Innocent Until Reported Guilty
The simple prescription for reducing wrongful convictions: better journalism about crime and punishment.
By: Steve Weinberg | September 23, 2008
As guards led Ellen Reasonover to the van that would transport her to prison, she could not comprehend that a St. Louis County, Mo., jury had just found her guilty of a cold-blooded murder. A 24-year-old single mother of a baby daughter, Reasonover had no history of violence, yet she stood convicted of killing a 19-year-old gas station attendant in the neighborhood where she lived.
She had come to the attention of police only after she answered a television broadcast requesting potential witnesses to offer information. Motivated by good citizenship, Reasonover showed up at the local police precinct because she had visited the service station the night of the murder, seeking change for the washing machine and dryer at a local Laundromat. She told police she had not seen any criminal activity; she had walked away after nobody responded to her knock on the service station window.
Somehow, though, police saw in Reasonover — an African-American woman who exhibited nervousness — the profile of a suspect. Now it appeared Reasonover might spend the remainder of her life in prison, spared from death row only because one of the 12 jurors held out against execution.
Print and broadcast journalists from St. Louis newsrooms had covered the murder, the extended police investigation, the prosecutor’s pretrial statements and the trial. Based on what they printed and broadcast, it appeared they found nothing troubling about Reasonover’s conviction. Like the 12 jurors, the journalists, it seemed, failed to recognize the holes in the prosecution’s case: No murder weapon had been recovered; no blood or other forensic evidence implicated the defendant. There were no eyewitnesses, no confession, no motive and no other defendants on trial, despite the state’s theory that Reasonover acted with two male accomplices. All that, and an all-white jury, too.
The conviction rested entirely on the testimony of two jailhouse informants who said they heard Reasonover spontaneously confess to the murder almost immediately after making their acquaintance. Some prosecutors would never proceed to trial in a death penalty case with only inmate “snitch” testimony — especially snitch testimony violating common sense — realizing the risk of an unjust outcome. Unfortunately for Reasonover, the St. Louis County district attorney did not fall into that enlightened category.
What the defense attorneys, the judge, the jurors and the journalists did not know at the time of trial was this: The jailhouse snitches had lied in return for favors promised by the prosecutor. The deals between the district attorney and the snitches remained undisclosed — a violation of a long-standing and well-known Supreme Court precedent that requires prosecutors to supply information suggesting innocence to the defense. It would take more than a decade for the unsavory deals to surface, uncovered by an investigator working on Reasonover’s behalf.
I learned about Reasonover’s conviction after she had served 16 years in prison; after she managed to win the attention of a New Jersey private investigator with a letter difficult to write due to her limited education; after devoted lawyers agreed to file post-conviction motions based on the investigator’s shoe-leather inquiries; and after a courageous federal judge — a former Republican prosecutor — corrected the mistakes of the state courts.
A few years before Reasonover’s release from prison, I had committed myself to understanding the steady stream of exonerations coming to my attention. To help me grasp the macro by studying the micro, I won permission from Reasonover’s post-conviction lawyers to read every document available on her case.
What I learned stunned me. Questions battled for my attention; one worked its way to the top of the list: Why had the journalists who knew about the Reasonover case failed to question a police investigation, a prosecution and a conviction so obviously flawed? Why hadn’t somebody written an exposé before the guards hustled Reasonover to the waiting prison van?
For that matter, why had I — a veteran investigative reporter — accepted so much about the criminal justice system on faith for so many years?
Wrongful Conviction: Occasional Aberration or Epidemic?
In the wake of a decade of high-profile exonerations based on DNA analysis, recognition is spreading that many innocent people are sent to prison by the once-vaunted American criminal justice system. Proposed solutions abound, some of them simple and inexpensive to implement. In jurisdictions where the authorities are honest enough to admit that innocent people regularly wind up in the cross hairs of police and prosecutors, some of the solutions are already in place, especially the videotaping of police interrogations to reduce coerced or otherwise false confessions and new procedures for conducting lineups of suspects to reduce faulty eyewitness identification. Whether those solutions are implemented depends on U.S. senators and representatives, state legislators, city and county officials, police chiefs, crime laboratory directors, judges, court administrators, prosecutors and public defenders all having the will to allocate the needed money, as well as a real desire by most everyone involved to place justice over narrower considerations of winning and losing particular criminal cases.
One solution for wrongful convictions, however, has not been explored in a sustained, meaningful manner. It is a solution that cannot be legislated or even come from the government. The solution requires writers and editors for newspapers, magazines, radio stations, television stations, Web sites and books to practice preventive journalism rather than after-the-conviction, too-late journalism.
Until and unless journalists improve their performance, far more innocent people will be imprisoned than the criminal justice system seems likely ever to acknowledge. The logical extension of the preceding statement seems obvious, but I’ll say it anyway: Unless journalists get better at covering the justice system, many criminals will continue to go unpunished, free to murder or rape or rob again. So investigating wrongful convictions is not — as perceived by too many police, prosecutors and judges — an assault by soft-on-crime bleeding hearts. Rather, it is an attempt to serve law and order, to improve the administration of justice and to foster faith in the criminal justice system.
Writing in the University of Missouri, Kansas City Law Review, researcher Rob Warden noted just six years ago, “Throughout most of history, until quite recently, journalism generally was hostile to claims of innocence by those convicted or accused of serious crimes. The annals of reporting are replete with instances of prejudicial sensationalism, often published in concert with police and prosecutors under pressure to convict someone without credible evidence. On rare occasions when post-conviction discoveries of innocence were chronicled, the reporting invariably was subdued and devoid of any explicit suggestion that there might be systemic problems.”
But advances in DNA testing over the past 15 years have led more and more journalists to listen carefully when contacted by inmates claiming innocence. High-profile exonerations based on DNA testing demonstrate the wrongful-conviction problem convincingly; those exonerations also suggest the scope of the problem in the vast majority of cases that have no testable DNA evidence.
Frank R. Baumgartner, a Pennsylvania State University professor, calls the reduction in skepticism about wrongful convictions “the discovery of innocence.” Confirmed cases of “actual innocence” have completely transformed the debate over the death penalty, which traditionally has received widespread approval in public opinion polls, he says.
“The new argument diverts attention away from theoretical issues of morality to focus simply on the possibility of errors in the criminal justice system,” says Baumgartner, who with fellow researchers Suzanna L. De Boef and Amber E. Boydstun is co-author of the book The Decline of the Death Penalty and the Discovery of Innocence. “No matter what one thinks about the death penalty in the abstract, this new argument goes, evidence suggests that hundreds of errors have occurred in spite of safeguards designed to guarantee that no innocent people are executed.”
Three of the most prominent converts to the discovery-of-innocence movement are lawyer turned best-selling mystery writer John Grisham, whose only nonfiction book, The Innocent Man: Murder and Injustice in a Small Town, has educated legions of readers about the breadth and depth of the phenomenon; Scott Turow, another lawyer turned best-selling novelist, whose book Ultimate Punishment: A Lawyer’s Reflections on Dealing With the Death Penalty also reached a huge, built-in audience; and Mark Fuhrman, former Los Angeles police detective of O.J. Simpson case fame, whose book Death and Justice provides chapter and verse on wrongful convictions throughout Oklahoma, with a focus on Oklahoma City where an elected prosecutor and a police laboratory forensic examiner contributed to multiple documented wrongful convictions.
Still, the debate about whether wrongful convictions are statistically insignificant aberrations or an epidemic is not over.
Some within law enforcement labor mightily to persuade citizens that the wrongful-conviction rate is minuscule. Such thinking comes especially from prosecutors within the National District Attorneys Association and law professors more or less identified with the status quo. I have had dozens of conversations with Joshua Marquis, the elected prosecutor of Clatsop County, Ore., and a spokesperson, more or less, for the NDAA. The conversations are respectful and often educational. All in all, though, Marquis is convinced I am a journalist who exaggerates the frequency of wrongful convictions, an alarmist when it comes to discussions of police and prosecutor misconduct.
Others labor just as mightily on the epidemic side of the debate, suggesting that as many as 10 percent of all convictions are erroneous. Such thinking comes especially from defense attorneys within the National Association of Criminal Defense Lawyers and law professors more or less identified with altering criminal justice procedures.
The certainty expressed by prosecutors and police that they are correct on any given case, and the equal certainty of defense lawyers that the case has produced an inaccurate result, can cause grief for the journalists who seek the truth with an independent investigation. Selective perception, sometimes mixed with zealotry, is rampant within the criminal justice system. The risks for journalists of being shunned and/or publicly criticized by police detectives and prosecutors or by defense lawyers are real and unpleasant.
There is no definitive research showing the precise scope of the wrongful-conviction problem. It is beyond question, however, that not just a few but many innocent people have been sent to prison, sometimes for decades. In each of those cases, the justice system failed. But so did journalism.
The Last of the Sacred Cows
The typical situation within newsrooms today looks like this: Coverage of criminal cases is spotty and often superficial when it occurs. Elected prosecutors tend to be treated as the last of the sacred cows, the white hats who keep the streets safe for law-abiding citizens. The lawyers hired by the elected prosecutor are rarely mentioned in print and even more rarely subjected to meaningful scrutiny, despite their considerable power. The police in general are not treated so sacredly by journalists. That said, almost all individual police officers operate anonymously as far as most journalists are concerned, allowing rogues to make questionable arrests with relative impunity.
The criminal cases that do receive coverage are usually those proceeding all the way to trial. Because in a typical jurisdiction only about 5 percent of defendants reach trial (the other cases are dismissed or plea bargained by the prosecutor), the math is basic: Around 95 percent of criminal cases never receive coverage by journalists after the arrest.
Even the cases that reach trial almost never receive the kind of journalistic scrutiny that could reveal a wrongful conviction in the making. Instead, reporters and editors handling trial coverage simply summarize what is occurring within the confines of the courtroom, rather than conducting an independent inquiry.
Outstanding journalism — about wrongful convictions or any other societal problem — is difficult to accomplish. When criminal cases go awry, journalists are at a disadvantage; they lack the subpoena power granted to lawyers on both sides, and they face time and resource limits. But knowledge of the subject, skill at working sources (human and documentary), financial and moral support from the newsroom and persistence can yield an exposé that changes the world — or at least frees an innocent defendant.
In 1983, after 15 years as a journalist, I became executive director of a group called Investigative Reporters and Editors, which then had about 5,000 members. Every day, I heard from journalists seeking advice on digging up and presenting information about misfeasance and malfeasance. It did not take me long to notice that quite a few of those calls involved shortcomings of the criminal justice system. As I followed the work of the journalists who’d contacted me, I saw more and more accounts of innocent people in prison.
I left IRE in 1990, but I could not get the wrongful-conviction problem out of my thoughts. I decided to focus on local prosecutors, usually called district attorneys; after all, even if police arrest the wrong person, the mistake goes away if a prosecutor declines to file charges. I approached the Center for Public Integrity, a nonpartisan, nonprofit investigative journalism organization in Washington, D.C.
With funding from the center in hand, I led a team of researchers, featuring journalist Brooke Williams and lawyer Neil Gordon, that analyzed 11,452 cases in which allegations of prosecutorial conduct had been reviewed by appellate courts. The four-year investigation showed that appellate judges, many of them former prosecutors, reversed convictions or reduced sentences in more than 2,000 cases. In at least 28 cases, involving 32 men and women, misconduct by prosecutors contributed to convictions of the innocent.
Later inquiries by the Innocence Project affiliated with the Yeshiva University law school into 23 New York state DNA exonerations showed that police had identified the actual perpetrators in 10 cases. In nine of those 10 cases, the true perpetrators had committed new crimes while the wrongfully convicted defendants served prison time. In other instances, because of prosecutorial misconduct, guilty men and women won their freedom from prison, unable to be retried because of double jeopardy, the unknown location of witnesses or other factors limiting the administration of justice.
Simply put, the consequences of wrongful convictions ripple out in awful ways.
In most jurisdictions, most of the time, the cases that police send to the district attorney’s office never reach a jury, which means prosecutorial misconduct occurs away from public view. The only trial those defendants receive takes place behind closed doors in the prosecutor’s office; the prosecutor becomes the judge and jury when offering a deal (or hearing a suggestion of a deal from a defense lawyer) in a process popularly termed “plea bargaining.” The prosecutor is the de facto law, deciding whether to charge the suspect, what charge to file from a range of possibilities, whether to offer a pretrial deal and, if so, the terms of the deal.
If journalists ignore the cases pled out behind closed doors — and they usually do — the criminal justice system is unlikely to improve.
What Journalism Could Accomplish, If Only …
Some crimes are so high profile that every journalist in the locale knows about them and keeps track, more or less, as the cases proceed. Yet even in those cases, journalists rarely conduct an independent investigation, even if red flags along the path suggest a wrongful conviction is unfolding.
Seven years ago, such a case began unfolding itself in the city where I live, and the saga has not yet ended. While composing this story, I attended a three-day post-conviction evidentiary hearing at the local courthouse. What I learned during the hearing illustrates well the importance of reporters and editors practicing preventive journalism.
On Nov. 1, 2001, during the early morning hours after a Halloween night, the sports editor of the Columbia Daily Tribune left the newsroom and walked to his car. Although police lack eyewitnesses, the crime scene suggests that one or more assailants attacked him in the newspaper parking lot, beat him and then strangled him to death with his own belt. Police heard about the homicide within a few minutes after the attack from two custodial workers at the newspaper. Neither of the cleaning-crew members witnessed the assault but told police they saw two people near the victim’s body. As far as the custodians could discern, the two men were white and college-age. The city where I live, population 100,000 or so, is home to the University of Missouri and two other colleges and filled with students.
For more than two years, police made no arrests and wondered if they would ever get enough evidence to break the case. Journalists for local newspapers and television and radio stations mentioned from time to time the lack of closure but, as far as I know, conducted no meaningful independent investigations.
Then, in March 2004, Charles Erickson told police he had dreamed about murdering the sports editor, with his friend, Ryan Ferguson, as an accomplice. Erickson and Ferguson were 17-year-old high school juniors on Halloween of 2001, both from families that seemed stable and privileged. There is no doubt that a couple of hours before the murder, Erickson and Ferguson had been admitted, underage, to a nightclub near the newspaper; there they consumed alcohol. Otherwise, though, police had little evidence beyond Erickson’s dream confession.
As journalists reported the sensational confession, a long-standing cold case turned hot. It also became a candidate for preventive journalism. Maybe Erickson and Ferguson committed murder. But when a prosecutor decides to proceed with a homicide charge based solely on a dream confession years after the crime, journalists really ought to consider a little independent investigation.
Between the time police heard the dream confession in March 2004 and Ferguson’s conviction at trial in October 2005, journalists had more than 18 months to investigate, had they chosen to. (Erickson pled guilty before trial, negotiating a 25-year prison sentence in exchange for testifying against Ferguson.)
Here is some of what an enterprising journalist could have learned and published before and during the Ferguson trial:
• At trial, one of the custodians identified Ferguson; the other custodian seemed to suggest that Ferguson might have been in the parking lot. Yet each of the custodians told employers soon after the murder that they could not identify the two men in the parking lot near the victim’s body.
• Shortly after supposedly confessing to police, Erickson told at least four other inmates in the local jail he felt unsure whether his dream meant he actually committed a murder.
• An acquaintance of Erickson named Dallas Mallory, who supposedly ran into him by chance as Erickson vacated the crime scene with Ferguson, testified he was not in downtown Columbia at that hour. Further, Mallory said, he had been verbally abused by police when he refused to tell them what they wanted to hear. If Erickson only imagined seeing his acquaintance right after the murder, what else had he imagined?
• Employees of the downtown nightclub said Erickson and Ferguson could not have remained inside as late as Erickson claimed, because the venue was cleared of patrons, and all doors were locked.
• During the police investigation of the murder, somebody other than Erickson or Ferguson spoke to a friend (a convicted felon with a sentencing pending) about having killed the sports editor. The felon told his public defender, who in turn contacted a prosecutor. But the prosecution never told the defense lawyers about the potential suspect.
The recent evidentiary hearing demonstrated that the only substantive evidence used to convict Ferguson was Erickson’s dream and that Erickson’s knowledge of the crime when not dreaming is shaky, at best. The judge is expected to rule before the end of 2008 on whether Ferguson deserves a new trial.
In Fairbanks, Alaska, a similar situation played out. On Oct. 11, 1997, a 15-year-old male ended up dead on a city street. Unlike the drawn-out investigation in the Missouri murder, police in Fairbanks made four arrests within a week. Because three of the four male defendants were Alaska natives, allegations of racial prejudice arose quickly and have never been put to rest. Two of the suspects confessed but later recanted. All four eventually went to prison after being tried by juries.
In July 2008, the Fairbanks Daily News-Miner published a book-length series about the 11-year-old case, including suggestions that the four defendants could be innocent and identifying a different potential perpetrator. Driving the newspaper series: Brian O’Donoghue, a University of Alaska, Fairbanks journalism professor who used to work in the newsroom as a reporter and an editor. O’Donoghue and his journalism students had conducted a post-conviction investigation of several years’ duration. O’Donoghue’s byline appears on the published stories.
In hindsight, the performance of police, prosecutors and forensic personnel appears incompetent and maybe dishonest. At the time of the trial, however, O’Donoghue, who covered the case for the Daily News-Miner, failed to see what perhaps should have been obvious. One of the blinding obstacles: Police said they had obtained confessions of guilt from some of the defendants.
“The arrests came so quickly that coverage by the News-Miner and local television largely became a matter of court updates and community calls for better policing,” O’Donoghue says. In addition, Fairbanks journalists worried about seeming callous if they asked sensitive questions about the murder victim and his young associates. Also, when the trial was moved from Fairbanks to Anchorage because of possibly prejudicial publicity, Fairbanks journalists reduced their coverage because of the high costs of covering the legal proceedings in a distant city.
In some places, arrests have seemed so ludicrous from day one that journalistic investigation would seem a no-brainer. In Bakersfield, Calif., police and prosecutors arrested and charged at least six dozen women and men for allegedly participating in child molestation rings. The details of the alleged molestations extracted from the children might have struck any grounded investigator as flights of fancy. But for reasons that defy understanding — at least my understanding — police and prosecutors, abetted by social workers and judges, kept on.
I traveled from mid-Missouri to Bakersfield to examine court files; interview police, social workers, prosecutors and defense lawyers; and generally seek answers. I found none, unless “mass hysteria” counts as an answer. The journalists in Bakersfield did not ignore the mass arrests and court proceedings — how could they? — but for the most part acted as stenographers until it was too late.
Eventually, many of those arrested and convicted in the child molestation ring cases left prison, exonerated.
Less-extensive but still horrendously unwarranted child molestation prosecutions have been instituted in other communities across the United States. Journalist Edward Humes explores the cases in his book Mean Justice. As Humes notes, when journalists do investigate and question authorities in the middle of a questionable criminal justice process, the results can be bracing.
Discussing one of the molestation cases, Humes says crucial evidence of official misconduct remained largely unknown until the publication of a groundbreaking series of stories, “Stolen Innocence: A Case in Review” by Bakersfield Californian reporter Michael Trihey. Trihey’s digging, Humes says, “raised grave questions about a whole series of similar molestation ring investigations in Bakersfield … Trihey’s reporting left him an unpopular figure with Kern County law enforcement … as his stories reversed what had been to that point the newspaper’s unquestioning acceptance of official representations in the case.”
Investigative Journalists — or Stenographic Enablers?
When it comes to exposing prosecutorial flaws that lead to wrongful convictions, a small number of skilled, dogged journalists deserve credit. During the past 10 years, the Chicago Tribune has exposed those flaws so relentlessly that nobody who reads the newspaper could claim ignorance of the problem. In January 1999, a five-part series revealed “nearly 400 cases where prosecutors obtained homicide convictions by committing the most unforgivable kinds of deception. They had evidence that could have set defendants free. They allowed witnesses to lie. All in defiance of the law. Prosecutors swear to seek the truth but instead many pursue convictions at any cost.”
Reporters Maurice Possley and Ken Armstrong documented 381 cases, going back to 1963, in which courts reversed murder convictions because prosecutors had presented false evidence, concealed evidence that suggested innocence or both. During November 1999, Armstrong teamed with reporter Steve Mills to examine murder cases in which Illinois prosecutors, mostly in Cook County, had charged a defendant with a capital crime and asked for the death penalty. The journalists identified 326 appellate reversals in those cases, attributed in whole or in part to prosecutorial conduct.
On Feb. 1, 2000, Mills and Armstrong reported that Illinois Gov. George Ryan — a Republican who had previously supported the death penalty — was declaring a moratorium on executions. He cited the Tribune’s reporting as the foundation of his decision.
Although the Tribune reporters had not followed the cases from the time of arrest — and therefore could not claim preventive success — their stories stood out because they named names, with an emphasis on prosecutors, police officers, defense lawyers, forensic examiners and judges who repeatedly play roles in wrongful convictions. The shaming factor should not be underestimated as a piece of the cure.
The precursor to the sustained Tribune reporting was Rob Warden, who founded Chicago Lawyer magazine in 1978. Year after year, he and his small staff exposed misconduct by police and prosecutors leading to unfair trials and sometimes to wrongful convictions. Warden achieved recognition outside Chicago after collaborating with David Protess, a freelance journalist and Northwestern University professor. Protess, some of his students and Warden helped free innocents from prison while, amazingly, identifying the actual perpetrators. During the 1990s, Protess and Warden collaborated on two best-selling books, each about a case of actual innocence.
After selling his magazine in 1989, Warden started raising awareness from inside the system, first as executive officer for the Cook County state’s attorney and later as executive director of the Northwestern University Center on Wrongful Convictions, affiliated with the law school there.
While the Chicago Tribune team focused on local prosecutors, Bill Moushey at the Pittsburgh Post-Gazette focused on wrongful convictions obtained by federal prosecutors. Later, Moushey brokered an unusual arrangement between the newspaper and Point Park College (now Point Park University): He would teach journalism at the college part time, his students would work on innocence investigations and the newspaper would print anything worthy that the classroom produced.
Less known is Martin Yant, a former newspaper journalist in Ohio who wrote a little-noticed book in 1991, Presumed Guilty: When Innocent People Are Wrongly Convicted. Yant’s book suggests reporters and editors keep track of injustices as they work their way through the system. Yant continues looking into potential wrongful convictions as a freelance journalist and private investigator and uses the Internet to communicate regularly with journalists about case after case that cries for scrutiny. In the television realm, documentary producer Ofra Bikel has aired story after story on PBS’s Frontline that played roles in exonerations. Her research is thorough; her persistence legendary. Criminal Justice Journalists, an organization run by former newspaper and magazine writer Ted Gest, is doing its best to educate those in newsrooms and publishing suites on prevention of wrongful convictions.
And around the nation, other journalists are writing policy stories about the misuse of jailhouse snitches, prosecutorial failures to recognize false confessions, ineffective eyewitness identification procedures, poor defense lawyers, police crime lab incompetence and fraud and numerous other shortcomings in the criminal justice system.
All this progress aside, “enabler” might serve as the best word to describe many journalists assigned to cover the justice system. They should all know the warning signs of wrongful prosecution by now, yet their coverage (and absence of coverage) suggests little learning from experience.
In the November/December 2007 issue of Extra!, the magazine of Fairness and Accuracy In Reporting, a change-oriented media watchdog group, Jon Whiten examined the coverage by the Chicago Tribune and Chicago Sun-Times of a May 24, 2002, rape at the city’s Daley Center. Police arrested Carl Chatman, a homeless veteran, the day the rape occurred. The victim identified him in a lineup. A day later he allegedly confessed, and 20 months later a trial led to a conviction. Chatman received a 30-year prison sentence.
Chatman might be the rapist. But many signs point to a potential wrongful conviction. Among other things, Chatman is mentally retarded.
Yet both newspapers, despite exemplary investigations of wrongful convictions in other cases, Whiten wrote, “favored the prosecution’s framing of events and did not raise appropriate questions — or even quote the defense raising such questions — about eyewitness … misidentification, false and coerced confessions and a lack of solid scientific evidence.” Chatman’s IQ measured 68, considered evidence of mental retardation. The assistant state’s attorney wrote the defendant’s confession, conveniently did not tape any of his three conversations with Chatman and produced handwritten notes from only one of those interviews.
Many journalists who cover the “cops and courts” beat and its unwavering defenders of the criminal justice system will react to this article by saying, “Hindsight is 20/20.” They will contend that if it were easy to spot wrongful prosecutions, they would never happen.
But I like to think that after police arrested Ellen Reasonover for murder in St. Louis County, an intelligent, persistent journalist looking at the evidence before trial would have published an article showing that the state’s case was built on nothing more than the questionable testimony of two jailhouse snitches and that the snitch testimony contravened common sense.
That story might not have halted an injustice. Then again, maybe it would have.
Reporting for Justice
Newsroom managers can revamp their criminal justice coverage to spot potential wrongful convictions early. The revamping would require a collaboration of the police reporter, the reporter who covers the criminal courts and a reporter who specializes in building in-house databases that could track every felony arrest on a spreadsheet. If cataloging every felony arrest is impractical given newsroom resources, the tracking could be limited to crimes against persons (murders, rapes, nonsexual assaults), with crimes against property omitted. The spreadsheet would contain categories that direct the appropriate reporter to complete certain tasks at the appropriate time. Those tasks would include:
• Studying the police report of the arrest
• Talking to the suspect, the victim, the prosecutor and the defense lawyer as soon as practical
• Indicating on the spreadsheet when the prosecutor files a felony charge, drops the charge to a misdemeanor or dismisses the case
• Covering the preliminary hearing and other pretrial proceedings if the prosecutor moves the case forward as a felony
• Checking periodically to find out if the defendant has decided to plead guilty and, if so, the conditions accompanying the plea
• Preparing to cover the trial if the case goes that far
• Tracking any appeals if the trial results in a conviction
At each step, the appropriate reporter could write a story for publication if anything seems to have gone awry in the prosecution. And there’s a side benefit of the tracking system: Many cases that are not examples of wrongful conviction would yield important and interesting stories.
To supplement the case-tracking system, reporters would need to leave the newsroom frequently to build long-term relationships with not only the district attorney but also the nearly anonymous assistant district attorneys who negotiate most plea bargains and try most cases. Reporters would operate similarly with public defenders, private-practice defense lawyers, judges, court administrators, bailiffs, police detectives, police crime laboratory personnel, law professors who are experts on criminal procedure and staff from the Innocence Project covering the state, among others. This relationship building can be accomplished in the ways good reporters have always cultivated sources: by chatting over lunch or coffee, with the reporter initiating the invitation and picking up the tab; by attending the same continuing education seminars as prosecutors do, mingling during meals and breaks; and by generally treating each potential source like a human being, especially when no deadline looms and no request for sensitive information is pending.
Some of those efforts would lead to feature stories that entertain and educate news consumers about important, interesting people within the criminal justice system. While preparing those stories, though, the reporters could also be looking for the police crime laboratory technician distrusted by defense lawyers because of an obvious prosecution bias; the sex crimes detective who’s racist; the defense lawyer who misses appellate deadlines, closing legal doors for possibly innocent defendants; and the prosecutor who refuses to institute an open-files policy for defense lawyers, leaving decisions about evidence that might point to innocence entirely in the state’s hands.
Crime reporters from the enlightened newsroom would also, of course, continue to write the process stories often seen as the meat and potatoes of the cops and courts beats — but they would make sure that at least some of the stories involved the possibility of wrongful prosecution. For example, these reporters would obtain police and prosecutor training manuals to evaluate the procedures police and prosecutors use for ensuring accurate eyewitness identification, the uncontaminated collection of evidence and proper protocols to guard against false confessions. The reporters would regularly review the accreditation reports for police crime laboratories, noting shortcomings in equipment and training. They would study appellate court opinions in every felony criminal case, looking for references to wayward individuals and procedures leading to inequities. They would, in short, do their jobs thoroughly and well, knowing that innocent people were depending on them, every step of the way.
Steve Weinberg is a freelance magazine writer and book author. He also teaches journalism part time at the University of Missouri.
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