Smoke but No Fire

Convicting the Innocent of Crimes that Never Happened

Jessica S. Henry

• Editorial: University of California Press
• Año: 2020
• ISBN:
  9780520971943
• Edición: 1
• Categoría: Social Sciences
• Categoría: Criminology

2020 Foreword INDIES Book of the Year Awards Winner, Silver ( Politicaland Social Sciences)
Winner of theMontaigne Medal, awarded to "the most thought-provoking books" The first book to explore a shocking yet all-too-common type of wrongful conviction—one that locks away innocent people for crimes that never actually happened. Rodricus Crawford was convicted and sentenced to die for the murder by suffocation of his beautiful baby boy. After years on death row, evidence confirmed what Crawford had claimed all along: he was innocent, and his son had died from an undiagnosed illness. Crawford is not alone. A full one-third of all known exonerations stem from no-crime wrongful convictions.

The first book to explore this common but previously undocumented type of wrongful conviction, Smoke but No Fire tells the heartbreaking stories of innocent people convicted of crimes that simply never happened. A suicide is mislabeled a homicide. An accidental fire is mislabeled an arson. Corrupt police plant drugs on an innocent suspect. A false allegation of assault is invented to resolve a custody dispute. With this book, former New York City public defender Jessica S. Henry sheds essential light on a deeply flawed criminal justice system that allows—even encourages—these convictions to regularly occur. Smoke but No Fire promises to be eye-opening reading for legal professionals, students, activists, and the general public alike as it grapples with the chilling reality that far too many innocent people spend real years behind bars for fictional crimes.

ONE

Forensic Error

MISCLASSIFIED MURDERS AND MISLABELED CRIMES

Things are not always what they seem; the first appearance deceives many.

PHAEDRUS

IN 1992, BEVERLY MONROE WAS A FIFTY-FOUR-YEAR-OLD mother of three with a master’s degree in organic chemistry.¹ She had never been in legal trouble before, not even for a speeding ticket. Then she was convicted of murder.

Monroe first met Roger Zygmunt Comte de la Burde in 1979 while she was working in the patents department at Philip Morris Inc. They began an affair, and their marriages to other people soon ended.² Yet, as Monroe would eventually learn, Burde was not what he appeared to be. He boasted that he was descended from Polish royalty, a claim as questionable as his suspect real estate and art dealings. Burde also was a notorious philanderer who had numerous affairs throughout his and Monroe’s thirteen-year relationship.

In the early hours of March 5, 1992, Burde’s groundskeeper discovered Burde’s body lying on a couch in the library of the main house of his Powhatan County, Virginia, estate. Burde had died from a single gunshot wound to his forehead; the shot had been fired from his own handgun. He left no note, but had gunshot residue on his fingers. The Powhatan County Sheriff’s Office and medical examiner originally declared Burde’s death a suicide. But David M. Riley, a senior special agent from the Virginia State Police, suspected foul play. His single suspect was Monroe, who Riley believed had both motive and opportunity to commit murder. The motive? Burde was seeing another woman, who was allegedly pregnant with Burde’s child. The opportunity? Monroe had been with Burde on the evening of his death, a fact that Monroe readily admitted. Even though only Burde’s fingerprints were on the gun, Riley concluded that Monroe had killed Burde and was trying to cover it up by making his death appear to be a suicide.

Riley relentlessly pursued his theory of the case, summoning Monroe for unrecorded interrogation sessions in which he repeatedly insisted that she had been present in the library at the time of Burde’s death. Finally, after Riley falsely told Monroe that she had failed a polygraph test, Monroe agreed to sign a number of statements—each written by Riley—that placed her in the library during the shooting. These statements also contained a convoluted story of what Monroe might have done if she had been in the room at the time of the shooting. Based on these signed statements, Monroe was arrested for murder.

At her trial, the prosecution presented a circumstantial but seemingly strong case against Monroe. There was evidence of Burde’s affair with another woman, Monroe’s so-called confession, and testimony that the position of the gun made it unlikely that he had shot himself. A witness also testified that Monroe had tried to buy an untraceable gun from her several months earlier.

In her defense, Monroe raised a compelling alibi. She explained that she had left Burde at home around 9:30 P.M., filled her car with gas and called her son, and arrived at a Safeway at around 10 P.M. This last statement was corroborated by a store receipt timed at 10:40 P.M., a canceled check, and an eyewitness who remembered seeing her there. She further presented evidence that Burde made a phone call from his home around 10 P.M., well after Monroe left his house and right around the time she was in the store. Monroe testified that Burde had been depressed, but also offered a roster of alternative suspects who stood to gain from Burde’s death or who had a motive to want him dead. Finally, Monroe raised the fact that her fingerprints were not on the gun.

The jury took less than three hours to convict Monroe of murder. She was sentenced to twenty-two years in prison.

The story might have ended with Monroe serving out her time in a prison cell. But her daughter, Kate, a newly minted lawyer, devoted herself to proving her mother’s innocence. She uncovered official misconduct, including the prosecution’s failure to turn over critical exculpatory evidence to the defense.³ The prosecution did not disclose (among other evidence): (1) that Riley had improperly and inappropriately manipulated Monroe during aggressive interrogation sessions, causing her to agree to statements that she later recanted; (2) documentary evidence that the medical examiner had initially ruled the death a suicide; (3) a laboratory request by a different doctor in the Medical Examiner’s Office, who labeled the death a suicide, 4) statements from Burde’s ex-wife to the medical examiner that Burde had been having personal problems and was taking an antidepressant; (5) a statement from the groundskeeper that he had moved the gun when he found Burde’s body; and (6) the fact that the witness who swore Monroe tried to purchase a gun was in fact a convicted felon and government informant who testified in exchange for a favorable deal in a pending gun case and in an unrelated open felony case.

Upon review of the undisclosed evidence, the Fourth Circuit Court of Appeals dismissed Monroe’s case and Monroe was officially cleared of any wrongdoing.⁴ Monroe served eleven years in prison for a suicide that had been mislabeled a murder.

This chapter considers the misclassification of noncriminal events as crimes, and how use of the term crime transforms the ways events are perceived and evaluated. Misclassification often occurs in difficult cases—the cases where what happened is unclear and is subject to multiple interpretations. This makes sense. Events that are clearly accidents do not result in prosecutions, while events that are clearly crimes and have an identifiable suspect are efficiently resolved by an arrest, prosecution, and typically a guilty plea. It’s the gray cases, the hard cases, that require tough judgment calls.⁵ It’s in these gray cases that police officers, medical professionals, or forensic experts might misclassify a noncriminal event as a crime. When that misclassification takes root as truth, the criminal justice process is set in motion and an innocent person is pursued as a suspect for a crime that did not happen.

Gender also plays a role in no-crime wrongful conviction cases based on events misclassified as crimes. In the National Registry of Exonerations (NRE) database, females represent only 9 percent of all known exonerees, and only 4 percent of exonerees from actual-crime wrongful convictions. Yet they make up nearly 17 percent of all no-crime exonerees. Even more striking, of all the female exonerees in the NRE database, 70 percent were wrongly convicted of a crime that never happened. Males, in contrast, are far more likely to be exonerated in actual-crime convictions (66%) than in no-crime cases (34%).⁶ Andrea Lewis and Sandra Sommerveld, of the Center on Wrongful Convictions at Northwestern University, found that exonerated women, particularly in no-crime cases, were particularly susceptible to convictions involving the intentional killing or physical harming of a child or other loved one. They argue that gender stereotypes feed into no-crime wrongful convictions.⁷ If women are “supposed” to be nurturers, then women who violate their “womanly” role or who are “flawed” mothers are blamed and condemned not only because they have been accused of a crime but also because they “shirk[ed] their duties as a woman and a natural caregiver.”⁸

In this chapter, we look at several different types of noncriminal events that have resulted in no-crime wrongful convictions of innocent people: suicides mislabeled as murders, mechanical malfunctions misidentified as homicides, illnesses or natural deaths misdiagnosed as shaken baby syndrome or murder, and accidental fires misclassified as arsons. We will even examine murder convictions where the person was alive and, in one case, where the so-called victim was a “person” that had never been conceived. To shed light on how these mistaken beliefs take root in the first place, we begin the chapter with a brief look at cognitive biases and the ways in which they contribute to the misclassification of events as crimes.

COGNITIVE BIASES: AN OVERVIEW

Cognitive bias is an umbrella term, rooted in psychology, that explains the ways human judgments and decision making are influenced by unconscious thought patterns.⁹ Cognitive biases reflect the brain’s attempt to quickly process and organize a never-ending onslaught of information. They are a “byproduct of our need to process efficiently the flood of sensory information coming from the outside world.”¹⁰ Cognitive biases prevent the brain from overloading by helping it to make sense of the world quickly and efficiently.

The problem, however, is that cognitive biases reflect heuristics, or mental shortcuts, that can lead to unconscious errors in judgment and reasoning.¹¹ Because cognitive biases are unconscious, we rely on them without realizing that we are engaging in a flawed or distorted thought process that can result in inaccurate, irrational, or biased conclusions or beliefs.

In subtle but pernicious ways, cognitive biases have a tremendous impact in no-crime wrongful convictions and help explain how noncriminal cases are transformed into crimes. Criminal law scholars Keith A. Findley and Michael Scott provide insight into how “tunnel vision,” a form of cognitive bias, contributes to the creation of a criminal case against an innocent suspect. When police have tunnel vision, they “select and filter the evidence that will build a case for conviction while ignoring or suppressing evidence that points away from guilt.”¹² As Findley and Scott explain, the police focus on a particular conclusion—that a crime was committed or that a particular suspect committed that crime—and then “filter all evidence in a case through the lens provided by that conclusion. Through that filter, all information supporting the adopted conclusion is elevated in significance, viewed as consistent with the other evidence and deemed relevant and probative. Evidence inconsistent with the chosen theory is easily overlooked or dismissed as irrelevant, incredible, or unreliable.”¹³ Once the police decide a crime has occurred, they view the available information through a lens that confirms that belief and they disregard evidence to the contrary.

Tunnel vision is not the only cognitive bias prevalent in no-crime convictions. Confirmation bias, for example, reflects the unconscious tendency to interpret information in ways that confirm preexisting beliefs or hypotheses,¹⁴ while belief perseverance occurs when a person firmly maintains a belief despite being presented with new information that firmly contradicts it. In no-crime wrongful convictions, these cognitive biases prevent authorities from reexamining their initial determination that a crime occurred, even in the face of evidence that suggests another outcome. Instead, they ignore, minimize, or dismiss evidence that does not support the crime theory of the case.

Various theories of cognitive bias appear throughout this book. That’s because unconscious biases have profound and indelible consequences in many no-crime wrongful conviction cases. As seen throughout this chapter, one error—the initial misclassification of an event as a crime—is reinforced by criminal justice actors who uncritically accept the claim that a crime occurred and who then work to solve and prosecute that crime. The result is the conviction of an innocent person for a crime that never happe...