The staggering number of wrongful convictions in America

The following opinion by Samuel R. Gross was published on July 24, 2015 by the Washington Post.  Samuel R. Gross, a law professor at the University of Michigan, is the editor of the National Registry of Exonerations.

I edit the National Registry of Exonerations, which compiles stories and data about people who were convicted of crimes in the United States and later exonerated. The cases are fascinating and important, but they wear on me: So many of them are stories of destruction and defeat.

Consider, for example, Rafael Suarez . In 1997 in Tucson, Suarez was convicted of a vicious felony assault for which another man had already pleaded guilty. Suarez’s lawyer interviewed the woman who called 911 to report the incident as well as a second eyewitness. Both said that Suarez did not attack the victim and, in fact, had attempted to stop the assault. A third witness told the lawyer that he heard the victim say that he would lie in court to get Suarez convicted. None of these witnesses were called to testify at trial. Suarez was convicted and sentenced to five years.

After these facts came to light in 2000, Suarez was released. He had lost his house and his job, and his plan to become a paralegal had been derailed. His wife had divorced him, and he had lost parental rights to their three children, including one born while he was locked up. Suarez sued his former lawyer, who by then had been disbarred. He got a $1 million judgment, but the lawyer had no assets and filed for bankruptcy. Barring a miracle, Suarez will never see a penny of that judgment.

The most depressing thing about Suarez’s case is how comparatively lucky he was. He was exonerated, against all odds, because his otherwise irresponsible lawyer had actually talked to the critical witnesses and recorded those interviews despite failing later to call them at trial.

Suarez served three years in prison for a crime he didn’t commit. The average time served for the 1,625 exonerated individuals in the registry is more than nine years. Last year, three innocent murder defendants in Cleveland were exonerated 39 years after they were convicted — they spent their entire adult lives in prison — and even they were lucky: We know without doubt that the vast majority of innocent defendants who are convicted of crimes are never identified and cleared.

The registry receives four or five letters a week from prisoners who claim to be innocent. They’re heartbreaking. Most of the writers are probably guilty, but some undoubtedly are not. We tell them that we can’t help; we are a research project only, we don’t represent clients or investigate claims of innocence. Fair enough, I guess, but some innocent prisoners who have been exonerated wrote hundreds of these letters before anybody took notice. How many innocent defendants have I ignored?

Innocence projects do handle these cases, or at least some of them. They receive many times more letters than we do. I’ve spoken with lawyers who do this work, and who have successfully exonerated dozens of defendants. Most of them have clients who remain in prison despite powerful evidence of their innocence that no court will consider. And they all know that there are countless innocent defendants hidden in the piles of pleas for help that they will never have time to investigate.

How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.

Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.

The problem may be worst at the low end of the spectrum, in misdemeanor courts where almost everybody pleads guilty. For example, in July 2014 Wassillie Gregory was charged with “harassment” of a police officer in Bethel, Alaska. The officer wrote in his report that Gregory was “clearly intoxicated” and that “I kindly tried to assist Gregory into my cruiser for protective custody when he pulled away and clawed at me with his hand.”

The next step in the case would normally be the last: Gregory pleaded guilty, without the benefit of a defense lawyer. But Gregory was exonerated a year later after a surveillance video surfaced showing the officer handcuffing him and then repeatedly slamming him onto the pavement.

Why then did they plead guilty? As best we can tell, most were held in jail because they couldn’t make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation or weeks to months in jail. If they refused, they’d wait in jail for months, if not a year or more, before they got to trial, and risk additional years in prison if they were convicted. That’s a high price to pay for a chance to prove one’s innocence.

Police officers are supposed to be suspicious and proactive, to stop, question and arrest people who might have committed crimes, or who might be about to do so. Most officers are honest, and, I am sure, they are usually right. But “most” and “usually right” are not good enough for criminal convictions. Courts — judges, prosecutors, defense attorneys, sometime juries — are supposed to decide criminal cases. Instead, most misdemeanor courts outsource deciding guilt or innocence to the police. It’s cheaper, but you get what you pay for.

We can do better, of course — for misdemeanors, for death penalty cases and for everything in between — if we’re willing to foot the bill. It’ll cost money to achieve the quality of justice we claim to provide: to do more careful investigations, to take fewer quick guilty pleas and conduct more trials, and to make sure those trials are well done. But first we have to recognize that what we do now is not good enough.

Taxing Wrongful Conviction Money Is Wrong

The following opinion by Robert Wood was published in Forbes on July 21, 2015.

Our justice system is complex, and sometimes gross injustices occur. Undoing them does not always happen, and even when it does, it takes time. Few of us can imagine what it would be like to be convicted and imprisoned for crimes we did not commit. And while taxes seem far removed from this topic, they are not.

A few years ago, Congressmen Sam Johnson (R-TX) and John Larson (D-CT) tried to get legislative tax relief for innocent people who are wrongfully convicted. Their bill failed but they haven’t given up. Now, they have re-introduced the Wrongful Convictions Tax Relief Act. The bill would amend the tax code to say that:

“In the case of any wrongfully incarcerated individual, gross income shall not include any civil damages, restitution, or other monetary award (including compensatory or statutory damages and restitution imposed in a criminal matter) relating to the incarceration of such individual for the covered offense for which such individual was convicted.”

They correctly point out that there is a gap in the tax law. Fortunately, one can read feel-good stories about wrongfully convicted people who are subsequently freed. But what happens then? Sometimes they seek financial redress in one of a number of different ways. Sometimes they get it, but how is it taxed? It depends.

The tax issues have been surprisingly cloudy. In the 1950s and 1960s, the IRS ruled prisoners of war, civilian internees and holocaust survivors received tax-free money for their loss of liberty. In 2007, the IRS “obsoleted” these rulings suggesting the landscape had changed. The IRS now asks whether a wrongfully jailed person was physically injured/sick while unlawfully jailed.

If so, the damages are tax free, just like more garden variety personal physical injury recoveries. What if an exoneree isn’t physically injured? In IRS Chief Counsel Advice 201045023, the IRS said a recovery was exempt, but the IRS sidestepped whether being unlawfully incarcerated is itself tax-free. The Tax Court and Sixth Circuit in Stadnyk suggest that persons who aren’t physically injured may be taxed. That’s why the Stadnyk case is a lemon.

There are usually significant physical injuries and sickness but not always. Besides, what about the money just for being locked up? What if an exoneree gets $50,000 for physical injuries and $450,000 for being unlawfully behind bars?

It may be difficult or even impossible to separate out all of the multiple levels of horror, all the losses that can never be made up. But in many cases, the loss of physical freedom and civil rights is at the root of the need for reparations.

The loss of physical freedom should be tax-free in its own right. Many exonerated individuals experience severe hardship acclimating to society, finding jobs, housing and reconnecting with family. The Wrongful Convictions Tax Relief Act proposes to allow exonerees to keep their awards tax-free.
The debate over these recoveries has focused (probably incorrectly) on the factual question whether the wrongfully jailed person experienced physical injuries or physical sickness while unlawfully incarcerated. If so, the damages are tax free, just like more garden variety personal physical injury recoveries. If not, taxable.

More and more prisoners are being exonerated based on DNA or other evidence. Under statute, by lawsuit or even by legislative grant, exonerees may receive compensation for their years behind bars. In fact, are you ready for some shocking figures?

Since the first DNA exoneration in 1989, wrongfully convicted persons have served thousands of years in prisons before being exonerated. The average exoneree has served more than ten years in prison. Although a few get lucky and get out quickly, some spend multiple decades behind bars. Whether you look at an individual case or at the averages, the numbers are astounding.

Editorial: Case with 'undetermined' cause of death needs careful look

The following editorial was published by the Chicago Sun-Times on July 9, 2015.

A former day care worker is serving 31 years in prison for what the Lake County coroner now says might not even have been a crime. Authorities need to pull out all stops to get to the bottom of this case.

Melissa Calusinski, 28, was convicted in 2011 of killing a 16-month-old toddler by throwing him to the floor of a Lincolnshire day care center. She’s been behind bars for six years.

But now Coroner Thomas Rudd says X-rays unearthed last month showed no skull fractures. An independent forensic pathologist reviewing the new evidence concluded the toddler had cerebral swelling from earlier concussions. Rudd now says the cause of death is “undetermined,” not homicide, the original finding.

This is not the first case in which doubt has been raised over a conviction of a day care worker. When toddlers die, there’s a demand for someone to be convicted. Often, that’s the last person known to have been with the child. Often, there are no witnesses. Too often, the medical theory used to prove that person’s guilt is suspect.

We can’t say that’s what happened here. But the original pathologist in this case already has admitted he missed the evidence of an earlier injury, although he isn’t revising his overall conclusion.

In the long history of wrongful convictions, authorities have with troubling frequency refused to look at new evidence or consider re-opening cases. So we commend Rudd for his willingness to reclassify the cause of death based on the new evidence.

We also commend Lake County State’s Attorney Michael Nerheim for the work he has done since taking office in 2012 to untangle a series of wrongful convictions in high-profile cases that he inherited from his controversial predecessor.

After taking office, Nerheim set up a volunteer wrongful-conviction panel to take an extra look at cases. Most recently, Jason Strong was cleared in May after 15 years in prison on a murder charge. He was freed partly on the basis of new medical evidence.

Like Calusinski, Strong had confessed. But a growing body of research has showed false confessions are more common than once thought. Calusinski’s videotaped confession came after six hours of interrogation.

Nerheim, who already reviewed the Calusinski case shortly after assuming office, says his office is reviewing the documents in the case again. We trust he will give the evidence a thorough and impartial look.

The case is scheduled to go before a judge on Sept 21. We hope by then — if not sooner — clearer answers will emerge.

Time for a change in ‘shaken baby’ investigations

The following editorial was published by the Mat-Su Valley Frontiersman (Alaska) on July 6, 2015.

From the abundant offerings of TV crime dramas it is obvious that the law enforcement community has benefited from the advancements in modern science, such as DNA evidence.

But in at least one area, law enforcement and the rest of the justice system seem to be lagging.

Introduced as a theory in the 1960s, for decades shaken-baby deaths were identified by a triad of symptoms — hemorrhaging in the eyes, subdural hematoma and a swollen brain — that were viewed as iron-clad medical evidence a child died of abuse.

But by 2006, medical experts around the world began questioning the symptoms as conclusive. Defendants began appealing guilty verdicts and winning based on flawed forensic findings.

Child forensic pathology expert Dr. Janice Ophoven has testified in several Alaska trials where people were accused of the shaking death of a child.

Failing to use board-certified forensic pathologists to review the forensic evidence, and failing to recognize that other medical conditions also present this trio of symptoms is causing innocent Alaskans to be tried, convicted and receive long prison sentences, she says.

“This is one of the worst miscarriage of justice cases I’ve had, but it is not the only case like it in Alaska,” Ophoven said of the Clayton Allison trial and conviction in his daughter’s death. Allison is set for sentencing Wednesday.

According to a review of shaken-baby cases by Deborah Tuerkheimer, a DePaul University law professor and author of the just-published book, “Flawed Convictions: “Shaken Baby Syndrome and the Inertia of Injustice,” 95 percent of people charged in shaken-baby deaths are convicted, and of those, 90 percent receive life sentences.

The prosecution is seeking a 40-year sentence — 30 to serve and 10 years of probation — for Clayton Allison. An appeal is planned, but that process will likely take years.

On Sept. 24, 2008, Clayton told police his daughter, Jocelynn, accidentally tumbled down eight carpeted steps, then struck her head on a chair with a file-box on top. She died of her injuries a few hours later at Providence Alaska Medical Center in Anchorage.

But the jury in the Allison case never heard about the significance of the chair or the heavy box of files on top of it. Jurors heard about the child’s medical condition. They knew the baby was diagnosed with hypermobility.

But the judge ruled no one could tell jurors that Jocelynn’s mother had been diagnosed with a connective tissue disease — Ehlers-Danlos Syndrome — after her death, and that it could have a direct effect on the injuries she sustained.

Shaken-baby cases often rely on medical evidence to establish a crime occurred. But in Alaska, no one involved in the collection of evidence in shaken-baby cases is trained as a neuroscientist or a pathologist. Some involved are medical doctors with years of family medicine or pediatric experience.

But that’s not the equivalent to completing the rigorous training required to become a board-certified forensic pathologist. That matters because at the end of the day, their review of the evidence will be used in legal proceedings that could send innocent Alaskans to prison for decades.

Once a shaken-baby investigation begins, it’s very hard to derail, Ophoven said.

“Their findings carry enormous weight within the criminal justice system,” she said of doctors like Dr. Cathy Baldwin-Johnson of The Children’s Place in Wasilla.

Baldwin-Johnson testified during Allison’s five-week trial that when she sees no other medical explanation for the injuries, child abuse is the answer she turns to.

But Ophoven, a pathologist, noted that falls are the No. 1 cause of child deaths, and that Jocelynn’s fall that September could have resulted in her death, especially given her existing medical diagnosis.

The Allison family says they plan to appeal Clayton’s conviction. But that will take years.

For Alaskans, this is an opportunity to call for reform to the process law enforcement and prosecutors use to investigate possible shaken-baby deaths.

Only board-certified forensic pathologists should be used to review medical evidence in these cases, which depend largely on forensic evidence to prove a crime occurred. There is too much at stake to do less.