‘A Freakishly Rare Anomaly’

by David J. Krajicek

America’s Awkward Relationship with Wrongful Convictions

Americans have a complicated relationship with wrongful convictions.

As schoolchildren, most of us began each day pledging fealty to this country in an oath that ends with a promise of “justice for all.”

But for most of our modern history, we have preferred to keep unjust court outcomes out of sight—the loony uncle in the attic. As social psychologist Melvin Lerner argued 50 years ago, we hold firm to the core belief that people get what they deserve—that bad things do not happen to good people.

As innocence scholars Larry Golden and Keith A. Findley wrote in 2013, we treat wrongful convictions as “at worst a freakishly rare anomaly not worthy of concern.”

That became more difficult in 1987, when Colin Pitchfork was charged in Leicestershire, England, with the rape and murder of two girls based upon the inaugural use of DNA evidence.

It quickly occurred to legal advocates that DNA evidence could be used not only to catch the guilty, but to exonerate the innocent.

The first beneficiary in the U.S. was Gary Dotson, a Chicago man who had been falsely accused (and wrongfully convicted) of rape in 1977 by a teenager who fabricated an elaborate hoax, fearing she would become pregnant after having sex with her boyfriend. Dotson was cleared by DNA evidence in 1988 and eventually pardoned.

In 1992, attorneys Barry Scheck and Peter Neufeld founded the Innocence Project, which has focused on investigating cases in which forensic DNA evidence is available. Their early efforts gained little traction. In the mid-1990s, America was not eager to acknowledge the fallibility of our justice system.

Quite the contrary.

Motivated by the crack epidemic and acts of domestic terrorism in New York and Oklahoma City, Congress and state legislatures were focused on enacting draconian new laws that would push the nation’s prison population from 475,000 in 1980 to 1.15 million in 1990 and to nearly 2 million by 2000.

In 1996, the federal Antiterrorism and Effective Death Penalty Act swept through Congress. Ninety-one senators and nearly 300 representatives voted in favor of the bill, which President Bill Clinton signed in the spring of 1996.

The law limited a convict’s ability to file post-conviction petitions with courts, the sort of appeals that are vital to retroactive DNA testing. Politicians claimed the law targeted attempts by convicts to “thwart justice and avoid just punishment by filing frivolous appeals for years on end.”

“Consider the timing,” says Marvin Zalman, a wrongful conviction expert who teaches at Wayne State University. “With DNA testing, we had just been handed a tool to help determine guilt and innocence with a scientific certainly we had never enjoyed before. And our politicians were essentially saying, ‘Justice is irrelevant. Let’s get those trains moving to Auschwitz.’”

The Legacy of Learned Hand

For generations, an assertion by a revered federal judge, Learned Hand, cast a long shadow over the subject of unjust criminal convictions in America.

In 1923, Hand famously wrote that the specter of innocent convicts had “haunted” our criminal justice system. He rejected the notion of pervasive bad convictions as “an unreal dream.”

Nearly a century later, we shouldn’t underestimate the enduring impact of Hand’s comments.

Hand served on the federal bench for more than 50 years, from 1909 until his death in 1961. A progressive and a wordsmith, he was esteemed as a judicial philosopher and is viewed as perhaps the greatest judge never to sit on the U.S. Supreme Court. (He spent nearly 40 years on the Second Circuit Court of Appeals.) His 4,000 written opinions were known for their depth, clarity and wisdom.

Hand in 1923 was asked to rule on a motion by Irving Garsson and other defendants accused of violating the Prohibition act by using forged permits to illegally obtain thousands of gallons of scotch and champagne from a government liquor warehouse in New York City.

Garsson and his co-defendants sought access to a full transcript of the grand jury proceedings against them. The issue had nothing to do with accusations of wrongful convictions. But Judge Hand nudged the matter in that direction with a law-and-order riff about what he saw as the American bad habit of mollycoddling accused criminals:  

“Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he (the accused) need not disclose the barest of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see. No doubt grand juries err and indictments are calamities to honest men, but we must work with human beings and we can correct such errors only at too large a price. Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays, and defeats the prosecution of crime.”

The case was inconsequential. Garsson and a dozen crime confreres were later convicted and served short prison terms. But the words of the eminent Hand became part of the American criminal justice manifest: that our legal system is virtually infallible.

Hand’s paternalistic view was challenged now and again over the years, perhaps most doggedly by Edwin Borchard, a legal scholar who had been collecting evidence of wrongful convictions for a full decade before the judge called them an “unreal dream.”

In 1913, while working as a young government lawyer in Washington, Borchard had begun lobbying Congress to formalize the process of financial compensation for those wrongfully convicted. He was provoked by the cases of two men in particular: John Boehman, a poor German carpenter who spent 16 years at New York’s Sing Sing prison for a double murder he did not commit, and Andrew Toth, locked up for two decades for a mill-riot murder near Pittsburgh that was committed by another man with the same surname.

Borchard’s compensation proposal dead-ended in Congress, but he stuck with the subject. In 1932, while working as a law professor at Yale, Borchard published a counterpoint to Hand with his book Convicting the Innocent: Errors of Criminal Justice. He collected 65 examples of wrongful convictions. (Interestingly, while 29 were murder cases, more than half involved lesser crimes, including 23 robberies.)

In his introduction, Borchard quoted a prosecutor from Worcester, Mass., who took Hand’s assuredness a step further.

“Innocent men are never convicted,” the prosecutor told Borchard. “Don’t worry about it. It never happens in the (real) world. It is a physical impossibility.”

Impossible or not, anecdotal examples of wrongful conviction did occasionally creep into the news. In 1935, the U.S. Supreme Court reversed a conviction in a Brooklyn, N.Y., counterfeiting conspiracy due to misfeasance by the federal prosecutor, Henry Singer, who was accused of misstating facts, bullying witnesses and prejudicing jurors.

Justice George Sutherland wrote of Singer, “He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

Twelve years later, the Colorado Legislature voted to pay $10,000 to Loren Hamby, who spent eight years in prison for the murder of a filling station attendant. He was exonerated when Leonarde Keeler, a Northwestern University professor who helped invent the polygraph, hooked up Hamby and declared he was not the killer.

The key prosecution witness, who had identified at least two different people as the murderer, recanted, and Hamby was pardoned. The concept of an improper outcome to a criminal trial was so novel that the Associated Press used quotation marks around the word “wrongful” in its stories about the Hamby case.

Compendiums of wrongful convictions popped up on bookstore shelves now and again from the 1940s until the 1970s; the numbers of known cases grew in each succeeding new book as additional specimens were discovered and added. A headline example made front pages in 1982, when Paul Henderson of the Seattle Times won the Pulitzer Prize for his stories leading to the exoneration of Steve Titus, falsely accused of raping a hitchhiker in 1980. Henderson’s work led authorities to the true perpetrator, a serial rapist.

Research Took Root in 1980s

Fifty years ago, Hugo Bedau, a Tufts professor who opposed capital punishment, began collecting examples of wrongful convictions in capital cases. In 1987, Bedau and a young sociology professor, Michael Radelet, published a Stanford Law Review article that detailed what they said were 350 false convictions from 1900 to 1985 in potential death penalty cases.

The work raised vital questions about the scope of wrongful convictions. But the subject had no true modern academic champion—someone to continue the evidence-based advocacy of Yale’s Edwin Borchard.

That changed in the early 1980s, at about the time Henderson was revealing the false rape accusation in Washington.

Arye Rattner, an Israeli doctoral student at Ohio State University, was mulling a dissertation topic with his advisor, C. Ronald Huff, a young professor whose research had focused on suburban crime and prisoners’ rights.

“Arye needed a topic, and we kicked around a few ideas,” Huff told me. “We discovered that there was a very long gap in research on wrongful convictions. Like a lot of good ideas, this one gelled over lunch. We sketched out the project on a napkin at a Jewish deli across the street from the university.”

Rattner’s dissertation, “When Justice Goes Wrong: Convicting the Innocent,” was published in August 1983. Rattner, Huff and their colleague Edward Sagarin collaborated on a series of research projects published in the book Convicted But Innocent and a seminal journal article, “Guilty Until Proved Innocent: Wrongful Conviction and Public Policy,” in Crime and Delinquency in 1987.

“You have to remember that this was before the era of DNA exonerations,” says Wayne State’s Zalman. “I think of these guys as the Portuguese explorers of wrongful convictions, sailing off into the sunset, not knowing where their journey might lead.”

At the time, Zalman’s own research focused on sentencing.

“In the early 80s, wrongful convictions were not on anyone’s radar screen, beyond this handful of academics,” Zalman says. “It was really quite pioneering, what Huff and his colleagues were doing. And their research was looked down upon.”

Huff explains that most Americans were highly skeptical of wrongful convictions.

“Back in those days, a general audience did not want to hear about poor innocent people in prison,” he says. “I would have to explain it like this: ‘You know, every time the wrong person gets arrested and convicted, the real criminal is still out there on the street and may be visiting your family’s home.’”

How Best to Count Cases?

Then as now, the Holy Grail question was how to best estimate the extent of wrongful convictions across all types of crime.

Zalman framed the key issues in a journal article: “Can we generalize from the false conviction rate for capital murder? Should we assume that the error rate for other crimes is at least as high and perhaps higher considering that fewer resources are devoted to less serious cases?”

In the early 1990s, Huff and his colleagues asked 188 judges, prosecutors, defenders and law enforcers in Ohio, as well as 41 state attorneys general, to estimate the percentage of wrongful convictions in criminal court. The answers varied from none to 10 percent. Seven out of 10 respondents put the rate at higher than zero but lower than 1 percent. Huff extrapolated a “conservative” wrongful conviction rate of one-half of 1 percent across all criminal cases.

His number made headlines. About two million people were convicted of serious crimes each year in that era. If Huff and his colleagues were right, that meant as many as 10,000 of them were innocent. Peers criticized both the survey and estimate as unscientific. (One called it “collective guesswork.”) But Huff’s work was a starting point in a robust debate that has continued at conferences and in journals ever since.

Researchers like the University of Michigan’s Sam Gross suggest that the true number of wrongful convictions is “unknowable.” He and other scholars have focused on homicide convictions, a more knowable, finite body of data.

In 2007, D. Michael Risinger, a Seton Hall law professor, published a study of DNA exonerations in capital rape-murder cases from a seven-year period in the 1980s. He teased out “a minimum factually wrongful conviction rate” for rape-murders of 3.3 percent, and he suggested a rate of 3.3 to 5 percent was likely across all forms of crime.

That same year, Gross and Barbara O’Brien published an important rumination on wrongful convictions that came up with a new finite number but also expressed vexation about how little was known on the subject. They calculated that 2.3 percent of criminal defendants sentenced to death from 1973 to 2003 had been exonerated.

But they concluded: 

Our main message is gloomy. We don’t know much about false convictions, and it will be difficult to learn more. Almost everything that we do know is based on information about exonerations, and it’s clear that exonerations are highly unrepresentative of wrongful convictions in general. The main thing we can safely conclude from exonerations is that there are many other false convictions that we have not discovered.

Jon Gould, an American University law professor, disagreed with the gloomy conclusion. In a journal article with Richard Leo, a University of San Francisco law professor, Gould suggested that Gross was being too cautious about deducing a broader rate of wrongful convictions based upon capital cases.

Gould and Leo replied: 

It is not necessary to know the incidence or prevalence of a phenomenon to study it empirically or scientifically. Virtually every aspect of the study of American crime and criminal justice contains some incomplete or missing information. Scholars need not exaggerate the significance of the ‘dark figure’ of wrongful conviction or the implications of imperfect knowledge or the absence of pristine pre-existing data sets.

Gould told me there is ample evidence at this point that wrongful convictions are fairly common. He says he is comfortable estimating a wrongful conviction rate of 3 to 5 percent across all types of crime, major and minor.

In May 2014, Gross and three colleagues published a sweeping new analysis of the 7,482 death sentences handed down in the U.S. from 1973 to 2004. Of those convicts, 117 (or 1.6 percent) had been exonerated. The researchers went a step further, estimating that perhaps 200 additional condemned prisoners, or 4.1 percent of the total, probably were innocent and might have been freed if someone had given their cases the time and resources afforded other exonerees.

Gross called the estimate “conservative,” although he cautioned against assigning his 4.1 percent figure to wrongful convictions at large.

Zalman’s own estimate of wrongful conviction rates hearkens to that of Ohio State’s Huff from two decades ago. Zalman estimates a “general wrongful conviction rate” of between one-half of one percent and one percent. Like Gross, Zalman is a cautious and careful researcher; he admitted frustration at having to make subjective judgments based upon “a few scraps of data.”

Subjective though they may be, the range of wrongful conviction estimates by these leading scholars begin at Zalman’s one-half of one percent and rise to Gould’s upper figure of five percent. U.S. courts convict about one million people of serious crimes each year, so as few as 5,000 or as many as 50,000 are innocent, by these estimates.

Is either figure acceptable? I asked Zalman, and he referred me to a blog post he wrote that addressed the question.

He wrote, “I believe that most Americans would say that one out of 100, or even one out of 200 innocent defendants convicted of felonies because of a range of preventable systemic errors by the very governmental system designed to provide justice is too high in a society guided by the rule of law. Arguments to the contrary are based either on ignorance of criminal justice realities or on faulty cost-benefit analyses.”

David J. Krajicek (@djkrajicek) is a contributing editor of The Crime Report and co-editor of Crime & Justice News. The Crime Report gratefully acknowledges the support of the Fund for Investigative Journalism for this project.

This article was originally published by The Crime Report, www.thecrimereport.org/ on February 9, 2015; reprinted with the author’s permission.