The Criminal Cases Review Commission as a state strategic selection mechanism.

• Author: Schehr, Robert Carl

1. INTRODUCTION

   Legal scholars have come a long way in establishing the fact of wrongful conviction. No longer do we wonder whether wrongful convictions take place, but rather, we focus our concern on how they happen and how the problems associated with them can be remedied. Over the course of the last one-hundred years, but more prolifically in the last decade, legal scholars have identified six leading causes of wrongful conviction: police and prosecutorial misconduct, false eyewitness identification, false confession, junk science, ineffective assistance of counsel, and snitch testimony. New scholarly research is focusing on plea bargaining, harmless error, and state-specific felony murder rules and their respective correlation with wrongful conviction.

   A federal level response to the problem of wrongful conviction has manifested in the passage of the federal Justice For All Act. (1) While admittedly a historically significant body of legislation, the Act fails to address concerns raised by Scheck and Neufeld in a 2002 Judicature article. (2) Specifically, Scheck and Neufeld argued for creation of an investigatory body on the model of the National Transportation and Safety Board. (3) This idea struck like a lightening bolt for many in the wrongful conviction community, as the idea that a federal oversight body, complete with subpoena authority and the ability to charge non-compliant justice officials with contempt if they failed to participate in an investigation of wrongful conviction, appeared to be precisely what was, and is, needed to remedy systemic practices known to lead to miscarriages of justice. Seeking already functioning models on which to base this new investigatory body, some in the wrongful conviction community turned to the British Criminal Cases Review Commission (CCRC) for insight, if not replication. (4) The CCRC is a statutorily established appellate body that reviews cases where unsafe convictions are alleged. It is also within the CCRC's ambit to investigate the causes generating miscarriages of justice and recommend changes to remedy systemic problems. The CCRC is discussed in greater detail in Section IV of this essay.

2. THE PROBLEM

   Media analysts and lay people unfamiliar with wrongful conviction research often query criminologists studying the problem to know just how many wrongfully convicted people have or are presently serving time unjustly in prison. Of course, regardless of the country or specific jurisdiction, the unfulfilling answer is, there is no way to know. In the social sciences we often refer to this dearth of data as a dark number, a statistical unknown. Without investigation of every conviction there is no way to know what proportion of those presently imprisoned are factually innocent. That said, over the course of the last twenty years, beginning with the first known innocence project in the United States--Centurion Ministries (5)--exposure of the fact of wrongful conviction has intensified. During the decade of the 1990s, application of the science of DNA to discernment of criminal involvement in violent crimes established what criminologists have known for nearly two centuries--adversarial criminal due process generates wrongful convictions. (6) The Director of the Centre for Wrongful Convictions at Northwestern University, Rob Warden, has spent years documenting cases of wrongful conviction in the United States. Warden's socio-historical research indicates that the oldest known case of wrongful conviction occurred in 1812, when brothers Jesse and Stephen Boom were convicted for the murder of Russell Colvin. (7) What is intriguing about the account of the Boom brothers' wrongful conviction is the extent to which it contains nearly every known contemporary cause of wrongful conviction--false confessions, junk science, dream imagery leading to witness testimony about the Boorns' involvement with the crime, snitch testimony, prosecutorial misconduct, and, most dramatically, the discovery of a very much alive Russell Colvin.

   In 1931, the National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement, otherwise known as the Wickersham Commission, reported on the significant role played by law enforcement in the generation of wrongful convictions. (8) The following year, Edwin Borchard wrote about the inherent danger of convicting the innocent through the use of coerced confessions. (9) In 1934, Justice Roscoe Pound followed these reports with a call for the recording of custodial interrogations. (10) In the remaining decades of the twentieth-century, from 1950 on, only a handful of publications attempted to address the problem of wrongful conviction, (11) often appealing to matters relating to indigent defense and coerced confessions. These scholarly attempts to dramatize the undue influence of law enforcement practices leading to coerced confessions led to two significant court cases: Escobedo v. Illinois (1964) (12) and Miranda v. Arizona (1966). (13) Of the two, it was the Miranda case that had the most dramatic influence on discussions of wrongful convictions, coerced confessions, and criminal investigations. (14) And still, criminal justice experts claimed that wrongful convictions were at best an aberration.

   In the United States, the 1990s marked the dawn of DNA science and its application to the determination of culpability in violent crimes. In many ways, the influence of DNA science on practitioner and public acknowledgement of wrongful conviction speaks to what may be viewed as a uniquely American reliance on scientism. Despite two centuries' worth of experiential evidence establishing the fact of wrongful conviction, Americans--especially law enforcement officers, prosecutors, and judges--required more proof. (15) To date, DNA testing has resulted in 163 documented exonerations in the United States. (16) A decade-old landmark study of twentieth-century homicide and rape convictions indicated that over 400 people were wrongfully convicted of murder or capital rape. (17) Of that number, one-third or approximately 150, were sentenced to death. (18) More recent scholarship indicates that in the United States, since 1989, 340 factually innocent people have been exonerated. (19) How did exposure of the problem of wrongful conviction lead to such a significant number of exonerations? Innocence projects.

3. THE INNOCENCE MOVEMENT

   Innocence projects have been continuously in existence in the United States since the establishment of Centurion Ministries in 1983. (20) That said, the innocence movement did not formally appear until the late 1990s, arguably with the first national conference dedicated to unravelling the nature and extent of wrongful convictions in the United States. Held at Northwestern University in 1998, the National Conference on Wrongful Conviction and the Death Penalty initiated what has become an annual national gathering of those invested in the scholarship of wrongful conviction, those who work directly with innocence projects, and those simply interested in the topic. (21) At the present time there are innocence projects established in thirty-five states, with seven states possessing more than one. (22)

   Innocence projects typically manifest in one of four ways: 1) they are university-based and operate within a law school; 2) they are university-based and combine social science and/or liberal arts departments with law school students and faculty; 3) they are university-based but have no law school affiliation; or 4) they are community-based and draw on available resources.

   An innocence project is created for the purpose of investigating cases of wrongful conviction and, in some cases, correcting miscarriages of justice. For those innocence projects established to investigate claims of factual innocence on post-conviction review, and where the institutional affiliation is university-based, innocence projects combine the talents of faculty and students to re-investigate cases. While the institutional forms differ by location, innocence projects that are run out of universities typically require students to enroll in a course addressing wrongful conviction, and/or be exposed to substantive skill-based training in criminal and procedural law. In just a few years, the innocence movement has spread across the United States generating exonerations, as well as changes to due process. It is this phenomenon--the vigorous emergence of legal activists who consciously engage case investigation where wrongful conviction is alleged--as well as changes to state criminal procedure that are at the heart of a case against the establishment of a CCRC-type institution in the United States.

4. THE CRIMINAL CASE REVIEW COMMISSION

   1. The Criminal Case Review Commission in Britain

      The CCRC was created at a time of growing public disaffection with the administration of justice in Great Britain. Highly publicized exonerations of the Cardiff Three, Stefan Kiszko, Judith Ward, the Darvell brothers, the Taylor Sisters, and the Birmingham Six led to the 1993 Runciman Commission Report, which recommended changes to the administration of justice in Britain to assure safe convictions. The CCRC was established in the United Kingdom by federal statute in 1995 as part of the Criminal Appeal Act. (23)

      Structural limitations imposed by the CCRC's founding statute in the U.K. served to impede what might otherwise have been a progressive step in the right direction regarding rigorous investigation of cases where wrongful conviction has been alleged, as well as pursuing institutional changes necessary to eradicate them. It is these aspects of the CCRC's structural composition that raise the spectre of caution with regard to transplanting such an institution to the United States, especially since the U.S. has already moved aggressively ahead in the creation of innocence projects and a national innocence network. Before I move to articulate...