Convicting the Innocent
That image is from the false confession of Ronald Jones, a man whose tragic story begins my book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong. In fact, it is an image of his entire false confession, at least the statement that the detectives had typed at the end of eight grueling hours of interrogation in Chicago in the mid-1980s. I turned the statement into a word cloud to illustrate the words that Jones had repeated the most. In his statement, Jones was unfailingly polite, and according to the police stenographer, at least, he responded “Yes, Sir,” as the detectives asked him questions. In reality, he alleged at trial, detectives had brutally threatened him, beat him, and told him what to say about a crime he did not commit. The jury readily sentenced Jones to death for a brutal rape and murder on Chicago’s South Side.
The word cloud shows why the jury put Jones on death row. Some of the most prominent words, after “Yes, Sir,” are key details about the crime scene: that there was a knife, that the murder occurred in the abandoned Crest hotel, that the killer left through a window. Jones protested his innocence at trial, but those facts were powerfully damning. The lead detective had testified at trial Jones told them in the interrogation room exactly how the victim was assaulted and killed, and finally signed that confession statement. The detectives said they brought Jones to the crime scene where Jones supposedly showed them where and how the murder occurred. After his trial, Jones lost all of his appeals. Once DNA testing was possible in the mid-1990s, he was denied DNA testing by a judge who was so convinced by his confession statement that he remarked, “What issue could possibly be resolved by DNA testing?”
In my book, I examined what went wrong in the first 250 DNA exonerations in the U.S. Jones was exonerated by a post-conviction DNA test. Now we know that his confession, like 40 other DNA exoneree confessions, was not just false, but likely contaminated during a botched interrogation. Now we know that 190 people had eyewitnesses misidentify them, typically due to unsound lineup procedures. Now we know that flawed forensics, in about half of the cases, contributed to a wrongful conviction. Now we know that informants, in over 50 of the cases, lied at trial. Resource pages with data from the book about each of these problems, and with material from these remarkable trials of exonerees, are available online.
Returning to Ronald Jones’ false confession, the Supreme Court has not intervened to regulate the reliability of confessions, such as by asking courts to inquire whether there was contamination, or simply requiring videotaping so that we know who said what and whether the suspect actually knew the actual facts of the crime. Typical of its rulings on the reliability of evidence in criminal cases, the Court held in Colorado v. Connelly that though a confession statement “might be proved to be quite unreliable . . . this is a matter to be governed by the evidentiary laws of the forum . . . not by the Due Process Clause of the Fourteenth Amendment.” Preventing wrongful convictions has largely fallen on the states. I end the book with optimism that we are starting to see stirrings of a criminal justice reform movement.
Since my book was first published in Spring 2011 (it was recently published in paperback), there has been more reason for optimism. There has been a steady stream of DNA exonerations. There have now been more than 300. The Innocence Project keeps count – and hosts an interactive multimedia website featuring my research and information on reforms to prevent wrongful convictions.
In response, the States have made noteworthy new efforts to adapt their “evidentiary laws” to respond to the danger of wrongful convictions. Just this past week, the Oregon Supreme Court recommended in Oregon v. Lawson, the “partial exclusion” of eyewitness evidence, under its Rule 403, where necessary based on full consideration of the factors uncovered by social scientists that affect the reliability of an eyewitnesses’ identification. The New Jersey Supreme Court issued its landmark opinion in State v. Henderson in the Fall of 2011, adopting a comprehensive social science framework for regulating eyewitness identifications. Prominent police departments, like the New York City Police Department, have adopted videotaping of interrogations. Forensics reform is stalled in Congress, but some states and localities have adopted greater scientific oversight measures in response to crime lab scandals and wrongful convictions. A short three part series I wrote on this is available on Huffington Post. While the U.S. Supreme Court declined to further regulate eyewitness identifications in Perry v. New Hampshire, the Court has increasingly regulating plea bargaining.
These are eventful times in criminal justice, and as a result, law professors who care about criminal justice have much to think about and write about. I had another goal in helping Danielle and her co-bloggers with this Symposium. My hope was to focus on connections to wonderful work by colleagues that examines the state of our criminal justice system from different perspectives.
Stephanos Bibas: The Machinery of Criminal Justice. Stephanos’ new book distills and reframes over a decade of important scholarly pieces in which he has tackled the plea bargaining core of our criminal justice system. Very few criminal cases involve a “morality play” or any adversarial testing at all. How can we expect the public to care about improving criminal justice, when the public is largely locked out of a criminal process that operates like a clandestine machine? Unlike the DNA exonerees who I studied, who were innocent and may have been punished for seeking to have their day in court by a sentence far worse than a plea bargain, most criminal defendants do not have a day in court, and we may never know whether the case against them was accurate or just. Having pleaded guilty for understandable reasons, they may themselves never know whether the prosecution case was supported. More commonly, they may be very obviously guilty, but may never know whether a jury would agree that the sentence was appropriate. Bibas suggests ways to take on the plea bargaining machine that has so transformed our criminal justice system, including by, putting it briefly and without doing justice to his discussion, by empowering defense lawyers, encouraging judges to supervise plea hearings more carefully, and including public participation.
One area of overlap with my work and that of the other authors in this Symposium, although to be sure, not the main focus of the book, is that Stephanos discusses data gathering and transparency efforts. It is hard for the public to assess the criminal justice system if even police and prosecutors do not know enough about how effective they themselves are. Similarly, better documentation and data collected during criminal investigations may improve the accuracy of those investigations and the ability of defense lawyers and prosecutors to accurately assess a case.
Daniel S. Medwed: Prosecution Complex. I recently reviewed Dan Medwed’s new book for Criminal Law and Social Change. For years, Dan has written compelling analysis of the ethical and legal obligations of prosecutors, particularly regarding miscarriages of justice. Now he has assembled his thinking into a wonderful book. Without repeating all of what I wrote in the longer review, I began by saying that prosecutorial discretion has been likened to a black box—a place where no light enters and where none have any reason to look. But maybe prosecutorial discretion can also be like the black box on a jet, to be opened and examined after a terrible mishap to shed light on what system failures might have caused a crash. Dan does just that, having written a stirring account of what it means for prosecutors to do justice by avoiding wrongful convictions. He ends the book, not to spoil the ending, by quoting then-United States Attorney General Robert H. Jackson who famously remarked: “the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.” Those words are not comforting by the time one has finished reading Dan’s book. Although some of his detailed proposals reflect quite concrete changes being made by prosecutors around the country to improve their work, much remains to be done.
Dan Simon: In Doubt. Accomplishing a Herculean feat of synthesis, Dan has digested decades of psychological research, involving thousands of studies, in a highly readable way, to explore why wrongful convictions may not only occur but go entirely unnoticed. What is the psychology of the criminal justice process? Everyone involved, police and lawyers and judges and jurors – even and perhaps especially with the best of intentions – can make mistakes. Police want to be supportive of witnesses trying to help solve cases, so they display the suspect standing alone, or encourage them to come in, tell them the suspect will be there in the lineup, and congratulate them on a job well done when the suspect is picked. Seemingly innocuous suggestions, however, can transform a shaky eyewitness into a confident one – even if he in fact picked out an innocent man. Police and prosecutors may succumb to “tunnel vision” and ignore evidence contradicting the narrative they built up around a suspect. Errors may escalate and take on a life of their own. Dan offers extremely detailed and concrete proposals for how to minimize the effects of cognitive bias on the operation of our criminal justice system. Some of those proposals have taken off and been enthusiastically adopted by law enforcement, but many have not. In one of my favorite lines in the book, a Minnesota official noted that after being required by the state supreme court to tape interrogations, they realized that this was “the best thing we’ve ever had rammed down our throats.” Everyone in the system benefits from more accurate evidence.
One last point of connection between the four books. In Doubt calls into question, as my book does, whether trials are up to the task of distinguishing the innocence and the guilty. But if the “crown jewel of the legal system,” the criminal trial, cannot bear the weight we put on it, that raises still more disturbing questions, plumbed in Dan Medwed and Stephanos’ books, concerning the settlements bargained in routine cases. Yet if even prosecutors and defense lawyers cannot know whether evidence is contaminated early on in police investigations, then not only is criminal justice too much of a machine, but it is defectively designed.