Getting It Right

The following editorial was published by the Columbus Dispatch on January 15, 2011.

Former prosecutor's book describes errors common in wrongful convictions

Convicting the wrong person of a terrible crime benefits no one, except the criminal who goes unpunished as a result.

For the innocent defendant, the damage is obvious. But it is just as real for everyone else: Justice has been short-circuited, and a criminal remains free to hurt others. Motivating good people in the criminal-justice system to act to prevent or reverse wrongful convictions should be easy.

Former prosecutor and former Ohio Attorney General Jim Petro knows firsthand, though, that it isn't. He and his wife, Nancy, seek to do something about that with False Justice, their just-published book that outlines common errors that lead to wrongful convictions, as well as widely held myths that allow the problem to continue.

From the beginning of his career as an assistant Franklin County prosecutor, and through his time as state attorney general, when he expanded the state's collection of DNA samples from felons to increase the chances of identifying the perpetrators of crimes, Petro focused on finding and convicting those guilty of crimes.

Only later, when he learned of cases that sent innocent men to jail while the real perpetrators committed more crimes, did he focus on the fact that a false conviction is no victory for law and order.

The book should have a powerful impact on the public's view of what can and does go wrong in the criminal-justice system. The Petros believe that public opinion could drive politicians to make changes necessary to prevent prosecutions of innocent defendants and remove some of the barriers to fixing mistakes already made.

Petro may be the best thing that's happened in recent years to the movement to challenge wrongful criminal convictions. As a former prosecutor, he understands and respects the drive by police and prosecutors to protect the public by putting bad guys in prison. Yet, having been awakened to the reality of wrongful conviction by the case of Clarence Elkins, a Summit County man who spent seven years in prison after being falsely convicted of raping and killing his mother-in-law, he felt obligated to work to change the system.

His status as the state's top law-enforcement officer probably helped gain attention for Elkins' case; when the Ohio Innocence Project persuaded him to intervene in 2005 on behalf of Elkins' request for further DNA testing to prove his innocence, he was the first state attorney general to advocate for a convicted man seeking exoneration.

In Elkins' case, Petro was convinced by DNA evidence that proved that another man had committed the crime, and Petro didn't understand why Elkins' backers had such difficulty persuading the judge and prosecutor in the case to allow new evidence to be examined, at Elkins' expense.

But research into the issue also showed him all the other factors that can skew justice, many involving common misunderstandings about psychology and how memory works - or doesn't. He describes them in the book: false confessions; unreliable informants or snitches; bad lawyering; bad science; government misconduct; and mistaken eyewitness testimony.

The last item probably is the most common factor in wrongful convictions; it definitely is the most prevalent in those who have been exonerated, having played a role in 75 percent of such cases. Although research demonstrates convincingly how easily someone's memory can be corrupted, intentionally or unintentionally, and especially in a time of great stress, eyewitness testimony still is considered extremely credible by juries. It often trumps concrete evidence to the contrary.

Readers might be surprised to learn how often people are driven to confess to crimes they didn't commit. The young and mentally limited can be pressured, confused and bullied; others, who become convinced they can't win their case, confess in hopes of lessening their sentence or receiving other favors. Petro explains that the law allows interrogators to lie to those they are questioning - for example, to say that an accomplice has confessed and fingered the suspect or to tell him that he has failed a polygraph test when he hasn't.

Drawing on the research of others, the Petros recommend several reforms, some of which were included in Senate Bill 77, a landmark criminal-justice bill passed by the Ohio General Assembly last year. The bill requires blind administration of suspect line-ups and photo arrays, meaning the person showing the pictures or conducting the line-up doesn't know who the suspect is, so he can't send clues, intentionally or otherwise, to those trying to pick out the perpetrator.

It also requires video or audio recording of interrogations, and that police departments save crime-scene DNA evidence for up to 30 years and makes it easier for convicted people to have new DNA evidence analyzed. The bill also helps convict the guilty, by adding any arrested felons to the pool of those who must submit DNA samples for a national database.

The Petros name eight myths about the justice system: everyone in prison claims to be innocent; innocent people almost never are convicted; only the guilty confess; wrongful convictions are caused only by innocent human error; an eyewitness is the best testimony; errors are corrected on appeal; questioning a conviction dishonors the victim of the crime; and if the justice system needs to be fixed, the professionals will do it.

No one knows how many people have been wrongly convicted, but if it's even a fraction of a percent, that could mean thousands of Americans languish in prison unjustly. Just as important, those who committed the crimes remain free to commit more.

The Petros have done a great public service by endeavoring to explain the causes of wrongful conviction and offering solutions.