As reported in the New York Times, two men were recently exonerated through proceedings in the North Carolina Innocence Inquiry Commission based on DNA evidence that demonstrated the real criminal was another original suspect who had committed a similar crime. The two men each had served thirty years in prison, one on death row.
North Carolina of course is the only state in the United States with an independent commission established to examine the innocence claims of wrongly convicted individuals. England and Wales and Scotland have long had these commissions – the Criminal Cases Review Commissions. Although they obviously have critics, these commissions have functioned effectively – miraculously from a US perspective – in independently investigating (with subpoena power) and then referring cases to the court of appeal for review.
We should re-think our opposition to establishing independent commissions that can impartially and thoroughly investigate claims of wrongful conviction. Finality is an important value, yes, and we commit a tremendous amount of resources to the pre-conviction resolution of criminal charges. But it’s important to realize that the North Carolina courts and presumably the federal courts, did nothing to correct the manifestly erroneous convictions in this case. Were it not for the Commission, the convictions would stand. Can the correction of these so manifestly erroneous North Carolina convictions rationally be seen as threatening to our finality values?
Aside from the overriding importance of freeing the wrongly convicted, the public’s perception of the justice and reliability of our criminal process is deteriorating. One of the best and probably most cost-effective way to restore it is to establish direct review innocence commissions in our states.
- Kenneth Rose, I Just Freed an Innocent Man from Death Row. And I’m Still Furious., The Washington Post (Sept. 4, 2014).
- Jonathan M. Katz, From Death Row to Unfamiliar World, New York Times, Sept. 4, 2014, at A17.
- Editorial Board, The Innocent on Death Row, New York Times (Sept. 3, 2014).
- Jonathan M. Katz, North Carolina Men Are Released After Convictions Are Overturned, New York Times (Sept. 3, 2014).
- Jonathan M. Katz & Erik Eckholm, DNA Evidence Clears Two Men in 1983 Murder, New York Times (Sept. 2, 2014).
- North Carolina Launches ‘Innocence Board’, NPR Law (Aug. 5, 2006).
Related Journal Articles:
With an interesting perspective on the problem of wrongful convictions, the investigators, Kim Anklin and Bob Rahn, tell the story of how they helped uncover and produce the evidence that established a wrongful conviction in Brooklyn. Take a moment to read the full article about the Jonathan Fleming case, written by one of the investigators.
Kim Anklin, The Investigation of a Wrongful Conviction: The Jonathan Fleming Case.
In his newest op-ed New Commission to Regulate Prosecutorial Misconduct, Prof. Bennett Gershman of Pace Law School introduces the nation’s first public commission, proposed in New York State, that is designed to investigate complaints of misconduct by prosecutors and impose discipline upon prosecutors who violate the rules.
Prof. Gershman recaps some of the most egregious recent instances of prosecutorial misconduct and points out that prosecutors are rarely disciplined for their misconduct. He points out that misconduct by prosecutors is costly because it leads to wasting money on re-litigating the same case over and over, it diminishes public confidence in the criminal justice system when prosecutors are not held accountable for their misconduct, and it imposes unimaginable pain and suffering on the innocent and their families. Prof. Gershman then concludes that
a commission that is independent from the legal profession, and independent from the prosecutor’s office, will be able to conduct investigations in a nonpartisian, non-political, and objective manner.
Read the full Bennett L. Gershman, New Commission to Regulate Prosecutorial Misconduct, HuffPost Crime (May 20, 2014).
In People v. Minor, the Appellate Division, First Department unanimously reversed a second degree murder conviction on the ground that the judge erred in her instruction on assisted suicide defense to murder.
In Minor, the defendant had been charged with murdering Jeffrey Locker, a motivational speaker who was deeply in debt and who was found dead in his car from multiple stab wounds. The defendant claimed Locker had enlisted his aid to make his suicide look like a murder so his family could recover his recently purchased $12 million of life insurance. The defendant allegedly held a knife on the steering wheel as Locker leaned forward into it. When the defendant left the car, Locker was still alive. Based on expert testimony that the wounds were inconsistent with the defendant’s story, the prosecution claimed that the defendant had murdered the victim.
In her instructions, the trial judge attempted to explain the affirmative defense of assisted suicide by stating that while murder was an “active,” assisted suicide was not. When the jury asked for additional clarification the judge, over objection, responded with further instructions that failed to clarify the distinction. The First Department reversed the conviction. It held that neither the term “active” nor its opposite, “passive” are present in the statute and that the instructions were confusing and misleading.
Read People v. Minor, No. 10291, 2013 N.Y. Slip Op. 6444 (App. Div. 1st Dep’t 2013).
Washington Institute for Public and International Affairs Research at American University has conducted a three-year study focusing on the identification of common factors in wrongful convictions. The results of the study have been published in a December 2012 summary titled Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice.
The study identifies forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification among the common factors in wrongful convictions. The study suggests there is a notable difference between “causes” of erroneous convictions compared to “correlates” of wrongful convictions.
Missing so far in the literature is a study that asks how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. What we want to know – and thus what dictated our research strategy – is what factors are uniquely present in cases that lead the system to rightfully acquit or dismiss charges against the innocent defendant (so-called “near misses”), which are not present in cases that lead the system to erroneously convict the innocent.
The study identifies factors aiding to erroneous conviction of innocent defendants including:
- Age and criminal history of the defendant
- Punitiveness of the state
- Brady violations
- Forensic error
- Weak defense and prosecution case
- Family defense witness
- Inadvertent misidentification
- Laying by a non-eyewitness
- False confessions
- Criminal justice official error
- Race effects
- Tunnel vision
The study concludes that
increased attention to the failing dynamics of the criminal justice system, rather than simply isolated errors or causes, may lead to better prevention of erroneous convictions. …[The] results suggest that there should be greater emphasis at all levels and on all sides of the criminal justice system, including police, prosecutors, defense attorneys and judges, to analyze and learn from past mistakes before they result in serious miscarriages of justice.
When I read “common factors” in wrongful convictions, I had to pause. Is the criminal justice system so flawed that there is a sufficient amount of wrongful convictions to conduct a study? Apparently so; an alarming number of wrongful convictions have emerged in the past decade(s) and the number keeps growing. The Innocence Project has been one of the leaders in the efforts to exonerate wrongfully convicted, currently showing 303 successfully exonerated individuals. But is exoneration after the fact enough? The study offers a different approach to erroneous convictions – an approach consisting of variety of steps to be taken early on in an investigation that would prevent the commission of erroneous convictions rather than dealing with the effects of wrongful conviction when damage to the wrongly accused and everyone around her has already been done.
- Garrett Brandon, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011).
- Hélèna Katz, Justice Miscarried: Inside Wrongful Convictions in Canada (2011).
- James R. Acker & Allison D. Redlich, Wrongful Conviction: Law, Science and Policy (2011).
- The Criminal Cases Review Commission: Hope for the Innocent? (Michael Naughton ed., 2010).
- Dawn Anderson & Barrie Anderson, Manufacturing Guilt: Wrongful Convictions in Canada (2009).
- John B. Gould, The Innocent Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System (2009).
- Wrongful Conviction: International Perspectives on Miscarriages of Justice (C. Ronald Huff & Martin Killias eds., 2008).
- Susan F. Sharp, Hidden Victims: The Effects of the Death Penalty on Families of the Accused (2005) (E-book).
- Stefan Trechsel & Sarah J. Summers, Human Rights in Criminal Proceedings (2005) (including chapter on the right to compensation for wrongful conviction).
- Scott Christianson, Innocent: Inside Wrongful Conviction Cases (2004).
- Wrongly Convicted: Perspectives on Failed Justice (Saundra D. Westervelt & John A. Humphrey eds. with a foreword by Michael L. Radelet, 2001).
- Study Reveals 10 Factors Common in Wrongful Convictions, The BLT: The Blog of Legal Times (March 12, 2013).
See additional articles relating to wrongful convictions.