Wrongful Convictions: Three Books and Ten Lessons for Journalists
by Steve Weinberg
Steve Weinberg was executive director of Investigative Editors and Reporters from 1983 to 1990 and is the author of seven nonfiction books. He is currently conducting research for a study to "put names and faces on prosecutorial misconduct."
"My experience as a newspaper reporter and author," Edward Humes writes in his new book, Mean Justice, "taught me that claims of innocence from convicted criminals are often made, seldom proved, and usually refuted."
So it was against his better judgment five
years ago that Humes accepted four boxes of documents from a private investigator
concerning People of Kern County vs. Patrick O'Dale Dunn. The investigator,
Laura Lawhon, had become convinced that Dunn, her client -- a businessman
and former school principal -- had been wrongfully convicted of murdering
his wife in Bakersfield, California. He is serving a life sentence. Humes
had won a 1989 Pulitzer Prize at the Orange County Register, and had since
written four books about the criminal justice system. So, Lawhon asked
Humes if he would examine the Dunn case. As he dug in, somewhat reluctantly,
Humes's skepticism disappeared. And as he learned more during visits to
Kern County he concluded that wrongful convictions occur more often than
he had ever imagined. The
A more recent Protess/Warden book, A
Promise of Justice: The Eighteen-Year Fight to Save Four Innocent Men
(Hyperion, 1998) details the reporting that freed all four members of a
quartet wrongfully convicted of rape and murder. Two of the four narrowly
escaped execution. In that case, Warden got involved because of a letter
bearing the return address "Condemned Unit, Box 711, Menard, Illinois."
It arrived out of the blue at Chicago Lawyer magazine in 1981, where Warden
was then editor. Managing editor Margaret Roberts opened it, and asked
Warden whether she should check into the prisoner's
Fourteen years later, with no justice in
sight despite stories by Roberts, Warden, and other journalists who followed
their lead, Protess, a Northwestern University journalism professor, agreed
to help, and enlisted
Another recently published and compelling
account is Victims of Justice: The True Story of Two Innocent Men Condemned
to Die and a Prosecution Out of Control (Avon, 1998), by Thomas Frisbie,
a Chicago Sun-Times reporter, and Randy Garrett, an independent researcher.
It starts with the rape-murder of a
Unfortunately, as books like these suggest, the phenomenon of wrongful conviction is not as rare as most of us would like to believe. A search of computer databases (the most productive search term seems to be "false imprisonment") turns up hundreds of such cases. Just this winter (1999), Anthony Porter, 43, walked out of prison in Chicago after prosecutors asked for his release, thanks in large measure to Protess and several of his Northwestern students, who took on the case as a class project. Porter at one point had been two days away from execution. Since the Supreme Court reinstated the death penalty in 1976, at least seventy-four men on death row have been found innocent. Any one of them could have been executed before exoneration.
Into almost every newsroom sooner or later
comes a letter from a prison cell, an assertion of innocence. And from
time to time these letters contain a sentence or a paragraph that makes
them difficult to trash. Not many reporters and editors are willing to
question the official line about an arrest or conviction. But for those
willing to invest time, these three books offer lessons, particularly when
looked at in conjunction with other journalism about wrongful convictions.
Some of those lessons apply not just to the painstaking work of examining
a possibly unjust conviction but to basic criminal justice coverage. Here
are some of the lessons I drew from these books, other readings, and my
own reporting, presented in the hope that
ONE. In the criminal justice system, investigators often rely on statistical patterns. For example, parents are usually the perpetrators of crimes against young children when those crimes occur in the home. Wives dead from foul play are usually murdered by their husbands, as was the assumption of the investigators portrayed in Mean Justice. But when the beginning hypothesis hardens into a conclusion too quickly, contradictory evidence might be misinterpreted or overlooked.
Jumping to conclusions is perhaps most insidious when based on race. Police in A Promise of Justice, for example, made no distinction between African-American men from the area who were likely to rape and murder based on past behavior, and men who had demonstrated no such past behavior. (Of the four blacks originally convicted, none had been in serious legal trouble. But two of those who were eventually found to have actually committed the crime had a documented penchant for violence.)
TWO. The reputations and records of the defense attorneys matter. Protess and Warden discovered that four of the defense lawyers in A Promise of Justice had personal problems and disciplinary records that surely compromised effective representation. In Victims of Justice, Frisbie and Garrett found that their low-income defendants drew public defenders of more savory character, but they were far from ideal advocates. One had tried few cases in recent years; the other was already struggling with eighty cases.
Journalists can research differences between public defenders' and private-practice lawyers' representation. Does the defense have an adequate investigative budget, including money for DNA or other high-tech testing? Has the defense interviewed all potential direct and character witnesses?
THREE. Honest mistakes or officially
sanctioned lawlessness can occur in every step of the investigative process.
An honest mistake documented by Frisbie and Garrett in Victims of Justice
grew out of the refusal of the county sheriff and municipal police to pool
resources. The murdered girl's home was just outside the city line, giving
the sheriff jurisdiction. But Naperville police got the first call, so
they began gathering evidence before the deputies arrived. When the deputies
showed up, they ordered the cops to
Some police mistakes turn out to be anything but honest. Good police reporters can get to know which investigators have reputations for stretching the truth, for racist remarks, for brutality. One of the most memorable characters in the Humes book is a detective who regularly falsified information in official reports, always to a suspect's disadvantage. Prosecutors, in turn, used the misinformation at trial.
There are so many tactics to explore: Were witnesses with testimony favorable to the defense passed over by police during the interview stage? Were other witnesses threatened, coached, paid? Did police suggest which suspect to finger in a lineup? Did police write two reports -- one meant for the defense, another for internal files -- as happened in A Promise of Justice? Are police withholding some reports altogether?.
FOUR. Then there are the prosecutors.
It seems unthinkable to many journalists that prosecutors -- officers of
the court sworn to uphold justice -- would intentionally withhold exculpatory
evidence, encourage witnesses to lie, or present testimony known to be
untrue. But such practices are common in wrongful convictions. Frisbie
and Garrett learned that an assistant state's attorney lied under oath
as the case they investigated unfolded. They asked about the reputation
of the chief prosecutor, too. They heard again and
That Prosecution Complex insight provided a major theme for their book. It helped them understand, for example, why defense attorneys were kept in the dark about the findings of the county's own shoe-print expert in the Victims of Justice case. That expert had concluded that a shoe print left when somebody kicked in the victim's front door failed to match shoes worn by the wrongly accused men. But rather than dismiss the charges, or at least reveal the finding to the defense, the prosecutor said nothing. Defense lawyers learned about the exculpatory evidence only when a county employee with a conscience provided a confidential tip.
These kinds of things are most likely to happen when an unethical prosecutor has a weak case -- no physical evidence or eyewitnesses linking the defendant to the crime scene. Just as sharp police reporters tend to learn the records and reputations of certain cops, courthouse reporters can learn about prosecutors. Statistics and case files are plentiful, and so is courthouse gossip.
FIVE. Evaluate the witnesses. Is it possible a witness is trying to trade testimony for something of value? Jailhouse informers, for example, often have ulterior motives. A snitch investigated by Protess and Warden had been put up to his incriminating lie by the brother of a man who turned out to be one of the real murderers. Prosecutors abetted the lie by coaching the snitch and dropping an unrelated criminal charge against him. Have there been inconsistencies over time in the testimony of a particular witness?
Journalists can compare the initial statement to police with grand jury testimony when available, then with trial testimony. Does the testimony become suspiciously more certain over time?
SIX. Examine the documents, build
a chronology. A close reading of indictments, pre-trial affidavits, depositions,
and confessions, paired with study of trial exhibits and trial transcripts,
will often uncover
SEVEN. Think about the jury. In all three of these books it became obvious to the authors that many jurors give only lip service to the axiom "innocent until proven guilty." In both Chicago-area murder cases -- the horrific killing of the ten-year-old girl in Victims of Justice, the rape and murders detailed in A Promise of Justice -- many jurors were uncertain of the defendants' guilt. But they had no intention of risking placing defendants accused of such crimes back on the street.
EIGHT. Don't rule out a criminal conspiracy. That is exactly what is alleged in the Victims of Justice case profiled by Frisbie and Garrett. As noted, the book ends with the indictment of seven prosecutors and sheriffs deputies. They were charged with perjury and conspiring to obstruct justice by framing a man named Rolando Cruz, partly by fabricating a story that Cruz had told them of a detailed dream he had about the murder. (They were acquitted at trial.) Expert witnesses who appear to possess impeccable credentials can be sucked into a conspiracy. That was part of the Victims of Justice story in Chicago. An imported shoe-print expert, an anthropology professor from North Carolina, was little more than a crackpot despite her advanced degrees. Her theories and practices were so ludicrous on their face that she was a laughingstock among reputable forensic scientists. But prosecutors used her with straight faces, understanding that for a fee of $1,000 a day she would help place the accused behind bars.
In Presumed Guilty: When Innocent People Are Wrongly Convicted (Prometheus, 1991), author Martin Yant tells of a case in which two employees of a state crime lab conspired to provide false information while detectives and prosecutors looked the other way. Their apparent motive: to quickly close the books on a high-profile rape-murder by framing an easy mark. In another case in Yant's book, police witnesses knowingly altered their testimony over a period of months to nail an alleged cop killer. The alterations would have been obvious right away to a thorough journalist.
NINE. Don't expect a lot of cooperation when investigating the investigators. People in the criminal justice system tend to protect their own.
TEN. Be skeptical of journalistic
accounts. Reporters often are spoon-fed by prosecutors or, less often,
by defense attorneys. This can lead to selective use of evidence in the
journalistic account, conscious or unconscious. That caution holds even
for wrongful conviction books.
|Read Steve Weinberg's account of the Ellen Reasonover story, Railroaded, published in The American Lawyer.|