Elephants in the station house: serial crimes, wrongful convictions, and expanding wrongful conviction analysis to include police investigation.

• Author: Zalman, Marvin
• Position: Elephants in the Courtroom: Examining Overlooked Issues in Wrongful Convictions

ABSTRACT

In this article we advocate that the study of miscarriages of justice be expanded to view the entirety of police crime investigation as a source of wrongful convictions. We set this proposal in a framework of how the inductive innocence paradigm was developed and analyze how the term "causation" is used in legal, scientific and case analysis. We then explore a subject not yet addressed by wrongful conviction scholarship but that may confront an investigator: whether an unsolved crime is the work of a serial criminal and whether a suspect is the serial criminal. We examine a convenience sample of forty-four exonerees convicted of crimes committed by thirty serial criminals. The analysis is aimed at opening up a discussion of the kind of complexity that investigators face in hard-to-solve cases.

1. INTRODUCTION

   Wrongful conviction research, according to Bonventre, Norris, and West, includes identifying exoneration cases, "establishing rates" of wrongful convictions, "examining known cases to establish the correlates of their causation and detection," and studying "established factors, such as confessions, to better understand their relationship with wrongful convictions and to improve practices." (2) The array of research methods used to study the correlates and causes of wrongful conviction have included descriptive case studies, content analysis, aggregate data descriptive statistics, comparison/control studies, and experimental studies. (3) The present article explores the correlates and causes of wrongful convictions, but approaches the issue by advocating that the correlates include the entirety of police investigation. Related to that goal, we discuss how causation is and should be addressed in innocence advocacy and scholarship.

   The study of causation, although a subject of philosophy, legal theory, and scientific inquiry, is driven by practical desires to understand and control causal mechanisms. (4) Understanding causal mechanisms in applied technology leads to improved manufacturing efficiency and better products. (5) Cause and effect has been a mantra of medicine at least since scientific principles were applied in the nineteenth century to curing infectious diseases, but has probably driven the work of healers and herbalists well before that. (6) Even in criminal law, where causation is a prerequisite to ascertaining whether an event constitutes a crime, the goal is to control either the offender (through special deterrence, incapacitation, or rehabilitation), society (via general deterrence and the prevention of private vengeance), or the state (by requiring police and prosecutors to bring suspects to courts of law and prove their cases by presenting evidence rather than by exercising raw state power). (7)

   Wrongful conviction studies have been driven from the time of Edwin Borchard's survey of sixty-five actual innocence cases to the most recent scholarship by a desire to know what has caused prosecutions to go awry. (8) The goal from the beginning has been to improve verdict accuracy by correcting specific criminal justice and legal process errors. As the innocence movement rapidly matured after the 1990s, a set of standard or canonical causes (9) or sources of wrongful convictions has been thought to explain false convictions. (10) The theme of the present issue, "Elephants in the Courtroom" is premised on the idea that some issues which figure importantly as wrongful conviction causes have not received commensurate attention in policy or research arenas.

   We explore this theme by examining the "elephant in the station house," so to speak: the failure of innocence movement advocates, activists, and scholars to view the entirety of police investigation as a potential source of wrongful convictions, as opposed to exploring arguably more discreet police processes (e.g., eyewitness identification, interrogation, handling informants). (11) We advocate that innocence scholarship amplify its perspective by including police investigation, generally, as a source of miscarriages of justice. One article cannot explore the very large subject of police investigation. (12) Instead, we focus on whether, in the investigation of a difficult case, investigators may fail to discover that the crime was committed by a serial criminal, (13) and not the suspect, who does not fit the serial criminal profile. We approach this topic gingerly. It would be a mistake, given the present state of knowledge, to overemphasize the serial criminal/wrongful conviction link or to suggest that we can establish investigation protocols with check-off boxes for "serial criminal factors" in every hard-to-solve murder or sexual assault investigation. Our exploration of forty-four exonerees's cases--who paid dearly for crimes committed by serial criminals--is designed not to create a serial crime/wrongful conviction investigation profile, but to stress the need to think about the challenges to diagnostic accuracy in criminal investigations.

   We proceed in Part II by reviewing the way in which the innocence paradigm (i.e., a limited set of wrongful convictions "causes") came to dominate wrongful conviction advocacy and scholarship, assessing the paradigm's strengths and weaknesses. (14) Part II lays a foundation for advancing our goal of incorporating police investigation into the correlates of wrongful conviction that should be considered by innocence advocates and scholars. In Part III we analyze three approaches to wrongful conviction causation: legal causation, nomothetic analysis aimed at providing general statements (via social scientific methods) about wrongful convictions, and causation in idiographic case analysis. (15) Legal causation is an issue in constitutional tort cases imposing liability on state actors for causing wrongful convictions under 42 U.S.C. [section] 1983. (16) Describing differences and similarities of these methodological and theoretical approaches may be useful to scholars or lawyers working primarily within other causal frames. In Part IV, we analyze cases in which forty-four innocent defendants were convicted of crimes committed by thirty-three serial criminals. (17) In this part we briefly discuss the nature of serial criminality, exploring this criminological topic through the lens of information useful to the investigation of hard-to-solve crimes where serial criminality might better fit the circumstantial evidence than the guilt of an innocent suspect. (18) We conclude in Part V, indicating some of the limitations of our study and making suggestions for further research. (19)

2. THE INNOCENCE PARADIGM: STRENGTHS AND LIMITS

   A co-author wrote about this issue's "elephants in the courtroom" theme, calling the innocence paradigm "the organizing heuristic for the innocence movement." (20) The paradigm was defined broadly as the idea that "wrongful convictions result from a number of causes, which are tied to a reform agenda." (21) More specifically, Barry Scheck, Peter Neufeld, and Jim Dwyer, in Actual Innocence, (22) generated an innocence paradigm as "a list of factors deemed to cause wrongful convictions, along with reforms to prevent the errors and to alleviate the suffering of exonerees, and to establish an innocence network." (23) The content of the paradigm, (i.e., the factors that "cause" wrongful convictions) has not been specified with absolute agreement by different authors, (24) but there is a good deal of overlap. As Samuel Gross famously noted, there is "a canonical list of factors that lead to false convictions: eyewitness misidentification; false confession; misleading, false, or fraudulent forensic evidence; testimony by highly motivated police informants such as 'jailhouse snitches'; perjury in general; prosecutorial misconduct; ineffective legal defense. All these factors are common among cases of known exonerations." (25)

   Where did this list come from? Or, to put the question differently, how have authors who studied wrongful convictions cases come to generate these factors? We might also ask about different authors' variations from the canonical list observed by Gross, and, further, to what degree were the authors motivated by scientific/scholarly goals or by reformist agendas.

   It was observed that "the innocence paradigm's factors were derived inductively from case descriptions." (26) The rise of the innocence paradigm might be likened to Edward Levi's classic description of how legal doctrines develop in the process of legal reasoning and precedent, whether in case law, statutory interpretation, or constitutional analysis. "The steps are these: similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case." (27) As new cases appear before the courts, the doctrine, useful for resolving the tensions inherent in the litigants' arguments, is expanded and branched out to resolve subsidiary issues. Legal doctrines remain in play to shape courts' decisions for as long as they remain legally and socially useful, but may decline thereafter. The analogy to the innocence paradigm is not perfect, but because we assert that the paradigm is a socially constructed concept (28) we believe that exploring how it arose is consequential. The paradigm, after all, shapes how the movement conceives of itself and shapes its policy agenda. As a legal doctrine is both fixed and fluid, giving shape to judicial decisions as judges reshape the doctrine while deciding cases, (29) the innocence paradigm helps to define the policy goals of the innocence movement but is also modified as innocence advocates confront new challenges.

   The American innocence paradigm was constructed in the 1990s. (30) Although many people participated, (31) the major influence on its shape was Actual Innocence and its List of Reforms in Appendix l. (32) Applying the legal doctrine analogy, the list of reforms in Actual Innocence...