Wrongful Convictions And The DNA Revolution: Twenty-Five Years Of Freeing The Innocent
Editor: Daniel Medwed
Publisher: Cambridge, UK: Cambridge University Press, 2017. 407p.
Reviewer: Marvin Zalman | July 2017
The recent Time magazine special edition—“Innocent: The Fight Against Wrongful Convictions”— devoted to “25 years of the Innocence Project,” celebrates what Daniel Medwed, one of the innocence movement’s most prolific scholars and an early “innocence lawyer,” rightly calls the DNA revolution. In its first decade, the embryonic innocence movement was largely occult to the educated public. A drip-drip-drip of news, documentaries, investigative reporting, and popular culture spread knowledge of DNA and non-DNA exonerations to a much wider audience by 2010. The Serial podcast and the Netflix series Making a Murderer expanded public consciousness about wrongful conviction by the mid-2010s. Serial, while not settling Adnad Syed’s innocence, garnered innocence organization support, while Making a Murderer, although criticized for omitting incriminating evidence, displayed the ability of the innocence movement to generate popular suspicion of the justice system as millions accepted the idea that Steven Avery’s second conviction was due to police corruption.
DNA (and non-DNA) exonerations serve society as sentinel events that uncover systemic criminal justice system flaws. When the link between these system failures and wrongful convictions was made clear, this knowledge began driving justice system and government officials to correct deficiencies to better achieve the ideal of convicting the guilty and acquitting the innocent. This led to an ambitious reform agenda, fueled by extensive research and scholarship, which addresses the structural deficiencies disclosed by exonerations.
Wrongful Convictions and the DNA Revolution began as a law school conference organized by Medwed. It is is aimed, retrospectively, at assessing what has been “learned from the use of DNA technology to remedy individual cases and reform the criminal justice system,” and prospectively, at “how can we change the criminal justice system to safeguard against future errors” (pp. 3, 8). One anthology cannot cover everything; fortunately, in addition to law (the orientation of this book), two other major realms of innocence scholarship—psychology and forensic science—are covered by excellent recent anthologies (Cutler, 2012; Koen and Bowers, 2017). Surprisingly, criminological research on wrongful convictions is relatively sparse (Zalman, 2017).
Each of the well-written nineteen chapters in Medwed’s anthology dives into the pool of innocence scholarship from the same springboard, succinctly articulated by Alexandra Natapoff: “The Innocence Movement has profoundly rattled our faith in the accuracy and integrity of the criminal process” (p. 85).
Many have written that innocence was not taken seriously as an issue “before DNA.” But Michael Meltsner’s exploration (“Innocence before DNA”) of this theme in three areas (identification, prosecutorial disclosure of evidence, and post-conviction review) brings home the extent to which even reformist defense lawyers could not see the innocence trees for the criminal procedure forest. His historical analysis should be required reading for law students in innocence clinics and incorporated into criminal procedure texts and courses.
Brandon Garrett (“Convicting the Innocent Redux”) provides newcomers with a conceptual overview and descriptive statistics of the factors correlated with wrongful convictions. He points readers to his seminal work which analyzed the first 250 DNA exonerations. Seasoned innocence scholars and newcomers to the subject will be grateful for this update that now reviews data related to a total of 330 DNA exonerations.
Richard Leo (“Has the Innocence Movement Become an Exoneration Movement?”) offers important new thinking on the tensions and tradeoffs in defining wrongful convictions and exonerations. It is inside baseball, but accessible for those who take the time to unpack the issues. The vital takeaway, at least for me, is that alongside the need to promote a list of purportedly “unassailable” exonerations (e.g., the National Registry of Exonerations [NRE]), the innocence movement should not forget the wrongfully convicted who are excluded from the NRE, including Alford pleas, exonerations without new evidence, and group exonerations. It may be time to generate a catalogue of such cases (and others) to supplement the NRE. The need to keep thinking about the definition of wrongful conviction is brought home by Margaret Burnam’s project (“Retrospective Justice in the Age of Innocence”) to posthumously exonerate blacks executed for rape in hideously unfair and patently unconstitutional Jim Crow-era trials (and lynchings)—even if factual innocence could not be established by present standards. Michael Radelet (“How DNA Has Changed Contemporary Death Penalty Debates”) also reprises the once “hotly contested” (p. 142) definition of a death penalty error based on the judgment of “a majority of neutral observers,” absent official exoneration. He graciously concedes the usefulness of the criticisms of this approach made by Stephen Markman and Paul Cassell, albeit in a footnote.
Wrongful Convictions and the DNA Revolution focuses mainly on legal institutions and issues. One chapter that takes readers into other territory is Keith Findley’s “Flawed Science and the New Wave of Innocents.” He explores an area of “shifted science,” in which older ideas of scientific causation used to convict have been exposed as flawed: so-called Shaken Baby Syndrome or Abusive Head Trauma (SBS/AHT) cases. A particularly troubling aspect is that these convictions were based exclusively on the testimony of expert witnesses whose findings were purportedly conclusive of guilt. Findley’s tightly reasoned analysis (also applied to arson wrongful convictions) points out that while the science is shifting, courts have been slow to accept the new findings. This places many innocent caregivers at risk of prison if infants in their care suffer injury or die from underlying medical conditions or accidents.
Adele Bernhard (“Ineffective Assistance of Counsel and the Innocence Revolution”), an expert on inadequate assistance of counsel (IAC) and wrongful convictions, provides original analysis of data from 20 years of federal circuit habeas corpus IAC reviews. Despite growing awareness of wrongful convictions and a favorable Supreme Court decision, there was no increase in reversals for state IAC in 2003 through 2013 compared to the previous decade. Bernhard believes that Strickland v. Washington’s highly restrictive standards is the reason. Nevertheless, an increasing number of federal courts, applying checklists, have found IAC in death penalty sentencing. Drawing on this, she proposes that courts rely on performance standards of effective lawyering, rather than Strickland’s proficiency and prejudice standard, as advocated in Justice Marshall’s Strickland dissent.
Rob Warden’s (“Reacting to Recantation”) short but harrowing chapter points out that some perjury statutes can be used by vindictive prosecutors to indict post-conviction recanting witnesses. Given the NRE data that ‘perjury or false accusation’ is the factor most highly correlated with exonerations overall, recantations are critical to righting many wrongful convictions. This issue calls out for legislative reform which is alluded to in this chapter.
George C. Thomas III (“Prosecutors”) evaluates prosecutor performance in a sample of exoneration cases, finding that most were venial errors rather than “prosecutorial overreaching.” He gives a nod to open files, videotaping witness and snitch interviews, and involving judges in plea bargaining. He decries Bordenkircher v. Hayes, extols the European method of selecting prosecutors, and ends by advocating better prosecutor training. Evidence that most justice system actors mean well but operate under flawed procedures offers hope that the system can be improved. More could have been written about prosecutors’ conviction integrity units, an encouraging trend.
Stephanie Roberts Hartung (“Post-Conviction Procedure”) asserts the need for a habeas corpus “innocence track” to make post-conviction remedies more available for the thousands of imprisoned innocents. She briskly notes that obeisance to finality trumps fairness, and reviews the problems with AEDPA, which became law before the depth of the wrongful conviction problem was known. A brief review of the North Carolina Innocence Inquiry Commission, which uniquely focuses on investigating wrongful convictions, would have been welcome. Also, Hartung does not discuss the sharp debate over whether an innocence track would undercut the ability of state prisoners not claiming actual innocence to assert federal habeas protection. Nevertheless, reform of arcane post-conviction procedural roadblocks is an essential innocence movement agenda item for the next quarter-decade.
Sandra Guerra Thompson and Robert Wicoff (“Outbreaks of Injustice”) address a technical and novel issue flowing from an uncomfortably large number of “systemic irregularities,” where, for example, a laboratory analyst’s misconduct, or gross negligence in an entire forensic science lab, casts doubt on the integrity of scores or even thousands of past convictions. They evenhandedly review issues such as notification of error and appointment of counsel in such eventualities and propose workable solutions.
Two chapters address novel issues that fall outside mainstream wrongful conviction scholarship. Justin Marceau and Stephen Wise, animal rights activists (“Habeas for Nonhuman Animals”), describe efforts to file habeas petitions for the release of named caged animals to humane shelters. Erik Luna (“Innocence at War”) applies lessons from the domestic innocence movement to international law and the laws of war. Both thought-provoking and well-grounded chapters demonstrate the ways in which the DNA revolution has expanded thinking about the plight of innocent civilians and sentient creatures. Although not designed for practitioners, these chapters locate the innocence movement in the universal human rights context that everywhere has to fight uphill battles to put humaneness on policy agendas.
While the chapters by Marceau and Wise and by Luna may not provide direct support to innocence lawyers, Margaret Burnam’s chapter, “Retrospective Justice in the Age of Innocence”, although historical, supports current efforts to reform criminal justice and to abolish capital punishment. Showing how past convictions marked by deeply flawed procedures led to widespread injustices highlights such current procedural deficiencies as inadequate indigent counsel support. Her observation that the innocence movement has established wrongful conviction “as a field of inquiry” is encouraging to all wrongful conviction scholars.
Michael Radelet (“How DNA Has Changed Contemporary Death Penalty Debates”) reviews the way in which the innocence revolution, and other factors, led to the decline of the death penalty, a theme that is extended by Robert Smith, G. Ben Cohen, and Zoë Robinson (“What Does Innocence Have to Do with Cruel and Unusual Punishment?”). They demonstrate that doubts about the accuracy of capital convictions have caused Supreme Court majorities to limit the scope of capital punishment under both due process and cruel and unusual jurisprudence. Radelet also joins Burnam by reviewing recent posthumous exonerations of prisoners executed earlier in the twentieth century. Both chapters, written from abolitionist positions, also point to reasons other than actual innocence for opposing capital punishment.
In contrast to capital punishment’s symbolic importance, Alexandra Natapoff (“DNA in the Age of Plea Bargaining”) builds on recent wrongful conviction scholarship that is moving beyond analysis of “canonical” sources of error like mistaken eyewitness identifications. Plea bargaining, by which 95 percent of all felony and 99 percent of all misdemeanor convictions occur, is the elephant in the courtroom. Natapoff notes that while trial case exonerations show failures of evidentiary accuracy, in plea bargaining guilt is negotiated and evidence accuracy is only one, and often not the most important, factor in the deal. The worst example of bargained justice is the informant deal. Snitches, the least honorable and credible actors in the justice process, are incentivized to lie while police and prosecutors, who are paid to be professionally suspicious, institutionalize their suspension of disbelief in snitch cases, while judges go along and juries are sold shoddy evidence. Innocent felony defendants facing harsh sentences, or misdemeanor defendants weighing months in jail against instant release, will often succumb and plead falsely. Natapoff thus discloses the limited “structural lessons” of the DNA revolution and makes a case for the innocence movement to pay “attention to plea bargaining as a primary source of wrongful convictions” (p. 97).
Paul Cassell (“Can We Protect the Innocent without Freeing the Guilty?”), who debated Michael Radelet over capital wrongful convictions three decades ago, implicitly concedes the seriousness of wrongful convictions. He raises appropriate cautionary issues of resource constraints and cost-benefit trade-offs that deserve more extended analysis. As the only “innocence skeptic” in a volume of chapters by movement insiders or unabashed supporters, he is outnumbered. Perhaps a different anthology or law review symposium could offer greater scope to criticisms of the innocence movement. In any event, Cassell raises several ideas that mix support and criticism for innocentric reforms. He borrows the cost-benefit analysis of Allen and Laudan (2008), which assumes that because the risk of serious crime victimization is larger than the risk of wrongful conviction, attention paid to reducing wrongful convictions will undermine crime fighting. Cassell also notes the potential for innocentric lineup and interrogation reforms to allow some criminals to escape justice. He proposes introducing defendants’ prior criminal histories to improve the accuracy of verdicts. One proposal that could destabilize the adversary trial would require defense lawyers to ask clients if they are innocent, so as to focus the adjudication process on actual innocence. These and other ideas are challenging and intriguing, and require greater attention than is possible in this review.
Whither the innocence movement? Will “innocence fatigue” sap the issue’s popular vitality? Will the new political regime in Washington, which has posted an eviction-notice for the forensic science commission and which advocates a surge in the war on drugs, withdraw federal support for the innocence movement? Perhaps. Yet there is cause for cautious optimism as seen in the last two chapters reviewed herein.
Mark Godsey describes the “Global Innocence Movement,” which is active on every continent. The acknowledgement that wrongful convictions occur in many countries in significant numbers, and that efforts to right them exist, is cause for optimism. He describes the work of innocence advocates abroad to exonerate innocent prisoners and the many barriers they face. In his efforts to create links among the globe’s innocence projects, he has observed that many factors that generate wrongful conviction, like cognitive bias, exist in every justice system. Godsey makes a powerful point that arrogance among a country’s justice system personnel officials about their system’s perfection is a warning sign that those systems likely suffer from wrongful convictions.
Jacqueline McMurtrie (“A Tale of Two Innocence Clinics: Client Representation and Legislative Advocacy”) describes a promising innovation―the Legislative Advocacy Clinic at the Innocence Project Northwest (IPNW) that trains law students to work with the legislative branch to develop and pass the kinds of reforms that are critical to reducing the number of wrongful convictions. Knowledge about the policy development process, essential to advance innocence reforms, and too long the special preserve of the political science and public administration disciplines, should be more prominent in law school curricula. McMurtrie describes how Clinic students worked with a coalition to advance the passage of pro-innocence legislation. Other law-school based innocence organizations should adopt this innovation.
The chapters of Wrongful Convictions and the DNA Revolution summarize remarkable strides achieved by the innocence movement, provide insight into the movement’s legal and institutional elements, and point to future challenges. Every criminal law scholar in law schools and criminal justice departments would benefit by reading the volume. It is an excellent high-level entry point for criminologists new to wrongful conviction research. Instructors could assign individual chapters in advanced wrongful conviction courses. In sum, Daniel Medwed’s volume deserves a central place in the growing library of wrongful conviction scholarship.
Allen, R. J. and L. Laudan (2008). Deadly Dilemmas. Texas Tech Law Review 41: 65-92.
Cutler, B. L. (Ed.) (2012). Conviction of the Innocent: Lessons from Psychological Research. Washington: American Psychological Association.
Koen, W. J. and C. M. Bowers (Eds.). (2017). Forensic Science Reform: Protecting the Innocent. Amsterdam, Boston: Elsevier, Academic Press.
Medwed, D. S. (2008). Innocentrism. University of Illinois Law Review, 2008: 1549-1572.
Zalman, M. (2017, Jan). Wrongful Convictions and Criminal Justice: A Challenge and Invitation. ACJS Today, XLII (1), 1 ff.