Criminal Justice

How the Innocent Get Convicted


University of Virginia law professor Brandon Garrett has a new book out called Convicting the Innocent: Where Criminal Prosecutions Go WrongOver 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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  1. Hey, Balko, it’s not Monday Morning yet, ya know.

    1. It’s always Monday somewhere….errr, well, maybe not, but it’s always morning somewhere, so he’s got that going for him at least.

      1. It might be Monday on some distant planet somewhere in the verse.

        1. Yeah, but the odds of the residents of that planet referring to it as “Monday” are pretty slim.

          1. Did you know Garfield hates Mondays?

          2. In an infinite universe, isn’t it almost guaranteed?

            1. I want to visit the planet that has Manday.

            2. Perhaps, the multiverse.

    2. Wait, I thought the rage inducing nut punch was a Friday thing?

      1. Someone needs to put together a bar graph or something.

  2. Add in prosecutorial overreach to compel plea deals as a major cause for false confession. Solution= eliminate culpability for lesser included offenses. Hold Prosecutors to bringing the charges that they are confident will prevail.

    1. Lose at trial and you’ll get 25 years. Plead guilty, and we’ll give you a year in minimum security.

      1. Penalized for asserting one’s right to a trial. Beautiful.

  3. despite their proven innocence, they had already exhausted their appeals and post-conviction options, and could make no further claims in court

    No doubt, the Supremes really screwed the pooch in Herrera v. Collins.

  4. I also have a proposal:

    We need to rename the Department of Justice the Department of Prosecution to more accurately reflect what their real goals are.

    1. I was thinking about this a while back. We have a system of “Law” where we used to have a system of “Justice”.

      Back in my youth (50’s-60’s) we’d get in minor trouble and the cops would give us a stern lecture and turn us over to our parents for punishment. Nowadays, you’ve got cops saying, “Hate to have to run you in, kid, but it’s the law.”

      Explaining to the copy that you broke the speed limit because you’re taking your wife to have a baby = Justice.

      Speed cameras = Law.

      … “guess which one I’m in favor of” Hobbit

      1. “copy” = “cop” Don’t know where that y came from.

        Preview is your friend.

        … BH

      2. Easy to know where this comes from; the same place as “zero tolerance” policies in schools. Fear of litigation.

        If a cop gives a stern lecture to one kid, but another cop runs another kid in, the family of the one he ran in can sue the dept. over why THEIR child was “discriminated” against. Just like in schools. If a white kid had a toy gun taken away by the teacher, but faced no other penalty, but say a hispanic kid in another teacher’s room was taken to the principal, BAM, lawsuit. “The law” and “zero tolerance” are designed to provide a litigation-proof baseline framework for ensuring ALL incidents are always handled in exactly the same way, to avoid the appearance of bias.

        Of course, now you have lawsuits against zero tolerance being too strict. I honestly feel for the school districts, because no matter what they do, they’re fucked. Lawsuits for handling cases on a individual merit basis, and lawsuits for rigidly enforcing a straightjacket approach to the rules.

    2. “The Department of Selective Justice” reflects their real goals.

  5. Get. Rid. Of. Prosecutorial. Immunity.

  6. This is an abject lesson as to why tort reform is always a bad idea.

    1. Don’t worry the doctors/corps will police themselves.
    2. Licensing boards will do their job
    3. The market will solve it.

    W/o juries to have a meaningingful sanction – there is no safety from abuse. Keep limiting juries – the powerful love that!!!!

  7. only way to properly verify confessions is to waterboard ’em & see if the story holds-up…u know, since waterboarding is just enhanced interrogation anyway

    1. i shood kno cuz thats how i get my brane dammag i wus waterborded wen that litle gurl wuz foundd ded in woodds nere my houss i diddnt meen to hert her

  8. Heh – and if you ever want to get out of jury duty, do as I did once (in all innocence, I actually find jury duty interesting) and tell the prosecutor that you couldn’t vote for conviction on only an ‘identification’ by the victim in a dark parking lot. (The defendant had one of those ‘face-faces’ – I could have walked the area and found 50 people who looked much like him.

    But he was found within a few blocks of the crime, so he was due to be guilty. (Note, it was a robbery and he was NOT found with anything belonging to the victim – but he was near there.)

    Problem is, I suspect they probably found enough people to convict him just for being in the neighborhood. I suspect he might have had a record already. But in that particular neighborhood, that wouldn’t be unusual. (And most of the crime in that neighborhood was stuff I suspect many here would agree with me shouldn’t be illegal anyway.)

    Had I thought ahead, I might have been a bit less honest about my ‘will/won’t convict’.

    1. Heh – and if you ever want to get out of jury duty, do as I did once (in all innocence, I actually find jury duty interesting) and tell the prosecutor that you couldn’t vote for conviction on only an ‘identification’ by the victim in a dark parking lot.

      Simpler method: talk about jury nullification and watch steam spontaneously manifest from the judge and prosecutor’s ears.

      1. That would be my approach, but I suspect I won’t make it any further in voir dire than “Occupation”.

        “I believe every juror has the right, nay, the obligation, to judge the case in its entirety, on both the law and the facts, to ensure that justice is done in the case for which they are charged to render a just verdict.”

        “So, Mr. Dean, you believe in jury nullification?”

        “I believe the term “jury nullification” is a derogatory term invented by prosecutors and judges who wish to see jurors kept in their place, as a subordinate group that should do no more than ratify the decisions of their betters . . . Hey, get this bailiff away from me!”

    2. “I suspect he might have had a record already.”

      Yeah, cause they picked him up on some *other* bullshit charge that he had nothing to do with either.

  9. Hey, come on, eggs/omelet, you know the deal. It all comes out in wash anyway. or, let God sort ’em out.

  10. See also: False Justice by former Ohio Attorney General Jim Petro.

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