Richmond Times-Dispatch

Wrongful convictions studied
U.Va. expert identifies failures in cases of 200 people cleared by DNA
Monday, Jul 23, 2007 - 12:09 AM

By FRANK GREEN
TIMES-DISPATCH STAFF WRITER

A groundbreaking study of the first 200 people cleared by DNA testing in the U.S. identifies flaws that led to the wrongful convictions and to the failures of appeals courts to detect and remedy them.

The author, Brandon L. Garrett, a professor at the University of Virginia School of Law, says the first empirical examination of how such cases were handled from start to finish will be published in the Columbia Law Review in January.

Garrett is a former associate of lawyers Peter Neufeld and Barry Scheck, founders of the Innocence Project that helped many of the 205 people cleared by DNA testing since 1989.

DNA testing not only revolutionized law enforcement when it began helping to solve crimes two decades ago, but it also has demonstrated the fallibility of the criminal-justice system by scientifically proving the innocence of prisoners, some of whom were sentenced to death.

Though the number of such exonerations is relatively small, most convictions do not involve biological evidence and cannot be overturned with DNA.

Garrett said the DNA exonerations provide an unprecedented opportunity to conduct analyses on how things can go wrong despite the safeguards built into the legal system to prevent and then correct such errors.

Because the standards and rules are so unforgiving in appeals, many wrongfully convicted individuals do not even challenge the accuracy of flawed evidence, be it false or mistaken, he said.

Appeals court judges have a tough time ruling on the validity of evidence years later without thorough records, Garrett said yesterday. He said reforms such as requiring the videotaping of police interrogations could greatly aid the appeals courts or prevent a wrongful conviction from happening.

Ten men convicted of rape or murder have been cleared by DNA in Virginia, the fourth-highest total in the country. A long-term DNA effort involving testing of old evidence -- primarily in rape cases -- is under way in Virginia and is expected to clear even more.

In response to the exonerations, Virginia created exceptions to its "21-day-rule" for DNA testing and for non-DNA evidence in very narrow circumstances. The 21-day rule does not permit evidence of innocence discovered more than 21 days after sentencing to be used in a state court.

The state's exception for non-DNA evidence, called a "writ of actual innocence," has been in effect for more than three years and has not resulted in an exoneration.

Of the 200 cases studied by Garrett, 141 were convicted of rape, 44 of rape-murders, 12 of murders and three of other crimes.

Fourteen were convicted of capital murder, including seven who falsely confessed and three who were mentally retarded. Eight of the 200 pleaded guilty. In 70 of the cases, DNA testing implicated the real criminal.

The wrongful convictions were the result of incorrect eyewitness identification in 79 percent of the cases, forensic evidence in 55 percent, informants or snitches in 18 percent, and false confessions in 16 percent.

Of the 133 who appealed convictions before DNA testing and received a written opinion, one-third of the time the judges ruled that while constitutional errors were found in their cases, the errors were "harmless due to outweighing evidence of guilt."
In 9 percent of the cases, the rulings said there was overwhelming evidence of guilt.

While appeals courts sometimes excuse constitutional errors, the courts do not provide wrongfully convicted people a way to claim innocence. Garrett said there is no federal constitutional claim of innocence that can be filed, and states do not have effective means of doing so.

Twelve of the wrongfully convicted whose convictions were reversed on appeal were convicted in a retrial before DNA freed them.

Garrett's suggested reforms include adopting more dependable eyewitness identification procedures nationwide, videotaping identifications and interrogations, evaluating the use of jailhouse informants, improving or establishing oversight of crime labs, and giving defendants access to independent forensic experts.

Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com.


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