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Wrongful Convictions and Accountability

William Mclver II, Ph.D.*

DISCLOSURE: In 1988 Mr. Marquis convinced a jury I tampered with a witness and evidence, in spite of knowing the crime couldn't physically have happened.  Which would take all of 10 minutes to prove in an unbiased setting.  But this tale is unrelated to these observations.  I criticized prosecutors long before they knocked me off the witness chair.

In an Op-Ed letter to the New York Times, "The Innocent and the Shammed," (1/26/06, and later in The Oregonian, Oregon DA Josh Marquis bemoans the recent concern over wrongful convictions, which he maintains are a popular misconception.  The reality, he says, is that we should be far more worried about the wrongfully freed than the wrongfully convicted.  He boasts the justice system is right 99.973% of the time and wrong only .027% of the time.  If he is right, this means that out of 100,000 convictions, 99,973 are justified and only 27 aren't.

No wonder he crows: "Most industries would like to claim such a record of efficiency."  Right.  And when they find out they'll cram courtrooms to see how prosecutors do it.

However, he extrapolated his fanciful numbers by fudging a University of Michigan report titled: Exonerations in the United States: 1989 through 2003. [PDF/Adobe Acrobat]

Lead author, University of Michigan law professor Samuel Gross, responded:

 Marquis declared that after an exhaustive study, several students and I were able to document only 340 innocent defendants who were exonerated between 1989 and 2003.

 In fact, we also discussed hundreds more documented cases in mass exonerations that were not part of our statistical analysis.  Our purpose was not to count exonerations, but to use the few false convictions that came to light to learn something about the many we never see.

 Almost all the individual exonerations we found were for the rarest and most violent crimes, murder and rape.  Are we to believe that false convictions basically never occur in drug cases, robberies or frauds?

 Nobody knows how many false convictions happen in America.  A rough guess from a recent DNA review, for rape convictions in Virginia, is very troubling, about 1 in 14.  Whatever the number, we should work to solve this tragic problem, not ignore it. (OP-ED, New York Times, 2/5/06)

Reading Mr. Marquis's boast is like hearing the CEO of a drug firm that uses experimentally untested methods and doesn't run product checks or punish employee dishonesty declare the product's nearly glitch-free.  Without any way to know how many glitches there are.  Even though we read about them most every day. (Google "Wrongful Convictions" and "Innocence Project")

According to his surreal calculus, for every 1000 prisoners, 999 are truly guilty and one unfortunate is wrongfully convicted.  Or, of some 4000 now on death row, 4 are innocent.  And, of 1008 executed since 1976, when the Supremes reinstated the death penalty, 2 were innocent.

But Mr. Marquis's numbers result from a disconnect between solid facts in the real world and airy factiles in his alternate reality.  From 1973 through February of 2006, according to the Death Penalty Information Center, 15 inmates were freed because of DNA evidence, and 108 because of other evidence.  The Innocence Project notes that, as of the end of February, 2006, 174 prisoners were exonerated by DNA after traditional appeals failed.

Connors, et al.,1 note, from 1989, in about 25% of the sexual assault cases referred to the FBI, the primary suspect has been excluded by forensic DNA testing where results could be obtained.  As it is, released prisoners were lucky the victims were raped.  If they hadn't been, there wouldn't have been any semen to test and they'd still be locked up, some on death row.  They state "These results strongly suggest DNA exonerations "are tied to some strong, underlying systemic problems that generate erroneous accusations and convictions [and indicate] the extent of factually incorrect convictions in our system must be much greater than anyone wants to believe."

(Webmaster's note: their article was reprinted in the 1998 IPT Journal)

Lawrence Marshall2 comments on DNA testing and wrongful convictions and
the error rate:

The great significance of DNA testing, therefore, is that it provides a window into the error rate that exists in all cases.  Moreover, as Barry Scheck, Peter Neufeld, and Jim Dwyer argued so powerfully in their book, Actual Innocence, DNA exonerations provide great insights into the fallibility of particular types of evidence that were once assumed extraordinarily trustworthy.  When DNA teaches us lessons about the incidence of eyewitness error or false confessions, those lessons are not limited to DNA cases.  They apply with great force to cases not susceptible to forensic testing (p. 574).

Scheck, et. al,3 note:

Today, DNA tests are used before trial.  For this unseen legion of innocent suspects, only the genetic tests halted their forced march from wrongly accused to wrongly convicted.  How many other innocent people, charged with crimes that involve no biological evidence, were chained and led at a gunpoint into prison?  Thousands, these tests suggest, far more than the most jaded or cynical scholars ever envisioned (p. xv).

In the 1980s there were hundreds of accusations of ritualistic satanic sexual abuse in day care centers and other settings.  Teachers supposedly made kids eat poop sandwiches and sip pee cool-aid; stabbed babies and drank their blood; danced around the classroom naked; pooped on the flag; slipped them into toy parachutes, took them up in a hot air balloon, and threatened to toss them out if they told; hung them naked upside down in a refrigerator; stuffed knifes, forks, spoons, teddy bears, even peanut butter in their body cavities and farted in their faces, etc.

Ambition trumped common sense.  Prosecutors took advantage of the hysteria and swarmed on these cases like flies on a dead fish.  Countless innocent people were caught up in the madness and given prolonged prison sentences.  Despite the fact these claims were totally without foundation.  In 1992 Kenneth Lanning (FBI Behavioral Science Unit) reported that not only were no bodies ever found, they never found physical evidence for the sacrifices involving sex, blood, and mutilation.

Hysteria over Satan in day care centers has been replaced by "recovered memories" of long ago abuse.  (Fiction: The intact and accurate "memory," long hidden from consciousness, lurks in some deep' mental crevice only to pop to the surface when released like a methane bubble trapped in the bottom of a lake.)  The claims are just as unfounded in fact and bogus as satanic ritual abuse in day care centers.  Which doesn't stop eager prosecutors and plaintiffs lawyers from using the system to gull juries into believing they're real.

Death penalty cases are, in theory anyway, tried with the greatest care against convicting someone who's innocent.  If there are wrongful convictions in these cases, it's reasonable to think there are more where lesser crimes are charged.

Before we can talk rationally about getting together as a community to kill somebody, it makes sense to look at how we decide who to kill and how wrong it's OK to be.  Yet nobody knows the odds in the system seasoned lawyers call a "crap shoot" because there's no quality control built into this way to decide things.

Our system is only one of many.  We could fight, toss coins, use dunking stools, read chicken entrails and planetary motions, verify information in ways others can validate (scientific method), have each of two sides cite information in favor of its position while fighting to keep the other side from doing the same (adversarial method).

Yet, the adversary system's never been experimentally compared with other ways to decide things.  Some think using it to settle an issue in the 21st century is like doing microsurgery with a broadax.  And it's a fair bet nobody wants to go under the knife of a surgeon trained, like a jury, by exposure to conflicting techniques presented by people with a stake in the action, who, for a fee, would hawk the other side with as much gusto.

It's a system built on tradition, massive vested interest, and the scientifically untested, imperious, belief it works.  Now, it's fine to use faith for religion, our hearts for romance, and myth for fairy tales.  But we don't want pilots to rely on their lucky rabbit's foot when an engine goes out.  Without quality controls there's no way to gauge how many mistakes we make, or why.  And no way to decide how many are acceptable.  If the court system were a business, it wouldn't last a week.

Mr. Marquis writes we "have an entire appeals court system intended to intervene in those few cases where the innocent are in jeopardy."  Right.  When non-lawyers read a decision will be "appealed" they think a panel of judges examines the case from scratch.  They don't know appellate courts accept trial outcomes as "fact" and only ask if procedures and constitutional rights were violated.  F. Lee Bailey observed "Appellate courts have only one function, and that is to correct legal mistakes of a serious nature made by a judge at a lower level.  Should a jury have erred by believing a lying witness, or by drawing an attractive but misleading inference, there's nothing to appeal."4

If wrongfully convicted prisoners can't convince appellate justices there were legal errors in the trial, and usually they can't, they're sunk.  Even physical proof of innocence is irrelevant.  Reversals are rare and often granted when it can't be avoided, or when a case is in the media spotlight.

The Supreme Court severely limited habeas petitions. The majority wrote they threaten "to undermine the integrity of the habeas corpus process" and show "disrespect for the finality of convictions [which] disparages the entire criminal justice system."  (What if a drug company used this reasoning to squelch new data about a pill's toxic side-effects?)

The notion of "finality" implies court outcomes are virtually errorless.  Or the number of mistakes is irrelevant if we don't know it, and the machinery looks like it works.  (Other than family and friends, who's to know someone's wrongly convicted?  People who learn about the conviction assume it's correct, crime doesn't pay, and, so the theory goes, are more likely to keep their noses clean.)

This is an irresponsible way to run any outfit.  We want widget makers to take apart randomly picked widgets to see if they do what widgets are supposed to do.  We expect engineers to do the same with O-rings and pill-makers with pills.  Quality control testing simply asks how often the product does what it's designed to do, how often it doesn't, and why not. It's the only way to decide how well a system works.

Judges and prosecutors are immune from civil or criminal accountability for acts which fall under the broad umbrella of their jobs.  So mistakes are guaranteed by more than the focus on winning over objective inquiry.  Ample case law shows prosecutors can hide evidence, make it up, destroy it, lie about it, get others to lie about it, and bribe and threaten witnesses without penalty.

Lack of accountability is the common denominator in most mischief we cause one another.  Human nature being what it is, people who have a pass on liability are more likely to break the rules than people who don't have it.  Especially if there's a payoff.  In the adversary system, the payoff's winning.  A shield against penalties for rule-breaking is a license to break them.  (Who'd you get a used car from?  Honest Abe, who'd get the book thrown at him if he was caught rolling back the odometer?  Or Honest Jake, who'd simply be told not to misbehave?)

Until law schools matriculate Mother Teresas, it's reasonable to assume prosecutors and judges are open to the same temptations that beset the rest of us.  That they fib at least as much as anybody else.  It's unreasonable to say they fib less.  This doesn't mean they're dishonest.  Just that they're allowed to be.

Taxpayers foot the bill for an industry which affects every aspect of their lives.  But they're kept in more ignorance and have less to say about it than Catholics have about Papal Bulls.  The American Judicial System is a state-funded, secular religion backed by myth, secrecy, big bucks, and whopping hardware.  That's not to say it isn't, at times, a magnificent, even brilliant, structure.  But if the foundation's flawed, the whole thing's flawed.

So how about some transparency so can we learn more about how it works, check its batting average, and cut down the error rate?  And let's do more than give lip service to the notion of accountability up and down the line.

For starters, put cameras in courtrooms (including the Supreme Court).  Unless state secrets are in play, it's devious and hypocritical to keep us in the dark about what goes on in our courts.  Justice Breyer huffed there'll be cameras in court over his "dead body."  A nice man's arrogant stance, as eventually doomed as the effort to keep women out of the voting booth.

Hospital teams review botched medical procedures, and the FAA reconstructs and examines crashes, to find what went wrong and, if possible, keep it from happening again.  Let's have watchdog groups (including non-lawyers), with power to subpoena anybody, review cases of wrongful conviction.  Let them examine other cases where they suspect the system went astray.

In a June, 2003, article in The Guardian, Mr. Marquis wrote prosecutors "are and should be subject to a high degree of scrutiny by trial and appellate judges, defendants and defense lawyers, the press and bar associations and ultimately the voters."

Sounds good.  But without consequences for rule breaking it's just more wind.  A nationwide study of prosecutorial misconduct, "Harmful Error," found that in a 33-year period appellate judges dismissed, reversed convictions, or reduced sentences in over 2000 cases because prosecutors had been dishonest.  Out of some 30,000 prosecutors in the country, judges cited all of 223 for misconduct and only disbarred two. (Paperback)

Prosecutors have a unique role in our system.  In many ways, they're more powerful than judges.  And need to be.  They're the conscience of the community.  Their decision to charge someone with a crime can affect countless lives.  It carries awesome responsibility.  However, unless it's coupled with corresponding accountability it's guaranteed to subvert the system and result in false convictions.

There's at least one rule book in every one of the approximately 2,341 district attorney offices in the country.  Hold prosecutors who break the rules civilly and criminally accountable, and you'll cut down errors overnight.

On a personal note: Ethics aside, Mr. Marquis is a bright, articulate fellow.  He's second to none at crafting his public image as a thoughtful and dedicated prosecutor who tirelessly fights the bad guys.  Some say he yearns to snuggle up in the AG's chair.  Be that as it may, I can't help but wonder why such an ambitious, intelligent, man would dip into an alternate reality to concoct preposterous percentages which don't exist in the real world.

Maybe he has a percentile dysfunction.


1 Connors, E., Lundregan, T., Miller, N., & McEwen, T. (1996, June). Convicted by juries, exonerated by science: Case studies in the use of DNA evidence to establish innocence after trial. Alexandria, VA: Institute for Law and Justice, National Institute of Justice, #OJP-95-215. [Direct Links: Text File PDF/Adobe Acrobat [IPT Journal Article]   [Back]

2 Marshall, L. C. (2004). The Walter C. Reckless Memorial Lecture: The innocence revolution and the death penalty. Ohio State Journal of Criminal Law, 1, 573-584.  [Back]

3 Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (Hardcover)(Audio Cassette (Abridged)). New York: Doubleday.   [Back]

4 From Convicting the Innocent by James McCloskey, in Voice For The Defense, December, 1989.  [Back]

* William F. Mclver II, Ph.D. may be reached at 127 West 96th Street, Apartment PHA, New York, New York 10025.

This article was originally published in the IPT Journal [Back]

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