Another Dallas Man to be Exonerated after 27 Years in Prison

As we've mentioned before, Dallas County leads the country in wrongful convictions. Most of those wrongful convictions resulted from faulty police lineup procedures. Yesterday, the number of wrongfully convicted individuals to be freed as a result of DNA testing in Dallas County grew to 15, as news broke that DNA proved that Charles Allen Chatman could not have committed the rape for which he spent nearly 27 years in prison.

In Mr. Chatman's case, previous DNA tests failed to yield discernible profiles, but the more recent attempt to develop a Y-STR profile (a powerful method of isolating male DNA from a mixture, often successful in rape cases where tradition DNA testing was not) was successful, and definitively cleared Mr. Chatman:

State District Judge John Creuzot, who pushed for the genetic test that cleared Mr. Chatman, scheduled a hearing for this morning during which he is expected to order the 47-year-old man released on a personal bond and find him to be innocent.

"My attitude is that if the man is innocent, he needs to be free," the judge said.

As we've also mentioned previously, Dallas County is at least ostensibly making efforts to remedy its significant wrongful conviction problem by taking part in a federally funded study designed to identify more reliable protocols for police lineup procedures. It remains to be seen, however, whether the study will be a legitimate scientific endeavor, or just another attempt to rubber-stamp the same status quo procedures that led to all these wrongful convictions.

UPDATE: As Maggie at Of Counsel points out, this may be the first time that an exoneration investigation was actually prompted by a judge. Hopefully others will follow Judge Creuzot's excellent example.

Read more :: Permalink

Another Georgia Man Exonerated, Will Appear before Eyewitness Reform Committee Two Days after Release

Another Georgia man was exonerated by DNA evidence yesterday, after serving nearly 30 years in a state prison for a rape he did not commit. Like the six other men exonerated in Georgia since the Innocence Project started digging through old cases, John Jerome White was convicted on the basis of mistaken eyewitness testimony.

Tomorrow, two days after his release from his decades-long prison term, Mr. White will appear at the final hearing of the eyewitness ID study committee that was formed by the Georgia House of Representatives to study police procedures behind the statewide problem of wrongful convictions resulting from faulty eyewitness testimony.

Maybe with another wrongful conviction fresh in their minds, and with another face on this systemic problem, the Georgia committee will do the right thing and mandate that law enforcement in the state adhere to a set of best practices that everyone agrees will reliably collect eyewitness evidence and reduce false identifications.

UPDATE: It turns out that the man who was incriminated by the DNA evidence that exonerated Mr. White was in the same lineup from which the victim selected Mr. White. But Mr. White was the primary suspect, and sure enough, the victim picked the man police had in their crosshairs. Just another example of why blind lineup procedures are critical to getting at the truth.

Read more :: Permalink

WSJ editorial & trial errors

One more thought about the WSJ editorial. Just as troubling as the argument that there is insufficient data that wrongful convictions are a problem is the assertion, slipped into the WSJ piece, that “trial errors” have little or no causal connection to a just or unjust outcome of a criminal trial -- as if jurors’ determinations of guilt can be divorced from how the evidence is presented (or excluded) at a trial.

The WSJ editorial states that:

The [innocence] mythmakers also directly conflate trial error rates with wrongful conviction rates. Studies showing astonishingly high error rates in capital trials have very little to do with the question of the rate at which innocent people are being convicted. I can't remember a single trial over which I have presided -- including dozens of homicides -- in which, looking back, I didn't make at least one error in ruling on objections. It is a giant leap from an erroneous trial ruling to reversible error, and another giant leap from reversible error to actual innocence.

The author is correct that, these days, there is a disconnect between an erroneous trial ruling and reversible error, but that’s only because, these days, what our justice system is willing to dismiss as “harmless” covers a shocking breadth of mistakes and misconduct by judges, prosecutors and defense lawyers, and the whole harmless error analysis itself is flawed by artificially examining errors in isolation, without acknowledging that one mistaken ruling can change the landscape of a trial.


As for the connection between the strictly circumscribed set of errors we deem “reversible” and actual innocence, the author seems to miss the point, that we reverse convictions with these errors because we no longer have confidence that the verdict has a legitimate foundation -- in other words, in these cases we think that guilt has not been proven beyond a reasonable doubt, leaving open a real possibility that the defendant is actually innocent.



The author has apparent confidence in the outcomes of the cases over which he presided. But the recollections of a single trial judge about the lack of connection between his erroneous rulings and wrongful convictions hardly constitutes reliable data that proves that the status quo works just fine. I imagine that that the judges who presided over the trials of the now 200 exonerees were also quite confident in the correctness of the outcomes in those cases, but that’s not terribly reassuring.



Think, for example, of the case of exoneree Kirk Bloodsworth, who was sentenced to two life terms in prison based on the positive identifications of five eyewitnesses and served eight years in prison before he was proven innocent by DNA evidence. At his first trial, he unsuccessfully tried to present testimony from an expert in the field of eyewitness perception and memory to testify about some of the factors that make eyewitness identifications unreliable. On appeal, the reviewing court said that the trial court’s ruling excluding this critical testimony wasn’t even error -- much less harmless error.



Thus, in the Bloodsworth case, a legal ruling that wasn't even deemed erroneous by an appellate court (though it almost certainly was erroneous under any fair application of expert law -- but that's an entirely separate story), demonstrably helped to produce a wrongful conviction. Given that even such "correct" rulings can lead to miscarriages of justice, its not a giant leap to suggest that erroneous rulings can have this effect and its even less of a leap to attribute miscarriages of justice to reversible errors. In today's judicial system, where the standard of reversible error is so high, and where judges make serious errors in a significant percentage of trials, the outcomes of the proceedings infected by these serious error are also likely to be erroneous a significant portion of the time.


Certainly its a lot more of stretch to say, as the WSJ editorial does, that in a system where errors by judges are common (as even the author admits), jurors rarely if ever get it wrong when they are forced to decide the fundamental question put to them – guilty or not guilty – based on a flawed presentation of the evidence. That's contrary to common sense and human nature, as the DNA exonerations have demonstrated.

Read more :: Permalink

Stages of Denial: The Numbers Are On Our Side Too

As Ben's post shows, many in the criminal justice process remain in the denial stage with respect to wrongful convictions. Before DNA, those same people repeatedly would say, with confidence, that innocent people were NEVER convicted in our criminal justice system. In the pre-DNA era, they disdainfully dismissed works like the Radelet study -- a pre-DNA study that concluded that 23 innocent capital defendants had been executed in the past 85 years -- pointing to its supposed flaws such as its reliance on "one-sided" materials like newspaper articles.

Of course, any pre-DNA attempt to demonstrate innocence, particularly post-humously and often years after-the-fact, would be subject to criticism by those who simply wanted to prolong the debate. Before DNA, it was simply impossible to definitively prove or disprove whether the criminal justice system wrongfully convicted people. If they wanted to, skeptics could continue to deny forever that such miscarriages of justice ever occurred, pointing to various "flaws" in exoneration cases that seemed to fairly definitively establish a miscarriage of justice.

Then the DNA exonerations came. And it was good. But not enough for the skeptics. At that point, it obviously became impossible for any rational person to deny that the criminal justice system sometimes convicted the wrong person. But when reformers then began to demand that the system take simple steps to fix what was now an identified and undeniable problem -- by, for example, reforming demonstrable problems in eyewitness identification procedures -- the skeptics began to question the scope of the problem, now demanding that reformers not only demonstrate the existence of the problem and its causes, but also its precise scope.

In other words, the skeptics once again wanted to prolong the debate by shifting it to even more unprovable territory. But even so, if it's numbers they want, it's numbers they'll get. Reformers are not afraid of the numbers because, while we'll never be able to establish precise error rates in the absence of some reliable measure of ground truth in every case, the numbers we do have themselves give rise to grave cause for alarm.

What numbers am I talking about? At the outset, its important to make clear that, for comparison purposes, we should look only at the number of criminal trials the system conducts, not the number of criminal convictions. Wrongful convictions are almost always convictions that occur following a trial, and thus the important question is how many of these trial verdicts are erroneous. Any attempt to include guilty plea convictions in the mix is simply an attempt to unfairly and artificially dilute the rate of wrongful convictions.

So the real question is how often factfinders convict people who claim at trial that they are innocent. The DNA exonerations themselves suggest that the scope of the problem is quite substantial. Why? Because testable DNA is available in only a small fraction of criminal cases -- the case must involve an item where the presence of absence of DNA is dispositive, which is not a common scenario -- and even in such cases, the physical evidence has often been destroyed before it could ever be tested. It's also not as though resources exist to routinely conduct testing in every eligible case or that there are lawyers who are available to take the results of those tests and to advocate for their clients on that basis. Given that the pool of cases in which DNA exonerations is possible is very small, the fact that the Innocence Project has managed to definitively exonerate 200 people from around the country suggests that the scope of the problem is substantial. Yes, it's "only" 200 people -- so far -- but its 200 people from the small group from which DNA testing could still be conducted and for which resources existed and trained, skilled lawyers were able to present the results to a court or the prosecutor.

The fact that so many innocent people have come to light under such circumstances tells us that we would inevitably get a lot more exonerations if we could establish ground truth in every case. Unfortunately, there is currently no way to do so.

But does that mean that we can only extrapolate an error rate from the exoneration numbers alone? No, we have at least two other numbers that provide us with some idea of the wrongful rate.

First, in Virginia, law enforcement authorities recently discovered a host of biological evidence from cases tried in the 1970's and 1980's. Before ordering DNA testing on all the evidence, Gov. Mark Warner ordered scientists to conduct DNA testing on a small, randomly selected percentage of sexual assault cases tried between 1973 and 1988 to determine if a more widespread DNA testing of the hundreds of convictions obtained during that time would be warranted. Of the 31 cases reviewed, two exonerations occurred. In other words, 6 percent of the randomly sampled cases tested resulted in exonerations. Predictably, both Virginia exonerations involved convictions that relied heavily on eyewitness testimony. See Michael D. Shear and Jamie Stockwell, DNA Tests Exonerate 2 Former Prisoners, WASH. POST., December 15, 2005, at A01.

Sure, its a small sample size. But its a random sample too, and if the criminal justice system has an error rate that is anything approaching 6% of the overall cases, the consequences are truly staggering. It would mean there are thousands of innocent folks sitting in jail around the country.

Second, we know that the FBI conducts DNA testing in a number of cases where criminal charges have already been filed (often based on eyewitness testimony), and that such testing often exculpates suspects. Unfortunately, the FBI has never made public how often DNA testing exonerates wrongly accused suspects. We have unofficially heard that the exoneration rate in such cases runs as high as 25%. Assuming that error rate is anywhere near accurate, and assuming that a similar error rate exists in cases where DNA can never rule out the suspect's guilt, such numbers would provide powerful (and quite frightening) evidence about the scope of the wrongful conviction problem in the criminal justice system.

On the question of numbers, as Ben points out, the precise ratio of wrongful convictions one is willing to tolerate ultimately boils down to a question of morality. Some agree with Ben Franklin and the Framers of the Constitution (as we do) about the importance of keeping the innocent out of jail, while others agree with the Former Chief of the Soviet Secret Police about the importance of locking up a lot innocent bystanders in an effort to get all the guilty culprits. Do you want to live in a free society that is strong enough to protect the innocent by providing meaningful civil rights and criminal justice protections for all its citizens, or do you want to live in a society that is so petrified by fear that it needlessly sacrifices the lives of innocent persons in order to obtain a "margin of safety" for those who are lucky enough not to be swept up in the net?


Whatever your moral position on this issue, its becoming clearer and clearer that our criminal justice system gets it wrong far too often. In the face of that reality, you can bury your head in the sand, or you can do something about it. We've chosen the latter course.

Read more :: Permalink

Another Bad ID, an Unlikely Exoneree, and the Problem with DNA

Last week another faulty eyewitness identification was exposed, and another wrongfully convicted man was set free, thanks to the continued good work of the Innocence Project. Antonio Beaver spent more than ten years in Missouri prisons, after being convicted for a carjacking he didn't commit.

In some ways Mr. Beaver's case is much like other wrongful-conviction cases in which the (eventual) exoneree was convicted based on a bad eyewitness identification procedure. The police placed him in a live lineup in which he was one of two people wearing a baseball cap, and the only person with noticeable abnormalities to his teeth. The witness had described the perpetrator as an African-American man wearing a baseball cap with a gap in his teeth. Not surprisingly, he was selected from the lineup, and was convicted by a jury with no other evidence linking him to the crime.

What's different about Mr. Beaver's case is the nature of the crime for which he was convicted. In cases of carjacking and other similar offenses, it is very rare that testable DNA evidence is recovered from the crime scene, and thus it is similarly unlikely that those wrongfully convicted of similar crimes will have any hope of exoneration. However tenuous the foundation for the eyewitness evidence in the case, once a jury is convinced that the witness "will never forget that face," the defendant's fate is typically sealed. Mr. Beaver's sole good fortune in his unfortunate case was that the real perpetrator was observed to have bled on the door of the car, and a sample of that blood was preserved and eventually tested, clearing Mr. Beaver from any involvement.

But Mr. Beaver's case brings into focus an important fact that is often overlooked in discussions of DNA exonerations and the causes underlying wrongful convictions. While robberies rarely result in testable DNA evidence, they account for almost four times the number of arrests every year in the United States, as compared to rapes -- where DNA is often available for testing. More to the point, in a study (PDF, see p. 530) that examined all known cases of misidentification prior to the advent of DNA testing, misidentifications in robbery cases outnumbered those in rapes by more than two to one. Since the advent of DNA testing, however, exonerees falsely accused of rape account for more than 20 times the number of those falsely accused of robbery.

The difference? Robbers don't typically leave enough DNA at the crime scene for testing. But there's no reason to think any fewer people are wrongfully convicted of robberies now than before the advent of DNA testing. In fact, if we assume the ratio of misidentifications in robbery cases as compared to rape cases hasn't changed, and we make the (substantial) assumption that every person wrongfully convicted of rape between 1983 and 2003 was eventually exonerated, we are left to conclude that over 17 people per year are wrongfully convicted of robbery, or over 300 since 1989. In fact, only 6 of the exonerees between 1989 and 2003 were convicted of robbery. (See this Gross et al. article chronicling exonerations in the U.S., both pre-and post-DNA testing.) In the absence of DNA evidence to clear them and against the well-known force of a confident-but-wrong eyewitness at trial, their chances of walking free before their sentences are complete are small indeed.

All of this goes to illustrate that DNA is not enough to protect the innocent, because it only helps the "lucky" few. Which means that we need to focus on fixing the policies, procedures (PDF), and laws governing the collection and use of eyewitness evidence in criminal trials, and stop wrongful convictions before they happen in the first place.

Read more :: Permalink

One, Two, Three: DNA Exoneration Of Anthony J. Capozzi

The exoneration of Anthony Capozzi for a crime in Buffalo is just the latest in a long string of DNA exonerations for convictions based primarily on eyewitness testimony. In Mr. Capozzi's case, three eyewitnesses confidently identified him at trial as the rapist.

The quote highlighted by Talk Left is the most telling part of the story:

“Maybe one’s wrong, maybe two are wrong, but jurors sit there and say how can three people possibly be wrong?” he said. “They were all so positive it was
him.”

But there is another quote that struck me too. At the time of his trial, Mr. Capozzi sent a warning out to the people in Buffalo:

I said women in Buffalo shouldn't take comfort in the fact that Anthony Capozzi was convicted of these crimes," he said. "He didn’t do them. I suggest that you not run in Delaware Park alone. Because the person who did these is still out there.

Twenty-two years in prison for a crime he did not commit. Plus no increase in public safety as the real culprit remains free. The cost of mistaken eyewitness testimony.

Read more :: Permalink