“This is absolutely shameful,” says the attorney for a man exonerated of a rape charge. The state owes him $500,000 and is obligated to pay a wrongfully convicted murderer $2 million.
The state of Michigan owes Nathaniel Hatchett $500,000, but the two-page court document ordering compensation for his wrongful rape conviction won’t feed him or pay his rent. Hatchett was arrested for sexual assault at 17 and spent 10 years in prison before DNA evidence exonerated him. Prosecutors dropped the charges in 2008. Hatchett is eligible for $50,000 for each year he spent in prison, and a judge ordered the state to pay Hatchett the full $500,000 by Jan. 16, the Detroit News reports. state officials say there’s not enough money in the fund to pay exonerated ex-prisoners. Hatchett, who is unemployed, and others who were wrongfully convicted, are still waiting for their money.
“The state screwed these guys over by wrongfully convicting them, and now they’re screwing them again by withholding money that’s lawfully theirs,” said Hatchett’s attorney, Wolfgang Mueller. “This is absolutely shameful.” A spokeswoman for Michigan Attorney General Dana Nessel says, “The current balance in the fund is so low that a single case or two could deplete it. We cannot and should not lead people to believe they will be compensated for their wrongful incarceration if we are unwilling to appropriate the necessary funds.” The exoneration fund contains about $1.6 million — or $400,000 less than the $2 million it owes just one wrongfully convicted murderer, Richard Phillips. Phillips spent 46 years in prison before his case was overturned, making him the longest-serving wrongfully convicted inmate in U.S. history, according to the Innocence Clinic at the University of Michigan.
After serving 38 years for murder, Fred Clay won his state’s maximum award in a settlement. Now a state senator wants a new law that would fix the problems Clay faced after his release.
Massachusetts officials have agreed to pay a $1 million settlement, the state’s statutory maximum, to a wrongfully convicted man who spent 38 years in prison, NPR reports. Fred Clay was arrested in 1979 just weeks after turning 16 and charged as an adult for the murder of a cab driver. He was convicted based partly on testimony from a witness who identified Clay only after he had been put under hypnosis by a police detective.
Clay’s release from prison in August 2017 came after years of investigations by the state’s Innocence Program convinced the Suffolk district attorney’s Conviction Integrity Program to reassess Clay’s murder conviction. After his release, Clay received no assistance from the state during his first 17 months outside prison and has struggled to find a good-paying job and decent housing. A state senator recently proposed a bill to get wrongfully convicted people quicker cash assistance and help with housing and job training.
As a debate about the number of wrongful convictions, sparked by Prof. Paul Cassell of Utah, quietly percolates among U.S. scholars, a TCR columnist suggests the argument misses the point entirely: the numbers are less important than making sure they don’t happen.
A bundle of law review reprints arrived in my office recently, sent by Prof. Paul Cassell of the University of Utah’s law school: three articles, a total of 158 pages and 731 footnotes.
Prof. Paul Cassell via Wikipedia
With his articles, he has launched another sally in the long-running scholarly war over the rate of wrongful convictions in American criminal justice. His new calculation places the rate in a range of 0.016 percent to 0.063 percent.
Cassell’s calculations may or may not be accurate. The question is whether they are meaningful, that is, whether they contribute to preventing the next mistake. Our concern is not with compiling past wrongful convictions (or acquittals) in the aggregate; it is with avoiding them individually.
Editor’s Note: Prof. Cassell is a former Associate Deputy Attorney General, and a former U.S. District Judge in Utah who is considered a leading advocate of victims’ rights.
We can expect his opponents to reply promptly. (One study had estimated that the rate could be as high as 11.6 percent in certain rape cases; others have generally fallen between that number and Cassell’s.)
Cassell’s point seems to be that while wrongful convictions remain important as a matter of principle, they should be considered as “error costs”—the product of the likelihood that an error will occur and the price of the error if it does occur—and they therefore are not an urgent issue among the many other challenges of our justice system.
They are unlikely to the point of freakishness, and the cost of the errors that do occur can often be discounted because of the “moral blameworthiness” of many of the people wrongfully convicted, he appears to be arguing.
(Cassell sees “wrongful acquittals” in a different light: those are both frequent and costly, and our neglect of them is one expensive downside of our neurotic preoccupation with exonerations.)
I won’t join Cassell’s academic colleagues in disputing his arithmetic. I have neither the expertise nor the energy to join that battle.
But the practitioner’s life I’ve led does provide a perspective on the debate that might be worth recording, if only because it is so different from the combatants’ own.
Cassell’s numbers would seem to indicate that a mistaken conviction must be nearly impossible to contrive, and that avoiding a wrongful conviction is really rather an easy thing to do.
That’s not the way it feels to a frontline cop, prosecutor, or defender.
No one with two weeks’ experience in our shambolic urban courts will be very reassured by the claim that there is a 99.98 percent chance that their case is going to turn out OK.
I can’t help thinking of a client of mine named (let’s say) Bob Flinch. Flinch held up a liquor store, shot the owner, and then, on his way out, somehow managed to shoot himself in both feet. Collapsing under a stoop 30 yards down the street, he still had the weapon with him when he was arrested five minutes later and helpfully recounted events for the police.
Flinch was very diligent about staying in touch with me pretrial via telephone from the D.C. jail. (He opened every call with “How does it look?”) I did what I could, but Flinch was convicted.
Any system, operated by anyone, would convict Mr. Flinch. It is a little disconcerting to realize that when Cassell determines what fraction of prosecutions result in wrongful convictions, Mr. Flinch’s case finds its way into his denominator.
Cassell’s numerator—the number of officially recognized exonerations—makes fair-enough use of the numbers, but it uses the numbers we have rather than the numbers we need.
The fraction most of us are interested in when we assess the system’s functioning is the number of mistaken convictions (some revealed and many undetected) over the number of cases that might (unlike Flinch’s) have been subject to some doubt.
The academic antagonists are oriented to the ancient ideological tug-of-war between adherents of Herbert Packer’s Crime Control and Due Process Models: a zero sum contest between the suspect and the state. One camp wants more official control of the population; the other wants more control of the officials. Both seek control as their goal, or as at least the indispensable precondition for other goals.
Frontline lifers (at least lately) have become less interested in control and more interested in the collaborative co-production of Safety. They have been forced to recognize that control is often illusory, always evanescent.
And so, practitioners value the lessons taught by the study of safety in aviation, medicine, and other high risk industries.
Frontline people will tend to see wrongful convictions not as single cause (say, eyewitness error events), but as complex “organizational accidents” in which many small errors and omissions, none of them independently sufficient to cause the disaster, combine with each other and with latent system weaknesses.
The practitioners know that many things have to go wrong before an innocent man is convicted, and they also know that many things would have to go right (e.g., he finds a lawyer, has the right sort of evidence, etc.) before a wrongly convicted man is exonerated.
Safety specialists teach us that there are many more errors than there are completed wrongful convictions, and many more wrongful convictions than there are exonerations.
A wrongful conviction isn’t “caused” by a Brady violation. The police had to get the wrong guy. The DA’s office had to hire the wrong assistant, goad him with the wrong incentives, and fail to train and supervise him. The defenders had to fail to develop the buried exculpatory material on their own.
A wrongful acquittal isn’t “caused” by the exclusionary rule. First, training on and observance of Fourth Amendment search and seizure requirements have to fall short, and the development of alternative sources of evidence has to be frustrated for the exclusionary rule to free a guilty man.
As John Jay College of Criminal Justice Professor Jon Shane has shown, even an apparently simple violation of constitutional procedure is a complex organizational accident.
Besides, one of the most basic maxims of the safety experts is that the absence of accidents is not proof of safety. The fact that we launched Space Shuttles with the same O-ring design successfully many times before the Challenger mission didn’t mean that it was safe to launch Challenger.
As Charles Perrow, one of the pioneers of the modern safety movement, put it, Murphy’s Law is wrong: everything that could go wrong usually doesn’t, and then we draw the mistaken conclusion that things are safe.
Counting outcomes and moving the needle towards “more” or “fewer” is absorbing for the professors, but it is not terrifically interesting for frontline actors, who are concerned with their own workmanship in the cases they confront, not with broad ideological “fixes.”
Whatever the fix, the cases will keep coming.
Criminal Justice and Human Error
Practitioners are bombarded with daily reminders that criminal justice, like all human endeavors, is subject to error.
The rate of fatal errors in medicine may be as high as the Academy of Medicine’s estimate of 44,000 to 98,000 annually, or it may be more accurately estimated at a lower rate, but no one argues against working at continuing quality improvement in patient safety.
What Cassell’s latest piece will show practitioners (if they happen to read it) is that neither Cassell and his allies, nor their opponents, will ever succeed in landing the knock-out punch each side seems to crave. The statistical raw materials are too fluid to provide the foundation for a clinching proof.
But if the scholarly antagonists can reconcile themselves to that conclusion there are learning opportunities for them here.
For example, although deriving an exact authoritative rate of wrongful convictions may be impossible, we do know something about their distribution—especially their racial distribution—and that may repay further study.
Prof. Jon Gould and his colleagues have shown that careful social science inquiry can teach us about the conditions that lead to wrongful convictions by contrasting those conditions with others influencing “near miss” outcomes in which mistakes are intercepted before the conviction occurs.
Significantly, Gould and his co-authors directly enlisted frontline practitioners to collaborate in developing “strength-of-case” measures.
Further openings for scholarly (and law school clinical program) collaboration with the frontline actors are provided by efforts such as the National Institute of Justice / Bureau of Justice Assistance exploration of all-stakeholders, non-blaming, forward-looking “Sentinel Event Learning Reviews” that probe the sources of wrongful convictions (and, for that matter, wrongful acquittals) with avoiding repetition as their focus.
This is a team effort worth undertaking. After criminal justice mistakes, the system has to hold itself accountable for learning everything it can from the event.
The Harms of Wrongful Convictions
Wrongful convictions are “iatrogenic injuries.” Like a scar after surgery, they are inflicted by useful treatment. The harms they produce radiate outward in concentric circles: to the exonerated, the original victims, and to the future victims whom the actual perpetrator will find while the wrongfully convicted man serves the real criminal’s time.
Those harms should be weighed before we act as well as deplored later on.
Cassell does list many of these harms. But there is one harm that recedes into the background in his accounting; one for which the difference between 1 percent and 5 percent may not ultimately be very important.
John Adams described that harm, arguing in defense of the British officers in the Boston Massacre trial.
Guilt and crimes are so frequent in the world, that all of them cannot be punished . . .But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself is no security. And if such a sentiment as this should take place in the mind of the subject there would be an end to all security what so ever.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.
The judge ruled after lawyers for the Innocence Project and the Bronx district attorney’s office brought forward new evidence that suggested someone else killed her, and that detectives had used psychologically coercive interrogation techniques to get a false confession.
On Thursday, a state judge in the Bronx finally believed 46-year old Huwe Burton’s claim that his confession of killing his mother when he was 16 was coerced and vacated his conviction, The New York Times reports. Burton spent 19 years in prison.
The judge, Steven L. Barrett, ruled after lawyers for the Innocence Project and the Bronx district attorney’s office brought forward new evidence that suggested someone else killed Ms. Burton, and that detectives had used psychologically coercive interrogation techniques to get Mr. Burton to give a false confession. Justice Barrett said he had presided over another homicide case in 1988 in which the same detectives who had elicited a false confession from Mr. Burton had coerced phony statements from two men, who implicated a third man in the murder. It later came out the third man was in jail at the time of the killing and could not have been involved.
Three men wrongfully imprisoned for more than 20 years won a $15 million verdict against East Cleveland, a municipality long known as being financially distressed, and where police abuses formed part of the focus for the popular podcast “Serial.”
Three men wrongfully imprisoned for more than 20 years have won a $15 million verdict against East Cleveland, a municipality long known as being financially distressed, and where police abuses formed part of the focus for a popular podcast, reports Law.com. A federal jury awarded Derrick Wheatt, Laurese Glover and Eugene Johnson $5 million each on claims that detectives investigating the murder for which they were convicted withheld potentially exculpatory evidence from prosecutors and used improper photo array techniques to identify the three as the prime suspects. In the same suburb, a man won a $22 million verdict in state court in 2016 after police allegedly beat him and locked him in a closet for several days. The city, which was scrutinized in the criminal justice-oriented podcast “Serial,” has been teetering on the edge of financial collapse. In 2016, it petitioned for Chapter 9 bankruptcy, and there were talks of merging the city with Cleveland.
Michael Pasternak, the attorney who secured the latest verdict, said he still expects to recover the award. The case stems from the 1995 murder of Clifton Hudson. Court papers said Wheatt, Glover and Johnson witnessed the shooting while they were in Glover’s SUV, and they drove off after the shooting took place because they were scared. Tamika Harris, 14, also witnessed the shooting, and saw the shooter run toward a bridge afterwards. Wheatt and Glover were arrested after Harris said she saw a similar SUV at the scene. The two told detectives they had witnessed the murder, and that Johnson had been with them, but that they were not involved in the shooting. Harris recanted her testimony in 2004, saying the officers directed her to identify Johnson. In 2015, the plaintiffs’ convictions were vacated.
The National Registry of Exonerations (NRE) will soon publish the second part of a study of all known false convictions in the U.S. since 1989. The 2,265 exonerees in the database served a combined 20,080 years behind bars.
The National Registry of Exonerations (NRE) will soon publish the second part of a study of all known false convictions in the U.S. since 1989. The 2,265 exonerees in the database served a combined 20,080 years behind bars. That’s an enormous amount of wasted human potential, writes Radley Balko in the Washington Post. In an accompanying law review article, George Washington University law Prof. Jeffrey Gutman looked at compensation for the wrongly convicted. Between lawsuits and state law that award fixed compensation for wrongful convictions, state and municipal governments have paid out $2.2 billion to exonerees. More than half the exonerees in the database have never been compensated. In states with statutes that dictate the sum to be paid to the wrongly convicted, exonerees on average receive $69,000 per year in prison. Those who sue do better, averaging more than $300,000 per year. Lawsuits are also much less predictable.
Among the states that do have compensation statutes, Gutman ranks Mississippi as the most generous, though exonerees must forgo their right to sue the state for civil damages. African Americans are more likely to be wrongly convicted — they make up 12 percent of the population but 46 percent of exonerees, and represent 56 percent of the life years lost to prison. Perhaps counterintuitively, exonerees who falsely confessed had both a higher rate of victory when suing for damages and collected more money when they won. Many of the states with compensation statutes refuse to pay exonerees who falsely confess, on the ground that they contributed to their own conviction. It is difficult to tally everyone who has been exonerated. As the national registry says, “There are many exonerations from past years that we don’t know about — we keep finding them when we have time to look — and the vast majority of false convictions are never recognized at all.”
There have been 72 exonerations in Michigan since 2003, including a record 14 last year. Analysts blame longtime problems in the Detroit Police Department. Police Chief James Craig says the culture has improved.
Ken Wyniemko spent nine years in prison before DNA proved he wasn’t a rapist. He’s been free since 2003, but he’s still haunted by the horrors of Michigan penitentiary life, reports the Detroit News. “When I was locked up, I saw people get stabbed to death; I’ve seen people get raped; I’ve seen guards get stabbed,” said Wyniemko, 67. “Those visions have gone away a little bit but … I get flashbacks. I have times where I can’t sleep at night and the images keep popping up in my head.” When Wyniemko’s conviction was overturned in 2003, exonerations were rare. That has changed because of things like advances in forensic science and what innocence advocates say is a new willingness by police and prosecutors to take a second look at potentially tainted cases.
Only 18 Michigan prisoners were exonerated between 1991 and 2003. Since then, there have been 72 exonerations in the state, including a record 14 last year, says the National Registry of Exonerations. This year, four Michigan prisoners have been exonerated, and three others were granted new trials. Since Wayne County Prosecutor Kym Worthy in Detroit formed the Conviction Integrity Unit in November to look at possible wrongful convictions, two people have been exonerated, while two others got new trials. University of Michigan law Prof. David Moran said the uptick in Michigan exoneration cases stems largely from problems in the Detroit Police Department that prompted a federal consent decree in 2003 and issues with the police crime lab, which was shut down in 2008 because of rampant mismanagement and possible corruption. >Detroit Police Chief James Craig said the culture that once permeated the department has changed. He said, “One of the main things I focused on in my first year was management accountability.”
The “piecemeal” approach by state and federal court approach to addressing trial-level errors fails to account for the complex ways that seemingly independent errors interact with one another, writes a professor at the Northeastern University School of Law.
To set wrongful convictions right, appeals courts need to change the way they review evidence, according to Stephanie Roberts Hartung, a professor at the Northeastern University School of Law.
“Frequently, it is not a single misstep that causes a wrongful conviction, but rather a ‘confluence of factors,’” she wrote.
But historically, state and federal court’s piecemeal approach to addressing trial-level errors fails to account for the complex ways that seemingly independent errors interact with one another.
Published in the Suffolk University Law Review, Hartung’s article points to the post-conviction jurisprudence developed by the Massachusetts Supreme Court in a number of cases, most recently Commonwealth v. Rosario in 2017, as an example of the approach she advocates. In each case, the court recognized that an approach which considered evidence in isolation would have failed to identify the wrongful conviction at hand.
Recent data suggests that the criminal appeals process is largely failing to protect against wrongful convictions. Prof. Brandon Garrett of Duke Law School finds that only 14 percent of factually innocent defendants who were ultimately exonerated by DNA evidence initially won a reversal on appeal—meaning that 86 percent of the time, courts do not recognize valid claims of innocence.
This is in part because the appellate process focuses more on fixing procedural mistakes than re-adjudicating questions of guilt.
The harmless-error doctrine poses another obstacle to the wrongfully convicted. Courts apply the philosophy that not every error is worth the trouble of addressing with little rhyme or reason, often ignoring the ways that errors can build upon each other.
As an example, Hartung writes, “a suggestive eyewitness identification procedure can lead to a misidentification, which in turn can cause a flawed forensic analysis of related physical evidence that may be tainted by the examiner’s knowledge of the previous identification.”
But viewing each of these errors in isolation masks the way that one leads to another, “making the evidence in support of guilt appear stronger than it is.”
Cognitive biases also play a role in keeping the innocent behind bars. Criminal justice actors tend not to question the validity of forensic evidence, and jurors often rely heavily upon evidence against a defendant while downplaying evidence of innocence.
Holistic review reveals the way that one piece of faulty evidence can infect other evidence. In the Rosario case, erroneous but seemingly scientific forensic evidence tainted what appeared to be independent corroborative evidence, and combined with a tendency to overlook exculpatory evidence to put an innocent man in prison. It was only when the evidence was reexamined all together that Rosario was ultimately exonerated.
As the number of exonerations grows, it becomes clear that wrongful convictions are not as rare as was once believed. The National Registry of Exonerations has counted 2,257 exonerations since 1989, and that number rises each year.
These cases demonstrate the need not just for prospective reforms that aim to prevent wrongful conviction, but retrospective reforms that seek to identify false convictions that have already taken place, wrote Hartung.
“A wrongful conviction of an innocent person is a profound failure of justice and typically does not occur as a result of a single, isolated error,” she wrote. “Now is the time for courts to adapt their approach to post-conviction review of innocence claims.”
Elena Schwartz is a TCR news intern. Readers’ comments welcome.
In most jurisdictions, drug arrests are based on cheap, error-prone field tests, and should the defendant plead guilty to the charge, no further testing occurs, writes the director of the National Registry of Exonerations. As a result, there is no telling how many people live with the consequences of conviction for a crime they never committed.
There’s good reason to think that many of those convicted of misdemeanors are innocent, according to Samuel Gross, the editor of the National Registry of Exonerations project.
In a paper published in the Boston University Law Review, Gross claims that there is no way to know how many wrongful misdemeanor convictions have occurred because of the difficulty of detection and the lack of data on the subject. About 13.2 million misdemeanor cases are filed annually, but no estimates exist for how many yield convictions, let alone how many of those convictions might be false.
To date, the National Registry of Exonerations, a project that seeks to track false convictions to prevent future errors, has tallied 85 misdemeanor exonerations in the last 29 years – about four percent of the total 2,145 exonerations since 1989, the rest of which are felonies.
But this low count is not to say that misdemeanor false convictions are less common than felony false convictions. The exonerations are simply more unlikely.
The most typical misdemeanor exonerations, which take place an average of 1.7 years after conviction, are for drug possession – 58 out of the total 85 counted by the Registry. All but one of these exonerations took place in Harris County, Texas.
This is not due to some particular concentration of bogus drug busts in Harris County, according to Gross. Rather, Harris County is the only jurisdiction in the country with a crime lab that regularly tests substances thought to be illegal drugs after the suspects carrying them have already been charged and pled guilty. In most jurisdictions, drug arrests are based on cheap, error-prone field tests, and should the defendant plead guilty to the charge, no further testing occurs.
It is not difficult to imagine, then, that many people convicted of misdemeanor drug possession might in fact be innocent and never get the chance to clear their names.
Gross recounts the stories of two people wrongfully convicted of other misdemeanors who were later cleared of all charges to illustrate just how implausible exoneration is.
In both cases, he writes, “the police placed the crime-scene DNA profiles for these cases in government databases even though the cases had been closed by arrest and conviction, and the real criminals’ DNA profiles ended up in the same databases because they were convicted of other crimes, and the crime-scene profiles were matched by database software to the real criminals’ profiles, and the police were notified and, in turn, notified the prosecutors who contacted the defendants and secured exonerations.”
“That’s a pretty improbable deus ex machina.”
In the majority of misdemeanor exoneration cases, the defendant was convicted after accepting a plea deal.
“Plea bargaining is the great American method of sweeping problems in criminal cases under the rug,” Gross writes. “The defendant’s constitutional rights were violated? No problem; offer him a good enough deal, he’ll plead guilty, and that’ll be the end of it. The evidence of guilt stinks? If you reduce the charges enough he’ll probably go for it, and we’ll never have to present any evidence.”
But if defendants know they are innocent, why would they plead guilty? In most cases, Gross says, a plea bargain is the quickest route home.
“In the usual case, the defendant had a criminal record. As a result, bail was too high for him to make. If he pled not guilty, he’d wait months for a trial, in jail – and then might be sentenced to years in prison if convicted,” he writes.
“It’s not surprise that given the choice, many pled guilty and went home within days or weeks, or immediately.”
While guilty pleas get defendants out of jail more quickly, they also create an additional obstacle to exoneration: “It’s easier to persuade people that you’re innocent if you’ve never admitted to being guilty.”
Gross says that with the little data that exists, there is no telling how many people live with the consequences of conviction for a crime they never committed – something that should give all actors in the justice system pause.
New York City is releasing 200,000 pages of documents on the 1989 jogger rape case that led to the conviction and later exoneration of five teenagers. Donald Trump was a critic of the $41 million settlement in the case.
Debate over New York City’s infamous Central Park Five case was revived as the city issued the first of 200,000 pages of documents related to the 1989 jogger rape case, the New York Daily News reports. Five teenagers languished in prison for more than a decade before they were exonerated in the rape of Trisha Meili. The defendants had their convictions overturned in 2002 after a prison inmate, Matias Reyes, said he was the one who raped Meili, and DNA evidence backed his confession. The Central Park Five, as they were called in headlines, were awarded a $41 million settlement from the city in 2014.
Critics of the settlement included Donald Trump, who bought ads in four newspapers in the aftermath of the incident calling for the death penalty. All five suspects were convicted, each spending between seven and 13 years in prison. Critics said the defendants were part of a group of marauders who menaced people in the park – wilding was the term widely used – robbing, beating and harassing joggers, walkers and people sitting on benches. “These documents and videos will certainly challenge the prevailing narrative that completely omitted more than 50 percent of the evidence in this case,” said former prosecutor Linda Fairstein. “These young men were arrested as a result of a meticulous police investigation, and there’s no doubt that they were, as charged, rioting and attacking people in the park.” Lawyer Jonathan Moore, who represented several defendants in a civil case, said, “There was clearly evidence that there were kids in the park who were doing some adolescent stuff. But there’s absolutely no evidence that they had anything to do with Trisha Meili. Linda Fairstein knows that, and the fact that she still holds on to it is unbelievable, actually.” More materials on the case will be released in the coming days.