Eight Myths that Convict the Innocent
Just finished reviewing Eight Myths that Convict the Innocent: False Justice by Jim and Nancy Petro (Kaplan Publishing New York 2010). Jim Petro was the Ohio Attorney-General when he became a crusader for rectifying wrongful convictions. He also fought for the more aggressive use of DNA. He and his wife, Nancy, set out to help reform the system but found that they were met with a surprising backlash, most of it steeped in falsehood. They became involved in the case of Clarence Elkins, a family man with no prior criminal record, who had been wrongfully convicted and sentenced to life in prison for rape and murder. Petro states that the case introduced him to a "national nightmare" (p.vii). Petro was the first Attorney-General in the US to intervene in an Innocence Project case. He ended up going head to head in a public debate with the elected county prosecutor over the case when the authorities refused for more than a year to recognise that DNA test results had revealed Clarence Elkins to be an innocent man.
False Justice is described as an inspiring call to action, packed with compelling recommendations from a man who was at the helm of a system that had dangerous flaws.
The book states that the eight common myths that inspire false confidence in our justice system and undermine reform are:
- Everyone in prison claims innocence;
- Our system almost never convicts an innocent person;
- Only the guilty confess;
- Wrongful convictions are caused by innocent human error;
- An eyewitness is the best testimony;
- Conviction errors get corrected on appeal;
- It dishonours the victim to question a conviction;
- If the justice system has problems, the pros will fix them.
The book has four main Parts: Failed Justice; Pursuing Truth; Doing Justice; and Dispelling Eight Myths. False Justice reveals through case example, research and opinion, why the myths listed above are "dead wrong" and destructive to finding truth and justice (p.ix). Petro states that true justice is "a search for truth" requiring constant vigilance and is ultimately the responsibility of every citizen (not just the pros!) (p.xii).
Drawing on the work of the US Innocence Project the book outlines that the common contributors to wrongful convictions are (p.115):
- false confessions;
- use of unreliable informants and snitches;
- bad lawyering;
- unreliable science;
- government misconduct; and
- mistaken eyewitness testimony.
On the issue of "bad lawyering", Petro comments (at p.121):
Bad lawyering survives even today. Among the attorneys who represented those exonerated by DNA in the past twenty years were lawyers who slept during the trial, who were disbarred shortly after defending in a death penalty case, who failed to investigate alibis, who failed to consult or call forensic experts, and who failed to even appear at hearings. These inadequacies are almost comical until you consider the consequences.
Petro argues that bad lawyering will exist as long as the American public does not demand proper funding for indigent defence, including the resources to perform forensic testing and call forensic experts, and overlooks "unconscionable laziness and ineptitude" from lawyers (p.122).
Petro also refers to "expert mumbo jumbo" (p.123). He states that invalidated and improper scientific testimony has been a factor in more than 50 percent of DNA-proven wrongful convictions (p.123). He states (p.124):
Errors in forensic testimony offered by analysts from police laboratories were largely uncorrected in the trial process. Defense counsel was ineffective in revealing the inaccuracy of the testimonies either through cross-examination or by presenting contradictory forensic testimony from other experts. In fact, the defense utilized its own forensic experts in only 19 of the 137 cases ... When the defense did challenge the reliability of the prosecution's forensic experts in these cases, judges rarely provided relief.
Petro referred to a study by Brandon Garrett and Peter Neufeld published in March 2009 in the VIrginia Law Review entitled "Invalid Forensic Science Testimony and Wrongful Convictions" (p.123). That study identified six kinds of errors in forensic science testimony (pp.124-126):
- the interpretation of non-probative evidence as inculpatory evidence (or misleading testimony on non-determinative evidence falsely implied as scientific support of the defendant's guilt) (the most frequent error);
- ignoring scientific evidence that points to innocence;
- misstating the frequency of an occurrence in the population;
- stating probabilities that are not supported by research nor widely accepted by the scientific community;
- subjective, non-numerical analyst testimony on probabilities in a forensic area that has no established probabilities based on empirical data (particularly in the areas of hair analysis, bite marks, shoe prints etc.);
- stating that evidence conclusively identified a defendant when science has not provided the empirical data to support such certainty.
Petro states that those who were found responsible for faulty testimony ranged from the mistaken, under-trained or inept, to those influenced by a too-cozy relationship with the prosecutor, to those motivated by any number of human failings. He states that it is easy to view these as the exceptions in a much larger universe of competent scientists (p.126). However, the Garrett and Neufeld study found that in the exoneration cases, invalid scientific testimony was offered by 72 forensic analysts from 52 laboratories, practices or hospitals across the country.
Petro states that subsequent audits found no evidence of intentional manipulation (p.127). Nor was there an "obstruction of justice". The author comments (p.127):
Nancy and I came to believe that, aside from some scientists who pursued illegal means to present invented testimony for the prosecution, the unreliable testimony that was contributing to wrongful conviction might not find its complete explanation in the laboratory. The testimony itself- the positioning of the analysis in the framing of the prosecutor's questions and in the closing argument and the forensic scientist's selection of words in weak scientific context - influenced the fact finders in ways that could contribute to wrongful conviction.
With due respect to the good intentions of most forensic scientists, we came to believe that new attention must be focused on this important investigative and evidentiary tool and enterprise, forensic science and testimony.
Petro then refers to the 1993 Daubert v Merrell Dow Pharmaceuticals case where the US Supreme Court clarified the criteria for admissibility of expert testimony in modern times (p.127). He then points out that the case has almost never resulted in the exclusion of forensic evidence presented in criminal cases (p.128). Petro comments (p.128):
Once judges have determined that the scientific discipline meets the standards of Daubert, they do not, in the vast majority of cases, challenge the specific conclusions and the statistical claims and inferences of the expert in trial testimony. They leave this to defense counsels - who are usually ill equipped to challenge the expert or provide an opposing expert.
Petro also has a chapter headed "When the Good Guys Aren't" and points out the surprising prevalence of government misconduct by police, prosecutors and others. Petro regards this as "a uniquely troubling contributor to wrongful conviction" and comments (p.130):
Nancy and I bumped into instances of corruption; unlawful tactics; misplaced motivations; arrogance; and abuses of power by district attorneys, police detectives, forensic scientists, and others. Our eyes were opened to troubling evidence that law enforcement and judicial process can be inconsistent with fairness, decency, and due process.
Petro states that the US Innocence Project has identified government misconduct in many forms including (p.134):
- deliberately flawed eyewitness identification procedures;
- withholding exculpatory evidence from the defense;
- delaying the defence's access to scientific evidence;
- deliberately destroying or mishandling evidence;
- encouraging suspects to waive their Miranda rights;
- utilizing unethical techniques to gain false confessions; and
- knowingly using unreliable snitches and informants.
One of the major concerns for Petro was the failure of the prosecutors to disclose relevant material to the defense (p.228).
The book also highlights the exhausting and expensive struggle that many of the nation's eventually exonerated have experienced (p.179).
The author hopes that the book will be yet another voice prodding that nation's "conscience". He argues for reforms that lead to greater conviction accuracy. It stresses the need for a stance of co-operation, not "stonewalling", where claims of innocence are made in select cases. The book concludes with a call to action for all (p.242):
It is up to us, everyday Americans, to call upon our prosecutors, judges and public safety officials to always be mindful of their awesome responsibility: to lead this noble democracy in ever-improved methods of pursuing truth; and to be our true, fair ministers of justice for all.