This piece is the first in a series on defects in our criminal justice system that lead to wrongful convictions.
Just days ago, Adnan Syed was released from prison after 23 years, after the podcast “Serial” exposed flaws in his murder trial. With this development, the issue of wrongful convictions is back in the headlines. Before the DNA revolution of the late 20th century, there was a shared belief among most Americans that the nightmare scenario of the wrongfully convicted prison inmate often described in literature and popular entertainment, like Dr. Richard Kimble in the television show “The Fugitive,” was largely a myth, or at worst, an unfortunate aberration. Politicians, judges and lawyers who maintained our criminal justice system and had a stake in promoting its fairness might acknowledge particular miscarriages of justice, but usually cited their rarity as proof of the reliability of our criminal trials.
Judge Learned Hand, whose writings remain a staple in law school curricula, wouldn’t even acknowledge that much error: He famously wrote in a 1923 judicial opinion that “[O]ur procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream.” This may be the dimmest and most harmful statement ever written by an otherwise brilliant judge.
Currently, the National Registry of Exonerations lists more than 3,200 wrongful convictions since 1989, hundreds of which were overturned thanks to the development of DNA testing, which proved innocence to a scientific certainty. Judge Hand’s absolute faith in our criminal procedures was misplaced. Some nightmares are real. Who knows how many of Judge Hand’s “ghosts” were convicted and sentenced to death or long stretches in prison before DNA testing turned our attention to this problem haunting our courtrooms?
The American criminal justice system has always been guided, at least in theory, by William Blackstone’s famous ratio: “[I]t is better that ten guilty persons escape than that one innocent suffer.” John Adams, defending the despised British soldiers who killed American colonists during the Boston Massacre, explained that the Blackstonian ratio was also essential to public safety. Unfortunately, a certain number of wrongdoers have and will always escape justice, he said.
But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim it is immaterial to me whether I behave well or ill, for virtue itself is no security…. [I]f such a sentiment as this should take place in the mind of the subject, there would be an end to all security whatsoever.
Adams believed that wrongful convictions are criminogenic: They spread contempt for the law, make law-abiding behavior seem pointless, and stimulate political and social collapse. Benjamin Franklin thought Blackstone didn’t go far enough in favor of the accused. He wanted the burden carried by the state to be heavier, so he increased the ratio to 100 to 1. And, when advising a man who wanted to better understand our legal system, Abraham Lincoln responded, “Begin with ‘Blackstone’s Commentaries.’”
Founding Fathers like Adams and Franklin envisaged criminal trials that would embody two great Enlightenment ideals: the pursuit of truth and the protection of individual liberties. The former would be realized through fact-finding and reasoned argument, the latter through procedural rules that made conviction possible only after impressive proof of guilt had been presented.
By failing to reckon with the harsh truths about the flaws in our criminal procedures, the Supreme Court is proving itself an obstacle to the realization of both these ideals. Its rulings are perpetuating an enormous problem that it has a constitutional duty to shrink. Exonerations have occurred “in numbers never imagined before the development of DNA tests,” former Justice David Souter wrote in a 2006 dissenting opinion.
Today in courtrooms around the country, juries issue erroneous verdicts they could have gotten right, had the Court ruled differently or been willing to reverse a few key cases. Due to its intransigence, the rights of the accused—including, most tragically, the falsely accused—remain in peril. Most DNA exonerees, including the 21 released from death row, were convicted under constitutional rules authorized by the Supreme Court and were given what current law considers a fair trial.
Just last year, for example, Gilbert Poole Jr. was released from prison after serving 32 years for a murder he didn’t commit. The crime was horrific: The autopsy states that the victim had been beaten, bruised, bitten, stabbed eight times, and had his throat cut after putting up a tremendous fight that seemed to have injured his attacker. Like many others, Poole’s conviction was based on junk science testimony, which Supreme Court case law too often allows juries to consider, and law enforcement misconduct (in the form of hiding exculpatory evidence), which the Court’s jurisprudence fails to adequately deter or punish.
Poole’s incarceration was needlessly protracted by the Supreme Court’s strict habeas corpus rules, which slam the courthouse door shut on countless inmates who claim, as Poole did, that newly discovered evidence proves they are actually innocent. (After years of legal wrangling, Poole finally won a DNA test. The results confirmed that he had contributed none of the biological evidence found at the crime scene and that some of the blood found next to the victim’s body belonged to an unknown individual—almost certainly the actual perpetrator. Poole was finally released.)
Unlike any other investigative technique, DNA testing can, in certain cases involving biological evidence, prove irrefutably whether the accused is guilty of the crime with which he’s been charged. Barry Scheck, one of the co-founders of the Innocence Project, a civil rights organization that uses DNA testing to exonerate wrongfully convicted inmates, said in a 2000 interview that DNA testing has exposed “a total system failure.” He was right.
Studying the common features of exoneration cases has enabled us to do something never before possible: determine how and why the system fails. Scholarship on this subject over the past few decades has been prolific and the consensus virtually universal. There are seven critical defects in our criminal investigation and adjudication processes—breakdowns in the rules of constitutional criminal procedure—that lead most directly to wrongful convictions:
- Eyewitness misidentifications: Research has shown that human memory is far less reliable than we once thought. Suggestive police identification procedures, such as lineups, that steer witnesses toward the selection of suspects police already believe to be guilty, can result in unreliable eyewitness trial testimony.
- False confessions: The ancient presumption that the innocent don’t confess to crimes—especially violent ones like rape and murder, and especially to law enforcement, whose job is to punish them—is a canard. Police interrogation techniques are, in fact, often too effective. They can elicit admissions from the innocent as well as the guilty.
- Law enforcement misconduct: Police and prosecutors can manufacture guilty convictions despite a defendant’s innocence in various ways. The most common is to simply hide exculpatory evidence from the defense. Concealing evidence of innocence violates the defendant’s constitutional rights, but the Supreme Court has interpreted these rights so narrowly and has proven itself so unwilling to punish and deter guilty law enforcement officers that such violations remain fairly routine.
- Lying police informants: Law enforcement snitches are incentivized to lie on the witness stand. After cutting deals with prosecutors for immunity or a reduced sentence, their liberty—and in capital cases, their very lives—depend on providing useful information to the state. They’re often eager to point their fingers at the innocent in exchange for what is being offered.
- Incompetent defense attorneys: The vast majority of criminal defendants, including those who are innocent, cannot afford lawyers. What’s true in commerce is also often true in the courtroom—you get what you pay for. While many public defenders are excellent, and some are downright heroic, they are generally overwhelmed, underpaid, underresourced and often unable to put up the kind of valiant fight at trial needed to defeat the state’s case.
- Junk science: DNA testing has put the lie to, or at least called into question, many other forms of forensic evidence once thought to be highly reliable but were often only as accurate as the particular scientist conducting the test. In Gilbert Poole’s case, for instance, the state’s forensic odontologist testified that Poole’s teeth matched the bite marks on the victim. We now know that they didn’t. As in Poole’s case, forensic testimony often involves “matching,” which we know can be subjective, inexact and unreliable.
- The unwillingness of courts to consider post-conviction actual innocence cases: A criminal defendant’s presumption of innocence ends with his guilty conviction. Appellate courts generally review cases to determine whether the trial was conducted fairly, not whether the accused is actually innocent. Getting an appellate court to hear an actual innocence claim, as opposed to an unfair trial claim, can be a Herculean effort.
Forensic DNA testing, also known as “genetic fingerprinting,” has exposed the causes of wrongful convictions—and yet the Supreme Court has perpetuated each of these seven problem areas or, in some cases, made them even worse. In our system of government, the Supreme Court is the ultimate arbiter of the Constitution and guarantor of individual liberties. While many state governments and the other two branches of the federal government can, and in many cases have, made real reforms, in the end the problem of wrongful convictions is the Supreme Court’s to fix. It’s high time it got started.
Author’s note: A majority of DNA exonerees are poor and black. While the articles in this series focus on defects in the rules of criminal procedure, not political and sociological phenomena, like racism and poverty, one should never forget that all the injustices of our criminal system, including wrongful convictions, always fall heaviest on those targeted the most and least able to fight back—the poor and racial minorities.