How the Innocent Get Convicted

Thursday, April 14th, 2011

University of Virginia law professor Brandon Garrett has a new book out called Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Over at Slate, he looks at two causes of wrongful convictions,false confessions and bad eyewitness testimony and makes some pretty simple suggestions for reform.

On false confessions:

The only way to accurately document who says what during an interrogation session is to record the whole thing. Such a record would also increase the reliability of confessions as evidence. More than 750 law enforcement jurisdictions across the United States are voluntarily recording entire interrogations. You might imagine that police investigators would resent such documentation of interrogations, yet studies have shown that once recording becomes standard practice, police officers and prosecutors become strong supporters of the reform.

And on eyewitness testimony:

Eyewitnesses should always be told the attacker might not be present in the lineup. Their initial confidence level should be documented (because, like in Ronald Cotton’s case, by the time of trial it may change). The most crucial proposed reform is double-blind administration. The officer administering a photo or live lineup should not be aware who the suspect is, and the witness should be told the officer does not know. Such changes simply require updating the identification procedures and better documenting the results.

These are pretty simple changes that cost very little to implement. Yet you’d be surprised how much resistance they can get. Back in 2006, for example, a panel of former judges, prosecutors, cops, and defense attorneys in California came up with some basic suggestions to better prevent wrongful convictions. Their three main suggestions were these two, plus a sensible-sounding proposal that would require prosecutors to independently corroborate jailhouse snitch testimony before using it in court. Both state houses passed bills implementing the reforms. But after some late push back from police and prosecutors, Gov. Arnold Schwarzenegger vetoed all three.

Garrett was also the author of a fascinating study a few years ago in which he looked at how appeals courts handled cases were the defendant was later proven innocent by DNA. Here’s what I wrote about his findings at the time:

Garrett found that of the 200 people convicted for crimes for which they were later exonerated, just eighteen were granted reversals by the appellate courts.

Of the rest, 67 had their appeals denied with no written ruling at all. In 63 cases, the appellate court’s opinion referred to the defendant’s guilt. In 12 other cases, it referred to the “overwhelming” evidence of guilt.

In the remaining cases, the appeals courts either found the defendant’s appeal without merit, or found some merit in his claims, but found that the trial court’s errors were “harmless,” or unlikely to have affected the jury’s verdict.

Keep in mind, these are all cases in which the defendant was later determined to be actually innocent of the crime for which he was convicted. More alarmingly, Garret found in his research of these 200 cases that “even after DNA testing became available, courts and law enforcement also posed obstacles to conducting DNA testing, and then denied relief even after DNA proved innocence.”

Many were convicted despite DNA testing pointing to their innocence, and 41 had to rely on the mercy of a governor’s pardon power because, despite their proven innocence, they had already exhausted their appeals and post-conviction options, and could make no further claims in court.

Coming to your mailbox in June: a criminal justice-themed issue of Reason.

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42 Responses to “How the Innocent Get Convicted”

  1. #1 |  Dave Krueger | 

    It’s not about justice. It’s about productivity. A prosecutor is judged by his conviction rate.

  2. #2 |  Jay | 

    At this point, how could a “reasonable person” on a jury ever vote to convict anybody of anything?

  3. #3 |  Brian | 

    “You might imagine that police investigators would resent such documentation of interrogations, yet studies have shown that once recording becomes standard practice, police officers and prosecutors become strong supporters of the reform.”

    I wonder how much of that is based on police/prosecutors discovering that recorded interrogations remain in their custody and can conveniently disappear should anything happen that makes the police officers or prosecutors look bad.

  4. #4 |  EH | 

    I wonder if it you’d get arrested for standing outside of a courthouse wearing a T-Shirt that says “Cops Lie”

  5. #5 |  Bob | 

    The other aspect of this is they need to throw crooked cops and prosecutors in jail for blatant violations. THEN you’ll see some clamoring for reform when the OTHER cops want followable procedures they can use to protect themselves.

  6. #6 |  C. S. P. Schofield | 

    “I wonder if it you’d get arrested for standing outside of a courthouse wearing a T-Shirt that says “Cops Lie””

    I’m sure you could, at least in those jurisdictions that need it the most. On the other hand, would that accomplish anything useful, other than to got you “moral superiority” bragging rights? Law-n-order groups are constantly on the backs of elected officials, demanding this and that. Absent a counter-voice in their ear-hole those officials are going to go Law-n-order all the way. So we need to be that counter-voice. Organize, damnit! Write to your representatives. I promise, they do listen. They like their jobs and want to keep them, and they know that the fastest way for them to become Hobos is to ignore constituent’s concerns. Being a smartass in front of the courthouse is like masturbation; you’re the only one getting anything out of it.

  7. #7 |  Aresen | 

    @ Brian

    While I am sure that ‘inconvenient’ tapes do disappear, I think there are probably several real benefits:
    1) It forces interrogating officers to be more meticulous in their questioning and observance of Miranda and other rights. This means fewer hassles with any real criminals claiming “brutality”.
    2) It means a genuine confession is harder to recant.
    3) It allows interrogating officers to pick up things they might miss recording – say a statement that seems to mean little but actually leads to other corroborating evidence.

    It is only the dishonest cops who have something to fear from this procedure.

    Also, if I were ever arrested and put into a cell with somebody I didn’t know, the first thing I would say, loud enough for everyone to hear, is “This man is a paid police informant who has been planted for the purpose of claiming I confessed to something. I will NOT speak to this person.”

  8. #8 |  SJE | 

    Justice Scalia: your conscience is calling you on line 1

  9. #9 |  EH | 

    I’m sure you could, at least in those jurisdictions that need it the most. On the other hand, would that accomplish anything useful, other than to got you “moral superiority” bragging rights?

    Jury nullification.

  10. #10 |  EH | 

    Actually it should probably be “cops are allowed to lie”

  11. #11 |  Frank Koza | 

    Not sure if you’ve seen it, but you might be interested in some of Bob Perske’s work documenting trials of individuals with intellectual disabilities.

    http://www.robertperske.com/Articles.html

  12. #12 |  Steve Verdon | 

    At this point, how could a “reasonable person” on a jury ever vote to convict anybody of anything?

    Indeed. Whenever I get a jury summons I just toss it in the trash. If they ever find out and haul me in, I’d offer up pretty much the the above comment. Eye witness testimony? Meh. Finger prints? Meh? Jailhouse informant? Meh. Do you have a video tape or solid DNA evidence? No? Sorry, not enough evidence to convict.

    Now…do you really want me to respond to the jury summons.

  13. #13 |  Dante | 

    “I wonder if it you’d get arrested for standing outside of a courthouse wearing a T-Shirt that says “Cops Lie” ”

    Short answer: Hell, yes you would be arrested. Tasered, too.

    Later, they’d drop the charges. The whole excercise was to teach you a lesson not to “show up” the police, not to enforce any laws.

    Protect & Serve (Themselves!)

  14. #14 |  Jay | 

    #12, Steve Verdon:

    Well with that attitude, no wonder we have all these bogus convictions. Why not go into a jury room and make sure that a guilty verdict isn’t reached? In my experience, it’s almost impossible to meet legal evidence standards if you’re very pedantic about the judge’s instructions to the jury, so you don’t even need to reveal your motivations.

  15. #15 |  Matt I. | 

    I second #14 Jay’s comments.

    It’s more important than ever to get people onto juries who are aware of the way the system is set up, rather than people who’ve been watching cop shows all their lives.

    This is the ONLY deterrent to the what is going on right now. As a juror, I’m aware that I’m required to obey the law and judge’s instructions and I do this to the best of my abilities. However, I’m also aware that the right to nullify is an OVERRIDING right when due process is not being followed or when misconduct occurs. In addition, I’m not required to tell this to a judge, as it DOES NOT conflict with an order to obey juror instructions.

  16. #16 |  Michael Chaney | 

    Garrett found that of the 200 people convicted for crimes for which they were later exonerated, just eighteen were granted reversals by the appellate courts.

    One thing to note here – this isn’t surprising. Appeals courts exist mainly to make sure the original trial was done on the up and up, not to retest evidence or determine guilt or innocence. If the prosecutor did everything “by the book”, then the evidence doesn’t matter to an appeals court.

    Given that we’re on the cusp still of DNA testing being viable and having a huge prison population that was convicted without the ability to do DNA testing, it should be available to anybody in prison now regardless of the status of their appeals. Don’t hold your breath for that to happen.

  17. #17 |  supercat | 

    //In my experience, it’s almost impossible to meet legal evidence standards if you’re very pedantic about the judge’s instructions to the jury, so you don’t even need to reveal your motivations.//

    The Constitution is the Supreme Law of the Land. If a juror would find that, given the particular circumstances surrounding a case, the punishment prescribed for a particular statutory violation would be cruel and unusual, the juror would be obligated to prevent that punishment from being imposed (typically by acquitting).

    //However, I’m also aware that the right to nullify is an OVERRIDING right when due process is not being followed or when misconduct occurs.//

    Jury nullification can mean two things: (1) a juror determining that even though he believes someone committed a crime, he cannot legitimately convict that person because e.g. the prescribed punishment would not fit the actual crime committed, cops conducted a search in unreasonable fashion, etc.; (2) a juror deciding that even though a person committed a crime and could legitimately be convicted, society would be better served by an acquittal (the juror may well wish that more people may do what the defendant did, or may regard the statute as not being unconstitutional but rather as being downright stupid).

    I think it’s important to distinguish the two types of so-called “nullification”. The first should probably be used a lot more often than it is; the second should be used very rarely. Jurors who practice the second type of nullification drive society toward anarchy; those who practice the first drive it toward legitimate government. Given the totalitarian-anarchist tendencies of those in power (they wield absolute power, but are bound by no rules) I would favor forcing those in power to abide by the rules, rather than justifying their action by pretending there are none.

  18. #18 |  freedomfan | 

    I agree with Jay and Matt I above that we need conscientious jurors to show up for jury duty, rather than leaving the job for people who might assume that everything the police say is true or that, regardless of the evidence, the defendant “must have done something…”

    But, also keep in mind that the jury is often poorly informed about issues surrounding the case (and often the facts of the case itself) because judges exclude certain testimony from being heard. It seems that we often here of jurors who are surprised, after the trial, about how much they weren’t told.

  19. #19 |  freedomfan | 

    While I’m at it

    Both [California] state houses passed bills implementing the reforms. But after some late push back from police and prosecutors, Gov. Arnold Schwarzenegger vetoed all three.

    Although many accuse Schwarzenegger of being pro-freedom on certain social issues (and there are some where he was), this reminds us that either 1) he was often an agglomeration of the worst of the authoritarian stereotypes of each side; right-leaning on police / law-and-order issues and left-leaning on spending / regulatory issues. Or 2) there isn’t really much of a difference between politicians on either media-approved side.

  20. #20 |  Windy | 

    #6 | C. S. P. Schofield
    All three of my so-called “representatives” in congress totally ignore my emails (via their contact pages), even when I specifically request a response. When it comes to my State’s medical cannabis law, they ignore ALL their constituents — they all support the federal government maintaining prohibition even for medical use. So I don’t think congress (with the exception of Ron Paul and probably Rand Paul) listens to its constituents very much, if at all, even when it is a clear majority that differs with their official positions.

    #17 | supercat
    I believe jurors are not told about the possible sentence a conviction will incur, so that that knowledge will not cause a jury to come back with an acquittal because they feel the sentence is too harsh.

    Jurors absolutely should judge the Constitutionality of the law under which the defendant is being tried, but for that form of nullification to function properly, the People would have to be actually educated on the Constitution and that is NOT happening in any public schools and few private schools. Nor are the media doing anything to help the People understand the Supreme Law of the Land, which is being violated at every turn, even by SCOTUS.

    Related but OT: for those of you who might be interested, there is a good discussion of the commerce clause going on over at DrugWarRant, under this article:
    http://www.drugwarrant.com/2011/04/pot-laws-ruled-unconstitutional/

  21. #21 |  BamBam | 

    Jury awards woman $82,000 after she claims Portland police shoved her, twisted her arm and arrested her because she asked for a business card

    http://www.oregonlive.com/portland/index.ssf/2011/04/jury_awards_woman_82000_after.html

    money quote: “The biggest thing to me is I still believe the good guys win and justice prevails,” she said. “And yes, there is accountability for the police.”

  22. #22 |  stupidamerkin | 

    Get real. None of this has anything to do with guilt or innocence. It’s all about the MONEY, frauds, power and control. These thugs themselves in black robes don’t care about you. These court officers including the executive branch will lie, deceive and do what ever it can get away with to climb that ladder of power and money. The fascist corporation is alive and well. It’s all a dog and pony show controlled by the real criminals disguised in black robes, suits and ties behind respectability. The more you learn the truth about our so called Justus system, the more evil & vile these in humans are for the sake of money and their twisted justifications of greed. We see it everyday across this land. How much more before enough is enough?

    “If we don’t stand our ground, now, on whose ground will we stand in the future?” – Joanne Cline, July 19, 2002

     

     

     

  23. #23 |  BoogaFrito | 

    All three of my so-called “representatives” in congress totally ignore my emails (via their contact pages), even when I specifically request a response.

    You may get a response if you handwrite a letter on a piece of paper.

  24. #24 |  supercat | 

    #20 | Windy | April 14th, 2011 at 8:21 pm “…the People would have to be actually educated on the Constitution…”

    Having the populace educated in the Constitution would be helpful, but judges refuse to let the defense inform jurors of the sentence associated with various crimes because they know that–educated or not–ordinary people can smell a rat far more often than the judges would like.

  25. #25 |  Whim | 

    Several have asked: “I wonder if it you’d get arrested for standing outside of a courthouse wearing a T-Shirt that says “Cops Lie” ”

    Short answer: Hell, yes you would be arrested.”

    http://www.blogofbile.com website has an archive of Julian Heichlen’s Fully Informed Jury Association activism.

    He’s been harassed innumerable times by Federal Protective Service and U.S. Marshalls Courthouse GESTAPO antics.

    Likewise, he’s been arrested many times, including a lengthy stay at Riker’s Island awaiting charges that get eventually dropped. Julian is 79 years old….to date, the charges eventually get dropped after U.S. Dept. of Injustice play-acting and jailer harrassment, such as making Julian walk up and down stairs handcuffed, and with no belt or shoelaces. Eventually, after his pants come off, he’s being led around in his underware.

    Lately, the Federal Judiciary and their proxy the U.S. Dept. of Injustice has escalated their war against Julian, charging him with the dubious charge of “Jury Tampering”. For handing out literature to ANYONE in the plazas of Federal Buildings which also coincidentally contain courthouses.

    The Federal Judiciary dictators do NOT like an alternative opinion about the U.S. Constitution.

    See:

    http://blogofbile.com/activism/filming-julian-heicklen/

  26. #26 |  Dave Krueger | 

    #22 BoogaFrito

    All three of my so-called “representatives” in congress totally ignore my emails (via their contact pages), even when I specifically request a response.

    You may get a response if you handwrite a letter on a piece of paper.

    It’s almost a sure thing if you cut the words out of a magazine and glue them on a piece of paper.

  27. #27 |  Helmut O' Hooligan | 

    #15 Matt I:

    A big +1 to Matt I and all the commenters discussing jury nullification.

    People of conscience need to consider nullifying in ANY case where someone is popped for personal possession of drugs, low level dealing, prostitution/ solicitation of prostitution, or any gambing offense.. Mid-level to high-level drug offenders may pose significant risks to society (think about how one moves up in a drug dealing syndicate), so tread carefully in those cases. If citizens turn their back on the outdated purtianism and authoritarianism that keeps the drug war and vice enforcement in general going, then we may be able to rid ourselves of these ridiculous and harmful laws sooner than we think.

    Perhaps handing out flyers from the Fully Informed Jury Association would be a viable form of protest to kick things off!

  28. #28 |  Dave Krueger | 

    Judges have been making it more and more difficult for anyone even sympathetic to jury nullification to get on a jury in the first place unless they are willing to lie during voir dire.

    The justice system does not want the common people usurping their power to define what’s legal and illegal. And since they get to make the rules, basically we are all fucked.

    Consider that another upbeat optimistic ray of sunshine delivered directly from the dancing fingers of Mr Cheerful himself.

  29. #29 |  Helmut O' Hooligan | 

    #27 Dave Krueger:

    “…unless they are willing to lie during voir dire.”

    You’re right, Mr. Grumpy Pants ;)

    Lying may be necessary. In a dishonest system, deception may be required. Such deception can be morally justified when one considers the costs involved in vice enforcement and mass incarceration. If nullification doesn’t come up during voire dire, then those who plan to advocate it should just keep it on the down low. Gradually introduce the idea during deliberation and see if you have allies. If not, then a hung jury may be necessary.

  30. #30 |  Kristen | 

    If I were to be summoned for jury duty for a criminal case, I simply wouldn’t mention my thoughts on the justice system and jury nullification. I guess I wouldn’t lie if asked, but last time I sat on a panel they didn’t ask about such nebulou sthings – they kept their questions to stuff that related to the case at hand.

  31. #31 |  CyniCAl | 

    Better to be carried by six than judged by twelve.

  32. #32 |  Dave Krueger | 

    #30 Kristen

    If I were to be summoned for jury duty for a criminal case, I simply wouldn’t mention my thoughts on the justice system and jury nullification. I guess I wouldn’t lie if asked, but last time I sat on a panel they didn’t ask about such nebulou sthings – they kept their questions to stuff that related to the case at hand.

    I was called for jury duty and went through voir dire on a drug possession case. They were very clearly fishing for people who were opposed to the drug war. I went in thinking it was my moral duty to get on that jury, but it was pretty clear that I could not do it without lying. So, instead I made an announcement to the whole room that I couldn’t, in good conscience, convict someone for mere possession of drugs anymore than I could convict them for possession of alcohol.

    Make no mistake, they consider it their mission to eliminate from the jury anyone who opposes the drug war. It’s the same as eliminating anyone who is opposed to the death penalty from a murder case. You don’t get a jury of your peers. You get a jury of their peers.

  33. #33 |  Law Clerks And The Cult Of Power (Update) | Lawyers on Strike | 

    [...] Once you adopt this understanding of the system, the otherwise astounding and inexplicable at least has an explanation.  (H/T Radley [...]

  34. #34 |  Atticus | 

    The more fundamental problem is discussed here:

    http://strikelawyer.wordpress.com/2011/04/15/law-clerks-and-the-cult-of-power/

    Until the cult of power problem is somehow addressed and altered, reforms based on particulars such as eyewitness testimony and false confessions are doomed.

  35. #35 |  Ray | 

    Im calling bull as bull. The united States has been overthrown by the UNITED STATES. The GOV. is now a CORPORATION that has four forms of law, at its disposal. The prosecutor uses the one that best suits their needs, to get whatever their threat, duress and coercive mind wants. The rule of law is not adhered to and are changed along the way to make the jury say guilty. Its as simple as that. I’ve watched it time and time again state allows straw witness, allows tainted evidence, allows fruit of poisonous tree, forces faulty witness to state false facts. or draw conclusions in front of a jury, or the judge over rules the rule, blatant excursions from his oath and the rule of law. Blatant lack of definition and ordering the jury to convict by committing FRAUD. America is no longer ruled by rule but by FRAUD VITIATING FRAUD.

  36. #36 |  Cactus | 

    Identification of the corruption of the “criminal” justice system is well established as I have been through it. As a political prisoner, I had 4 criminal trials, did 11 years in federal prison, and ultimately prevailed on 2 cases. While never being charged with a tax crime, the IRS was involved in all the cases and did most of the evidence tampering. The FBI was just as bad. I have met some decent and very competent attorneys in the Public Defenders Office but the system is purposely designed to keep them overloaded with cases. They physically cannot do a good job and the system is designed that way, heavily in favor of the government.
    University of Virginia Law School Prof. Duane teaches his students to NEVER EVER speak to police, especially if you are innocent. The police can and do turn that against you. Never speak to a federal agent as they often turn your interview into a charge of “lying to a federal officer.” Ask Martha Stewart and Barry Bonds about that.
    Lastly, people who know about the judicial corruption should NEVER let an opportunity to sit on a jury pass by. They have the opportunity to correct injustice by making the prosecutor follow procedure and use real evidence, not phoney evidence from paid informants or co-defendants bribed with lesser sentences if they testify against the other co-defendants. That is standard operating procedure.
    Some years ago, the Pittsburgh-Post Gazette did a fantastic expose of the criminal justice system. I knew some of the defendants involved and verified what they printed was accurate and on-point.
    In closing, remember, the filtering out of knowledgeable jurors leaves only “potato-heads” that have your liberty and freedom in their hands. Keep chopping away at the abuse and maybe we will make some progress.

  37. #37 |  Whim | 

    During a jury voir dire, do not volunteer information.

    Answer factual questions honestly, such as ever having been a crime victim, or any knowledge or relation to the defendant.

    On MORAL issues, such as capital offense or victimless drug “crimes”, let your conscience be your guide……

    More than bias, I think the prosecutor and the defense are looking to select jurors that they think are highly suggestive, and that lack critical judgment and analytical skills.

  38. #38 |  Dave Krueger | 

    #35 Whim

    During a jury voir dire, do not volunteer information.

    There was nothing voluntary about it. They asked a series of questions obviously designed to identify anyone who might be sympathetic to the defendant. And, doing this for a living, these guys are very good at weeding out those it wants off the jury. To get through it, you’d better be prepared to lie.

  39. #39 |  freedomfan | 

    I agree with Dave Krueger and others that it may not be possible to be both honest during jury selection and to be on a jury in drug cases. However, it isn’t exactly a case of the judges or lawyers being against those who oppose the drug war. Or, rather, it isn’t simply a case of them specifically being against those opposed to the drug war. If a prospective juror says that he cannot in good conscience convict a defendant for the crime he is charged with, then it seems pretty reasonable to for the judge to take him off the jury. The same would be true for any crime. I oppose the drug war as much as anyone here, but the part of the judge’s job is to ensure the jurors will apply the law and I can see where jurors refusing a priori to convict would give the judge the impression that the law won’t be applied.

    BTW, there is plenty to blame trial judges and prosecutors for, but I really think that the blame here lays mostly with the legislature and the voters, and the higher court judges who should have thrown out laws like the Controlled Substances Act.

    All that said, with regard to voir dire, I’m not sure why a juror has any more obligation to tell the truth when questioned by a judge than a police officer does when questioning any other citizen…

  40. #40 |  Flak | 

    Here is an interesting case for those interested in this topic

    http://www.freeryanferguson.com/

  41. #41 |  We Defend | Lawyers on Strike | 

    [...] have now reached a point where wrongful convictions are common, and where the predominant point of view on the United States Supreme Court is that they are not [...]

  42. #42 |  Bob | 

    A very trucnacted version of what happened to me:

    In 2006 I was falsely accused by a rural Georgia cop who had a history of being less than stellar in a lot of ways. At the scene I demanded an attorney several times wit witnesses present.

    I was arrested and taken to the county jail where I was held for three days. On the third day I was taken to an interrogation room whereupon I demanded an attorney. I was told I didn’t need one. I laughed and repeated my demand angrily saying, “I told you I wanted a lawyer a bunch of times three days ago. I wanted one then, and I want one now!” The cop turned to his buddy and told him to erase the tape.

    After two years the judge heard the cop’s testimony and the eyewitness testimony and watched the patrol video and threw the case out. In the dismissal grant he openly referred to criminal conduct on the part of the cops.

    I am now suing in Federal court under 42:1983.

    One last thing, in addition to other criminal acts they committed they robbed and vandalized my house while I was in jail. The dumbasses actually had photographic evidence of their having done so that they presented in court.

    After this is over I am going to write about it and see if Radley Balko wants it.

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