They didn't do the crime, but they did the time. How to better prevent wrongful convictions

The following op-ed article by Keith Findley was published in the Milwaukee Journal-Sentinel on August 7, 2010.


Robert Lee Stinson spent more than half his life in prison for another man's crime.

He was a young man, barely 20, in 1985 when he was sent to prison for life for a Milwaukee rape and murder. Twenty-three years later, when he was in mid-life at 44, he was exonerated and freed. New scientific evidence, including DNA, excluded him and identified another man as the perpetrator.

Stinson's wrongful conviction is not unique. Nationwide, at least 255 people have been exonerated by DNA in the past two decades, including at least a half-dozen in Wisconsin. In Milwaukee alone, three men have been exonerated by DNA in murder cases in the past 18 months, including Chaunte Ott and William Avery, as well as Stinson. In Ott's and Avery's cases, DNA testing not only established their innocence but also matched Milwaukee's infamous alleged serial killer, Walter Ellis.

Commendably, Milwaukee County District Attorney John Chisholm has responded by initiating a project to review all Milwaukee homicides since 1992 and obtain testing in those cases in which the DNA can demonstrate innocence or confirm guilt.

The DNA exonerations not only have corrected injustices on a scale previously unimagined, they also have provided an unprecedented opportunity to learn about the causes of and remedies for error in criminal cases. These cases reveal not isolated mistakes, but systemic flaws. They reveal that wrongful convictions have identifiable causes, causes that can be addressed. Because so much is at stake, they must be addressed.

The cases teach that the leading causes of wrongful convictions include eyewitness identification error, police interrogation tactics that produce false confessions, flawed forensic science evidence, false jailhouse snitch testimony, prosecutorial misconduct and inadequate defense counsel.

In response, Wisconsin has adopted significant reforms to minimize eyewitness error (by reforming the methods used by police to obtain identifications) and false confessions (by requiring electronic recording of custodial interrogations). Much more can still be done in these areas. At the same time, Wisconsin also must address other causes of wrongful convictions.

Stinson's case, for example, highlights one of the most significant of these causes: flawed forensic science. Stinson was put away based almost entirely on expert testimony purporting to match bite marks on the victim's body to Stinson's teeth. Subsequent scientific analysis proved that conclusion flat wrong. In fact, Stinson could not have been the source of the bite marks. DNA from saliva on the victim's shirt matched another man, who confessed when confronted with the evidence.

More fundamentally, Stinson's case illustrates an alarming point the DNA exonerations now have confirmed: Most of the forensic sciences we routinely rely on lack solid scientific foundations.

In 2009, the National Academy of Sciences - the nation's pre-eminent scientific authority - issued a congressionally mandated report. It concluded that, with the exception of DNA, no forensic science - including everything from bite marks to ballistics and even fingerprints - has a solid scientific foundation.

Moreover, with the exception of DNA analysis, no forensic method has been rigorously shown to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. These disciplines still have important roles to play, but all need substantial research to validate basic premises and techniques, assess limitations and discern the sources and magnitude of error.

The cornerstone of the NAS' recommendations call for Congress to create a national oversight body charged with improving and regulating forensic sciences. Congress should act promptly to enact that legislation.

Meanwhile, there is much that also can and should be done at the state level. A comprehensive program is needed to increase the incentives for research and training in forensic sciences; establish uniform protocols and standards for analyzing and reporting on scientific evidence; and make crime laboratory work more objective, transparent and accessible to both sides in criminal cases.

Reform is also needed to address other recurrent causes of wrongful convictions. Attention must be paid, for example, to the misuse of jailhouse informants - inmates or co-defendants who snitch on each other, often untruthfully, in hopes of obtaining leniency in their own cases.

Exoneree Chaunte Ott, for example, was convicted of murder based primarily on the testimony of two co-defendants, who received deals for their testimony (testimony they later recanted when DNA cleared Ott).

Serious attention also must be paid to inadequate funding for prosecutors and defense attorneys. Despite the established risks caused by stretching prosecutors and defense attorneys too thinly, the state repeatedly has failed to increase funding. The hourly rate for appointed defense attorneys is lower today than it was more than 30 years ago. Wisconsin's system is so severely under-resourced that it is close to a crisis point.

We must not squander the opportunity for learning and reform provided by the DNA exonerations. DNA evidence does not alone solve all problems, because DNA is available in only a small percentage of cases.

Wisconsin must urgently renew its commitment to best practices in the criminal justice system to ensure both that the innocent are protected and that the guilty are not left free to threaten public safety.

Keith Findley is a clinical professor at the University of Wisconsin Law School, co-director of the Wisconsin Innocence Project and president of the Innocence Network.