How Do We Convict The Wrong Person For a Crime?

I said several months ago that wrongful convictions were going to be part of my Voice – part of what I talk about here. It’s time to start talking about it.

The National Registry of Exonerations, a statistics project of the University of Michigan Law School (Go Blue!) lists 1,740 exonerations as of 12 February. If you’re a black male, the odds are against you. Badly. Just over 46% of the exonerations were of African-American, and over 91% of the exonerations were males. NRE has a nice explanation of the basic patterns here.

Of those 1,700 exonerations, 29 are in Oklahoma. The statistics here basically follow the national trends: 12 of 29 are black males. Murder and sex assault are the two biggest offenses, making up 25 of the 29 wrongful convictions.

In five Oklahoma cases, it developed that no crime occurred at all. It’s bad enough to be charged with something you didn’t do. Imagine how it must feel to be convicted of a crime that didn’t even happen. Four of those involved child sex abuse, and the men involved served a total of 15 years before they were exonerated.

Wrongful conviction cases are never simple, and the people involved are rarely pure as the driven snow. But that shouldn’t be cause to deny them due process. There’s often an attitude of “If they didn’t do this crime, they did another one that they got away with, so let’s get ’em for this one.” But if we do that, if we focus on one person based on weak evidence, and convict someone who turns out to be the wrong person, what happens to the right person? What happens to the real criminal? The Innocence Project points out that in the 337 exonerations they’ve accomplished, the real perpetrator has only been found in 140 cases. Their research indicates at least 130 violent crimes could have been prevented had the actual offender been properly identified the first time.

Why Does It Happen?

What are the causes? It comes down to about five reasons (although as NRE points out, many cases have multiple causes):

• Perjury or False Accusation
• Official Misconduct
• Mistaken Witness Identification
• False or Misleading Forensic Evidence
• False Confessions

I suspect the reason that causes the most consternation here is the idea of false confession. Why in the world would you admit to something you didn’t do?

Consider first of all the demographics of the wrongfully convicted. Almost half of those listed by the NRE are black males. When you narrow the field to those exonerated by The Innocence Project, that number jumps to 63%. Many suspects are indigent, and forced to rely on a horribly overworked public defender system where their attorney may not know their name when they meet for the first time.

Americans have this image of a public defender being a champion of the poor and wrongly accused, but the reality in some states is that PDs have three times the felony caseload recommended by the American Bar Association, and over five-and-a-half times the misdemeanor caseload. A capital case – where the accused is facing the death penalty – takes an average of 1,900 hours to investigate, prepare, and try all phases, and that’s not even considering appeals. For perspective, a 40-hour workweek with no vacations or missed days totals 2,080 hours a year. Is it any wonder that public defenders in some states are refusing to take on new cases?

So you’ve been accused of murder, and you’re facing a death sentence if your overworked and exhausted public defender can’t find the time, money, and effort to find exculpatory evidence and witnesses. She comes to you and says, “They’re offering a plea bargain. If you plead guilty to a reduced charge, they’ll reduce the sentence to 15 years instead of life or death.”

15 years, or life? Or even death?

Not such an easy call now, is it?

“But I didn’t do it,” you say.

“They’ve got two witnesses who put you there around the right time.” Or “They’ve got a guy who says you confessed to him while you two were in a cell together.” Then we’re back to the whole “I don’t have time to properly defend you” thing again. “I don’t have the time/money/resources to track down the person you say you were with, because I’ve got 300 other felony cases to deal with.”

15 years for sure, and that’ll get adjusted for good behavior.

Or do you take the chance on going to prison for the rest of your life, and never touching your family again, and probably never seeing some of them again? Missed birthdays. Graduations. Weddings. Funerals.

Tough call, isn’t it?

How Do We Fix It?

The Sixth Amendment Center has several suggestions, summarized in the ABA’s Ten Principles of a Public Defense Delivery System (PDF). The first principle, not surprisingly, deals with money. “The public defense function, including the selection, funding, and payment of defense counsel, is independent.” By independent, they mean subject to the same judicial supervision as private counsel. That makes sense. The branch of government that’s trying to put you in jail shouldn’t have control of your attorney. I like the way the Center structures their ideas. It’s not a national, one-size-fits-all kind of standard. They recognize that what works in Montana might not work in New York, and vice versa.

But it’s clear that there’s a problem with an ineffective public defense system, and that it needs to be fixed. A 2010 report by The Innocence Project suggests that ineffective assistance of counsel only affected seven of 54 cases where the issue was raised on appeal, and only about half of those cases involved a public defender. Society needs to establish how many cases of ineffective assistance of counsel are too many. I’m pretty sure the answer is “One.”