There’s nothing like seeing a wrongfully convicted prisoner exit a prison gate, perhaps fresh from death row, to put a disquietingly human face on failings in the criminal justice system. Flawed forensic science, decision-makers’ cognitive biases, crime lab contamination, overstated or unverifiable claims for forensic evidence, eyewitness and investigator error, expert witnesses’ exaggerations, problematic interrogation tactics eliciting false confessions, evidence withheld from defendants inadvertently or even deliberately—the list goes on.
In May, a study by the Center on Wrongful Convictions at Northwestern University School of Law and University of Michigan Law School revealed that in the past 23 years more than 2,000 people wrongly convicted of serious crimes were exonerated in the U.S. The schools’ new National Registry of Exonerations is the first national database of its kind, currently listing information for the 940 cases for which the researchers have more detailed information.
Righting What’s Wrong in Criminal Justice
Wrongful convictions stem from the belated entrance of scientific rigor into the field of forensics, systemic problems, and the ubiquitous ‘human factor.’ In the coming weeks, a series of stories by crime author Sue Russell looks at why convictions go wrong, at the common reluctance to rectify error, and at innovations to better safeguard justice.
Stories so far:
A Porn Stash and a False Confession: How to Ruin Someone’s Life in the American Justice System
Red Flags: Early Warnings of Wrongful Convictions
Human Lie Detectors: The Death of the Dead Giveaway
Litigating Lineups: Why the American Justice System Is Keeping a Close Eye on Witness Identification
The Right and Privilege of Post-Conviction DNA Testing
Seeking Second Chances Without DNA
Why Can’t Law Enforcement Admit They Blow It Sometimes?
A Prescription for Criminal Justice Errors
Wrongful convictions drive home the realization that guilty verdicts based on flimsy evidence are not anomalies and that not all the problems can be blamed on flawed forensic science. Some of the exonerated failed to receive all the potentially exculpatory evidence in prosecutors’ possession, even though every defendant is entitled to this evidence under the Brady v. Maryland ruling.
This fall in Texas, Judge Ken Anderson, a former prosecutor, faces a court of inquiry in the case of Austin exoneree Michael Morton, who served 25 years for his wife’s 1986 murder before DNA found on a bloody bandanna set him free (and led to a man now due to be tried for the killing). Morton’s lawyers’ discovered that Anderson failed to disclose at trial critical evidence pointing to Morton’s innocence. Anderson denies any wrongdoing but an unprecedented legal inquest will decide if he will face criminal charges.
Other examples include two Oklahoma prosecutors who were fired in April for allegedly withholding evidence in a murder trial. “The gravity of their alleged ethical violation is so great that only one punishment equals their transgression,” said David Prater, Oklahoma County’s district attorney, in a statement. Prater also reported the information to the State Bar and State Attorney General’s Office for review.
Such instances may be rare statistically but they fuel the fire of those in Texas and beyond who favor more oversight of prosecutors. Some 98 percent of Texas’ criminal cases are settled by plea bargains, thus avoiding the fuller scrutiny that comes with a trial. Texas courts have found misconduct in 91 criminal cases from 2004 to 2008, no prosecutor was disciplined.
How the innocent are convicted is one part of the equation, the obstacles to rectifying conviction errors another. And it’s not police’s and prosecutors’ job to convict no matter what, argues Barry Scheck, co-founder of the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University. Rather, they have a professional duty to the truth and to correct error whenever and wherever they find it.
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The case of John Watkins, who spent seven years behind bars for a rape he did not commit, had a confluence of red flags that experts say are common in conviction errors.
His ordeal began with a brazen rape. Near dusk on May 26, 2003, a woman walking in Gilbert, Arizona was forced into the bushes and sexually assaulted. A friend heard her screams and seeing her legs emerge from the bushes, rushed over shouting, “Call 9-1-1!” The rapist leapt up and fled.
Neither woman believed she saw enough even to help create a composite sketch, but they agreed on a few basics. “A white T-shirt, baseball shorts, 5’8”-5’10”, white male, dark blonde/light brown hair – totally generic,” says Lindsay Herf of the Arizona Justice Project, who worked on Watkins’ case.
When police received a local resident’s homemade videotape of teenagers considered the neighborhood’s “trouble boys,” both women thought one might have resembled the rapist. Watkins, 20, was not on the video.
His family had moved into the area a couple of days earlier. He had no prior criminal record, but popped onto law enforcement’s radar after a mover tipped off police that some pornographic photographs that spilled from a dropped box might depict underage girls. Police served a search warrant on Watkins’ parents’ home, bringing a detective working the rape case. Watkins admitted the images were his, but police were looking at a bigger picture.
Watkins was brought in for an intense four-and-a-half-hour interrogation during which detectives told him that they had all the evidence they needed, including his fingerprints and witnesses ready to identify him, to arrest him for the rape. There were no fingerprints and the witnesses were shaky, but investigators in the U.S. can legally lie to suspects or confront them with fabricated evidence.
He denied the rape more than 60 times. But he was slowly reeled in. If he confessed and pled guilty to it, he was told, things would go better for him with the judge, and he could get probation instead of the serious prison time he feared on the pornography charges. He finally confessed to the rape and he took a plea deal that led to a 14 year sentence for sexual assault.
Often, false confessors are so desperate to end the misery of an interminable interrogation that they overlook that it’s a short-term benefit that could mean decades of imprisonment. Young people and the easily led are particularly vulnerable to this, says Steven Drizin, clinical professor at Northwestern University of Law, and cofounder of its Center on Wrongful Convictions of Youth.
No case ever should be allowed to rest too heavily, let alone exclusively, on a confession, Drizin argues: “A confession is only as good as the information in it that can be independently corroborated.”
He believes that holding pretrial reliability hearings for confessions in tandem with making the electronic recording of interrogations mandatory could result in “the most unreliable confessions never getting before a jury.” Fortunately for Watkins, his interrogation was videotaped.
That recording of John Watkins’ interrogation shows what Drizin and social psychologist and confession expert Richard Leo call “contamination” in action. False confessions are inevitably rife with inconsistencies, so after accepting such a confession, investigators must get suspects to work with them to fashion a viable and persuasive narrative that fits with all the known times and places.
This wouldn’t be so critical, Drizin says, if confessions were used as a hypothesis against which to test other evidence—a scientific approach—rather than to confirm a pre-existing belief in a suspect’s guilt.
“It’s extremely common that little more than a confession is the basis for charging someone with a crime and convicting them at trial,” he says. “Post-confession, prosecutors may bolster it with, say, unreliable testimony from a jailhouse snitch, or with a fallible eyewitness identification. What is usually absent is forensic evidence. And a confession without forensic evidence is enough to convict someone.”
Leo and Drizin have found that false confessors whose cases are not dismissed pre-trial will be convicted 75 percent to 85 percent of the time, either by a plea bargain or a jury trial.
Some in law enforcement oppose making the recording of entire interrogations mandatory fearing jurors won’t understand the latitude interrogation rules give police. Or they worry that suspects will learn too much about interrogation tactics. But recording advocates see it as a cheap tool for ferreting out improper techniques and believe it helps thwart false confessions by keeping detectives from using coercive interrogation tactics.
Meanwhile, fabricated evidence is routinely used to ratchet up stress on suspects. “I am concerned about false confessions and wrongful convictions,” says Erik Luna, a professor of law who specializes in criminal law and procedure at Washington and Lee University, “But I also find it absurd that the police are licensed, if not encouraged, to lie to suspects; yet someone who lies to law enforcement can be prosecuted for doing so.” Britain, he notes, ended the practice in the 1980s.
Courts, prosecutors and ultimately juries tend to believe that confession evidence is reliable because the words came from the mouth of the suspect. But, says Drizin, “as we are learning, in every documented false confession case this is a much more scripted process than we ever thought before.”
He likens the interplay between interrogator and suspect after a false confession is born to watching a movie being made from a script filled with information fashioned to ensure a conviction, whether or not it is accurate or even originated with the suspect. Contamination often starts in the heat of the moment and “in almost all instances is inadvertent. It’s not an effort to frame an innocent person.”
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Following Watkins’ confession, the rape victim was then shown a “six-pack” photographic lineup. Watkins wore a very pale T-shirt, the other five men’s shirts were black or very dark. And the victim who had initially claimed she would be unable to identify her attacker and remembered little beyond his light T-shirt then identified Watkins as her rapist.
Both Herf and John Pressley Todd, special assistant attorney general in the Arizona Attorney General’s Office’s Capital Litigation Section, considered the lineup unfairly suggestive. “I think in a disgusted way we were laughing,” Herf says, recalling the glaring T-shirt color discrepancy. “Like, ‘Is this for real?’ What were they thinking?”
Last August, the New Jersey State Supreme Court issued what Barry Scheck calls a “landmark decision” introducing new guidelines for how courts and juries assess eyewitness identifications’ reliability. For example, even the officer administering the lineup should not be told if the suspect is present, and the witness should be told the officer doesn’t know and that there may be no suspect in the lineup at all.
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DNA results, however, trump a confession in many eyes. In the Watkins rape case, no semen or sperm was detected, and so no DNA testing was conducted—even though a tiny biological sample from the assailant sat in the evidence file.
Watkins connected with Herf and Todd when the two toured Arizona prisons giving a unique joint presentation for convicts with innocence claims. Thinking his claim might have merit, they looked deeper and retrieved the biological sample. While two earlier requests for DNA testing by Watkins had been rejected, this time a judge gave the go-ahead.
Herf and Todd drove back out to the prison with a DNA testing consent form—and a warning that the test was likely to consume the entire tiny sample. “Five years from now,” Herf told Watkins, “perhaps even after you’ve served your whole sentence, there may be better techniques out there that will be able to prove your claim. Or you can try it now. And we can’t promise you any result.”
The DNA results conclusively excluded him from the rape.
“The great thing about DNA is that everybody likes it,” says David Faigman, a professor at University of California’s Hastings College of Law in San Francisco. “It’s a truth-seeking tool.”
The Innocence Project has identified 297 prisoners freed after post-conviction DNA analysis; 28 had pled guilty to crimes they did not commit.
Still, experts estimate that in 90 to 95 percent of criminal cases there is no DNA to analyze. So logic dictates that there is a second population of wrongfully convicted whose numbers we only can guess at, and who have no hope of deus ex machina DNA exoneration down the road.
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Watkins was exonerated and released in December 2010. Herf says the investigation has not been reopened, nor the actual rapist sought.
“Law enforcement, prosecutor, and police just can’t get over that this guy confessed,” she says. “According to the Gilbert P.D., they made an arrest, the case has been cleared.” She doesn’t believe anyone is deliberately letting a crime go unsolved: “I think they’re seeing it as, ‘No, we got the right guy; there’s no reason for us to reopen this.’”
Watkins is no longer wrongfully imprisoned for a rape he did not commit but his legal problems didn’t end on a Pollyanna-ish note. He is now a registered sex offender on lifetime probation for possessing a dozen images of underage girls in his vast adult pornography collection.
