AN ANALYSIS OF ISSUES AT PRE-TRIAL PROCEEDINGS LEADING TO WRONGFUL CONVICTIONS IN 'NO CRIME' CASES: THERE WAS NO CRIME, BUT THEY DID THE TIME.

• Author: Zakirova, Irina

1. INTRODUCTION

   Wrongful conviction is a term used to describe a situation when an innocent individual is wrongly accused and convicted for a crime that he or she did not commit. (1) However, there are cases where an innocent individual was wrongly accused and convicted of a crime that did not even occur. (2) To date, such cases fall under the umbrella of wrongful convictions and are known as the "no crime" cases. (3) So far, more than a third of wrongful conviction cases and later exonerations were for a crime that did not take place. (4) This illustrates the flaws of the criminal justice system: not only are those within the system blind to who is innocent and who is guilty, but they are also blind as to whether or not a crime occurred. Thus, this paper seeks to define the no crime phenomenon and further explain how an accident, suicide, or a fabricated crime can be wrongly determined to be a crime before adjudication leading to a wrongful conviction.

2. DEFINING NO CRIME CASES

   According to the National Registry of Exonerations, no crime cases are cases that were either an accident, (5) a suicide, (6) or a fabricated crime (7) that was mistaken for a crime before adjudication (8) and led a wrongful conviction of actually innocent persons. (9) To date, there are 860 no crime cases out of 2,366 exonerations, which accounts for about 36%. (10)

   According to Bluhm Legal Clinic, the majority of those who were wrongfully convicted in no crime cases were women. (11) Whereas, when it comes to exonerations, the major indicator of innocence, DNA evidence was able to reveal the innocence of a woman in around 3% of cases, compared to 22% among men. (12) This goes along with the types of crimes that individuals were convicted for, where men are convicted of crimes where DNA evidence was either the only evidence that was lacking and as a result led to wrongful convictions, or was erroneous. (13)

   Continually, there is a distinct pattern between the types of crimes that individuals were wrongly convicted for and which in turn did not occur since, in reality, they were either an accident, a suicide or a fabricated crime. (14) The present article will examine a number of these to identify and analyze issues that occurred before adjudication and have led to wrongful conviction.

   1. Accidents

      Accidents occur daily, but there are those that fall on the border between being ruled an accident or a crime. (15) According to the National Safety Council, accidental deaths have been on the rise "and are currently the third leading cause of death behind heart disease and cancer." (16) In addition, the victims' own homes become the place where they are most likely to die accidentally, followed by an accidental death in a motor vehicle, in the public, and the least common, the workplace. (17) However, experts argue that society is not familiar with accidental deaths, and therefore, does not do much to help prevent it, let alone being able to distinguish it from a crime. (18) Therefore, society relies on police investigators and forensic experts to gather sufficient evidence before adjudication. (19)

      Among the experts coming on the scene are forensic experts who access the evidence at the crime scene that can support or eliminate the belief that the incident is a crime. (20) However, to date, there are cases where experts did not distinguish between an accident and a crime which led to wrongful conviction. (21) As a result, misleading and false forensic evidence accounts for 23% of wrongful conviction cases. (22) Scholars examining expert tactics for gathering evidence find that certain tests that they conduct with the evidence have flaws and are in need of further development. (23) Among the most common is forensic serology, where the experts have tested blood and fluids that may have been accidentally mixed with the victim's and the perpetrator's, leading to an erroneous result. (24) In addition, based on this flawed result, the expert's testimony in court also significantly impacts the jury's decision, and the expert's inclusion or exclusion of the defendant. (25) In other words, the majority of the time, the forensic experts, by relying on the faulty serology results, or other unreliable methods and techniques, may still argue that the defendant is guilty, leading to wrongful conviction. (26) Lastly, it is argued that forensic experts, by using ambiguous terminology when testifying in the courtroom, may confuse the jurors into convicting, without being objective when reaching a verdict. (27)

      Forensic experts gather their results in a variety of crimes, including murder, whereby forensic experts must first determine the victims' cause of death and whether it was indeed a result of foul play. (28) Motor vehicle accidents resulting in death are the second most common type of accidental deaths. (29) According to U.S. fire statistics, 38.6% of vehicle fires are unintentional. (30) The case of Sheila Bryan is illustrative because she was wrongly convicted for the murder of her mother by arson of a motor vehicle. (31) The cause of her wrongful conviction was the prosecution's false claim that Bryan purposely set her mother's car on fire while the victim was inside, relying on invalid "pour patterns." (32) While Bryan was charged and convicted of murder, the medical examiner was not able to conclusively find a cause of death, instead indicating that Ms. Weeks could have died before the fire began due to heart failure. (33) In addition, in the case of Victor Caminata, the fire investigators also relied on flawed techniques, and incorrectly claimed that Caminata set the fire on purpose. (34) In both of these cases, the primary task of the fire investigators was to identify whether the fire was accidental or deliberate, which they failed to do. (35) UK scholars argue that relying on evidence such as pour patterns, and the measurement of the burn stains based on which the investigators try to estimate when the fire began, only leads them into arguing that the fire was deliberately set, and is, therefore, spurious. (36) In turn, the fire investigators should consider all the evidence and examine them for individualistic characteristics, otherwise, it may lead to wrongful convictions. (37)

      Besides forensic experts, police also come on the scene and examine evidence, as well as gather witness testimony. However, in some cases, before adjudication, police violate the law and coerce a false accusation from witnesses leading to a wrongful conviction, also known as official misconduct. (38) To date, official misconduct is the second most common contributing factor, accounting for 52% of wrongful convictions that were later exonerated. (39) Specifically, in the case of Michael Branch, the witness was coerced into claiming that the death was not accidental but was a murder that Branch committed. (40) At first, it might seem astonishing that official misconduct accounts for nearly half of all wrongful conviction cases, however, it is to be expected for courts continue to fail to identify police-generated witness testimony, making police prone to do so in subsequent cases. (41)

      In some cases, there is a combination of violations before adjudication as in the case of William Amor, where he was first interrogated for fifteen hours by the police, which led to his false confession and false forensic evidence generated using outdated techniques for identifying whether the fire was arson or not. (42) Besides obtaining false testimony from the witness, official misconduct also pertains to interrogating the suspect for a lengthy period of time in order to lock a confession, one that may in fact be false. (43) To date, false confession accounts for twelve percent of wrongful conviction cases that were later exonerated. (44) According to studies examining police interrogations, the average time for an interrogation is 1.60 hours. (45) Just as mentioned above, when it comes to arson cases, investigators, when determining the cause and presence or absence of intent in setting the fire, must rely on current and innovative techniques that have been proven to be accurate. (46)

      In addition to murder, individuals have also been wrongly convicted of arson, illustrating that mistakes are made by fire investigators. Even though there are only thirteen arson wrongful conviction cases, their presence shows that fire investigators who gather evidence in such cases tend to make mistakes. (47) Among the cases, there is the case of William Haughey where the forensic expert overlooked an electrical accident and failed to preserve evidence for further review, which led to Haughey's wrongful conviction. (48) In some cases, both the police and forensic experts tend to make mistakes that culminate into a wrongful conviction, as in the case of Herbert Landry. (49) Despite no evidence of flammable liquids being detected by forensic experts, Landry was convicted due to the testimony of the K9 handler who stated that K9 detection was more accurate than laboratory equipment. (50)

      The least common place for accidental fires is a workplace, (51) yet they still occur as in the case of Jennifer Hall. (52) The police and forensics found a motive and physical evidence to claim that Hall set up the fire. (53) Specifically, the police found Hall's report where she accused a co-worker of sexual assault, but the case was dismissed because the alleged perpetrator died and she did not receive her justice, which the prosecution took for motive. (54) In addition, Hall was badly injured from the fire and the police suspected her of setting it since they found the charred paper at her workplace. (55) Only after some time was it discovered that Hall was only saving people from the fire, rather than setting it. (56)

      Insurance policies often signal a potential defendant; as in the case of James Hebshie, who was wrongly convicted after the prosecution contended that he had motive to burn down his...