By Steve Weinberg, April 17, 2009
Darryl Burton walked out of a Missouri prison in 2008 after serving 24 years for a murder he did not commit. He had proclaimed his innocence from the day of his arrest in St. Louis. Sixteen years into his prison sentence, Burton’s hope for release took an upward tick when Centurion Ministries agreed to look into his case.
The nonprofit organization in Princeton, N.J., was founded by James McCloskey, an ordained minister and former business executive who has spent the last 29 years investigating alleged wrongful convictions. Working with a paid staff of five and a dozen volunteers, McCloskey reviews thousands of inmates’ requests for assistance every year and selects the few his organization can afford to investigate. Entirely dependent on donations from private individuals, Centurion has played a major role in more than 40 exonerations.
Nobody knows how many innocent men and women are serving prison terms for crimes they did not commit. There is no doubt, however, that since DNA testing became accepted as accurate some 15 years ago, 235 inmates have been freed because of the forensic technique, according to the Innocence Project, a national organization based in New York City.
But testable DNA material shows up in only about 10 percent of crimes — mainly murder and rape — that lead to arrests. Moreover, in most jurisdictions, fewer than 10 percent of all crimes charged proceed all the way to trial. In cases with trial records, it is sometimes possible to determine later the innocence of a convicted defendant. But most inmates end up in prison by pleading guilty before trial, leaving a scant public record.
In the 2006 decision by the U.S. Supreme Court in Kansas v. Marsh, Justice Antonin Scalia, writing a concurring opinion to the majority ruling, said the wrongful-conviction rate across the nation is minuscule. Scalia quoted approvingly from a New York Times op-ed by Joshua Marquis, the district attorney in Clatsop County (Astoria), Ore., and a director of the National District Attorneys Association. Marquis, citing what he considered a misguided study by a law professor, wrote, “Let’s give the professor the benefit of the doubt — let’s assume that he understated the number of innocents by roughly a factor of ten, that instead of 340 there were 4,000 people in prison who weren’t involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent, or, to put it another way, a success rate of 99.973 percent.”
In fact, Scalia asserted, numerous cases labeled “exonerations” are nothing of the sort. Instead, they are primarily violations of defendants’ due-process rights. “Most are based on legal errors that have little or nothing to do with guilt. The studies cited by the dissent demonstrate nothing more.”
One of the scholars mentioned critically by Scalia is Samuel R. Gross, a University of Michigan law professor. After studying Scalia’s opinion, Gross called the .027 percent error rate Scalia cited “absurd.” Gross noted that “almost everything we know about false convictions is based on exonerations in rape and murder cases, which account for only 2 percent of felony convictions. Within that important but limited sphere, we have learned a lot in the past 30 years; outside it, our ignorance is nearly complete.”
Gross argues that cases involving a plea agreement — and thus no trial — frequently lead to undocumented wrongful convictions. Innocent individuals plead guilty, Gross says, because they worry an adverse jury verdict will result in a longer prison sentence than the deal offered by the prosecutor — or even the death penalty.
A great deal more is at stake with wrongful convictions beyond simply the welfare of innocent individuals in prison. There is also the sobering reality that every time an innocent defendant is incarcerated, the actual murderer or rapist or armed robber might be at large, committing more crimes. Also at stake is public trust in the criminal justice system. Mistrust due to repeated wrongful convictions leads to decreased citizen cooperation with police and jurors who disbelieve prosecutors.
Generalizations about the criminal justice system are difficult to make, because it is not really a unified system. Instead, arrests, pretrial negotiations and trials are decentralized. The United States is divided into more than 2,300 local criminal jurisdictions, each served by an elected or appointed prosecutor (most commonly known as a district attorney), judges and police agencies. Superimposed onto the local jurisdictions is the federal system, with at least one federal prosecutor (called a U.S. attorney) and federal judges in each state. Some jurisdictions have no documented wrongful convictions. Others have spawned multiple wrongful convictions.
The National District Attorneys Association argues that wrongful convictions are episodic, not epidemic, and almost always arise from well-intentioned law enforcement work, not from incompetence or dishonesty. If pressed to place a number on wrongful convictions, district attorneys tend to say it’s less than 1 percent of all cases charged. Conversely, members of the National Association of Criminal Defense Lawyers say wrongful convictions are epidemic in multiple jurisdictions and frequently arise from incompetent or dishonest law enforcement personnel. If pressed, defense lawyers say the percentage of wrongful convictions is between 5 and 10 percent.
For its part, the American Bar Association (ABA) acknowledges the reality of wrongful convictions. A report by the ABA’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process offers numerous recommendations aimed at reducing wrongful convictions. The frequency of wrongful convictions “undermines the assumption that the criminal justice system sufficiently protects the innocent,” according to the report.
Increased public awareness of wrongful convictions, like that of so many other social problems, has been generated by the news and entertainment media. The public has been bombarded by exoneree stories in recent years, including best-selling author Scott Turow’s novel Reversible Errors; the stage play “The Exonerated”; the celebrated documentary movie “The Thin Blue Line”; the Hollywood drama “Just Cause,” starring Sean Connery and Laurence Fishburne, plus, of course, “CSI” and numerous other television police procedurals.
Indeed, some prosecutors and judges refer to the “CSI effect,” in which real-life juries acquit defendants because the forensic evidence police present fails to match the quality of the fictional evidence that TV police evidence technicians working in sophisticated labs uncover — all within an hour.
The new awareness of wrongful convictions has led to numerous in-depth studies of the problem and a wide range of enacted and pending legislation in many states, from new funding for crime labs to compensation for wrongly convicted men and women.
Since his release from prison in Missouri last year, Burton, like many exonerees, has attended occasional gatherings of other exonerees. Invariably, they exhibit forgiveness remarkable to behold. When they speak in anger, it is almost always because they say they have never received apologies from the police officers and prosecutors who wrongly sent them to prison, or they have trouble finding decent jobs, often because they lack job skills or potential employers wonder if they are truly innocent.
Ronald Cotton was found innocent and released after nearly a dozen years in prison in North Carolina for a rape he didn’t commit. He forgives Jennifer Thompson-Cannino, the woman whose mistaken testimony convicted him, but still feels angry about the aftermath. In a book about his conviction and redemption, co-authored with her, Cotton explains: “All those years with bars and razor wire around me — you’re no better than a dog in a cage. After being locked up for so long, they just toss you out and expect you to deal with it. I had no money, and how could I explain on job applications where I had been for the last 11 years?”
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By Steve Weinberg, April 17, 2009