Convicting the Innocent
posted by Brandon Garrett
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.
December 9, 2012 at 12:01 pm
Posted in: Criminal Law, Criminal Procedure, Law and Psychology, Symposium (Convicting the Innocent), Uncategorized
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Responses (7)
Joe - December 9, 2012 at 12:46 pm
The documentary and book about the Central Park Five is recommended here. I’m reading the book now and it’s fairly depressing among other things.
Patrick S. O'Donnell - December 9, 2012 at 12:56 pm
This might be of interest to those who’ve yet to see it: http://www.thefacultylounge.org/2012/11/toward-teaching-prison-lawand-a-bibliography-on-punishment-prison–1.html
Hon. Donald E. Shelton - December 9, 2012 at 1:54 pm
The judge’s comment, “What issue could possibly be resolved by DNA testing?”, bespeaks a common judicial bias concerning forensic evidence that continues to admit virtually any forensic testimony offered by the prosecution. The cognitive bias Simon speaks of in his book pervades the bench as well, on which many judges seem to, consciously or not, regard themselves as part of the law enforcement system rather than the judicial system.
Brandon Garrett - December 9, 2012 at 2:01 pm
One does wonder whether there is a double standard in forensics concerning exculpatory versus inculpatory evidence. Exonerees had to fight for years in the 1990s to get access to DNA tests that might prove innocence, and some still face protracted litigation. The defense often lacks access to basic bench notes and documentation of prosecution forensics. And then there is whether judges carefully review the validity and reliability of prosecution forensics.
This judge apparently later had something of a change of heart, after Jones’ exoneration, at least about DNA as a “tremendous tool.” If interested, here is more from the Chicago Tribune.
http://articles.chicagotribune.com/2000-01-15/news/0001150197_1_morrissey-murder-appeal-dna-testing
Rita Handrich, PhD - December 9, 2012 at 6:29 pm
Doug Keene and I have an overview of the literature on false confessions in the most recent issue of The Jury Expert. Recent work on a false confession case drove us to the literature to understand the twists and turns the case had taken. It was very disturbing to discover the literature predicted all of them. Take a look at our false confessions article here: http://www.thejuryexpert.com/2012/11/only-the-guilty-would-confess-to-crimes%E2%80%A8-understanding-the-mystery-of-false-confessions/
Brandon Garrett - December 10, 2012 at 8:01 pm
Speaking of false confession news – today the Michigan legislature enacted a interrogation recording – making it the 17th state (+ Washington D.C.) that mandate recording in some form.
http://sbmblog.typepad.com/sbm-blog/2012/12/legislature-passes-custodial-interrogation-recording-bill.html
Lynn Ervin - December 17, 2012 at 12:25 pm
To Whom It May Concern,And this should concern EVERYONE!
I am contacting you with a great injustice that has occurred in Tulsa, OK. by Federal Agents. This happened in 2010 but the cover-up continues.
I’m trying to keep this short but still make my point. I have or have access to transcripts and recordings to back what I am saying. After seeing the lies and cover-ups done by some federal agents, I’m afraid to let the proof I have be shown, once the deceitful agents know this, I know my evidence will ‘mysteriously disappear’.
When is it a crime to tell the truth? I’m not an attorney nor do I know the legal words to use, I’m just a normal U.S. citizen and the things I have witnessed in a courtroom in Tulsa, OK. truly make me cry for our justice system.
We have over 40 criminal drug dealers that were let out of jail by a Federal Prosecutor from Arkansas, Jane Duke. These criminals were set free if they would change their testimonies to match the story USA DA Duke is telling. In one case one of the drug dealers she let out of jail was asked by the defense team, what is the truth? the drug dealer pointed to AUSA Jane Duke and then he said “what she tells me to say”. A lot of people in the courtroom laughed, but I do NOT think that is funny! AUSA Duke knew this person was lying yet she continued to use him as a witness. I’ve heard USA DA Duke has spent well over $20 million of our taxes and so she must have a higher head count to justify those funds on her investigation into the Tulsa Police Corruption scandal. There are 4 ‘dirty cops’ that she has also promised sweethearts deals if they name others. These 4 have so many crimes and have changed their stories many times. These four dirty officers have done horrible crimes but were never charged with them, some are unthinkable. Burglary, doing drugs with their informants, selling drugs and keeping the profit, stealing money from drug dealers and not arresting them and I’ve heard one female had Officer Gray’s baby. (John Gray the dirtiest of them all) Gray was never charged with any of those crimes, he was only charged with stealing $1,000.00 if he gave names of officers the prosecution had not charged yet. It didn’t matter if they were guilty or not, or if there was any evidence, the Federal DA would give payment to people that would follow her story line. This was looked at by the state and the state said there wasn’t any evidence of any wrongdoing by the other officers, then the Feds take it…all of a sudden the story is huge.
This trial had so much deceit from the Federal Prosecution Team and they played ‘parts of recordings’ to make the tape fit their agenda. The Defense asked repeatedly to have the entire recording played and when asked by the defense ‘why wouldn’t you want the whole tape played?’ which the Prosecution replied, ‘we don’t have to, and it’s our recording’. And the Federal Judge just sat there.
Why aren’t they looking for the truth instead of spending over 20 million to hide it?
The way this was investigated (or lack of) needs to be investigated. The AUSA misstated, mislead and refined the whole case twisting it to be something it was not. Over and over in the courtroom I heard, how can she do that, isn’t that illegal, the answer being YES it was illegal but the judge never stopped it.
I’ve never been so shocked at the tactics used by this Federal Prosecution Team, they did everything to stop the truth from coming out. I’m outraged (in fact I’m so disheartened by all of this, I cannot think a word to describe my feelings) while the government plays this game to further their careers; this is a misuse of power by USA DA Jane Duke.
Quote from the letter of the Attorney General Eric Holder:
A prosecutor has a continuing obligation to provide the defendant documents/information which may reflect upon his/her case. A failure of the prosecutor to do so can expose the prosecutor to fines/sanctions by the court.
Quote from Justice Stevens: Fair and proper discovery and disclosure is critical to ensuring fairness in our courtrooms.In addition to damaging, and in some cases derailing, important prosecutions, lapses can undermine public confidence – and, frankly, your confidence – in federal prosecutors and in the entire criminal justice system. At the proverbial end of the day, the lawyers who serve the department are not here to win cases but, as Justice Stevens put it, to see that justice is done.
we have transcripts of a recording showing FBI Agents telling a person to lie on the stand to help them on another trial.
All I’m asking is for someone to really look into the way this so-called investigation was handled. I love the USA but now I’m scared.
It appears that the custom and culture of the FBI is more corrupt than those they investigate.
Hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law. They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions and all for the sake of ‘winning’ a case.
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