There are many causes of wrongful convictions, and more than one can be present in a given case. Below is information on six of the most common causes and the role they have played in the cases of MAIP exonerations.
Unreliable or Improper Forensic Science
The victim who identified Mike McAlister as the man who attempted to rape her was certain that he was her attacker. Even after police began to believe that another man (who looked like Mike) was her attacker, she remained confident that Mike was the right man. Sadly, she was wrong. The other man was the attacker and eventually confessed to the crime.
She isn’t alone. Honest, but mistaken, eyewitnesses are one of the leading causes of wrongful convictions nationally and in MAIP cases. This is true for many reasons. Crimes are stressful and often take place quickly. Those who commit them often are trying to hide their appearance. The way eyewitness procedures are conducted also can contribute to eyewitness error—either because the suspect stands out in a photo or live lineup, or because police inadvertently led the witness to choose the suspect, or because the witness’s confidence is overinflated during the process.
Minimizing eyewitness error is possible and is happening all over the country, including in Maryland, where MAIP helped pass a law improving eyewitness procedures. Some of the most important things we can do to make sure eyewitness identifications are more accurate include: make sure suspects don’t stand out, make sure the police officer conducting a photo or live lineup doesn’t know who the suspect is, and get a statement of confidence from the witness as soon as they make an identification.
Unreliable or Improper Forensic Science
At Sabein Burgess’s trial for murdering his girlfriend, a Baltimore Police Department expert testified that gunshot residue found on Sabein’s hands could not have been transferred when he found and cradled her body—the expert said it could only mean that he fired a gun. That was the only evidence linking Sabein to the murder. We now know that the expert’s testimony was wrong. Gunshot residue evidence can be transferred, and evidence MAIP discovered proved that two other men committed the crime.
Sabein’s case was not unusual. Unreliable or improper forensic science have been involved in more than half of the DNA exonerations nationwide, and the Mid-Atlantic region is not immune from this problem. DNA testing has helped prove that some forensic science (relied upon for years) such as hair analysis and bite-mark evidence, cannot be used to conclusively identify suspects. We have also seen both mistakes and misleading testimony in blood-typing cases, fingerprint cases, and even DNA cases. And in gunshot residue, arson, and Shaken Baby Syndrome/Abusive Head Trauma cases, new research has proven that conclusions drawn by forensic scientists, arson investigators, and doctors have been wrong and based on flawed assumptions.
This has happened because most forensic science was developed solely for use in the courtroom and wasn’t subject to the same procedures and standards that typically are used to validate scientific research. In addition, the testimony of most forensic examiners isn’t monitored to see whether it is inaccurate or exaggerated. And, in the rare cases where misconduct (as opposed to error) has occurred, there is little oversight to prevent or correct it.
Because lawyers, judges, and jurors tend to believe anyone who is called an expert or scientist, it is important to correct this problem on the front end. The National Academy of Sciences recommends funding strong research to validate forensic sciences, setting federal standards, and—on the state level—enacting commissions like the Forensic Science Board and Scientific Advisory Committee in Virginia.
Earl Washington was a mentally challenged 22-year-old when he confessed to raping and murdering Rebecca Williams in Culpeper County, Virginia. His confession had problems. He was wrong about the race of the victim and the way she was killed, he did not know she had been raped, and he was fed information about the crime. Physical evidence indicated that he could not have been the perpetrator. Nonetheless, he was prosecuted, convicted, sentenced to death, and only fully exonerated 14 years after DNA testing proved he was not the perpetrator.
It is hard to believe that anyone would confess to a crime they did not commit, but situations like Mr. Washington’s are all-too-common among wrongful conviction cases—the Norfolk Four case alone involved four false confessions. People who have falsely confessed often are juveniles, mentally disabled, or mentally ill, but they also include people with normal (or even high) IQs.
The focus of most suspect interrogations is getting a confession, not investigation. This can be a challenge, even if the person is guilty. Police interrogators therefore work to make confessing seem like a rational choice. They emphasize how strong their evidence is and then suggest to the suspect that confessing is their only chance to minimize the consequences of the crime. Interrogations that produce false confessions last an average of eight hours, and some have lasted more than 24 hours. Some interrogators threaten suspects with the death penalty or the loss of their children. Also, police are allowed to lie to suspects about what evidence they have. In most false confession cases, police have given information about the crime to the suspect, so their confessions contain some accurate information about the crime.
Many jurisdictions all over the country are taking steps to prevent false confessions. The most common form of prevention is videotaping all interrogations, from start to finish, which is required by law in DC. This doesn’t prevent false confessions but makes them easier to spot. Not allowing police to lie to suspects also would help prevent false confessions. In addition, some experts on police practices have recommended changing the way suspects are interrogated altogether—focusing on investigation and information gathering rather than solely on getting confessions.
Before Mike Hash’s trial for a Culpeper County, Virginia murder, he was transferred to another jail for two nights and immediately given a cell assignment, even though that usually took several days. His cellmate was Paul Carter, a federal prisoner who later testified that Mike had confessed to him in that jail. Prosecutors said that Mike was transferred because of overcrowding in the local jail, and Carter told the jury he could not receive a benefit for his testimony. Both were lies. Lawyers working with MAIP eventually learned that Mike was transferred so that he could be placed in a cell with Carter, an informant who had testified in several other cases. And Carter not only expected a benefit in his case, but he received one—with the help of Culpeper authorities.
The use of informants like Carter is a common and consistent problem in wrongful conviction cases at MAIP and all over the country. Witnesses often are reluctant to testify in criminal trials, either because they fear for their safety or because they simply don’t want to be involved. The government therefore can sometimes offer witnesses benefits for their testimony. Benefits can include dropped charges, reduced sentences, payments for confidential informants, preferential treatment in prison, or benefits for their family members. These benefits can go to accomplices, reluctant witnesses, or the most insidious type of witness—jailhouse informants like Carter who claim to hear confessions and whose testimony usually cannot be verified.
While most of those witnesses are telling the truth, the prospect of those benefits creates an obvious incentive for some witnesses to lie—sometimes in multiple cases. To make matters worse, the defense often is not told that the witness has received benefits or that the witness has a history of testifying as an informant. Police and prosecutors relying on such witnesses should scrupulously verify the information provided, should check the person’s history as an informant, and should disclose that history and any deals to the defense. In addition, states should consider creating a system of pretrial reliability hearings for jailhouse informants.
Police had few leads in the 1994 murder for which David Boyce was convicted, but the only living witness who saw the perpetrator said the perpetrator had shoulder-length hair. Boyce swore that his hair was short at the time of the crime, but the evidence technician who fingerprinted Boyce said otherwise at trial. Police and prosecutors did not turn over a photo they had taken of Boyce on the day of his arrest showing him with short hair. Boyce was not given that photo until well after his conviction, when his case already was being litigated.
This failure to disclose evidence that would have been helpful to the defense is all-too-common in wrongful conviction cases. Discovery in criminal cases is limited, and the defense doesn’t have access to most of the information that the government has gathered in its investigation. The Constitution requires prosecutors to disclose any information in the government’s possession that would tend to be helpful to the defense. However, the government gets to decide which information to disclose, and convictions can only be overturned for failing to disclose information if that information is “material,” meaning that it likely would have had an impact on the outcome of the trial. In a significant portion of wrongful conviction cases, helpful information is not disclosed.
There are many reasons why this happens. In some cases, police have notes and files that prosecutors don’t ever see. In other cases, prosecutors may miss the significance of information or have tunnel vision that prevents them from understanding it. Some prosecutors are wrong about the law, withholding favorable information because they don’t believe it is credible or don’t believe it would affect the result of the trial. And in other cases, those decisions are made to gain tactical advantages or help secure convictions. When these violations are discovered, the reasons for them rarely are investigated, and punishments for intentional violations are even more rare.
There are many possible solutions to this problem. One is requiring open-file discovery in all criminal cases, with appropriate allowances made for concerns about witness safety in individual cases. Another is passing ethical rules that require the disclosure of all favorable information—both before and after trial. In addition, many advocates have pressed judges to issue standing orders that require the disclosure of all favorable information, so that there can be consequences when the order is violated. Finally, the culture in prosecutor’s offices needs to promote justice more than winning.
When Marvin Anderson was charged with a rape he did not commit, his mother began investigating his case. She quickly learned the name of the man who likely was the real perpetrator and shared it with Marvin’s lawyer. She was surprised when the lawyer did not use this evidence at trial. She was even more surprised when she learned that Marvin’s lawyer had previously represented that man, a conflict that should have disqualified him from handling the case. DNA tests later proved that Marvin’s mom was right about who committed the crime.
Marvin’s case is an extreme example of a pervasive problem in wrongful conviction cases: inadequate defense counsel. Our adversarial legal system cannot work if defendants are not represented by well-trained, zealous advocates who have sufficient resources. Unfortunately, wrongful conviction cases all-too-often involve sleeping lawyers, drunk lawyers, and lawyers who fail to investigate or call necessary experts—either due to lack of diligence, lack of experience, or lack of funds. In some places, lawyers are appointed by courts and paid only a few hundred dollars per case; in others, those representing poor defendants are forced to handle several hundred cases at one time.
The best solution to this problem is a well-funded statewide public defender system in which lawyers have training, reasonable caseloads, access to high-quality investigators, and access to necessary experts. While this may be expensive for states and localities, it pales in comparison to the price of convicting the wrong person simply because their lawyer was not competent or well-resourced enough to properly defend them.