Convicted but Innocent

Wrongful Conviction and Public Policy

C. Ronald Huff, Arye Rattner, Edward Sagarin

• Publisher: SAGE Publications, Inc
• Year: 1996
• Print ISBN: 9780803959538
• eBook ISBN: 9781452236285
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

"This important book, joining many others about the possibility and actuality of executing innocent persons . . . examines the full range of potential and real cases in which innocent people are falsely accused, convicted, and incarcerated and describes the variety of missteps in our criminal justice system that lead to unjust imprisonment . . . . In six clearly written chapters the authors examine the reality of unjust incarceration . . . . The last chapter may be the most compelling; the authors recommend how to reduce the number of errors in our criminal justice system. For anyone concerned about justice; highly recommended for public and university libraries."

--Choice

"In this well-researched and fascinating volume, the authors mix materials from case files in the literature and reported in numerous research reports and in the media. There is great reliance on research studies, national and international, on the accuracy of eyewitness perceptions. Interviews with the exonerated and some of the actors in the system are included as are trial documents and court transcripts as well as media reports on the trials. There is no other book on the ??guilty?? but innocent that has so broad a focus and so much rich detail. It is a good read, indeed."

--from the Foreword by Simon Dinitz, Professor Emeritus, The Ohio State University

Even if the American system of criminal justice proved 99.5% accurate, it would still generate more than 10,000 wrongful convictions a year--and those would reflect only the eight serious index crimes. Each time an innocent offender is wrongfully convicted, the actual offender remains free to continue victimizing. Insightful and stimulating, Convicted But Innocent grapples with the very specific, difficult issues surrounding wrongful convictions and the implications for society. Using fascinating case samples and survey data that reflect the possible magnitude of the problem, the authors detail the major factors associated with this stunning potential for error in our criminal justice system. Although no system of justice can be perfect, this volume shows that a focus on preventable errors can substantially reduce the number of conviction injustices. Committed to that end, authors C. Ronald Huff, Arye Rattner, and Edward Sagarin also examine public policy implications and recommendations for putting their findings to work.

Intriguing, and about a problem that is frightening to contemplate, Convicted But Innocent offers a stimulating read for students, academics, researchers, law enforcement and corrections professionals, and policy makers.

1

With Apologies to the Prisoner

It is better to risk saving a guilty person than to condemn an innocent one. Voltaire, Zadig, 1747

It is better that ten guilty persons escape than one innocent suffer. Sir William Blackstone, Commentaries, 1765-1769

During the 1980s and early 1990s, the American conscience was shaken by a number of instances that cast doubt on a cherished belief—that innocent people are seldom, if ever, convicted and imprisoned, and they are certainly not executed. Almost as if orchestrated in the way they came to public attention, completely unrelated cases of miscarriage of justice, not in which the guilty were freed but in which the totally innocent were severely punished, became front-page news and the subject of frequent discussion on television. Nor were the charges trivial: Most of the convictions were for murder or rape.

In the state of Ohio, Bradley Cox, a white youth found guilty of rape on the basis of a repudiated confession given to the police after a Miranda warning had been issued, had served 2 years of a 56- to 200-year term when the actual rapist, Jon Simonis (the “ski-mask rapist”), confessed and Cox was released from prison. There is irony in the fact that in the same state, at about the same time, a black man who had served 5 years in prison for a series of rapes he had not committed was likewise released when the true rapist was found. It added a further dimension of public wonder that the innocent and the guilty man had the same last name, and they came to be known as “the right Jackson” and “the wrong Jackson” (“Freed Jackson’s Advice,” 1982).

These cases were very much in the news when Isidore Zimmerman died. This man had once been on death row in New York; his head had been shaven in readiness for the electrodes 2 hours before his sentence was commuted to life imprisonment and before the switch would send lethal electricity through his body. Protesting his innocence, he served 24 years before he was released, completely exonerated, then spent another 20 years struggling to gain some compensation for his wrongful imprisonment. Finally, he won his case; an elderly and broken man, he was awarded $1 million for the wrongs done to him by the state of New York, and he died 4 months later (“Isidore Zimmerman,” 1983).

Zimmerman’s case was still unforgotten when Ludovic Kennedy, a prominent British investigative journalist, published his book The Airman and the Carpenter (1985a), which left little doubt in the minds of most readers that Bruno Richard Hauptmann had been innocent of the kidnapping and murder of the Lindbergh baby some 50 years earlier. Back in New York, Nathaniel Carter, a religious man with an impeccable record, was freed from prison after having been convicted of the murder of his estranged wife’s foster mother, for which he had been given a life sentence, when it was discovered that the chief witness against him (his former wife) had committed the murder and had now confessed to it, under immunity (“How Errors Convicted,” 1984).

At about the same time full pages in the newspapers were being devoted to Carter, along came a case that caught the public’s imagination and that remained in the headlines for a long period: the controversial case of Gary Dotson and his former accuser, Cathleen Crowell, now married and known as Cathleen Webb. In 1979, Gary Dotson, who was 22 years old, white, and had previously been in minor trouble with the police for nonviolent crimes, was found guilty of raping Cathleen Crowell. Protesting his innocence, he was sentenced to 25 to 50 years in prison. Against him was the victim’s description to the police of the rapist (a description she was to claim, 6 years later, was entirely fictional); then, when she was shown photographs of possible suspects by the police, she picked one that at least superficially resembled the description she had given—a young man with long blond hair and a mustache. There was no medical testimony that associated the defendant with the rape; there was only his denial, and some confusing alibis. For 6 years Dotson remained in prison, insisting on his innocence; so far as is known, there was no contact between him and the woman who had accused him. Then Cathleen Webb resurfaced and made a complete recantation; she stated that she had never been raped, that in 1979 she had had sexual relations with a boyfriend and feared repercussions from her foster parents if she were pregnant. Now she was coming forward out of pangs of conscience and because she had found religion (Webb & Chapian, 1985).

Gary Dotson was freed on bond, but the original judge who had heard the case 6 years earlier did not believe the recantation, and sent him back to prison. There was a public outcry, and in 1987 the governor of Illinois made a Solomonic decision in an effort to please everyone: He would not grant a pardon but would commute the sentence to time already served (longer than the average served for rape) because Dotson had suffered enough. At the same time, he asserted his belief that Dotson was guilty and that the victim’s original testimony was true and her recantation false. At any rate, Dotson was “free” to walk away, but he was burdened by his ordeal, his notoriety, and a felony conviction. After a jail term for parole violation, he was finally cleared of the rape charge in 1989, when DNA testing ruled him out as the rapist (Yant, 1991).

It is especially interesting that Dotson’s case caused so much furor over the conviction of the innocent, because it was the one case among the many that came to light at the time in which innocence was not well established. A cloud of doubt hung over the Dotson case until improved DNA testing provided the crucial exculpatory evidence. But if it took a case with some lingering doubts to make the conviction of the innocent an issue of national attention, there were many others in which no such doubt existed. One need only consider the trilogy of injustices done in Dallas to Lenell Geter, Randall Dale Adams, and Joyce Ann Brown and these individuals’ wrongful convictions to appreciate that the presumption of innocence is at best fragile and at worst a romantic fantasy once a suitable suspect has been arrested, charged, and placed at risk in our most imperfect “adversarial” system of justice. (We discuss the “Dallas trilogy” in detail in Chapter 2.)

The distinguished jurist Learned Hand stated in 1923, “Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream” (United States v. Garsson, 1923). Innocent people, Justice Hand contended, were not in our prisons. He did not qualify his statement, or even suggest that there may be a few instances, or even a single instance now and then, or that these things once happened frequently in the South as a result of racial prejudice but no longer occurred (a statement that he could hardly have made in 1923). It is an astounding statement, belied by the actual events before and during Justice Hand’s days on the bench, and subsequently, too. He could not have been ignorant of the former and should have been able to foresee the latter.¹

The best that can be said of Hand’s remark is that it was meant figuratively; he wished to contest the notion that the prisons were filled with innocents. If that is all he was saying, we do not dispute it. The prisons are not filled with innocents—but next month or the one after will witness at least one more case of a prisoner coming before a judge who will tell him or her, “New evidence has been uncovered that demonstrates that you are innocent, and we send you forth, a free man [or woman] in a free America.” And the judge might add: “Sorry for the inconvenience.”

The old cliché that it is better for 10 guilty men to go free than for a single innocent person to be found guilty and imprisoned is a viewpoint held by few, although paid lip service by many. It is a statement breached so often in practice that its repetition is cynical. Furthermore, it is our contention, as we will show throughout this work, that there is an implication that is fundamentally untrue in such a maxim, because finding one innocent person guilty is not only an unnecessary price for us to pay in human waste and tragedy for the preservation of our criminal justice system, but it often results in the closing of cases with actual perpetrators still at large to continue to commit crimes. Furthermore, the conviction of the innocent serves to cast doubt upon the reliability of the criminal justice system and hence may assist in exculpating the genuinely guilty.

Most of the cases of wrongful conviction that come to public attention involve murder or rape, if only because of the severity of the sentences for such offenses and, in the case of murder, implications for the death penalty. We describe one particular case of rape below, one we shall mention in the pages to come because of the lessons that it illustrates.

A woman in Dubuque, Iowa, is raped by a stranger—there is no dispute about this fact in the case—and after the event she runs out into a crowded street, screaming with understandable hysteria, and identifies a man in the crowd as having just committed the heinous act. David Feddersen is arrested, but statistically at least, he has a few things going for him: He is white (but so was the rapist); he was walking along a street that he regularly took at that time of day, and he has never been involved in a violent crime, or in violence as such. He was not hurrying or running when seized, although he had been a member of his high school track team, and could easily have escaped had he wished.

Against him was the eyewitness identification, community pressure to catch rapists, and the fact that, in the words of his mother, “he had been in trouble with the law before.” Of course, he had no alibi—he was indeed among the crowd when the woman came running after the attacker. But so were many other people. On the other hand, that she could identify him so certainly and with no hesitation so soon after the event seemed to indicate some possibility of guilt. The fact that she had no corroborating witnesses was to be expected: People do not generally go around committing rape in the presence of others, unless it is a group rape, with two or more rapists collaborating against one victim.

At the time he was seized and identified by the victim, David Feddersen was walking at a normal pace, not as if he were trying to lose himself among many or attempting to get away. His demeanor, then, was not particularly damaging. With no medical testimony, it came down to the victim’s word against that of the accused; she was certain that he was guilty, and he was even more certain that he was innocent. By unanimous vote of an Iowa jury that his lawyer had helped to choose, Feddersen was declared guilty of rape.

He was stunned. Knowing he was innocent, he was positive that he would be exonerated. When he rose to speak in court, he was not contrite but arrogant. Asked if he had anything to say before sentence was pronounced, he showed anger, denounced the court, the jury, and the complaining witness, and demonstrated neither sympathy for the victim nor remorse for what he had done—which would have been difficult, considering he had not done anything. Perhaps in part as a result of his own behavior, and in part because the judge had only limited leeway in deciding on the punishment to be meted out to the man who was now a convicted felon, Feddersen received a lengthy prison term. By happenstance, coincidence, and dogged effort on his own part, and aided by his family’s belief in him, after 2 years in prison Feddersen was able to convince all parties in the case except the complaining victim to admit their error. Police, prosecutors, and judge were certain, because of new evidence that had been uncovered, that they had sent the wrong man to prison.

Taken back to court, standing before the same judge who had once sentenced him, he was told that a mistake had been made, that his innocence was clearly established, and that he should now turn around and walk out through the front door of the court, a free man. The judge said that the fact that an innocent man could be found guilty “is scary.” A reporter asked a prosecutor what had gone wrong with this case, and the prosecutor answered, “No man is entitled to a perfect trial. He is entitled to a fair trail, but the verdict was wrong. Mr. Feddersen received a fair trial.” This is a most cynical and inadequate answer. It is true that no one is entitled to a perfect trial, because perfection is always unattainable. It may be true that he received a fair trial—he had adequate counsel, no confession had been obtained, no exculpating evidence had been suppressed, no damaging evidence had been manufactured. But the prosecutor omitted any reference to what the reporter was seeking, and what we are all entitled to know, namely, what goes wrong with a criminal justice system that produces a case like Feddersen’s, and many others. The judge said that it was scary that such a thing could happen. We find it equally frightening that, after such a thing takes place, it is often cavalierly dismissed, with no effort made to understand how it might have been averted.

Another case that is relevant here involves the question of reasonable doubt. In this volume we devote only little attention to persons formerly or currently in prison whose innocence has not been established but about whom there is considerable and reasonable doubt as to guilt. This is not our major focus, but the following case is so replete with ironies and contradictions that it is worthy of study. James Hicks, 31 years of age, had served 7 years of a 10-year sentence in the state of Maine for the murder of his wife. On the witness stand he had denied that he killed her, but readily admitted that he had been living with another woman for about 5 years prior to the disappearance of his wife, and that he had two children with this woman, to whom he was not married. One of the unusual aspects of the case, but by no means unique in murder trials, was that the body of the wife had never been found. The presence of a dead body is not an absolute must for a murder conviction—after all, a murderer can throw a victim overboard somewhere on the ocean, and the body might never be found—guilt can be established beyond a reasonable doubt by witnesses’ testimony, evidence of motive, and other evidence. In this case, there were no witnesses. The wife disappeared and was not heard of again. Hicks believes that his wife walked away and never came back—and that she may well know that he is in prison for her murder.

After 7 years in prison, Hicks applied for permission to marry the mother of his two children, with whom he had maintained a romance through all his difficulties. In Maine and in many other states, a prisoner and a free person may marry if permission is granted by the authorities. But here an unexpected irony enters the case. Hicks was denied a license to get married on the grounds that if the state allowed the marriage it might be an accomplice in the act of bigamy. No marriage license could be issued without a death certificate for Hicks’s apparently dead wife or a divorce decree. The Medical Services Office refused to issue a death certificate because there was no body, and Hicks refused to sign a statement acknowledging that he knew his wife was dead—which would have cleared the way for the death certificate and the marriage, but would have been, in effect, a confession of guilt. This he would not make, because the suggestion of murder would violate his contention that his wife had just walked away. So, although he was convicted of murdering his wife on the basis of evidence that convinced 12 men and women beyond a reasonable doubt, the authorities entertained some doubt that his wife was dead.

If we place this convict in the group of currently confined people about whose guilt there is slight doubt but not in the group whose innocence is definitely established, then the authorities must convince us that we are wrong. At least some people have not slight but reasonable doubt, among them the prison authorities and others with access to records. And if the doubt is reasonable enough to prevent a marriage, then the guilty verdict cannot meet the standard of guilt beyond a reasonable doubt. One is tempted to speak of this prisoner as living in a Kafkaesque world, but perhaps his case is just another sad example of what we have come to call, in homage to Joseph Heller, a catch-22 situation.

The fact that innocent people are occasionally convicted and later exonerated has long been one of the major arguments against capital punishment. In this century the United States and England have seen several cases of executed people whose innocence was later established and could not be disputed; many executed even when there was great doubt as to their guilt; and numerous others, all innocent, whose lives were saved from the hands of the executioner only after appeals, the granting of clemency, commutations, or the collapse of what had appeared to be airtight cases. Two major instances of executions of the innocent have been described in detail by Ludovic Kennedy. In Ten Rillington Place, Kennedy (1961/1985b) tells the story of the arrest, trial, and hanging of Timothy Evans. The crime for which Evans gave his life was actually committed by the chief witness against him, a man named Christie, who was later caught and hanged. The case and Kennedy’s book about it are often cited as responsible for the abolition of capital punishment in England. More recently, Kennedy (1985a) has presented an extraordinarily strong argument that Bruno Hauptmann did not kill the Lindbergh baby. It is also generally believed that Sacco and Vanzetti were not guilty, although this is not a unanimous view.

Indeed, Bedau and Radelet (1987), after conducting an exhaustive study of wrongful conviction in capital, or potentially capital, cases, reached the conclusion that 23 innocent persons were executed in the United States between 1905 and 1974, and 22 others had “close calls” (reprieves came within 72 hours of their scheduled executions). It should be noted that Bedau and Radelet’s classification of these cases as errors is not universally accepted, and their study has received both praise and criticism (see, for example, Markman & Cassell, 1988).

Of several thousand legal and extralegal executions of blacks in the South between 1875 and 1955, and a few lynchings of whites both in and outside the South, we consider here only the legal executions, and the evidence that many of those executed were innocent persons, particularly when the charge was rape, is overwhelming. But the legal apparatus cannot be exonerated when it arrests a man and finds him guilty, fails to protect him, and allows citizens to carry out his execution, a not uncommon practice at one time, as described by William Faulkner in his short story “Dry September.”

Many have been sentenced to die and had their sentences commuted, served long prison terms, and then were exonerated. All but one of the “Scottsboro boys” were sentenced to death, and only worldwide protest that focused attention on this injustice saved their lives. No one today disputes that these young men were innocent; in fact, the sole survivor of the nine was welcomed by the governor of Alabama when he returned there in the early 1980s.

Most important, it seems to us, is that there is often considerable doubt as to guilt. In Against the Evidence (1970), Logan tells the story of the only police officer ever to be executed by the state of New York. Logan contends that Lieutenant Becker was innocent, and amasses considerable detail to establish her point. A reader of her work and a follower of the story of this notorious and controversial case may not be as convinced of Becker’s innocence as Logan is, but one cannot close Logan’s book without a strong doubt as to Becker’s guilt.

Like Timothy Evans in England (Kennedy, 1961/1985b), Nathaniel Carter in New York State was found guilty of murder almost solely on the basis of the testimony of the actual killer. Sentenced to life imprisonment,...

Table of contents

• Cover page
• Title
• Copyright
• Dedication
• Contents
• Foreword
• Acknowledgments
• Introduction
• 1. With Apologies to the Prisoner
• 2. Causes Célèbres
• 3. How Could This Have Happened? The Causes and Prevalence of Wrongful Conviction
• 4. What Did They Really See? The Problems of Eyewitness Identification
• 5. False Confessions, Miranda Notwithstanding
• 6. Wrongful Conviction and Public Policy What Can Be Done?
• References
• Cases
• Index
• About the Authors