Convicting the Innocent
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Convicting the Innocent

Brandon L. Garrett

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Convicting the Innocent

Brandon L. Garrett

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On January 20, 1984, Earl Washington—defended for all of forty minutes by a lawyer who had never tried a death penalty case—was found guilty of rape and murder in the state of Virginia and sentenced to death. After nine years on death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man.DNA exonerations have shattered confidence in the criminal justice system by exposing how often we have convicted the innocent and let the guilty walk free. In this unsettling in-depth analysis, Brandon Garrett examines what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing.Based on trial transcripts, Garrett's investigation into the causes of wrongful convictions reveals larger patterns of incompetence, abuse, and error. Evidence corrupted by suggestive eyewitness procedures, coercive interrogations, unsound and unreliable forensics, shoddy investigative practices, cognitive bias, and poor lawyering illustrates the weaknesses built into our current criminal justice system. Garrett proposes practical reforms that rely more on documented, recorded, and audited evidence, and less on fallible human memory.Very few crimes committed in the United States involve biological evidence that can be tested using DNA. How many unjust convictions are there that we will never discover? Convicting the Innocent makes a powerful case for systemic reforms to improve the accuracy of all criminal cases.

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C H A P T E R 1


IN OCTOBER 1993, Ronald Jones sat on death row in Illinois waiting to be executed. He had been sentenced to death for a gruesome rape and murder in Chicago. Jones clung to one last request—for a DNA test, which he claimed would prove his innocence. His lawyers offered to pay the $3,000 that it would cost to do the test. At the time, only a handful of people had ever proven their innocence using postconviction DNA testing. The prosecutors opposed testing, arguing that it would make no difference. Indeed, there appeared to be overwhelming evidence of Ronald Jones's guilt. Cook County circuit judge John Morrissey agreed and angrily denied the motion, exclaiming, “What issue could possibly be resolved by DNA testing?”1
Eight years before, in March 1985, the victim, a twenty-eight-year-old mother of three, was out dancing late with her sister on the South Side of Chicago. She was hungry and decided to get food a few blocks from her home at Harold's Chicken Shack. She ran into a friend on the street. As they talked, a panhandler approached; people in the neighborhood had nicknamed him “Bumpy,” because of his severe acne. “Bumpy” asked the friend for fifty cents. She gave him fifty cents and all three parted ways.
Several hours later, the victim was found half-naked and dead in a nearby alley behind the abandoned Crest Hotel. She had been stabbed many times and beaten. Ronald Jones, who was familiar to the police because he was a suspect in a sexual assault case that was never brought to a trial, was arrested. He had a severe acne problem and was known as Bumpy. He may have in fact been the man the friend saw that night. He was “a homeless, alcoholic panhandler” with an IQ of about 80.2
After Jones was arrested, he was placed in a small police interrogation room with walls bare save a sheet of paper listing the Miranda warnings. During an eight-hour-long interrogation, he confessed. Jones did not just say, “I did it.” He made far more damning admissions, signing a written statement that included a series of details that only the killer could have known. The victim was assaulted in a room inside the vacant Crest Hotel, where police found a large pool of blood and some of her clothing. In his statement, Jones said that on the morning of the crime, he was walking “by the Crest,” saw the victim, and assaulted her in a room inside. Police analysts detected semen in the victim's vagina. Jones said that they had sex. The pathologist testified that the victim had injuries from trying to fend off blows. Jones said they were “wrestling and tussling.” The victim had been stabbed four times. Jones said he lost his temper and “cut her a few times” with a knife. Police had found a trail of blood leading out of a window that had no glass, into the alley where they found the victim's body. Jones knew there was “an alley” by the hotel and said he came and left through an open “side window.”3 It was unlikely that anyone could coincidentally guess so many details that matched the crime scene.
The lead detective testified at trial that he brought Jones to the crime scene, where Jones offered more details. Jones “showed us the room” and “showed us where the struggle took place and where she was actually stabbed.” He accurately described the victim's appearance.4 Jones supposedly offered all of these crime scene details without any prompting. Those details sealed his fate.
Ronald Jones's confession was not the only evidence against him. Forensic evidence also linked Jones to the crime. DNA testing was attempted on the semen evidence, but the results were said to be inconclusive. At the time of the trial, in 1989, DNA technology was brand-new and could only be conducted in cases with large quantities of biological material, so conventional A-B-O blood-typing was performed. At trial, the forensic analyst explained that 52% of the population could have been the source of the semen and that Ronald Jones's blood type placed him in that group.
At the five-day trial, Jones took the witness stand and recanted his confession. In his closing argument, the prosecutor told the jury to consider that Jones was a “twice-convicted felon.” He added, “Please don't be fooled by this man's quiet demeanor in this courtroom and on the witness stand. The only two eyes that witnessed the brutal rape and murder…are in this courtroom, looking at you right now.”5 The jury convicted Jones and sentenced him to death.
Jones appealed and lost. He argued that his confession was coerced and said procedural errors infected his trial. The Illinois Supreme Court denied his petition, as did the U.S. Supreme Court. Then the trial judge denied his request for DNA testing.
But at the eleventh hour, Ronald Jones's luck began to change. In 1997, the Illinois Supreme Court reversed the trial judge and granted his request for DNA testing. The DNA profile on the sperm did not match Jones. The DNA also did not match the victim's fiancé, with whom she had been living at the time of the murder. It belonged to another man, who remains at large.6 Jones's conviction was vacated. But prosecutors waited until 1999 to drop the charges. Governor George H. Ryan pardoned Jones in 2000.7 He had spent more than thirteen years behind bars.
DNA testing saved Ronald Jones's life. Jones later commented, “Had it not been for DNA, who knows about me?”8 He likely would have been executed.
What went wrong in Ronald Jones's case? Why did he confess to a crime he did not commit? How did he confess in such detail? Why did the blood evidence appear to modestly support the State's case? The answers appear in the records from Jones's trial.
The transcripts of the criminal trial reveal a troubling story. Ronald Jones signed the written confession statement only after enduring hours of interrogation. On the witness stand at trial, Jones testified that a detective had handcuffed him to the wall and hit him in the head again and again with a long black object, because he refused to confess. Jones said that a second detective then entered the room and said, “No, don't hit him, because he might bruise.” That detective instead pummeled him with his fists in a flurry of blows to the midsection.9 The defense had argued prior to trial that, based on this police misconduct, the confession should be suppressed. The detectives both denied Jones had been struck. The lead detective denied using any interrogation techniques at all. He testified, “I sit down, I interview people, I talk to people. That's all I do, sir.” The judge ruled that the confession should be admitted at trial, explaining, “I do not feel that there was any coercion or any undue influence used upon the defendant.”10
Even if the confession was physically coerced as Jones described at trial, it still raises a puzzle. Now that we know Jones was innocent, one wonders how he could have known so much detailed inside information about the crime. At trial, Jones explained that when police took him to the crime scene they had walked through how the crime happened. The detective “was telling me blood stains on the floor and different clothing that was found inside the abandoned building,” and that the victim “was killed with a knife, and she was stabbed, three or four times.”11 It appears that Jones repeated the specific details about the crime in his confession statement not because he was there, but because the police told him exactly what to say.
The forensic evidence at Jones's trial was also flawed. Although the prosecutor told the jury in his closing statement that “physical evidence does not lie,” in fact, the forensic analyst had grossly misstated the science.12 Jones's blood type was the most common type. He was a Type O. However, he was also a nonsecretor, meaning that his body fluids did not reveal his blood type. Only 20% of the population are nonsecretors. The victim was a Type A secretor, as are about 32% of the population. The vaginal swabs collected from the victim's body matched her type and had Type A substances on them. The analyst testified that the percentage of males who could have been the source for the semen was the percentage of nonsecretors added to the percentage of Type A secretors, which would add up to about half the population.13
The analyst was wrong. A competent analyst would have explained that any man could have been the rapist. The analyst had found nothing inconsistent with the victim's Type A. This raised a problem that was common at the time, called the problem of “masking.” Substances from the victim could “mask” any material present from the rapist. The evidence from this crime scene was totally inconclusive. Nothing at all could be said about the blood type of the rapist.
The 250 Exonerees
In retrospect, Ronald Jones's case provides a stunning example of how our system can convict the innocent. If his case were the only case like this, we might call it a tragic accident, but nothing more. But his case is far from unique. Since DNA testing became available in the late 1980s, more than 250 innocent people have been exonerated by postconviction DNA testing.
Who were these innocent people? The first 250 DNA exonerees were convicted chiefly of rape, in 68% of the cases (171), with 9% convicted of murder (22), 21% convicted of both murder and rape (52), and 2% convicted of other crimes like robbery (5).14 Seventeen were sentenced to death. Eighty were sentenced to life in prison. They served an average of thirteen years in prison. These people were typically in their twenties when they were convicted. Twenty-four were juveniles. All but four were male. At least eighteen were mentally disabled. Far more DNA exonerees were minorities (70%) than is typical among the already racially skewed populations of rape and murder convicts. Of the 250 exonerees, 155 were black, 20 Latino, 74 white, and 1 Asian.15
DNA testing did more—it also identified the guilty. In 45% of the 250 postconviction DNA exonerations (112 cases), the test results identified the culprit. This most often occurred through a “cold hit” or a match in growing law enforcement DNA data banks. The damage caused by these wrongful convictions extends far beyond the suffering of the innocent. Dozens of criminals continued to commit rapes and murders for years until DNA testing identified them.
Before the invention of DNA testing, the problem of convicting the innocent remained largely out of sight. Many doubted that a wrongful conviction could ever occur. Justice Sandra Day O'Connor touted how “our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.”16 Judge Learned Hand famously called “the ghost of the innocent man convicted” an “unreal dream.” Prosecutors have from time to time claimed infallibility, announcing, “Innocent men are never convicted.”17 Others acknowledged that human error is inevitable, but doubted that convicts could ever convincingly prove their innocence. Scholars spoke of “the dark figure of innocence,” because so little was known about wrongful convictions.18
DNA exonerations have changed the face of criminal justice in the United States by revealing that wrongful convictions do occur and, in the process, altering how judges, lawyers, legislators, the public, and scholars perceive the system's accuracy. This sea change came about because of the hard work of visionary lawyers, journalists, and students who suspected that the criminal justice system was not as infallible as many believed. Barry Scheck and Peter Neufeld, two well-known defense lawyers, founded the pioneering Innocence Project at Cardozo Law School in the early 1990s, which helped to free many of the first 250 exonerees. I first met several of these exonerees when, as a rookie lawyer, I worked for Scheck and Neufeld representing innocent people who sued to get compensation for their years behind bars. Over the years, lawyers, journalists, and others established an “innocence network,” including clinics at dozens of law schools, designed to locate innocence cases. Today, DNA exonerations have occurred throughout the United States, in thirty-three states and the District of Columbia.19 Public distrust of the criminal justice system has increased, and popular television shows, books, movies, and plays have dramatized the stories of the wrongfully convicted.20 We now know that the “ghost of the innocent man” spoken of by Judge Learned Hand is no “unreal dream,” but a nightmarish reality.
What Went Wrong
What we have not been able to know, however, is whether there are systemic failures that cause wrongful convictions. Now that there have been so many DNA exonerations, we have a large body of errors to study. Did the first 250 DNA exonerations result from unfortunate but nevertheless unusual circumstances? Or were these errors the result of entrenched practices that criminal courts rely upon every day? Are there similarities among these exonerees' cases? What can we learn from them?
This book is the first to answer these questions by taking an in-depth look at what happened to these innocent people. Collecting the raw materials was a challenge. Although scholars have surveyed jurors and judges using detailed questionnaires, no one has studied a set of criminal trial transcripts to assess what evidence was presented, much less studied the criminal trials of the exonerated.21 One reason is the difficulty and expense of locating trial records. These voluminous records must often be pulled from storage in court archives or requested from the court reporters. I was able to overcome these difficulties with the help of numerous librarians and research assistants. For each of the first 250 DNA exonerees, I contacted defense lawyers, court clerks, court reporters, prosecutors, and innocence projects around the country. I located documents ranging from confession statements to judicial opinions and, most important, transcripts of exonerees' original trials. I obtained 88% of their trial transcripts, or 207 of the 234 exonerees convicted at a trial.22 I also obtained hearing transcripts and other records in thirteen of sixteen cases where exonerees had no trial but instead pleaded guilty. In the remaining cases, the records had been sealed, destroyed, or lost.
When I began to assemble this wealth of information, I had a single goal: to find out what went wrong. When I analyzed the trial records, I found that the exonerees' cases were not idiosyncratic. The same problems occurred again and again. Like Ronald Jones, almost all of the other exonerees who falsely confessed had contaminated confession statements. Most other forensic analysis at these trials offered invalid and flawed conclusions. As troubling as it was, Ronald Jones's case looked typical among these exonerees: his case fit a pattern of corrupted evidence, shoddy investigative practices, unsound science, and poor lawyering.
These trials call into question the “unparalleled protections against convicting the innocent” that the Constitution supposedly affords. The system places great trust in the jury as the fact finder. When the Supreme Court declined to recognize a right under the Constitution for convicts to claim their innocence, it reasoned, “the trial is the paramount event for determining the guilt or innocence of the defendant.”23 Yet at a trial, few criminal procedure rules try to ensure that the jury hears accurate evidence. To be sure, celebrated constitutional rights, such as the requirement that jurors find guilt beyond a reasonable doubt and that indigent defendants receive lawyers, provide crucial bulwarks against miscarriages of justice. But those rights and a welter of others the Court has recognized, like the Miranda warnings, the exclusionary rule, and the right to confront witnesses, are procedural rules that the State must follow to prevent a conviction from being overturned. Few rules, however, regulate accuracy rather than procedures. Such matters are typically committed to the discretion of the trial judge.
Exonerations provide new insights into how criminal prosecutions can go wrong. We do not know, and cannot ever know, how many other innocent people have languished behind bars. Yet there is no reason to think that these 250 are the only ones who were wrongly convicted because of the same types of errors by police, prosecutors, defense lawyers, judges, jurors, and forensic scientists. The same unsound but routine methods may have contaminated countless other confessions, eyewitness identifications, forensic analysis, informant testimony, and defenses. Each chapter in this book poses a different question to analyze an aspect of what went wrong in these exonerees' cases.
Why did innocent people confess in such detail to crimes they did not commit? Chapter 2 begins with the case of Jeffrey Deskovic, who, like Ronald Jones, supposedly said much more than “I did it.” Forty of these 250 exonerees (16%) confessed to crimes they did not commit. I expected to find some false confessions among these exonerees, since several such cases have become well known and because psychologists have studied how police pressure can coerce a false confession. I was surprised to discover, however, that all but two of those exonerees reportedly confessed to details about the crime that only the killer or rapist could have known. Those specific facts must have been improperly disclosed to exonerees, most likely by police. In Deskovic's case, it is not surprising that he succumbed to police pressure. He was sixteen years old and had to be com...

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Citation styles for Convicting the Innocent
APA 6 Citation
Garrett, B. (2011). Convicting the Innocent ([edition unavailable]). Harvard University Press. Retrieved from (Original work published 2011)
Chicago Citation
Garrett, Brandon. (2011) 2011. Convicting the Innocent. [Edition unavailable]. Harvard University Press.
Harvard Citation
Garrett, B. (2011) Convicting the Innocent. [edition unavailable]. Harvard University Press. Available at: (Accessed: 14 October 2022).
MLA 7 Citation
Garrett, Brandon. Convicting the Innocent. [edition unavailable]. Harvard University Press, 2011. Web. 14 Oct. 2022.