The path to exoneration.

• Author: Gould, Jon B.

1. INTRODUCTION

   The empirical study of the wrongful conviction of the innocent in America began in earnest with Edwin Borchard's 1932 book, Convicting the Innocent, in which he catalogued sixty-five cases of actual innocence, described their legal causes (eyewitness misidentification, witness perjury, false confessions, police and prosecutorial misconduct, inadequate defense counsel, etc.) and recommended some possible solutions. (1) Following the blueprint created by Borchard, several writers and scholars of wrongful conviction in the next half-century would also aggregate wrongful conviction cases, detail their evidentiary sources, and then recommend criminal justice policy reforms intended to minimize their occurrence. This included Erie Stanley Gardner's The Court of Last Resort (1952) (thirteen cases), (2) Barbara and Jerome Frank's Not Guilty (1957) (thirty-four cases), (3) Edward Radin's The Innocents (1964) (eighty cases), (4) and a chapter by Hugo Bedau in The Death Penalty in America (1964) (seventy-four cases). (5) In 1987, Hugo Bedau and Michael Radelet published the largest compilation of erroneous conviction cases in the pre-DNA era--350 (capital and potentially capital) cases in America from 1900 to 1985. (6)

   From Borchard to Bedau and Radelet, these works of scholarship and popular writings were not only compelling, but deeply disturbing--if not downright shocking. They detailed case after case in which an innocent person was falsely accused of a serious crime he did not commit, typically murder, and was then wrongly arrested (by police who did not have probable cause, or who had collected or created false or misleading evidence), (7) wrongly prosecuted (by district attorneys based on false and misleading evidence), (8) wrongly convicted (by a jury or judge who mistakenly believed the defendant was, as a matter of fact, guilty beyond a reasonable doubt), and ultimately, wrongly imprisoned--usually for many years if not decades--until his factual innocence was finally exposed, if it ever was. (9) Some may even have been executed. (10) As described and aggregated by the various authors mentioned above, these cases--like an Edward Munch painting--screamed out injustice to anyone willing to listen. They chronicled story after story of repeated criminal justice system failure, narratives made all the more striking by the fact that our legal system, in theory, endows criminal defendants with more constitutional rights and protections to safeguard the innocent and prevent erroneous convictions than any other in the world.

   These wrongful convictions were triple tragedies: the lives of the factually innocent but wrongly convicted defendants, and their families, were forever damaged, if not destroyed; the true perpetrator(s), if not already incarcerated for another felony or felonies, remained free to perpetrate even more violent crimes; and the original crime victims and their families were left to re-experience the pain of their victimization once the wrongful conviction was exposed and the true perpetrator was finally brought to justice, if/when that even happened. (11)

   Although many cases of wrongful conviction were documented, aggregated and written about by scholars, journalists, lawyers and others in the era from Borchard to Bedau and Radelet (1987), these cases were either ignored or treated as individual tragedies, no more than one-offs, rather than as illustrative of a criminal justice system that was highly prone to error because of structural truth-seeking flaws. (12) Prior to 1989, virtually all observers assumed that factually erroneous convictions were so rare as to be anomalous, if not freakish, especially in serious felony and capital cases. (13) At the time, the wrongful conviction of the innocent "was never more than a fleeting issue for most criminal justice practitioners, policymakers, the media, and the public." (14) The cases amassed by Borchard, Gardner, Frank, Radin, Bedau, Radelet and many others were almost universally treated as isolated instances by a legal system that was highly resistant to any accusation of factual error in its conviction process. As Rob Norris has written:

   Although dozens of wrongful convictions had been uncovered prior to the late 1980s, they were often met with skepticism or downright dismissal. Despite evidence that suggested a person was innocent, talk of criminal justice errors was rarely met with any true concern; instead, the response tended to suggest that the person or people were not innocent, but got off on a technicality or had done something else to warrant conviction and punishment. At the very least, if it was accepted that an error had occurred, they were seen as exceptionally rare and did not justify systemic reform. (15) Across the spectrum, legal officials, academics, the media, and the public perceived the justice system to be virtually infallible. (16)

   The DNA exoneration cases in the 1990s and 2000s, of course, would radically change this perception. Since early 1989, more than 420 innocent men and women have been released from lengthy prison sentences after being exculpated by post-conviction DNA testing, including over two-dozen individuals from death row. (17) As the DNA exonerations began to aggregate in the early and mid-1990s, they attracted substantial and sustained media coverage, which built on itself, and more than anything else, began to shatter the "myth of infallibility" that previously characterized most people's beliefs--from lay people to legal officials--about the accuracy of convictions in the criminal justice system. (18) The ever-expanding number of DNA exonerations gave rise to what Marvin Zalman has called "innocence consciousness," (19) which, he argues, "replaces a belief that the justice system almost never convicts an innocent person." (20)

   In the 1990s and 2000s, the problem of the innocent but wrongly convicted was in the background or foreground of virtually any serious conversation about American criminal justice, and regularly made its way into popular consciousness. (21) DNA exoneration cases were not only extensively covered in national and local print media, but they were also regularly featured in documentaries, television programs, plays, movies, and popular true crime books and novels. (22) In the 1990s and 2000s, the American public became more cognizant of the problem of wrongful conviction than at any time in American history. (23) The innocent but erroneously convicted and incarcerated criminal defendant was no longer universally perceived as an isolated and aberrational tragedy, but, rather, by many as a systemic and worrisome feature of the landscape of American criminal justice. (24) More so than at any other time, the steady drumbeat of post-conviction DNA exonerations in the 1990s and 2000s (and the sustained media attention they received) convinced policymakers, journalists, and the American public that the problem of wrongful convictions in American was both a reality and a nightmare for hundreds, perhaps tens of thousands, (25) of innocent men and women in America.

   In the post-DNA era (1989 to the present), we now know a good deal about the evidentiary sources and correlates of wrongful conviction--perhaps most notably, eyewitness misidentification, false confessions, perjured informant testimony, and forensic error (26)--especially in rape, homicide and capital cases. (27) We also know a good deal about policy reforms designed to minimize and prevent the wrongful conviction of the innocent, such as double-blind and documented line-up procedures, electronic recording of interrogations, external oversight of crime labs, and improved documentation and disclosure of informant testimony. (28) But, despite the amount of empirical knowledge we have accumulated in the last quarter century about the evidentiary sources of and remedies for the wrongful conviction of the innocent, we still know very little about how they are discovered and rectified or the bases for achieving exoneration.

   To our knowledge, the only scholars who have systematically examined the discovery and remedy of error are Hugo Bedau and Michael Radelet. (29) In their study of 350 miscarriages of justice in capital and potentially capital cases in America from 1900 to 1985, Bedau and Radelet sought to identify where error was exposed after the defendant was convicted, and who was primarily for responsible for the defendant's eventual exoneration. (30) Strikingly, as Bedau and Radelet note, "[i]n no case was it the defendant alone; without exception the defendant needed the help of others." (31) Yet in more than a third of their cases, no identifiable person or group was responsible for exposing the miscarriages of justice. (32) In most cases the defendant was exonerated because of the efforts of individuals outside of the criminal justice system (e.g., volunteer attorneys, journalists, family or friends, relatives of the victim, etc.), rather than because of it. (33) Bedau and Radelet summarize the lesson to be learned from their data:

   There is no common or typical route by which an innocent defendant can be vindicated, and vindication, if it ever comes, will not necessarily come in time to benefit the defendant. The criminal justice system is not designed to scrutinize its own decisions for a wide range of factual errors once a conviction has been obtained. Our data show it is rare for anyone within the system to play the decisive role in correcting error.... [I]n the bulk of the cases, the defendant has been vindicated not because of the system, but in spite of it.... In short, the lesson taught by our data is how lucky these few erroneously convicted defendants were to have been eventually cleared. (34) Yet much has changed since Bedau and Radelet wrote their landmark article on the risk of executing the innocent in America, which was published in 1987--two years before post-conviction forensic DNA testing...