Predicting Erroneous Convictions

• Author: Jon B. Gould, Julia Carrano, Richard A. Leo, Katie Hail-Jares
• Pages: 471-522

* Professor and Director, Washington Institute for Public Affairs Research, American University. ** Research Scholar in Residence, American University.  Visiting Professor, University of California, Los Angeles School of Law (2013–14) and Professor and Dean’s Circle Research Scholar, University of San Francisco School of Law.  Doctoral student, Department of Justice, Law, and Criminology, American University. We thank our colleague, Joseph Young, for his invaluable help with the statistical analysis, and we thank Andrea Butler, Jaclyn Menditch, Truman Morrison, Renee Nicole Souris, Kevin Maass, Erin Crites, and Sarah Ohlsen for excellent research assistance. We are grateful to the expert panelists who lent us their knowledge and insights, and to Eric Martin of the National Institute of Justice (“NIJ”) and the anonymous reviewers for NIJ who provided thoughtful feedback on our original report, which formed the basis of this Article. This project was conducted under Grant No. 2009-IJ-CX-4110 awarded by the National Institute of Justice, Office of Justice Programs, United States Department of Justice. Points of view in this document are solely those of the authors and do not necessarily represent the official position or policies of the United States government. Predicting Erroneous Convictions Jon B. Gould,  Julia Carrano,  Richard A. Leo  & Katie Hail-Jares  ABSTRACT: The last thirty years have seen an enormous increase not only in exonerations of innocent defendants but also academic scholarship on erroneous convictions. This literature has identified a number of common factors that appear frequently in erroneous conviction cases, including forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification. However, without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates. This Article reports results from the first large-scale empirical research project to compare wrongful convictions with other innocence cases in which the defendant escaped conviction (so-called “near misses”). Employing statistical methods and an expert panel, the research helps us to understand how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. In another first, the research secured the cooperation of practitioners from multiple sides of the criminal justice system, including the national Innocence Project, the Police Foundation, the Association of Prosecuting Attorneys, and the National District Attorneys Association. The results highlight ten factors that distinguish wrongful convictions from near misses, but the larger story is one of system failure in which the protections of the criminal justice system operate in a counterintuitive 472 IOWA LAW REVIEW [Vol. 99:471 manner. The Article closes with a series of policy reforms to address these failings. I. INTRODUCTION ...................................................................................... 474 II. WHAT WE KNOW (AND DON’T KNOW) ABOUT ERRONEOUS CONVICTIONS ......................................................................................... 478 III. EMPIRICAL COMPARISON OF ERRONEOUS CONVICTIONS AND NEAR MISSES .................................................................................................... 482 A. D ATA C OLLECTION AND C ASE C ODING .............................................. 483 B. B IVARIATE A NALYSIS ........................................................................ 488 C. L OGISTIC R EGRESSIONS .................................................................... 490 IV. THE BIGGER PICTURE: UNDERSTANDING AND IMPROVING HOW THE CRIMINAL JUSTICE SYSTEM HANDLES INNOCENCE ................................. 494 A. S TATE P UNITIVENESS ........................................................................ 497 B. D EFENDANT ’ S P RIOR R ECORD ............................................................ 498 C. D EFENDANT ’ S A GE ............................................................................ 499 D. I NTENTIONAL M ISIDENTIFICATION .................................................... 499 E. F ORENSIC E RRORS ............................................................................ 500 F. T HE P ROSECUTION ’ S C ASE : W EAK F ACTS , BRADY V IOLATIONS , AND F ALSE N ON -E YEWITNESS T ESTIMONY ................................................. 501 G. W EAK D EFENSE ................................................................................. 502 H. T UNNEL V ISION : A Q UALITATIVE F RAMEWORK OF S YSTEM F AILURE .... 503 V. UNDERSTANDING AND REDUCING SYSTEM FAILURE: POLICY RECOMMENDATIONS .............................................................................. 506 A. R ECOMMENDATION #1: I NCREASE F UNDING FOR I NDIGENT D EFENSE AND D ISTRICT A TTORNEY O FFICES .................................................... 508 B. R ECOMMENDATION #2: P ROSECUTOR O FFICES S HOULD A SSIGN M ORE S ENIOR A TTORNEYS TO THE C HARGING B UREAU ...................... 509 C. R ECOMMENDATION #3: P ROSECUTOR O FFICES S HOULD E STABLISH I NTEROFFICE M ENTORING B ETWEEN N EW AND E XPERIENCED P ROSECUTORS .................................................................................. 509 D. R ECOMMENDATION #4: P ROSECUTORS AND P OLICE I NVESTIGATORS S HOULD N OT R ELY ON A NY S INGLE P IECE OF E VIDENCE , S UCH AS E YEWITNESS T ESTIMONY , A C ONFESSION , OR E VEN F ORENSICS ............ 510 E. R ECOMMENDATION #5: D EFENSE A TTORNEYS AND P OLICE I NVESTIGATORS S HOULD W ORK T OGETHER TO D EVELOP AND U SE A LIBI C HECKLISTS ............................................................................ 510 2014] PREDICTING ERRONEOUS CONVICTIONS 473 F. R ECOMMENDATION #6: F ORENSIC E VIDENCE S HOULD B E A NALYZED F IRST R ATHER T HAN L AST ............................................................... 511 G. R ECOMMENDATION #7: F ORENSIC L AB R ESULTS S HOULD B E S UBJECT TO R EGULAR P EER R EVIEWS AND O VERSIGHT ........................ 512 H. R ECOMMENDATION #8: Y OUTHFUL D EFENDANTS S HOULD B E A SSIGNED A G UARDIAN AD LITEM OR O THER E XTRALEGAL A DVOCATE W HEN C HARGED WITH A V IOLENT C RIME ......................... 513 VI. CONCLUSION ......................................................................................... 515 474 IOWA LAW REVIEW [Vol. 99:471 I. INTRODUCTION April 12, 1990, started out on a joyous note for Juan Cabrero. 1 The eighteen-year-old was at a club celebrating a friend’s birthday with family and friends. Across the room, however, a fight broke out among a group of men. These men, members of a local gang, were acquaintances of Cabrero. In the melee, many were hurt and one man was even killed. Cabrero immediately began tending to the injured, kneeling on the bloody floor and tearing his clothes to use as bandages. When police arrived, however, they became suspicious of Cabrero’s bloodied clothes. Subsequent serological testing showed that the blood on Cabrero’s clothing was consistent with the murder victim’s blood type—as well as the blood type of over half the male population of the United States. The victim’s friend, however, pointed to Cabrero. The friend, after several hours of investigation, lineups, and no sleep since the homicide, identified Cabrero as one of the murderers. Despite the word of several other witnesses, who claimed that Cabrero had not participated in the fight, the identification by the victim’s friend prevailed. Based on that identification, the bloody clothing, and Cabrero’s virtual failure to raise a defense, the teenager was convicted of murder and sentenced to fifteen years to life in prison. After nearly six years, additional witness statements and advanced DNA testing proved Cabrero’s innocence. The same bloodied pants that had initially attracted police attention eventually exonerated Cabrero, proving that none of the blood on his clothes belonged to the murder victim. At the same time that Cabrero was filing a civil suit for his erroneous conviction, a strikingly similar case was unfolding in a different locale. Johnny Simmons, an African American, twenty-year-old, community college student was hanging out at a bus station when chaos ensued. An assailant fired at a young man in the crowd but missed his intended target. Instead, his bullet fatally hit a woman waiting in line for a bus. During police interviews, an eyewitness intentionally misidentified Simmons as the shooter. The eyewitness, the intended target’s cousin, had recently fought with Simmons. Based on this eyewitness identification, Simmons was arrested and indicted. However, at this point, Simmons’s case diverged from that of Cabrero. Simmons’s defense attorney actively investigated the charges against his client. He obtained a surveillance tape from the bus station and hired an expert to sharpen the images. Through cranial measurements, the expert determined Simmons could not have been the shooter. The defense also located a time-stamped photo of Simmons wearing clothes that did not match those of the shooter and tracked down an eyewitness, by then living 1. Because of the human subjects’ requirements that were a precondition for receiving approval to do this study, we have changed the names of all suspects and defendants in our data set of cases in this Article, and we have necessarily altered any identifying case information. 2014] PREDICTING ERRONEOUS CONVICTIONS 475 out of state, who declared Simmons had not fired any shots. Entertaining serious doubts about the case, the prosecution flew in the new eyewitness and interviewed him. Convinced the witness was telling the truth about Simmons’s innocence, the state dropped the charges against Simmons before trial. In many ways, these cases tell a parallel story. Both involve an innocent defendant. Both defendants are young men of color arrested for murder. Both cases turn on a single...