"i Did It, but ... I Didn't": When Rejected Affirmative Defenses Produce Wrongful Convictions

• Publication year: 2021

98 Nebraska L. Rev. 578. "I Did It, but ... I Didn't": When Rejected Affirmative Defenses Produce Wrongful Convictions

"I Did It, but ... I Didn't": When Rejected Affirmative Defenses Produce Wrongful Convictions

James R. Acker and (fn*)
Sishi Wu(fn**)

TABLE OF CONTENTS

I. Introduction.......................................... 578

II. Wrongful Convictions and Failed Affirmative Defenses . 579

III. When Rejected Affirmative Defenses Produce Wrongful Convictions: Case Studies............................. 591
A. Exonerations in the Wake of Rejected Justification Defenses.......................................... 591
B. Exonerations in the Wake of Rejected Excuse Defenses.......................................... 613

IV. What Went Wrong? Sources of Error in Failed Affirmative Defense Exoneration Cases................ 621
A. Failed Self-Defense................................ 621
B. Failed Excuse Defenses............................ 629

V. Compensation for Wrongful Conviction and Incarceration ......................................... 632

VI. Conclusion............................................ 641

I. INTRODUCTION

As a rule, defendants who raise an affirmative defense to a charged crime do not dispute that they intentionally harmed another person or property interest, and hence that their conduct satisfied the elements of the alleged offense. Instead, they offer reasons, in the form of justification or excuse, for why they nevertheless should be found not guilty. Affirmative defenses, including self-defense, necessity, insanity, and

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duress, thus take the form of confession ("I did it") and avoidance ("but" additional factors exist that negate guilt). To prevail on an affirmative defense, defendants must, at a minimum, satisfy the burden of producing evidence to put the defense at issue. They often are required to satisfy the burden of persuasion, as well.

Affirmative defenses may present difficult questions of fact (e.g., did the defendant actually believe that her life was in imminent danger when she shot the deceased?) as well as challenging normative issues (was her belief reasonable under the circumstances?). Some defendants will be found guilty even though their affirmative defenses were valid and should have been credited. These unfortunate individuals will have been doubly disadvantaged, if not doubly cursed: first, by being subjected to the circumstances giving rise to their affirmative defense (such as being attacked by an unlawful aggressor, or inflicted with a disabling mental illness); and second, by suffering unjust conviction for a crime. And even if their convictions are reversed and their defense later acknowledged, they may be barred from compensation despite being punished for a crime they never committed.

This Article examines wrongful convictions that result from the erroneous rejection of an affirmative defense. We begin with the premise that defendants in such cases have indeed been wrongfully convicted, because they have committed no crime. We describe several cases of wrongful conviction involving individuals whose affirmative defenses were rejected at trial. Then, with an eye toward identifying potential reform measures, we consider evidentiary and doctrinal issues associated with affirmative defenses, which may contribute to the wrongful convictions that occur when the defenses are not credited. We conclude by examining another injustice often associated with wrongful convictions resulting from the erroneous rejection of affirmative defenses: proof and other requirements that represent barriers to compensation in these cases.

II. WRONGFUL CONVICTIONS AND FAILED AFFIRMATIVE DEFENSES

Imagine the plight of an innocent person convicted of a crime after erroneously being identified as the perpetrator by the victim or an eyewitness. Such cases dominate the list of DNA-based exonerations maintained by the Innocence Project,(fn1) and proliferate on the National Registry of Exonerations's more comprehensive roster of wrongful convictions.(fn2)

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In one such case, for example, Walter Snyder was convicted of a rape committed in 1985 in Alexandria, Virginia after being identified by the victim as her assailant, first while he was seated in the waiting room of a police station, and subsequently in court. Prior to viewing Snyder in the police station, the victim had been shown a photo array including his picture, and had noticed him washing his car across the street from her apartment. Snyder, who consistently maintained that he knew nothing about the rape, served seven years of a forty-five-year prison sentence before DNA testing of the vaginal swab preserved in the case definitively excluded him as the perpetrator.(fn3)

Walter Snyder's case, like virtually all others in which DNA analysis helped trigger an exoneration, exemplifies a "wrong person" wrongful conviction, in which a crime indeed was committed, but by someone other than the innocent individual who was erroneously blamed for it.(fn4) Consider the different circumstances surrounding the conviction, incarceration, and ultimate vindication of Jacob Gentry. Gentry was charged with first-degree murder in Sussex County, New Jersey for the 2008 beating death of David Haulmark. At his 2011 trial, Gentry admitted that he punched, elbowed, and kicked Haulmark in the head, causing his death. Gentry claimed that he was defending himself from a violent assault initiated by Haulmark, a former football linebacker who outweighed him by eighty pounds and harassed and physically attacked him in the past. The jury acquitted Gentry of murder but, rejecting his contention that he acted in self-defense, convicted him of aggravated manslaughter. He was sentenced to thirty years in prison. Gentry's conviction was reversed on appeal because of faulty jury instructions and other errors.(fn5) At his monthlong

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retrial in 2016, Gentry again contended that he killed Haulmark in self-defense. The jury found him not guilty and Gentry, after spending more than four years in prison, "walked out of the Sussex County Judicial Complex a free man."(fn6)

Cases like Gentry's, in which forensic DNA analysis is of no use in determining guilt or innocence, are absent from the Innocence Project's exoneration list. Indeed, cases involving the erroneous rejection of an affirmative defense are not "who-dunnits," rendering evidence of identity-which is at the heart of "wrong person" wrongful convictions-irrelevant. They instead concern whether "it"-a crime-occurred at all. A great many wrongful convictions eventuate not because the true perpetrator eluded detection and an innocent person was erroneously found guilty, but instead arise although a crime was never committed, which is to say there was no true perpetrator. More than one-third (910, or 36.8%) of the first 2,471 exonerations identified on the National Registry of Exonerations are "no crime" cases.(fn7) Such wrongful convictions occur, for example, through prosecutions in which fires with natural causes are erroneously defined as arson,(fn8) or

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when a child's accidental death or death from natural causes is ascribed to the "shaken baby syndrome" and deemed criminal.(fn9)

Perhaps surprisingly, considerable ambiguity surrounds the appropriate definition of a wrongful conviction(fn10) and, in particular, whether cases that hinge on the rejection or acceptance of an affirmative defense are appropriately classified as wrongful convictions when a guilty verdict is upset on appeal and the defendant subsequently is acquitted or otherwise exonerated. There is consensus that, in this context, wrongful convictions do not encompass cases tainted only by procedural error (sometimes referred to as "legal innocence,"(fn11)) but rather exclusively concern the conviction of persons who are actually innocent (or "factually innocent"(fn12)) of the charged crime. The crux of

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the problem involves the meaning of actual innocence. No one disagrees that "wrong person" cases, such as Walter Snyder's, and "no crime" cases in which convictions were obtained although the envisioned harm did not, in fact, occur-such as when the presumed victim of a criminal homicide turns out to be alive(fn13) -are paradigmatic cases of actual innocence. Much murkier is whether convictions produced by the erroneous rejection of an affirmative defense qualify as "no crime" cases of wrongful conviction involving individuals who are actually innocent.

In their ground breaking study of miscarriages of justice in potentially capital cases(fn14) in the United States between 1900 and 1985,

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Bedau and Radelet adopted what they acknowledged were "relatively strict criteria"(fn15) for inclusion.

[W]e use the term "miscarriage of justice" to refer only to those cases in which: (a) The defendant was convicted of homicide or sentenced to death for rape; and (b) when either (i) no such crime actually occurred, or (ii) the defendant was legally and physically uninvolved in the crime.(fn16)

Referring to Charles Black, Jr.'s lively treatise which explored the vagaries of death penalty law and practice,(fn17) they elaborated on their definitional choice. In the process they explicitly excluded cases involving defendants whose affirmative defenses were erroneously rejected.

As Black observed, the "range of possible 'mistake' [in the death penalty's application] is much broader than

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