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.
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.
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 theninth 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.
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.
Henamed 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. 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.
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.
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.
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.
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.
After a murder conviction is overturned, how eager are prosecutors to reexamine the evidence and find the real killer? A journalist who investigated 263 vacated cases around the nation since 2006 says it happens rarely.
Ninety-two year-old Emma Crapser spent the last night of her life playing Bingo at St. Joseph’s Roman Catholic Church, about a half a mile from her Poughkeepsie, N.Y. apartment. Upon her return home, she was murdered, apparently in the course of an intended robbery.
Six years later, in December 1983, a 24-year-old black man named Dewey Bozella was convicted of her murder and sentenced to 20 years to life in prison. In May 1990, a judge found that prosecutors had improperly excluded black people from Bozella’s jury and ordered a new trial.
Bozella was convicted again. Then, in 2009, another judge vacated that conviction. This time, the district attorney declined to file new charges and Dewey Bozella found himself, after 26 years behind bars, a free man.
The court’s decision to overturn the conviction was based on its determination that the prosecution had failed to disclose exculpatory information to Bozella’s trial lawyer. This included information that undermined the credibility of key witnesses—like statements that contradicted their court testimony and deals in their own criminal cases—and pointed to the likely involvement of others in the crime.
Among the other suspects were two brothers who ended up going to prison on 25- year-to-life sentences for the robbery and brutal beating of two disabled elderly sisters, Madeline and Catherine King, and the murder of a third, Mary, in their family home about a half a mile from where Crapser had lived, eight months after Crapser was killed.
One of these men also had been implicated in the violent assault in the same neighborhood of yet another elderly woman, Estelle Dobler, carried out two months after Crapser’s murder and for which no one was ever prosecuted.
In its response opposing Bozella’s bid to overturn his conviction, the Dutchess County district attorney’s office downplayed the similarities among these three crimes; (but) in his 2009 decision to vacate the conviction, the judge called them “striking.”
As it turned out, one of the brothers convicted in the King case was released on parole months before Bozella was freed.
In 2015, Dutchess County settled a civil suit with Bozella for $7.5 million. To finance the payout, the county was forced to issue bonds.
The newspaper offered no definitive answer, but the question itself points to a broader issue that tends to be underexplored in the context of wrongful convictions: what typically happens with respect to the underlying crime—and, by implication, [what happens to] the cause of justice and of public safety—when the person found legally responsible for committing it is later determined not to be?
How many murder cases might there be like Emma Crapser’s?
I set out to answer this question, using the National Registry of Exonerations, news reports and court filings, first to identify all of the murder convictions vacated nationwide since 2006 that, like Bozella’s, did not hinge on DNA evidence. I excluded any case in which the vacated conviction involved a finding that a murder had not been committed (as has happened, for example, in several arson cases charged as murders but later determined to be accidents).
I looked exclusively for murder cases because murder typically has no statute of limitations, and therefore can be prosecuted at any time, even decades after the crime occurred, if new evidence or a new suspect is identified. Finally, I limited my search to the past 11 years on the assumption that it might be easier to get information about relatively recent vacated convictions than those overturned several decades ago.
My research turned up a total of 263 vacated murder convictions that fit this criteria (according to the National Registry, there have been a total of 2,034 known exonerations in the United States since 1989.).
This number does not represent 263 murders, but wrongfully convicted defendants. In some cases, multiple people were wrongfully convicted for the same murder, while in others one person was wrongfully convicted for murdering more than one person.
Of the 263 people whose convictions were vacated, 161 were black; 65 white, 33 Hispanic and four Native American.
A vacatur is not equivalent to a determination of actual innocence; convictions must be overturned not only when there is a finding of factual innocence, but also when a defendant’s constitutional rights have been violated, regardless of guilt or innocence. In fact, very few wrongfully convicted people are ever able definitively to “prove” their innocence, though in the course of the appeals process many end up presenting evidence that calls their guilt into question.
Here’s what I discovered:
Forty-eight of those who were wrongfully convicted were re-tried after their convictions were vacated, and all were acquitted. Following these acquittals it appears that no new suspects were charged, except in one case where an additional suspect had been arrested outside the county a year before the vacatur, was extradited to the US, and pleaded guilty to the crime a month after the wrongfully convicted defendant was acquitted four years later.
Of the remaining 215 wrongful convictions, prosecutors charged a new suspect in murders related to just 16, or 7%, of them.
Notably, in 11 of these 16 cases it appears in fact that it was the existence of an alternative suspect—typically identified by defense investigators and further investigated by prosecutors—that led to the vacatur and dismissal of charges.
In an additional case, a new suspect pleaded guilty to the crime a year after the exoneration.
As to why no new charges were filed in the murder cases connected to 93% of these wrongful convictions, the answer often depends on who is offering the explanation. Prosecutors, cops and defense attorneys often tend to see things very differently.
That said, I was able to ascertain that the true perpetrators—determined either by credible confessions and/or objective evidence—of murders connected to an additional 24 of these wrongful convictions are either dead or in prison, serving a long sentence for a different crime, sometimes in another state.
While neither outcome represents justice for the victims in the wrongful conviction cases, those murderers are nonetheless “off the streets.”
I also discovered that with respect to murders for which an additional eight people were wrongfully convicted, the true perpetrators appear to be beyond the reach of law enforcement because of immunity or plea deals given to them by prosecutors (these cases tended to involve violence perpetrated by gangs).
In addition, I identified seven cases (and four of the cases in which a defendant was retried and acquitted), in which the person who was wrongfully convicted was convicted along with at least one or more others who, it seems fairly clear, were actually responsible.
While there is reason to believe that in some of these cases not everyone involved was apprehended, someone has been held accountable for these killings.
Then there are the 10 cases in which the underlying crimes were committed so long ago, and the original prosecutions so flawed, that law enforcement seems reasonably to have abandoned any hope of being able to conduct a productive reinvestigation.
This is in contrast to an additional 24 cases I was told by prosecutors were either the subject of an “ongoing investigation” or “open,” though what that means (does open mean active? Are the ongoing investigations targeting new suspects or the original defendant?) remains unclear, as all refused to elaborate. About an additional 48 cases, prosecutors elected to say nothing.
I did learn that 17 people whose convictions were vacated are viewed as actually innocent by the district attorney currently leading the office that originally prosecuted the case (in some instances, a predecessor did not share that view), but it appears that law enforcement lacks any meaningful leads regarding the true culprit. In these cases, both time passed and limited resources appear to be major obstacles to developing such leads.
That leaves 61 cases about which prosecutors or their spokespeople offered statements attributing the lack of new charges in a case to the “erosion” or “insufficiency” of evidence to re-prosecute the original defendant, thus implying that there is no other possible suspect.
In some of these cases, prosecutors stated outright that they believe the wrongfully convicted person to be guilty. I discovered, however, that in just over a third of these cases—like in numerous other cases that prosecutors declined to comment on—there seems to be credible evidence pointing to a different suspect altogether.
Freeing Marty Tankleff
Take the case of Marty Tankleff, who was convicted in 1990 of murdering his parents in their Long Island, N.Y. home and spent 17 years behind bars before his conviction was vacated by an appellate court.
According to Lonnie Soury, a media expert who worked closely with Tankleff’s appellate team, including private investigator Jay Salpeter, “in the effort to free [Marty], we conducted a major reinvestigation of the case that produced significant new evidence that three men committed the murder at the behest of Mr. Tankleff’s father’s business partner.”
Soury says that “the new evidence was turned over to [Suffolk County District Attorney] Thomas Spota,” who “did nothing with [it] other than continue to oppose Tankleff’s bid to overturn his conviction.”
After the Court vacated the conviction, Spota requested that it formally dismiss the charges against Tankleff, saying that his office could not “reasonably assert that a new prosecution would be successful.” He also said he would ask then-Governor Eliot Spitzer to appoint a special prosecutor to reinvestigate the case.
Asked by e-mail whether Spota’s office had ever looked into these other suspects, a spokesman failed to answer the question, noting instead that then AG-Andrew Cuomo “conducted an investigation” after the DA “requested the Governor appoint a special prosecutor to resolve any residual doubts with respect to the potential prosecution of other individuals the defense claims participated in these murders.”
For reference, the spokesman attached to the e-mail an excerpt from the judge’s decision to dismiss the indictment following Cuomo’s review. That excerpt, however, did not mention that Cuomo—who Soury says [was] given the information developed by Tankleff’s appellate team—had investigated any other suspects and stated only that the “Attorney General’s office… determined that there should not be a reprosecution of defendant.”
For his part, Soury cannot say for certain why the DA failed to take action with regard to these other suspects, three of whom, he says, continue to live “freely and with impunity” in Suffolk County, but adds that “some evidence exists that the leader of the group was a confidential informant to the DA’s office” and that others may have had political connections that protected them from prosecution.
Indeed, in late 2015 federal investigators began looking into allegations of corruption involving the Suffolk County Police Department and Spota’s office. This came on the heels of a 2013 federal probe that led the Suffolk County police chief to plead guilty to federal civil rights and obstruction of justice charges.
But even absent the spectre of outright corruption, experts argue, there is generally little incentive for a prosecutor to reopen a case after a conviction has been overturned.
“To charge a different suspect in the crime is as clear an admission of initial wrongdoing as it’s possible to make,” says veteran defense and civil rights attorney Ron Kuby, who has represented numerous wrongfully convicted people.
“And prosecutors will [admit wrongdoing] only when they are absolutely forced to do so, by a court. And even then, they may acknowledge that there was misconduct, or that the evidence was insufficient or tainted, but rarely do they say, ‘we had the wrong guy and let the actual killer free X number of years.’ It makes them look really bad.”
Getting a prosecutor to go beyond an admission that mistakes may have been made to even consider a defendant’s actual innocence, let alone investigate other suspects, also can be an uphill battle, says Kuby, because prosecutors—like their counterparts on the defense side—tend to become deeply invested in their narrative of the crime.
And, he believes, many also become invested in a view of themselves as being “unfairly tarnished” by “shady defense attorneys” and “soft courts,” which makes it easier to justify inaction.
“It is easier to insist that you’re right and the defense lawyers and the judges were wrong because you don’t have to do any work… [and] can indulge in both self-pity and laziness. It’s a lot easier than going out and finding the actual killer.”
But even in instances where a prosecutor may be inclined to revisit a case, without unimpeachable evidence implicating the new suspect, mounting a successful new prosecution presents challenges.
According to Benjamin Schneider, a former Assistant District Attorney in Brooklyn, a vacated conviction “may doom a subsequent prosecution for the same offense, because the second defendant will offer the prosecution’s old, discredited evidence—and the fact of someone else’s conviction—to raise doubt about his own guilt.”
The prosecutor “will want to counter that,” Schneider says, by “arguing that reasonable doubt has not been raised by the old evidence, because the old evidence was tainted and the first defendant was set free after years in prison. But the jury will learn that this prosecutor’s office put an innocent person in prison, for this very crime, by using tainted evidence”—not exactly a ringing endorsement of the prosecutor’s credibility on the case.
All of this goes a long way toward explaining why, even when there is much to indicate the original defendant’s innocence and someone else’s guilt, new charges are brought so infrequently in the wake of a vacated conviction.
Where that leaves the loved ones of the victim, not to mention the public at large—which has an obvious stake in seeing the right people held accountable for violent crimes—is another question.
In the case of Emma Crapser’s murder, because the crime itself happened so long ago and Crapser was an elderly, childless woman, it has proved difficult to find anyone who might be an advocate for her today.
Indeed, the nephew who discovered the King sisters after their brutal assault by the same people who may well have been involved in Crapser’s murder months before, died in 1995, at the age of 74.
Of course, there is no guarantee Crapser’s relatives even would believe that Bozella was innocent or, if so, push to get the case reopened.
As Kuby notes, often “these families have at least grown accustomed to thinking the guilty person has been punished,” particularly when the DA’s office “continues to insist that they got the right person.”
It is not unusual, he says, for “the victim’s family and the DA’s office to engage in this synergy of denial that satisfies both their interests.”
But what about the interests of the communities where these crimes occurred?
By definition, those interests are supposed to be represented by the district attorney, the very same entity that, for whatever reasons, botched the case the first time around, quite possibly leaving the community more, rather than less, vulnerable to violence.
In such cases it is typically the DA’s more narrow interests—whether in avoiding revelations of incompetence or wrongdoing; prosecuting only cases they think they can win, or merely curbing the expansion of an already heavy workload—that win out.
And in the absence of a truly neutral body tasked with re-investigating these crimes, we may never learn who killed Emma Crapser, let alone be able to hold the right person accountable for her death—-or those of the many other murder victims whose cases, regardless of their legal status, remain in a kind of limbo in the real world, beyond the courthouse doors.
This is a condensed and slightly edited version of a story published July 2 in the Daily Beast. Please click here for the complete version. The reporting was supported by a grant from the Fund for Investigative Journalism. Additional support was provided by Hin Hon (Jamie) Wong through the Schuster Institute for Investigative Journalism, as well as a John Jay/Quattrone Fellowship in Criminal Justice Reporting. Readers’ comments are welcome.
The “Beatrice Six” were coaxed into false-memory confessions for a 1985 rape and murder. They served up to 19 years in prison before DNA testing showed that the victim had been attacked by a teenager who lived in her building.
The New Yorker examines a perplexing criminal prosecution 30 years ago in Beatrice, Neb., that concluded with six people confessing to a 1985 rape and murder that they did not commit. Each of the “Beatrice Six” served prison terms before they were exonerated when DNA testing of blood and semen showed that the victim, Helen Wilson, 68, had been attacked by a teenager who lived in her building. He was not among the six and had never been a suspect in the case. (He had died of AIDS by the time he was implicated.)
A local psychologist, Wayne Price, was largely responsible for drawing false-memory confessions out of the six, who were uneducated down-and-outers. They were implicated by a young hog farmer, Burdette Searcey, a former local cop who made it his mission to solve the Wilson murder. He cobbled together the six suspects to fit his narrative and the physical evidence. They were pardoned after serving as many as 19 years in prison when DNA evidence identified the killer in 2009. Yet in the minds of many Beatrice residents, the six are still guilty. The local county sheriff, Millard Gustafson, says, “The six had to know something about it, or had to have been there—that’s the sense that the public has.” And Searcey considers himself a hero. “We’ve got a-hundred-per-cent backing from the public in Beatrice,” he says. “I am loved by my people in this community.”
Of more than 300 wrongful convictions later overturned by DNA evidence, mistaken eyewitness identification played a role in about 71 percent of the cases, says the Innocence Project.
A photo of Richard Anthony Jones was the 202nd needle in a haystack of mugshots of black men named Richard or Rick. In 1999, a self-described Kansas crackhead pointed at that photo and fingered Jones as the perpetrator of a robbery three months earlier, setting in motion a 17-year nightmare for Jones. It became a textbook example of the dangerous unreliability of eyewitness testimony and flawed police photo lineups, the Kansas City Star reports. “Since that questionable identification, the police never looked at another suspect,” attorneys for Jones said. Despite the absence of physical evidence and an alibi backed up by several witnesses, a jury found Jones guilty. It was only through the dogged persistence of Jones and his attorneys that the testimony was found to be woefully flawed. Last week, a judge vacated Jones’ conviction.
The victim of the robbery, who along with others identified Jones, calls the situation tragic. For criminal justice experts, it’s hardly surprising. Eyewitness identification is the leading cause of wrongful convictions. Of more than 300 wrongful convictions later overturned by DNA evidence, mistaken eyewitness identification played a role in about 71 percent of the cases, says the Innocence Project. More police departments began reforming their eyewitness identification procedures in the last decade as the research surrounding criminal eyewitnesses has become accepted science. The National Academy of Sciences raised concerns in 2014 about how photo lineups are presented to witnesses. “Research has consistently shown that the accuracy of these lineups can be skewed or influenced based on how lineups are presented, the type of presentation, how similar the suspect and non-suspects look in the lineup, where the suspect is placed in the presentation, nature of the instructions and any feedback given to the eyewitnesses before or after the identification,” said the academy.