Association’sTask Force on Wrongful Convictions, for the Considerationof the House of Delegates,” New York State Bar Association,Jan. 30, 2009.The report covers every major cause of wrongful convic-

tions. It is especially powerful because the examples andthe recommendations are based on authoritative in-depthstudies of 53 wrongful convictions in New York state.

Strengthening Forensic Science in the United States: APath Forward, National Research Council of the NationalAcademies, 2009.Several committees of experts in various arenas of foren-

sics collaborated to write this book-length report. Unlikemost reports emanating from committees, the language isunambiguous and the massive list of recommendations forreform demonstrates a desire to find common ground amongwarring parties while pushing ahead.

370 CQ Researcher

Causes

Fernandez, Manny, “Examining Human Error in WrongfulConvictions,” The New York Times, Feb. 1, 2009, p. A25.The root causes of wrongful convictions tend to be errors

by prosecutors, judges and law enforcement officers.

Khanna, Roma, “Study: Witness Errors Cause Most Wrong-ful Convictions,” Houston Chronicle, March 26, 2009, p. A1.Mistaken witness identifications that are the cause of most

wrongful convictions in Texas could be avoided with more so-phistical lineup techniques, according to a justice reform group.

Liptak, Adam, “Study of Wrongful Convictions RaisesQuestions Beyond DNA,” The New York Times, July 23,2007, p. A1.The leading cause of wrongful convictions has been erro-

neous identification by eyewitnesses, followed by faultyforensic evidence.

McGonigle, Steve, and Jennifer Emily, “A Blind Faith inEyewitnesses,” Dallas Morning News, Oct. 12, 2008, p. 1A.Unreliable and false testimony factored heavily in 18 of 19

Texas cases overturned by DNA evidence.

Spano, John, “Forensic Science Errors Are Cited,” LosAngeles Times, May 9, 2007, p. B7.A California commission has said that forensic science er-

rors are a major contributor to wrongful convictions.

Compensation

Fineout, Gary, “State House OK’s $1.2M for Cleared Inmate,”Miami Herald, March 27, 2008, p. B1.The Florida House has unanimously voted to award $1.25 mil-

lion to a man who spent 24 years in prison for two rapes hedid not commit.

Hafenbrack, Josh, and Tonya Alanez, “Florida Sets Wrong-ful Imprisonment Compensation at $50,000 a Year,” SouthFlorida Sun-Sentinel, April 30, 2008.The Florida Legislature has approved automatic compensation

for individuals sentenced to prison for crimes they did not com-mit, but those with prior felony convictions are not eligible.

Hammel, Paul, “Should Wrongly Convicted Be Paid?”Omaha World-Herald (Nebraska), Nov. 4, 2008, p. 1A.The release of a Nebraska inmate on DNA evidence has

renewed talks of a compensation law in the state.

Paulson, Amanda, “What Do States Owe the Exonerat-ed?” The Christian Science Monitor, May 30, 2007, p. 1.As DNA exonerations become more plentiful, more and

more states are moving on the compensation front.

Price, Stephen D., “Compensation Act Tricky,” FloridaToday, May 11, 2008, p. 12B.Florida’s Wrongful Incarceration Act — intended to com-

pensate the exonerated — may be loaded with just as manycomplexities as the legislative process it’s set to replace.

Santos, Fernanda, “Bill Would Give Tax Break to Exon-erated Prisoners,” The New York Times, Dec. 7, 2007,p. B4.Sen. Charles E. Schumer, D-N.Y., has introduced a bill that

would exempt exonerated prisoners from paying federal in-come taxes on compensation received for a wrongful con-viction.

Santos, Fernanda, and Janet Roberts, “Putting a Price ona Wrongful Conviction,” The New York Times, Dec. 2,2007, p. D4.Twenty-two states compensate exonerated prisoners using

formulas ranging from lump sums to calculations of lostwages. [The number of states has since increased -ed.]

Warner, Gene, “Paying a Man Back for Decades of In-justice,” Buffalo News, May 4, 2007, p. A1.New York is one of several states with no cap on the max-

imum compensation for exonerated inmates.

Webster, Richard A., “State of Louisiana Offers theWrongly Convicted Up to $150K in Compensation,” NewOrleans City Business, June 1, 2007.Louisiana is offering a wrongly convicted prisoner $150,000

for being incarcerated 22 years for a rape he did not com-mit, but he must go on trial again and prove his innocencein court.

Weinstein, Henry, “State Fails Wrongly Convicted Prisoners,”Los Angeles Times, Feb. 23, 2008, p. B3.People wrongly convicted in California courts are offered

fewer benefits than convicts released on parole, accordingto a state blue-ribbon commission.

DNA

“Court Clears Man Convicted in Gang Rape,” The Asso-ciated Press, June 22, 2007.A Texas court has exonerated a man who has spent 10

years in prison for a gang rape that DNA evidence proveshe did not commit.

Dutton, Geoff, and Mike Wagner, “In 5 Ohio Cases, DNARevealed a New Suspect,” Columbus Dispatch (Ohio),May 4, 2008, p. 1G.DNA tests that have cleared five Ohio inmates have point-

ed to new suspects who apparently committed other crimesbefore being exposed by DNA.

The Next Step:Additional Articles from Current Periodicals


Eligon, John, “New Efforts Focus on Exonerating Pris-oners in Cases Without DNA Evidence,” The New YorkTimes, Feb. 8, 2009, p. A26.A growing number of DNA exonerations have made it dif-

ficult for prisoners trying to prove their innocence in casesthat do not involve DNA evidence.

Floyd, Jacquielynn, “Dallas Willing, Able to Correct In-justices,” Dallas Morning News, Aug. 8, 2008, p. 1B.The only real debate left about DNA evidence is the nu-

merical degree of its infallibility.

Messina, Lawrence, “DNA Champion Scheck Sees Progressin Court System,” The Associated Press, June 12, 2008.The Innocence Project counts 218 people nationwide who

have been exonerated from alleged crimes by DNA results.

Moore, Solomon, “DNA Exoneration Leads to Change inLegal System,” The New York Times, Oct. 1, 2007, p. A1.State lawmakers nationwide are adopting broad changes

to criminal justice procedures following the exoneration of200 convicts via DNA evidence.

Villa, Judi, “DNA Exonerations Underline Mistakes,” ArizonaRepublic, April 24, 2007, p. 12.Policy makers and advocates for the wrongly convicted in

Arizona are working to guarantee access to post-convictionDNA testing and the preservation of DNA evidence.

Willing, Richard, “DNA to Clear 200th Person,” USA Today,April 23, 2007, p. 1A.A former Army cook imprisoned for 25 years for a rape

he did not commit is set to become the 200th person ex-onerated by DNA evidence.

Systematic Reform

Baker, Max B., “Exoneration Case May Lead to CriminalJustice System Reforms,” Fort Worth Star-Telegram(Texas), Feb. 7, 2009.The posthumous exoneration of a Texas inmate may lead

to the passage of several criminal justice reforms by thestate’s legislature.

Baker, Max B., “Top Jurists Support Idea of InnocenceCommission,” Fort Worth Star-Telegram (Texas), May 18,2008, p. B1.Texas’ top jurists are supporting a proposal that would create

a statewide Innocence Commission to investigate wrongful con-victions and recommend reforms.

Dutton, Geoff, and Mike Wagner, “Proposed ReformsShown to Work,” Columbus Dispatch (Ohio), Feb. 24,2008, p. 1A.A new bipartisan coalition in Ohio focused on preventing

wrongful convictions is pushing for reforms on how crimesare investigated and prosecuted.

Jackson, Jesse, “System That Convicts Innocent NeedsReform,” Chicago Sun-Times, July 22, 2008, p. A23.Reform of the American criminal justice system has been

ignored for too long, especially since many innocent indi-viduals are being incarcerated.

McGonigle, Steve, “Police, DAs Resist Witness ID Reform,”Dallas Morning News, March 31, 2009, p. 1A.Police chiefs and prosecutors in Texas are blocking legisla-

tive attempts to provide more training for law enforcementofficers on witness identification issues.

Moffeit, Miles, “Evidence Reform Advocated,” DenverPost, Oct. 18, 2007, p. B3.The Innocence Project is urging Colorado’s DNA Task Force

to develop a law requiring criminal-case items to be retainedindefinitely.

Rankin, Bill, “Exonerations Urge Changes for Eyewitnesses,”Atlanta Journal-Constitution, Dec. 25, 2008, p. 1C.A spate of DNA exonerations is prompting Georgia law-

makers to improve the state’s eyewitness identification pro-cedures.

Rojas, Aurelio, “A Hard Look at Jail Snitches,” SacramentoBee, May 18, 2007, p. A3.A new bill in the California Senate would require the tes-

timony of jailhouse informants to be corroborated beforebeing regarded as legitimate.

Virtanen, Michael, “Bar Task Force to Study WrongfulConvictions in NY,” The Associated Press, June 4, 2008.The New York State Bar Association is establishing a legal

task force to identify rules, procedures and statutes con-tributing to the problem of wrongful convictions.

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Reversals of wrongful convictionsin U.S. courts are taking placeat a rate of nearly one a week,

according to specialists at two Mid-western law schools. In 2009, 67 peo-ple were exonerated; in 2010, 52; andin 2011, 40. The numbers come fromthe first and only online database onwrongful-conviction corrections, theNational Registry of Exonerations,launched in May with information on891 cases dating back to 1989. 59

Many of those exonerated — de-clared innocent by a governor’s pardonor court certificate, had charges dismissed,or won acquittal on retrial — had spentdecades behind bars. Their average prisonterm was about 12 years. 60

The national registry shows 11 ex-onerations so far this year. The num-ber rises to 14 with the inclusion ofcases from Washington, D.C., New YorkCity and Dallas that have been re-ported in news accounts but not yetentered into the database.

The total number of known wrong-ful convictions rises to more than2,000 if a separate group of at least1,170 people are included who wereframed by police officers using plant-ed or manufactured evidence or who

were found to be corrupt. Thebogus cases made by the officerswere part of false-arrest scandals in13 cities; the convictions based onthe cases were later dismissed. 61

The registry’s inauguration, to-gether with other developments,sharpened the debate over whetherwrongful convictions represent aproblem that is isolated or systemic.

“These cases merely point to amuch larger number of tragedies thatwe do not know about,” wrote thedatabase’s editor, Samuel R. Gross, aprofessor at the University of Michi-gan School of Law, in a report co-written with Michigan law graduateMichael Shaffer that summarized re-search to date. “The essential factabout false convictions is that they aregenerally invisible: if we could spotthem, they’d never happen in the firstplace.” 62

The researchers based their assess-ment on the circumstances underlyingmany of the exonerations, which ofteninvolve happenstance. Edward Carter,for example, was serving a life sen-tence in Michigan for a rape in 1974— before DNA testing existed.

Later attempts by Carter’s lawyers

to locate DNA evidence failed — ithad been destroyed. But a police of-ficer involved in the search did findfingerprints and sent them to the FBI,which matched them to a convictedsex offender who was serving time forsimilar rapes during the same periodin the same area. Carter was freed in2010 after more than 35 years behindbars. The police officer had acted onhis own initiative. 63

Prosecutors reject the view that knowncases represent the tip of the iceberg.

Wrongful ConvictionsHere are key events, legislation and court rulings since

publication of the CQ Researcher report by Steve Wein-

berg, “Wrongful Convictions,” April 17, 2009.

Santae A. Tribble, of Washington, D.C., was freed afterserving 28 years in prison for the killing of a taxi

driver. His conviction was thrown out after the FBI’sanalysis of hair found in a stocking mask — used toconvict Tribble — was shown this year to be flawed.

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Exonerations “give the gross per-ception that there is a serious prob-lem with wrongful convictions in thiscountry, and it is just not the case,”Scott Burns, executive director of theNational District Attorneys Association,

told USA Today after the database wentonline. He added that, for prosecutors,false convictions are “our worst night-mare.” And though “one is one toomany,” he said, “I would argue thesystem is working quite well.” 64

During the 23-year period that thedatabase covers so far, Burns said, pros-ecutors worked on about 400 millioncases, contrasting that volume of caseswith the far smaller number of officiallyacknowledged wrongful convictions. 65

Nevertheless, the two states that leadthe nation in exonerations — Illinois(101) and New York (88) — have well-established organizations specializingin investigating possible wrongful con-

victions: the Innocence Project in NewYork and the Center on Wrongful Con-victions in Chicago. “These organiza-tions may have increased both the totalnumber of exonerations in those statesand the proportion of exonerations that

become widely known,” Gross andShaffer wrote. 66

Number three on the list was Texas,with 84 exonerations, slightly less thanhalf of them (36) centered in DallasCounty, whose district attorney set upa Conviction Integrity Unit in 2007 tosearch for wrongful convictions andreverse them. The county’s crime labalso maintains custody of all biologi-cal evidence instead of destroying itor returning it to law enforcement agen-cies. “Post-conviction DNA samples,”Gross and Shaffer wrote, “are morelikely to be found in Dallas than inHouston — or for that matter than inalmost any county in the country.” 67

At the federal level, The WashingtonPost reported in April that the JusticeDepartment had failed to notify about125 convicts and ex-prisoners that FBIlab work that helped convict them wasinvalid. The department had notifiedfederal prosecutors in those cases buthadn’t ensured that the prosecutorstold defendants. Moreover, the reviewitself was flawed, effectively ignoring“potentially thousands of cases in fed-eral, state and local courts,” The Postreported. 68

The FBI told The Post that it wasconsidering whether to review all con-victions based on its lab’s hair-analy-sis work, which has been found to beriddled with errors that raise questionsabout the reliability of hair analysisthat doesn’t include DNA testing. “TheFBI has undertaken comprehensive re-views in the past and will not hesitateto do so again if necessary,” said FBIspokeswoman Ann Todd. 69

Despite dozens of wrongful-convic-tion cases per year, the database com-pilers didn’t argue that all convictionsare questionable. “The overwhelmingmajority of convicted defendants areguilty,” Gross and Shaffer wrote. But thenumber of exonerations and the cir-cumstances surrounding them, they said,make clear that claims of innocenceshould not be ignored. In the 891 casesin the database, the biggest causes ofconviction were perjury or false accu-sations (51 percent), mistaken eyewit-ness identification (43 percent) and of-ficial misconduct (43 percent). 70

Strikingly, the cases included 416homicide convictions, including 101death sentences. In these cases, per-jury or false accusations together makeup the single biggest cause of exon-erations. Misconduct by police or pros-ecutors played a role — at times incombination with other factors — in56 percent of these cases, the data-base compilers reported. 71

The Post’s reporting contributed to theconviction reversal of Santae A. Tribble,51, of Washington, D.C., who served


The 1989 execution of Carlos DeLuna, of Corpus Christi, Texas, wasconvincingly challenged this year by a team from Columbia University’s

Law School that found his conviction was based on extraordinarily shoddypolice work and an equally poor legal defense.

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Chronology2009April — Law enforcementagencies report expanding DNAcollections, raising privacyconcerns as well as hopes foroverturning more wrongfulconvictions.

June — U.S. Supreme Courtrules that convicts don’t haveconstitutional right to DNAevidence-testing, leavingCongress and states to decideon rules and standards.

December — New York judgereverses conviction of a mansentenced to 20 years for 2005rape after DNA evidence showsinnocence. . . . Washingtonjudge declares convict innocentafter 28 years in prison, basedon DNA evidence. . . . Floridaman freed from prison after 35 years on child-rape convictionafter DNA evidence shows himinnocent.

•

2010February — Rochester, N.Y.,man who served five years on a1977 rape conviction declaredinnocent on basis of DNAevidence.

March — Two Connecticut menfreed from prison for a 1993murder after new evidence leadsjudge to declare them innocent.

December — Former prisonerfreed because of DNA evidencesues Zion, Ill., police for allegedlyforcing him to confess falsely tomurdering two children. . . . NewJersey man receives $1 millionsettlement of federal lawsuitsagainst state arising from hisconviction for a murder of whichhe was cleared after serving 18years of a 40-year sentence.

•

2011January — Eighty-two-year-oldPennsylvania man freed after 45years in prison on grounds ofinvalid evidence. . . . Texas manfreed after 27 years in prisonafter DNA evidence shows himinnocent of rape. . . .

March — Illinois man freedfrom life sentence on groundspolice tortured him into murderconfession. . . . U.S. SupremeCourt allows Hank Skinner,Texas death-row prisoner facingimminent execution, to pursuedemand for DNA evidencetesting in state courts.

July — Las Vegas, Nev., policeacknowledge DNA error thatsent innocent man to prison forfour years.

September — Two NorthCarolina men pressured intopleading guilty to a murderfreed after 11 years in prisonafter another man’s confessionand DNA testing.

October — Accidentaldiscovery of DNA evidencefrees Louisiana man after 30years in prison for rape.

November — Texas manexonerated after discovery thatprosecutor had withheldevidence in his favor.

•

2012January — Texas man releasedafter serving 31 years for rape,on grounds evidence in his favorwas withheld from his lawyer.

April — New York City manfreed after two years in prisonfollowing another man’sconfession, bolstered by DNAevidence. . . . The WashingtonPost reports that JusticeDepartment hadn’t notifiedmore than 100 people thatevidence used to convict themwas invalid.

May — Columbia UniversityLaw School human rightsjournal publishes lengthy,detailed investigation callinginto question a 1989 Texasexecution. . . . NorthwesternUniversity and University ofMichigan law schools launchnational database of exonerationcases dating to 1989.

June — Texas Attorney Generaldrops opposition to DNAevidence in Skinner case.

28 years for the 1979 killing of a taxidriver. The key to conviction was anFBI analysis that said hair found in astocking mask was Tribble’s. DNAanalysis this year showed that none ofthe hair came from Tribble. 72

“I always felt it would happen,”Tribble told The Post, “but it took solong I started to wonder.” Tribble’sconviction was thrown out, and hecan’t be retried for the crime. 73

Only weeks after the Post’s stories,and a week before the database launch,Columbia University Law School’sHuman Rights Law Review publisheda book-length examination of a Cor-pus Christi, Texas, murder case thatconvincingly challenges the 1989 ex-ecution of Carlos DeLuna, a high schooldropout with a long record of minoroffenses, none of them involving ac-tual violence. Three years before the1983 murder that led to his execution,DeLuna pleaded no contest to at-tempted rape, which involved a threatof violence but no weapon. 74

The book, Los Tocayos Carlos —“Tocayo” is a Spanish term for peoplewho share a name — meticulously re-examined evidence in the case, includ-ing interviews with witnesses — most-ly video-recorded and available in thebook’s online version. It leaves virtuallyno room for doubt that DeLuna was in-nocent and was convicted largely be-cause of extraordinarily shoddy policework and an equally poor legal defense.

Columbia law professor James S.Liebman led five of his students in thereinvestigation. Their work makesclear that the murder was committedby a man who shared not only a firstname but a remarkable physical re-semblance to the convicted man. Car-los Hernandez not only confessed guiltto several people but apparently wenton to kill someone else before he wassentenced to prison for assault in 1996;he died in prison in 1999. 75

“All of this happened not in the 1920sor even the ’50s but the ’80s,” two ofthe law students who worked on the

book wrote in a newspaper op-ed. “Theflaws in our system that led to DeLuna’sdeath have not been mended.” 76

Nevertheless, Richard Dieter, exec-utive director of the Death Penalty In-formation Center, a research organi-zation whose work is often cited bycapital punishment opponents, sug-gested that circumstances may haveimproved. “If a new trial was some-how able to be conducted today,” hetold the Huffington Post, “a jury wouldacquit DeLuna.” 77

All other factors aside, DNA tests hadnot been invented when DeLuna wenton trial. And when the Columbia teamlooked for evidence that might containDNA, they found it unavailable. A pros-ecutor had checked it all out after thetrial in 1983 and never returned it, thereinvestigators reported. 78

Perhaps surprisingly, DNA is not themajor factor in most exonerations, ac-cording to the new database. Based onevidence from nearly all the 891 cases,researchers found that 37 percent werecleared based on DNA evidence. Ofthose cases, 97 percent centered onhomicides or sexual assaults. 79

DNA is more of a factor in oldercases, the database also shows. “Thereare very recent cases with probativeDNA that was not tested before trial,”Gross and Shaffer wrote. “As a result,there are undoubtedly fewer recentfalse convictions in rape cases andhomicide cases that include rape.” ButDNA evidence, they add, can still helpfree innocent prisoners convicted atleast 20 years ago, before DNA test-ing began. 80

A wait of two decades or longerfor exoneration is by no means un-usual, according to the case informa-tion in the database. The range is from41 years at one extreme to threeweeks at the other. On average, ex-oneration takes 11.9 years from con-viction, 13 years from arrest. 81

Prisoners in all states can have DNAtests conducted on evidence, but statelaws differ on when these requests

can be granted. And prosecutors oftenresist DNA test requests. Last year, theU.S. Supreme Court allowed Texasdeath-row inmate Hank Skinner to seekstate court approval of his demand forDNA testing of items found in thehome of his girlfriend, whom he wasconvicted of murdering. The rulingcame less than one hour before thescheduled execution. 82

But Texas prosecutors kept up theirresistance until June 1, when Texas At-torney General Greg Abbott’s officefiled a one-paragraph advisory with thestate Court of Criminal Appeals. “TheState believes that the interest of justicewould best be served in this case byDNA testing,” the advisory said. 83

The DNA issue arose when North-western University students in a classon investigative reporting on wrong-ful convictions — taught by a pro-fessor who is now president of theChicago Innocence Project — foundin 2000 that untested evidence exist-ed in the case. 84

— Peter Katel

Notes

59 “The National Registry of Exonerations,”University of Michigan Law School and Cen-ter on Wrongful Convictions at NorthwesternUniversity School of Law, www.law.umich.edu/special/exoneration/Pages/about.aspx; SamuelR. Gross and Michael Shaffer, “Exonerationsin the United States, 1989-2012,” Report bythe National Registry of Exonerations, May2012, p. 20, www.law.umich.edu/special/ex-oneration/Documents/exonerations_us_1989_2012_full_report.pdf.60 Ibid., “Exonerations in the United States,”pp. 7-9.61 Gross and Shaffer, op. cit.62 Ibid., p. 3.63 Ibid., p. 1.64 Quoted in Kevin Johnson, “Wrongful con-victions shine spotlight on judicial system,”USA Today, May 20, 2012, www.usatoday.com/news/nation/story/2012-05-20/wrongful-convictions-exonerations/55098856/1.


65 Ibid.66 Gross and Shaffer, op. cit., p. 33.67 Ibid., p. 37.68 Spencer S. Hsu, “Convicted defendants leftuninformed of forensic flaws found by JusticeDept.,” The Washington Post, April 16, 2012,www.washingtonpost.com/local/crime/convicted-defendants-left-uninformed-of-forensic-flaws-found-by-justice-dept/2012/04/16/gIQAWTcgMT_story.html.69 Quoted in ibid.70 Gross and Shaffer, op. cit., p. 40.71 Ibid., pp. 40-41.72 Hsu, op. cit.73 Spencer S. Hsu, “Santae Tribble’s 1980 mur-der conviction overturned by D.C. judge,” TheWashington Post, May 17, 2012, /www.washingtonpost.com/local/crime/santae-tribbles-1980-

murder-conviction-overturned-by-dc-judge/2012/05/16/gIQApYMtTU_story.html.74 James S. Liebman, et al., “Los Tocayos Car-los,” Columbia Human Rights Law Review,Summer 2012, chapter 5, pp. 11-12, www3.law.columbia.edu/hrlr/ltc.75 Ibid., Prologue, p. 2.76 Shawn Crowley and Andrew Markquart,“Texas killed the wrong Carlos,” New YorkDaily News, May 23, 2012, www.nydailynews.com/opinion/texas-killed-wrong-carlos-article-1.1082770.77 Quoted in Michael McLaughlin, “CarlosDeLuna Execution: Texas Put To Death An In-nocent Man, Columbia University Team Says,”Huffington Post, May 15, 2012, www.huffingtonpost.com/2012/05/15/carlos-de-luna-execution-_n_1507003.html.

78 Liebman, op. cit., Chapter 11, p. 19.79 Gross and Shaffer, op. cit., pp. 20-22.80 Ibid., pp. 26-27.81 Ibid., p. 24.82 Adam Liptak, “Justices Allow Inmates ToSue for DNA Testing,” The New York Times,March 8, 2011, p. A17.83 Quoted in Nomaan Merchant, “DNA TestingAllowed for Texas Death Row Inmate,” The As-sociated Press, (ABC News), June 2, 2012,http://abcnews.go.com/US/wireStory/dna-testing-allowed-texas-death-row-inmate-16478778#.T8-Q_Y58uJU.84 David Protess, “Texas Finally Agrees to DNATesting for Condemned Man. What Took SoLong?,” Huffington Post, June 4, 2012, www.huffingtonpost.com/david-protess/hank-skinner-dna-testing_b_1566250.html. Update