The flipside injustice of wrongful convictions: when the guilty go free.

• Author: Acker, James R.
• Position: I. Introduction through II. Compounding the Tragedies of Wrongful Convictions: New Crimes Committed and New Victims Claimed by the True Perpetrators; Earl Mann, p. 1629-1673

1. INTRODUCTION

   As the rosters of identified wrongful convictions continue to swell, (1) attention naturally focuses on the fractured lives of the innocent men and women who have endured the pains of unwarranted stigmatization and punishment. Their compound sufferings (2) become all the more apparent as statistics that detail the incidence, causes, and consequences of miscarriages of justice give way to identified individuals and glimpses of their life stories. (3) Post-conviction challenges in cases in which the innocent have been adjudged guilty often trigger the steadfast opposition of prosecutors (4) and are only resolved following years of sustained litigation championed by defense counsel on behalf of the unjustly convicted. (5) These attributes combine to invite conceptualizing "the Innocence Movement" (6) as defendant-oriented and adversarial, pitting law enforcement and prosecution interests against the defense in much the same spirit as the original trial.

   The modest thesis of this article is that indulging an inflexible mindset of "us-against-them" in the context of miscarriages of justice is not only misguided but also counterproductive. Wrongful convictions entail profound social costs in addition to the hardships borne by the unfortunate individuals who are erroneously adjudged guilty. When innocents are convicted, the guilty go free. (7) Offenders thus remain capable of committing new crimes and exposing untold numbers of additional citizens to continuing risk of victimization. Public confidence in the administration of the criminal law suffers when justice miscarries. (8) At some point, as cases mount and the attendant glare of publicity intensifies, the perceived legitimacy of the justice system and the involved actors is jeopardized. (9) Associated monetary costs, paid from public coffers, represent yet another tangible social consequence of wrongful convictions. (10)

   Adherents of neither the "Crime Control" nor the "Due Process" models of justice (11) should harbor disagreement about these simple premises. With the exception of the actual offenders, everyone benefits, and no one loses when innocent parties are spared conviction and when the actual perpetrators of crimes are brought to justice. (12) Acknowledging this commonality of interests causes other, ideologically divisive issues to pale in contrast. Every case of wrongful conviction is also a case where the guilty party remains free. (13) Taking this self-evident proposition to heart is a simple yet perhaps necessary step in helping overcome barriers to meaningful policy discussions and enacting long overdue reforms.

2. COMPOUNDING THE TRAGEDIES OF WRONGFUL CONVICTIONS: NEW CRIMES COMMITTED AND NEW VICTIMS CLAIMED BY THE TRUE PERPETRATORS

   When the wrong person is convicted of a crime, the true offender remains at large, free to commit additional offenses. (14) The actual perpetrators of crimes were identified in nearly half (149/307, or 48.5%) of the DNA-exoneration cases reported by the Innocence Project through February 2013. (15) These true offenders are known to have committed at least 123 additional violent crimes, including 32 murders and 68 rapes, following the arrest of the eventual exonerees who were erroneously prosecuted and convicted. (16) Had they been apprehended in a timely fashion, rather than the innocent persons accused in their place, their future victims would have been spared death, injury, and the related pernicious consequences of criminal violence.

   An exhaustive analysis completed by the Better Government Association and the Center on Wrongful Convictions (17) of eighty-five exonerations in Illinois between 1989 and 2010, documented the crimes committed by actual offenders while innocent parties were instead punished. (18) "[W]hile 85 people were wrongfully incarcerated, the actual perpetrators were on a collective crime spree that included 14 murders, 11 sexual assaults, 10 kidnappings and at least 62 other felonies." (19) The study noted that the true criminals remained unknown in many of the exoneration cases, involving wrongful conviction for thirty-five murders, eleven rapes, and two rape-murders. (20) The ninety-seven offenses known to have claimed new victims thus undoubtedly comprised "just a fraction of the total number of crimes committed by the actual perpetrators." (21)

   Unfortunately, dire predictions regarding the incidence of repeat offending by criminals can be well-grounded. Although predicting future criminal conduct in individual cases is hazardous, (22) violent criminals who remain at large constitute a palpable threat to public safety. (23) Not all will commit new crimes, (24) but criminologists generally agree about the accuracy of the maxim that "a key predictor of future crime is past crime." (25) Some hardcore, chronic offenders engage in numerous repeat acts of violence. (26) Recidivism rates among probationers (27) and previously incarcerated felons (28) are high. (29) It seems plausible that the true offenders who elude detection in wrongful conviction cases are just as likely to have committed new crimes as the ones who eventually are identified and linked to the original offense. (30)

   As revealing as the statistics are that measure the new crimes committed by the guilty who remain at large in the aftermath of wrongful convictions, they are no match for the raw intensity of the underlying case narratives. (31) Accounts from a wealth of cases that resulted in wrongful convictions could be presented. Twenty illustrative ones are offered below. They are not necessarily representative of all cases in which new crimes are known to have been committed by the perpetrators who originally cheated justice. The cases originated in multiple jurisdictions and arose in connection with wrongful convictions that were produced by diverse errors, attributable to a host of different actors and circumstances. All share the harsh consequences of a new round of victimizations being committed by the true offenders while innocent defendants instead suffered prosecution and punishment.

   Mark Christie

   Viola Manville, a seventy-four-year-old woman who regularly enjoyed hiking the countryside in Hilton, New York, on the outskirts of Rochester, was killed during the morning of November 29, 1988. (32) She had been badly beaten and shot with pellets from a BB gun. (33) Her body was left alongside railroad tracks, in the general vicinity of where a man had tried to rape her some three years earlier. (34) That man, Glen Sterling, remained in prison following his conviction for the rape attempt. (35) Glen Sterling's brother, Frank, was among the many people interviewed by sheriffs detectives during the homicide investigation. (36) Frank Sterling had no prior criminal record and no reputation for violence. (37) Although no physical evidence linked him to the crime, the authorities apparently reasoned that he may have had a motive to kill Ms. Manville in retaliation for his brother's conviction and punishment. (38) Sterling accounted for his whereabouts on the day of the murder, explaining that he had been working as a school bus monitor during the morning, returned home, walked to a grocery store to make a purchase, and watched cartoons on television in the afternoon. (39) His alibi was confirmed and neither he nor anyone else was arrested in the ensuing weeks and months. (40)

   More than two and one-half years later, in July 1991, detectives again visited Frank Sterling at his home. (41) He had just returned from a truck-driving job that had consumed the better part of two days. (42) Although tired, he agreed to a polygraph examination, and accompanied the detectives to the sheriffs office in Rochester. (43) During the pre-examination session, the polygraph technician falsely told Sterling that his brother Glen had bragged to other prisoners that Frank had killed Ms. Manville. (44) After the examination, Sterling was advised that he was being deceitful when he denied the killing. (45) As midnight approached, another interrogator took over the questioning. (46) He got Sterling to admit that he was angry enough about his brother's incarceration to have killed Manville, but Sterling continued to deny that he had done so. (47) He asked to be hypnotized to prove that he was telling the truth. (48) The investigators responded by holding his hands and assisting him with relaxation exercises. (49) They told him that "we were here for him, we understood [and] we felt he should tell the truth to get if off his chest." (50) Roughly eight hours into the interrogation session, Sterling admitted killing Ms. Manville. (51) Shortly after five o'clock in the morning, a twenty-minute video-recording preserved his detailed confession. (52)

   Sterling repudiated his confession shortly after making it, but his recantation was not believed. (53) With his incriminating admission serving as the primary evidence of his guilt, Sterling was convicted of murder following trial in September 1992. (54) Just days later, several townspeople alerted the police that nineteen year-old Mark Christie was bragging that he had "just gotten away with murder." (55) Christie was among the individuals questioned by the police during their 1988 investigation of the killing. (56) Then sixteen, Christie maintained that he had gone to school at mid-morning on the day of the murder. (57) Although school records indicated that he did not attend class until 1:20 that afternoon, investigators did not pursue him as a suspect. (58) Police interrogated Christie again in December 1992, following his reported boastings about the murder. (59) He claimed that he had only been "kidding around" when he made those statements. (60) The results of an initial polygraph exam, in which he denied the killing, were deemed "incomplete" owing to Christie's erratic breathing and excessive movement. (61) He passed a second exam, administered the next day. (62) The judge in Frank...