The following op-ed by Toni Messina was published on March 19, 2018 by Above the Law.
If the initial prosecution of defendants was more fair, fewer innocent people would wind up in jail.
It’s no surprise that innocent people get convicted of crimes they never committed.
While our jury system is a great one, mistakes can happen. Sometimes by chance, like mistaken identifications; sometimes by plan — people bribing witnesses to lie, prosecutors withholding exculpatory information, police planting information on suspects.
Imagine the agony of being wrongfully convicted. Not only does the person have to suffer the horrors of being incarcerated while knowing he did nothing wrong, but decades of his life are lost to a system where “justice” failed.
That’s why keeping tabs on data regarding exonerations is vital. In which states were the most people exonerated? What were the reasons innocent people were found guilty, especially those facing the death penalty? What can be done to limit the chances of more innocent people going to jail?
Last week, the National Registry of Exonerations released two reports — one covering exonerations in 2017, the other listing exonerations from 1820 through 1988.
And while it’s a great start — many people are being exonerated – boy, is there room for improvement.
Some of the major takeaways:
– Science sometimes gets it wrong. (Remember when lie detectors were considered infallible? Today their results are no longer permitted into evidence.) Bad science has been a big contributor to wrongful convictions. Take Ledura Watkins, from Michigan. He was convicted of murdering a school teacher based on a single hair found at the crime scene that investigators believed had microscopic similarities to his own hair. Later, the FBI discredited the comparison process. Watkins was released from jail after serving 41 years!
Other debunked science includes: “shaken baby” injuries which led to wrongful convictions of parents and babysitters; fingerprint analysis — no longer foolproof (depends on how clean the fingerprinted lifted and the number of points of comparison). Even DNA analysis, once believed to be the sine qua non of evidence to show that someone was at the scene of a crime, is consistently being tweaked in recognition that past analysis methods were flawed.
– Official misconduct plays a big role. The report breaks down into categories the reasons for wrongful convictions. They include: mistaken identification, witness perjury, inadequate legal defense, false or misleading forensic evidence, false confessions, and official misconduct.
Of these categories a majority of the exonerations last year were due to official misconduct. Eighty-four of the 139 exonerations involved wrongful behavior by police, prosecutors, and other government officials. That misconduct takes the form of false arrests, falsifying paperwork, lying to defendants to elicit false confessions, hiding exculpatory evidence, and police perjury on the stand.
Some forward-thinking prosecutors offices are developing their own exoneration units where, in-house, they look at cases proffered as wrongful convictions and (with the help of outside exoneration offices like the Innocence Project or EXI) determine whether there’s enough evidence to cast doubt on the justness of a conviction.
What starts the ball rolling is generally letters from defendants, or recanted eye witness testimony. Attorneys can ask to re-test DNA (or check for DNA if it was never done) which might, say, exclude a defendant’s sperm from a rape case.
Where a number of letters accuse one particular cop of misconduct, a prosecutors office might start looking into the entire backlog of that cop.
This is what happened in the Brooklyn District Attorney’s office in relation to former detective Louis Scarcella. As of Oct. 2017, 12 convictions in which he played a role have been overturned. The detective’s overzealous acts included coaching witnesses to testify against defendants, inventing and coercing confessions, and arresting people for no reason, then falsifying evidence against them. The Brooklyn DA’s Office is looking into some 70 of his cases.
While the amount of exonerations have generally grown higher year to year, the numbers do not reflect how many wrongful convictions are in the system. Many cases never see the light of day. Whether the defendant has passed away, doesn’t have the wherewithal to contact an attorney, or because there are so many thousands of these claims of innocence, many just don’t get the attention of a prosecutor or exoneration initiative.
Most of these people still languish in jail. The reality is there are far more cases that should be looked into than lawyers ready to handle the work. (It’s clear from statistics that defendants with lawyers backing them have the best chances of winning an exoneration.)
Prosecutors offices around the country (and even public defender organizations where time and budget permits) should think about designating specialized units for this work. Thousands of men and women claim to have been wrongfully convicted each year. It takes time, money, and a fine hand to determine which cases have a basis in fact and which are merely wishful thinking.
Of course, if the initial prosecution of defendants was more fair, fewer innocent people would wind up in jail. There are many facets that could be improved, but my top two would be:
1) Make the initial interrogation of suspects more transparent. To avoid false confessions (a large source of wrongful convictions), impose a protocol that all such questioning be videotaped from the initial “Hello, I’m Det. So-and-So” to the Miranda reading through the close of questioning. Such a measure will put police on notice that their tactics (lying to suspects, promising to release them, etc.) are being watched.
2) Provide defense attorneys with open-file discovery (information about the prosecution’s case) early on in the game, and not just a day before trial (as is done in New York). That way, if leads need to be developed that might point to an alternate suspect or theory of the case — it can be done promptly and fairly, reducing the chances of a wrongful conviction.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.