Chapter 10 Outline

  • Exoneration and Factual Innocence
    • Six innocent people in Louisiana have been exonerated from death row
    • Since reinstatement of the death penalty in 1976, over 1,200 people have been executed in the U.S. and more than 140 released from death row; of those released from death row, 20 were DNA exonerations
    • Governor George Ryan of Illinois commuted the state’s entire death row population (167) because questions were raised about the innocence of the convicted persons and the fairness of the death penalty
    • When an innocent person is convicted, it’s a grave injustice to the individual and also undermines our confidence in the criminal justice system because it allows the true perpetrator(s) to escape justice
    • The term “exoneration” is not necessarily the same as “innocent.” Exoneration means legal innocence and not necessarily factual innocence.
    • The National Registry of Exonerations (NRE), part of the University of Michigan Law School, tracks both DNA and non-DNA exonerations and reports over 1,550 exonerations from 1989 to present
    • More than 75% of exonerations have occurred since 2000 (first DNA exoneration in 1989)
  • Due Process v. Crime Control Models of Criminal Justice Systems
    • Due Process and Crime Control Models are two idealistic and contrasting models of criminal processing formulated by Herbert Packer, a Stanford law professor
    • Due Process Model: Assumes that the most critical function of the criminal justice system is to protect defendants’ civil liberties by providing due process under the law
    • Due process is essentially a set of instructions that informs agents of the state how they must proceed in their investigation, arrest, questioning, prosecution, and punishment of individuals who are suspected of committing crimes
    • The focus of the Due Process Model is on the defendant, not the victim nor the community
    • Packer compared the due process model to an obstacle course because it requires procedural safeguards or obstacles at nearly every level of the criminal justice process in order to protect all defendants whether factually innocent or guilty
    • Crime Control Model: Herbert Packer’s model of justice which seeks to repress crime by prioritizing the swift handling of factually guilty defendants with as few obstacles as possible
    • Packer likens the crime control model to an assembly-line/conveyor belt because of the efficiency with which offenders are processed through the system
    • The focus on the crime control model is on victim and community rights rather than those of the defendant
    • It is centered around discovering the truth, rather than strictly on efforts concerned with protecting the legal process in the search for the truth and allows for expanding discretionary police powers and limiting the legal technicalities that hinder the investigation by police
  • The Blackstone Ratio
    • Blackstone Ratio: Sir William Blackstone's proposition that the error-ratio of false acquittals to wrongful convictions ought to be 10:1 in order to achieve a just system that protects the innocent
    • Jeremy Bentham believed that while it may be sound practice to err on the side of "acquitting the guilty versus convicting the innocent," they are both "great evils" with the latter being the greater of the two
  • The ‘Big Six’
    • The six major causes frequently linked to wrongful convictions are: 1) eyewitness misidentification, 2) false confessions, 3) informant/snitch testimony, 4) bad science, 5) ineffective defense counsel, and 6) government misconduct
    • Eyewitness Misidentification
      • The leading cause of wrongful convictions
      • Found to play a major role in approximately 75% of all DNA exoneration cases
      • Troy Davis was convicted of murdering a police officer in 1989 based on eyewitness testimony. The murder took place in a crowded Burger King parking lot where there were 34 witnesses for the prosecution and 6 for the defense. Seven of the nine individuals who testified saying they witnessed Davis kill the officer recanted their story some 20 years later and three jury members reported that they would not have agreed to sentence him to death if they had known of the reliability issues associated with eyewitness testimony. He was executed in 2011 by the state of Georgia.
      • Social science research confirms that our memory is both malleable and highly unreliable, especially as time passes
      • Four general explanations for eyewitness error: 1) witness may be lying, 2) witness’s perception may not be accurate, 3) witness’s memory may be inaccurate, 4) witness’s recollection may have been influenced by outside suggestion
      • System variables: Variables that are linked to the investigative phase and its impact on a witness’s memory. These variables include improper line-ups and suggestive interview techniques.
      • Estimator variables: Variables that occur outside of the investigative process having to do with the circumstances surrounding the offense and witnesses’ observations. Estimator variables include environmental variables such as lighting, proximity of witness to crime, weather and other like variables.
      • Double-Blind lineup Procedure: Involves a “blind” administration by which neither the witness or lineup administrators know if the suspect is in the lineup
      • Sequential line-ups are much more effective than side-by-side photo line-ups because when viewing the photos one at time, the victim is not simultaneously comparing the characteristics of individuals in the photos with one another
      • The non-suspects in the line-up should closely resemble the suspect
      • Once an identification has been made, administrators should ask the witness to identify the degree of certainty that he/she has picked the correct suspect
      • Specific factors that can influence an eyewitness: Witness stress, lighting, cross-racial identification, and line-up procedures used by law enforcement
  • False Confessions
    • Found to play a major role in approximately 25% of all DNA exoneration cases
    • Three general types of false confessions: Voluntary, compliant, and internalized
    • Voluntary confessions: Those which are provided by people without prompting by police
    • Some explanations for voluntary confessions are: Delusional guilt, pathological desire to seek attention, or to take the rap in order to protect someone else who is guilty
    • Compliant confessions: Those which are prompted by highly stressful police interrogations
    • Some explanations for compliant confessions are: To get some relief from a highly stressful environment or perceiving they will receive a benefit for reward for telling the police what they want to hear (allowed to go home or take a smoke break, etc.)
    • Reid interrogation technique: Technique used by police that involves the use of intensive interrogation tactics which include intimidating suspects by sometimes providing false information to support the interrogator's accusation of guilt
    • Internalized confessions: Confessions that occur when a vulnerable suspect confesses to a crime that he/she did not commit and becomes convinced that they actually committed the crime. These confessions typically follow highly suggestive police interrogations that cause an innocent person to believe that they have committed the said crime
    • According to Kassin, there are three significant problems with confession evidence: 1) In many cases, police are unable to differentiate between those who tell the truth and those that are lying, 2) Some interrogation practices put innocent people at risk for confessing, especially when considering vulnerable populations (e.g. mentally impaired, young age, etc.), and 3) Both judges and juries tend to trust confessions, even when there is clear evidence to suggest that a confession has been coerced
    • Leo and Ofshe recommend that all police interrogations be recorded in order to maintain objectivity and the integrity of confessions. Recordings may then be reviewed by judges and juries when the reliability of confessions are brought into question.
    • Currently, 18 states require police to record interrogations of suspects
  • Informant/Snitch Testimony: If you can’t do the time, just drop a dime
    • The first documented case of a wrongful conviction involving a snitch was in 1819 when two brothers were accused of murdering their brother-in-law in Vermont and a snitch in the cell with one of the brothers claimed the brother had confessed to the killing. This testimony led to the brothers’ conviction and death sentence. They were freed, however, when authorities discovered the brother-in-law was actually not dead and living in New Jersey.
    • Snitch testimony is also known as incentivized testimony
    • Snitches are typically serving time for their own crimes when they provide information to police and usually have nothing to lose and everything to gain by conjuring up stories to support a prosecutor’s case
    • Deals for snitches include: Charge dismissal or reduction, sentence reduction, or promise of future consideration
    • Leslie Vernon White is a notorious snitch who was able to dupe the LA Prosecutor’s Office into believing he had key evidence in three murder cases and a burglary
    • Procedural safeguards that may prevent informants from providing false information include: Wiring snitches so their conversations with accused suspects are recorded, recording law enforcement officers when they meet with snitches, and requiring prosecutors to disclose if snitches have been compensated or rewarded in any way or form
  • Bad Science
    • The use of improper or invalidated forensic science to convict innocent persons is a problem that has been a contributing factor in more than 50% of DNA exoneration/wrongful conviction cases
    • The National Institute of Justice has found that the science of fingerprinting has proven to lack adequate testing and standards for determining matches because fingerprints can be quite similar
    • Hair comparison and analysis is another example of bad science
    • The Law Enforcement Assistance Administration Laboratory Proficiency Testing Program found hair analysis to be the weakest of all forensic lab techniques used
    • Suggestions for helping to fix bad science are: Training police departments and crime analysts on the best practice approaches, training defense attorneys and prosecutors to help them understand the strengths and limitations of the various sciences, and providing statistics in expert testimony assigning weight to probabilities of subjective analyses
    • DNA testing is used as a last resort because of the exorbitant costs
    • The New York Police Department only uses DNA testing in 7% of their murder investigations because of cost concerns
  • Ineffective Defense Counsel
    • The 6th Amendment gives us the right to counsel
    • In a 23-year period, a Columbia University study discovered that ineffective defense attorneys were the biggest contributing factor in death penalty appeals
    • Inadequate defense counsel is largely an issue with the poor; approximately 80% of criminal defendants require court-appointed counsel because they cannot afford to hire an attorney for themselves
    • A Harris County, Texas study showed that defendants who hired counsel were significantly less likely to be sentenced to death than those who had a public defender
    • Strickland Standard: A standard set by the courts to determine whether counsel has been deficient in representing their defendants. Requires two prongs to be met in order to show ineffectiveness of counsel: 1) Defendant must demonstrate that counsel’s performance was deficient and 2) Error(s) made by counsel must be prejudicial
    • Defense attorney errors found by the Innocence Project in DNA exoneration cases that likely would have changed the outcome of the cases: Failure to investigate a defendant’s alibi, failure to call forensic experts when necessary, failure to be present at important court proceedings and failure to present opening and closing statements at trial
  • Government Misconduct
    • An example of police misconduct is the case of Alton Logan who spent 26 years in prison for shooting and killing an off-duty police officer. Another guy involved in the shooting, Edgar Hope, told his defense attorneys that Logan was not the accomplice and named Andrew Wilson who confessed he was there with Hope. The police commander was aware (and did nothing about it) that when Wilson was arrested for some other police officers’ murders, he was in possession of a sawed-off shotgun that was linked to the crime that Logan was accused. The commander is currently servicing 4 and 1/2 years in prison and Logan was awarded $10.25 million by the city of Chicago.
    • Prosecutors are arguably the most powerful actors in our justice system because of their power to decide if the evidence in a case is reliable enough to seek a conviction
    • Exculpatory evidence: Evidence that is favorable to the accused and must be presented to the defense by the prosecutor; they are bound by law to disclose it
    • Absolute and qualified immunity: Immunity which protects prosecutors from criminal liability if they are accused of misconduct while acting in an advocacy role
    • If the prosecutor is acting in an advocate role, then he/she is granted complete immunity (no criminal charges may be filed) even if misconduct can be shown
  • Post-exoneration Compensation
    • Post-exoneration compensation is one strategy that helps states reconcile the damage that has been done to the wrongfully convicted
    • 27 states, the District of Columbia, and the federal government have statutes to compensate the wrongfully convicted
    • Compensation takes into account the amount of time a defendant served when calculating the monetary amount, but few provide additional compensation for those who spent time on death row. However, the federal government pays $50,000 per year for a “normal” year in prison and an additional $50,000 per year for time spent death row
    • Mandery et al found that post-release compensation can make a difference for the successful reintegration of those who have been wrongfully convicted
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