Prosecutors and Wrongful Convictions: ‘Pay Now or Pay Later’

Three big-city prosecutors who have formed special units to review—and correct—errors made by their offices say a “cultural shift” is necessary to persuade politicians, police and their own attorneys that it is more important to avoid mistakes than to simply win convictions.

Three big-city prosecutors who have formed special units to review—and correct—errors made by their offices say a “cultural shift” is necessary to persuade politicians, police and their own attorneys that it is more important to avoid mistakes than to simply win convictions.

“My pitch to (county) commissioners is ‘pay now or pay later,’” says Kim Ogg, the District Attorney for Texas’ Harris County, noting that settlements for civil rights suits or wrongful convictions often end up costing more than the money spent on units dedicated to reviewing faulty cases after they’ve already happened.


Brooklyn NY District Attorney Eric Gonzalez and Harris County DA Kim Ogg

“It requires changes in every aspect of our policies and practices that support the search for the truth.”

According to Brooklyn (NY) District Attorney Eric Gonzalez, the Conviction Review Unit formed by his predecessor Ken Thompson has sent signals to both young assistant district attorneys and veteran lawyers in his office that their job performances will no longer just be tied to the number of convictions they win.

“It’s a cultural shift,” says Gonzalez. “They get as much credit for pointing out errors and mistakes as for securing trial convictions.”

In Baltimore, where investigators are now looking into thousands of cases—some of them years old—which may have involved wrongful or illegal behavior by police, State’s Attorney Marilyn Mosby tells her prosecutors that the “only way to better the system is to learn from errors.”

All three elected prosecutors, speaking at the John Jay/Harry Frank Guggenheim Symposium on Crime in America at John Jay College last week, said it was often an uphill battle to get the resources to fund an approach that is far from popular among justice and law enforcement professionals.

And they made clear that one of the primary values of such conviction reviews was to prevent mistakes from being repeated in future cases.

“When I was a young prosecutor, I was taught that there are no wrongful executions or exonerations in Texas, and that no one in prison was innocent,” said Ogg, who was elected DA last year in Harris County, which includes Houston.

But, she added, prosecutors across America should now be governed by a mindset that “we’re responsible for cases forever, and to ensure the integrity of convictions forever.”

She added that the “worst fear” of any prosecutor should be that someone is wrongfully convicted in their jurisdiction.

“We are the guardians of constitutional protection,” she said. “Without public trust, people won’t participate (and they) will take justice in their own hands.”

Ogg, whose office recently vacated thousands of convictions that were discovered to be the result of faulty evidence or the misuse of lab tests, said she was in the midst of persuading the 94 separate law enforcement jurisdictions in her county to adapt better evidence collection and storage methods—“one police chief at a time.”

“I haven’t had to invoke the nuclear option, which is to say you can present me a case, but I won’t necessarily try it,” she said, noting that her targets included police unions, which resist having their members singled out for justice system errors.

In Brooklyn, where the alleged misconduct of a detective put into doubt hundreds of cases, the Conviction Review Unit now occupies an entire floor of attorneys who do nothing but review old cases, with an annual budget of more than a million dollars.

“Not only do we have to get (wrongfully convicted) people out of prison, we have to learn the lessons about what can wrong in the justice system,” Gonzalez said.

“I tell (our City Council) at budget hearings that every time someone is wrongfully convicted, it’s a very expensive mistake,” said Gonzalez. “So give us the money to make sure we get it right the first time.”

Marilyn Mosby

Baltimore State’s Attorney Marilyn Mosby

He added: “Public safety is paramount, but we also have the obligation to do justice.”

Mosby said her office of 212 prosecutors was already working on 50,000 cases a year, so it was a “political” challenge to persuade state and local authorities to dedicate separate resources to conviction reviews.

“You have to think outside the box,” said Mosby, who recently secured a $219,000 grant from the Innocence Project in partnership with the city’s defense attorney bar to help pay for the city’s conviction integrity unit.

Mosby said it was equally important to develop resources to help exonerated individuals navigate their path back to civilian society.

She cited one case in which a person died three months after being released from prison after 17 years for a murder he didn’t commit.

“There’s nothing in place (now) to help those who were wrongfully exonerated,” she said.

Ogg said she had also won support from victims’ groups.

“I never met a victim yet who wanted the wrong person prosecuted,” she said.

TCR Deputy Editor Victoria Mckenzie contributed to this report. The complete panel can be viewed here. Readers’ comments are welcome.


Nearly $14M Settlement for MO Wrongful Conviction

The city of St. Louis and the state of Missouri will pay nearly $14 million to the family of George Allen, a man wrongfully convicted of the 1982 rape and murder of a St. Louis court reporter. Allen died in 2016 after serving 30 years in prison.

The city of St. Louis and the state of Missouri will pay nearly $14 million to the family of George Allen, a man wrongfully convicted of the 1982 rape and murder of a St. Louis court reporter, St. Louis Public Radio reports. Allen died in 2016. His sister Elfrieda and his mother, Lonzetta Taylor, agreed to a settlement. Neither the city nor the state admit to the allegations in the lawsuit, which included claims that detectives beat a confession out of Allen, and withheld evidence that would have shown he was innocent. State court rulings that granted Allen his freedom ruled police covered up the fact that blood found at the scene ruled out Allen as the murderer.

Allen was 26 in 1982 when he was arrested in connection with the death of Mary Bell, who was stabbed in her St. Louis apartment. The suit charged that officers confused Allen for a suspect in the case, Kirk Eaton, and arrested Allen even after he produced identification. St. Louis police officers interrogated Allen despite his mental illness until Allen confessed to the crime. Allen was found guilty of rape, murder and burglary in  1983 and sentenced to life in prison. In 2011, the New York-based Innocence Project filed documents seeking to have Allen’s conviction thrown out based on new DNA evidence. A Cole County judge did so in 2012, and set Allen free when then-Circuit Attorney Jennifer Joyce decided not to retry the case.  By then, Allen had served 30 years in prison.


IL Police Union Official Assails Wrongful Conviction Payout

Chicago police union official is criticizing a $31 million settlement for four African-American men whose murder convictions were overturned, calling the wrongful conviction movement “a cottage industry” that uses taxpayers as a blank check in pricey payouts.

A Chicago police union official is criticizing a $31 million settlement for four African-American men whose murder convictions were overturned, calling the wrongful conviction movement “a cottage industry” that uses taxpayers as a blank check in pricey settlements, the Chicago Tribune reports. Fraternal Order of Police Vice President Martin Preib spoke to the City Council Finance Committee meeting, where aldermen approved the money for the four men who each spent 15 years in prison for a 1994 rape and murder before DNA linked the crime to a convicted killer. City attorney Jane Elinor Notz said that two police detectives who allegedly played a part in making the case against the “Englewood Four” in 1995 are now the subject of an investigation by the Civilian Office of Police Accountability.

Notz said that of the nine detectives named in the wrongfully conviction lawsuit, two remain on the force.  Preib said, “What is happening in this city is that the civil rights lawyers have carved out a cottage industry in the name of wrongful convictions … Their playbook is simple: they claim police misconduct, get the prosecutors to exonerate, draft a willing media and then manipulate the citizens of Chicago out of their tax money.” Preib’s remarks came as Mayor Rahm Emanuel is in negotiations with the police union on a new contract. The mayor wants the FOP to make concessions that will make it easier to hold officers accountable for wrongdoing as he seeks to show results in his police  reform effort. Emanuel also has been trying to demonstrate he supports rank-and-file officers, whose buy-in he needs to try to combat the city’s persistently high violent crime numbers.



After 30 Years Declaring Innocence, Chicagoan Set Free

Arthur Brown, convicted of murder in connection with a fatal arson fire in Chicago in 1988, had steadfastly insisted that he was innocent. Nearly 30 years later, prosecutors agreed, saying “there were significant evidentiary issues that raised deep concerns about the fairness of Mr. Brown’s conviction.”

Arthur Brown, 66, was freed from jail Tuesday in Chicago after serving nearly 30 years on a double murder conviction in connection with an arson fire that he had steadfastly insisted he did not set, reports the Chicago Tribune. Brown was ordered released after Cook County prosecutors reversed course, announcing at a morning court hearing that they were dropping charges. According to his lawyer, Brown was 37 and had no criminal history when he was arrested for a fatal fire in 1988 on Chicago’s South Side. He was convicted of murder and arson and sentenced to life in prison. As he emerged from jail, Brown said he wanted to focus on his family and hopes to work helping others. “I missed a lot,” he said.

Last month Judge Joseph Claps tossed out Brown’s conviction and ordered a retrial after concluding that prosecutors at a second trial in 2008 had made multiple false arguments to the jury and that Brown’s lawyer later failed to raise those issues on appeal. Earlier this month, prosecutors had said at a hearing that they would fight the judge’s decision but reversed course after looking into the case. Robert Foley, a senior adviser in the state’s attorney’s office, said in an email that prosecutors “determined there were significant evidentiary issues that raised deep concerns about the fairness of Mr. Brown’s conviction.” Brown maintained his innocence through two trials, multiple appeals and lengthy post-conviction proceedings.


Big Spender: Texas Has Paid $109M for Exonerations

The Lone Star State is one of the most generous in the nation when it comes to compensating the wrongly convicted. To date, it has paid a total of $109 million to 109 women and men who were exonerated.

Nine years ago, Christopher Scott was sitting in a prison cell, serving a life sentence for a murder he didn’t commit, praying that someone would help prove his innocence. Today, he’s the subject of a successful documentary about his wrongful conviction, running a nonprofit that investigates the claims of wrongfully convicted inmates and wearing a $50,000 grin. The Dallas Morning News reports that all of this was made possible when the state of Texas paid him more than $1 million for stealing more than 12 years of liberty from him. The state will pay him another $4,900 a month for the rest of his life. The money has helped him buy a home and a car, start his business and repair his broken smile.

“That compensation probably made me the person I am today,” Scott said. “That money helps you rebuild and restore your life, and it makes it where you can enjoy your life.” Texas is one of the most generous states in the nation when it comes to compensating the wrongly convicted. It has paid a total of $109 million to 109 women and men, including Scott, who were wrongfully convicted. Texas hasn’t always been generous to exonerees. Before 2001, only two people had received compensation, each getting about $25,000 for their time behind bars. In 2001, as DNA testing began to reveal that wrongful convictions were more pervasive than lawmakers imagined, they increased the amount exonerees could receive to $25,000 per year of incarceration, or $500,000 if the person had been in prison longer than 20 years. Since 2007, exonerees have received higher compensation in the form of annual or monthly payments as a result of changes to state law.


Blind Injustice: How ‘Tunnel Vision’ Convicts the Innocent

Roger Dean Gillispie was found guilty of rape, even though he didn’t match eyewitness descriptions, and the evidence made clear he was nowhere near the scene of the crime. He spent more than 20 years behind bars until the Ohio Supreme Court this year gave him back his freedom. The director of the Ohio Innocence Project, who worked on his case ,tells the story.

In 1991, soon after he was sentenced to 56 years in an Ohio prison for a crime he did not commit, Roger Dean Gillispie began pestering fellow inmates to save the tinfoil from their tobacco pouches. He also gathered discarded teabags and cassette tapes—anything he could get his hands on to serve as makeshift building materials.

Then each evening, after he returned to his cell from one of his prison jobs, he devoted countless hours to creating a model of a shiny, vintage Airstream camper. It was, for him, a symbol of freedom—of the day when he would prove his innocence, leave prison behind, and see the country in just such a camper.

“Art was my daily escape,” Dean recalled. “It allowed me to live in the world that I was creating. The prison was short one inmate because, in my mind, I wasn’t there.”

Gillispie’s model of his dream camper, built in prison. Photo by Ryan Kurtz

“I was seeing the country in that little Airstream camper.”

Dean was a popular, all-American 25-year-old with a clean record and bright future in 1990, when he was plucked from the obscurity of his job as a security guard at a General Motors plant and arrested. A disgruntled co-worker had fingered him as a suspect in a string of three unsolved rapes near Dayton, Ohio.

Unfortunately for Dean, his co-worker also was a friend of the detective in charge of the investigation.

The detective, it later became apparent, put Dean in his crosshairs and developed a serious case of tunnel vision. It would cost Dean the next two decades of his life.

The human tendency toward tunnel vision is perhaps the leading cause of wrongful convictions. It occurs when an investigator develops an initial belief or suspicion which then becomes so embedded that all information encountered is interpreted or twisted to confirm that belief.

It’s a common human tendency that arises in a variety of situations in our lives. As I wrote in my recent book, Blind Injustice:

Tunnel vision served an important purpose in bygone eras. 

…Evolution favored quick decisions and the ability to ignore distractions while remaining wedded to the most obvious option. As a result, our brains innately engage in what are called “heuristics”—hardwired mental shortcuts that help us to make decisions quickly—jumping to conclusions, one could even say, without getting bogged down in too many distracting details. 

 But psychologists have realized that while heuristics were necessary in past eras, and can be helpful in many aspects of life today, they can sometimes lead to disastrous results in our complex world. And in the criminal justice system, our innate psychological instincts can cause serious problems if we’re not aware of them and don’t try to keep them in check.

An Unlikely Suspect

Dean was an unlikely suspect.

He did not match the physical description of the rapist that the victims had given after the assaults, which occurred in August 1988. For example, the rapist had a dark tan and reddish brown hair; Dean is so pale he burns instead of tans, and has had graying hair since the ninth grade.

Yet the detective got all three victims to identify Dean as their attacker by presenting him in a six-person photo lineup that was ridiculously suggestive.

Dean’s photo “was all but circled and starred,” a local newspaper later noted. Dean’s photo had a yellow background, while the other five were blue. Dean’s had a matte finish; the others were glossy. The victims described the rapist as having a wide face; Dean’s photo was a close-up, so that his face took up the entire frame, while the other five photos depicted the individuals from the chest up.

By the time the three victims chose Dean’s photo from the lineup, nearly two years had passed since the rapes. Memory experts universally agree that identifications made this long after the crime are unreliable, particularly when obtained by a detective with tunnel vision, who uses suggestive techniques to get the identification he wanted.

The detective also improperly manipulated the victims by saying that Dean was their attacker and falsely telling them that he might look different in court because he had colored his hair to trick them. The detective attempted to influence other witnesses by lying about Dean’s past to help convince them he was guilty.

At trial, Dean and numerous witnesses testified that he was camping and boating out in Kentucky at the time of the crimes. Initially, the jury split 8-4 in favor of acquittal, but following pressure from the judge to reach a resolution, the jury ultimately returned a guilty verdict.

Dean was sentenced to 22 to 56 years in prison.

Prison is bad enough for anyone, but for someone who is innocent, it’s a living hell.

“I had life by the horns before this happened,” Dean says now.

He spent his 20’s, 30’s and most of his 40’s in a seven foot -by-nine-foot cell, while his friends went on to great successes in their careers, got married and had families.

“All I could do was watch in misery at what could have been for me,” he later recalled.

But Dean did not give up. He “screamed and hollered” about his innocence for years until he caught the attention of a TV news reporter in Cincinnati, Laure Quinlivan, who aired a series of reports exposing the many flaws in the detective’s investigation.

Two Discoveries

In 2003, the Ohio Innocence Project (OIP) at the University of Cincinnati College of Law, which I co-founded and direct, took the case. We made two important discoveries.

First, Dean’s work-place enemy had tried to implicate Dean shortly after the rapes when two more-experienced detectives were in charge of the case, but those detectives quickly eliminated him as a suspect. They wrote a report outlining their reasons, including that Dean couldn’t fit into the pants worn by the rapist (one of the victims had seen the size on a tag inside the rapists’ pants).

There were other discrepancies as well and so they officially eliminated Dean as a suspect and moved on.

Subsequently, the two detectives retired, and both moved out of state; the case still unsolved. That’s when the detective who was a friend of Dean’s work-place enemy took over the case and the reports documenting the elimination of Dean as a suspect disappeared from the police file.

And so, at trial, Dean and his attorney—and more importantly, the jury—did not know Dean had been cleared.

Second, the re-investigation also identified the likely rapist as a man who lived in the Dayton area and who posed as an undercover police officer, flashed a badge, accused the women of shoplifting, then abducted and sexually assaulted them.

In 2011, based on this evidence, Dean’s convictions were vacated in both federal and state courts. After 20 years in prison, Dean was released.

But he was not completely free. The prosecutors refused to admit that they had made a mistake. Rather than investigate the alternate suspect or the detective’s misconduct, they appealed in an attempt send him back to prison.

The tunnel vision that had so infected the police investigation had similarly poisoned the prosecution—an unfortunately common phenomenon in wrongful conviction cases. The result is that police and prosecutors become so fixated on a suspect that when evidence of innocence surfaces years later, denial sets in and the new evidence is not reviewed objectively, but rather through their twisted prism.

In Blind Injustice, I wrote at length about the psychological factors that cause prosecutors to move into a state of denial in post-conviction innocence cases rather than face the facts.

These include cognitive dissonance, bureaucratic evil (“groupthink” mentalities where the goals of the institution—the prosecutor’s office—replace the conscience of the individual actors) and the engrained dehumanization of criminal defendants that occurs in prosecutors’ offices.

The real “soulshine’ camper, ready for the open road. Photo by Pam Sidley

But justice finally prevailed on July 26, 2017—six years after Dean’s release—when the Ohio Supreme Court denied the prosecution’s last appeal. Dean’s exoneration was complete.

One week earlier, Dean completed his makeover of his real 1963 Airstream camper that he had purchased for next to nothing after his release. During the six years the prosecutors spent appealing, Dean spent month after month fixing it up with the same investment of emotional and physical devotion as he had put into the model camper in prison.


He named the camper “Soulshine,” after an Allman Brothers song he listened to on headphones the many nights he worked in his cell on his beloved model.

When you can’t find the light that guides you in the cloudy days,

When the stars ain’t shining bright and you feel like you’ve lost your way,

When those candle lights of home burn so very far away,

Well, you’ve got to let your soul shine.

Dean does not blame the victims.

Mark Godsey

Mark Godsey. Photo by Ryan Kurtz

He thinks they were violated twice — once by the rapist and then by the criminal justice system. Although Dean has sued the officials responsible for unjustly taking away his freedom, he is moving on with his life.

Soon he will take his camper and head out to see the places he dreamed about in his tiny prison cell. Wherever he goes, the model camper he made so many years ago will be with him—a reminder to always let his soul shine.

Mark Godsey is a professor of law at the University of Cincinnati and co-founder of the Ohio Innocence Project. He began representing Dean Gillispie in 2003. Dean’s story, as well as the psychological concepts of tunnel vision and innocence denial, are chronicled in Godsey’s new book “Blind Injustice.” Readers’ comments are welcome.


Prosecutors Dismiss Charges in MA Wrongful Conviction

George Perrot was convicted of raping a 78-year-old woman in 1985 based in part on one strand of hair. Perrot had a beard, and the victim described her attacker as a man without any facial hair.

Prosecutors dismissed charges against a Massachusetts man who spent three decades in prison for a rape conviction even though the victim described her attacker as a man without any facial hair and he had a beard, the Associated Press reports. George Perrot was convicted of raping 78-year-old Mary Prekop in her Springfield home in 1985 based in part on one strand of hair. He was freed last year after a judge found an FBI agent’s testimony about microscopic hair evidence was flawed and granted him a new trial.

Perrot said he is now “truly free.” The Schuster Institute for Investigative Journalism at Brandeis University in Waltham has been investigating his case since 2011. Perrot said he is “truly free,” adding that, “This exoneration was hard fought and there were many times over the 30 years that I felt I would die as a convicted man.” The judge who released Perrot in February 2016 said he is “reasonably sure” that the man didn’t rape Prekop.


TX Paying $3.4M to Couple Imprisoned in ‘Satanic Panic’

Dan and Fran Keller, who spent more than 21 years in prison after they were accused of sexually abusing children during supposed satanic rituals at their Austin day care facility, are getting $3.4 million from a state fund for those wrongly convicted of crimes, The case featured “inept therapists, gullible police and an investigation that spiraled out of control.”

Dan and Fran Keller, who spent more than 21 years in prison after they were accused of sexually abusing children during supposed satanic rituals at their Austin day care facility, will receive $3.4 million from a state fund for those wrongly convicted of crimes, the Austin American-Statesman reports. The fund pays $80,000 for each year in prison, plus a matching annuity that provides annual payments of 5 percent interest as long as the recipient is alive and isn’t convicted of a felony. The Keller case made national news after three children accused them in 1991 of leading ghastly satanic rituals that supposedly included desecrated graves, videotaped orgies, dismembered babies and tortured pets.

No evidence of such activities was discovered at their in-home day care facility. The case against them collapsed two decades later when the only physical evidence of abuse was acknowledged as a mistake by the examining physician. Their attorney, Keith Hampton, argued that the Kellers were the victims of “satanic panic” — a belief that swept the nation in the early 1990s that a national network of secretive cults was preying upon day care children for sex and other horrors. He said they also were harmed by the combined efforts of inept therapists, gullible police and an investigation that spiraled out of control, producing a suspect list of 26 ritual abusers, including many of the Kellers’ neighbors and a respected Austin police captain. The compensation payment “means we don’t have to worry about pinching pennies on Social Security, and late bills. It means we will actually be free. We can start living — and no more nightmares,” said Fran Keller, 67.


Brooklyn DA Faults Prosecutor for Wrongful Conviction

In an unusual action, the Brooklyn District Attorney’s Conviction Review Unit blames a specific prosecutor for errors. A candidate for the DA job has asked for a review of how Acting District Attorney Eric Gonzalez has handled bungled cases.

When the Brooklyn district attorney’s office asked a judge to dismiss the guilty verdict of a man who had been wrongfully convicted of murder, prosecutors did something they rarely do: hold someone responsible for bungling the case, reports the New York Times. Mark Hale, chief of the Conviction Review Unit (CRU), announced in court that the wronged defendant, Jabbar Washington, had spent 20 years in prison because of grievous errors at his trial. Hale said the prosecutor who had overseen the trial intentionally withheld evidence and coaxed a witness into giving testimony that was purposefully misleading.

Assigning blame in public doesn’t happen often. In the last three years, the CRU in Brooklyn has asked judges 23 times to free defendants who should not be in prison, making it the busiest and most effective unit of its kind in New York State. Only in a handful of the cases have lawyers in the unit held anyone accountable. With a decisive Democratic primary election for Brooklyn district attorney set for September, the question of who, if anyone, in the criminal justice system has paid a price for the numerous wrongful convictions in the borough has become a political issue. Ama Dwimoh, one of six challengers seeking to defeat Eric Gonzalez, the acting district attorney, has called for a sweeping review of how Gonzalez has handled bungled cases. Dwimoh, who once worked in the district attorney’s office, accused her former employer of never holding anyone accountable for the many botched convictions it has helped overturn.


How Ex-FBI Profiler Helped a Wrongful Conviction

Profiler Mark Safarik withdrew his testimony that helped cause a security guard to spend 11 years in prison wrongfully.

Jeffrey Ehrlich paused the true-crime television show every couple of minutes. The same thought kept running through the attorney’s mind: “No, that’s wrong.” The episode of “Killer Instinct” highlighted how the work of a retired FBI profiler had helped convict Ehrlich’s client of killing an 18-year-old woman in a parking lot, the Los Angeles Times reports. There were no fingerprints left behind, no murder weapon. But clues from the crime scene caught the profiler’s attention. The driver’s-side window of the victim’s car had been lowered several inches, suggesting to the profiler that the teen had rolled it down when someone who looked trustworthy approached. And her tube top was askew — a sign, the profiler said, of a botched sexual assault. “No, no, no,” Ehrlich said. He thought the episode — titled “Sudden Death” — needed a new name: “Here’s How We Convicted an Innocent Man of Murder.”

Years after the profiler’s testimony helped secure a murder conviction, the case against Ehrlich’s client, Raymond Lee Jennings, has unraveled in dramatic fashion. After reinvestigating the case, authorities now suspect gang members killed Michelle O’Keefe and that the motive was robbery, not sexual assault. The profiler, Mark Safarik, has withdrawn his testimony. A judge declared Jennings — the security guard who patrolled the lot the night of the murder — factually innocent, putting a capstone on a nightmare that included 11 years behind bars. The wrongful conviction renewed questions about the credibility of profiling and focused attention on the role played by Safarik, the star of the season-long television show “Killer Instinct,” whose testimony was considered crucial at Jennings’ trial. Safarik defended his analysis of the crime scene to the Times, saying he still harbors doubts about Jennings’ innocence. He agreed to withdraw his testimony, he said, after learning that homicide investigators hadn’t interviewed everyone who had been at the scene of the killing.