Elephants in the courtroom: examining overlooked issues in wrongful convictions.

Author:Acker, James R.

The elephant in the room': An important and obvious topic, which everyone present is aware of, but which isn't discussed, as such discussion is considered to be uncomfortable." (1)

Sometimes, those elephants lurk in courtrooms. They lumber about in the form of highly consequential legal and social issues, conspicuous, yet also largely unacknowledged and unaddressed. In the context of wrongful convictions, and the broader domain of miscarriages of justice, such troublesome topics include the pernicious influence of racial biases within society and its justice systems, concerns about the integrity of misdemeanor convictions, and the extent to which structural and case-specific pressures and inducements might encourage innocent defendants to plead guilty. Those were among the subjects featured at a special two-day workshop co-sponsored by the National Science Foundation and the National Institute of Justice in October 2015. (2) The gathering involved academics as well as representatives of law enforcement, prosecutors' offices, the criminal defense bar, the judiciary, and organizations which investigate and advocate on behalf of individuals who claim to have been wrongfully convicted. Participants also focused on the data and methodological constraints which must be overcome to enable further insights into the causes and correlates of wrongful convictions. From that workshop emerged the theme of this, the sixth Miscarriages of Justice issue of the Albany Law Review in partnership with the University at Albany's School of Criminal Justice--"Elephants in the Courtroom: Examining Overlooked Issues in Wrongful Convictions."

Researchers, policymakers, and practitioners have devoted the lion's share of their scholarship and reform efforts to the widely recognized "canonical list" (3) of causes of wrongful convictions--eyewitness misidentification, (4) false confessions, (5) governmental misconduct, (6) ineffective defense counsel, (7) unreliable informants, (8) and forensic errors. (9) Their efforts have produced significant advances in knowledge and enhancements in the administration of justice. At the same time, ironically, with attention concentrated so heavily on those familiar issues, commensurately less attention has been given to additional factors which can contribute to wrongful convictions. This skewed focus is unsettling. It both impedes gaining a fuller understanding of the precursors of wrongful convictions and diminishes prospects for identifying corresponding reforms.

The articles in the following pages help remedy this imbalance. They flesh out a number of elephants in the courtrooms (and elsewhere) which implicate the production, detection, or correction of miscarriages of justice. They combine to shed light on several issues of significance which have largely been relegated to the shadows as attention has focused on the more traditional staples of wrongful convictions research and policy. Some of the contributors participated in the NSF-NIJ co-sponsored workshop while others have submitted their articles independently. All address topics faithful to this unifying theme.

In "Innocence Project: DNA Exonerations, 1989-2014: Review of Data and Findings from the First 25 Years," (10) Emily West and Vanessa Meterko summarize important findings from the first 325 DNA-based exonerations, spanning 1989 through 2014. The article describes cases compiled by the Innocence Project, where the authors are, respectively, a former and current researcher. Although these cases represent only "a fraction of all wrongful convictions" and almost certainly include a disproportionate representation of sexual assault cases due to the focus on DNA-based exonerations, they still yield important insights. West and Meterko discuss a wide variety of issues, including several prominent "courtroom elephants," such as wrongful convictions based on guilty pleas, how race plays a role in miscarriages of justice, and the identification of true perpetrators in cases of wrongful conviction. The authors also provide information about the contributing factors, which unsurprisingly align with the familiar "canonical list," and offer a unique view of the relative frequency of those factors over time. Finally, the article discusses the aftermath of exonerations, with a specific focus on compensating the wrongly convicted. West and Meterko describe the diverse avenues to gaining compensation awards, the proportions of exonerees who have been successful in securing compensation, and the amount of financial compensation received.

In "These Lives Matter, Those Ones Don't: Comparing Execution Rates by the Race and Gender of Victims in the U.S. and in the Top Death Penalty States," (11) Frank Baumgartner, Emma Johnson, Colin Wilson, and Clarke Whitehead expose glaring racial and gender imbalances in the executions carried out nationwide during the modern death-penalty era. They focus in particular on the most active capital punishment states: Texas, Oklahoma, Virginia, Florida, Missouri. Alabama, Georgia, Ohio, North Carolina, South Carolina, Arizona, Louisiana, and Arkansas. The authors offer straightforward comparisons involving the race and gender of all homicide victims within the respective jurisdictions, and the race and gender of homicide victims in cases that culminated with the offender's execution. (12) The disparities, presented in tabular form and portrayed graphically, are dramatic. With numbing regularity, their findings reveal that in each and every state the proportion of black male victim cases resulting in execution pales astonishingly in comparison to the proportion of all cases in which black males are homicide victims. The analyses demonstrate other consistent eye-opening discrepancies between the race and gender of homicide victims generally and the victims in cases resulting in execution. The clear implication is that notwithstanding statutory reforms designed to minimize arbitrariness in its administration, (13) capital punishment remains riddled with serious, systemic inequities. (14)

Russell Covey examines complex issues involving the acknowledgment and correction of miscarriages of justice in his article, "Recantations and the Perjury Sword." (15) Notwithstanding their sworn obligation to tell the truth, trial witnesses do not always do so. When prejudicial to the accused, false testimony can help produce a wrongful conviction. Indeed, witness perjury is a major factor contributing to wrongful convictions. (16) After their...

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