Convicting the Innocent

Convicting the Innocent

Author: Brandon Garrett
Harvard University Press, 2011

Reviewer: George C. Thomas III | September 2011

Reading Brandon Garrett’s new book, Convicting the Innocent, led me to reflect on what makes for an important and influential book about the American justice system. And that led me to conclude, sadly, that the list is very short. My own, probably idiosyncratic, list includes Malcolm Feeley, The Process Is the Punishment; Herbert Packer, The Limits of the Criminal Sanction; and Jerome Frank, Courts on Trial. To be sure, the list of books about our justice system that are important and thus should be influential is much longer. But the evidence of influence for these other books is just not there. I will not attempt to fill out this list so that my friends who have written books on the subject can assume that theirs is one that I consider not to have gotten deserved attention.

What makes a book on our justice system a candidate to be important and influential? First, it must identify a fundamental problem or set of problems. Packer identified the problem of over-criminalization and then sought to identify the point at which the harms caused by the criminal sanction likely outweigh its benefits. Feeley identified the lawless discretion practiced in misdemeanor courts where abstract rules of justice have little effect. Frank’s target was the entire set of assumptions built into our legal system. He argued that we have been lulled into thinking that these assumptions produce justice when it is more likely that they produce outcomes that are often inaccurate and only randomly just.

On this score, Garrett’s book succeeds at a very high level. He identifies the problem of the conviction of innocent defendants. To be sure, Edwin Borchard first wrote about this problem in 1932, in a book with the same title as Garrett’s, and Barry Scheck and co-authors were the first to write a book using DNA exonerations to highlight the severity of the problem. But Garrett’s methodology is original and compelling. He takes as his universe the first 250 exonerations of the Cardozo Innocence Project, directed by Barry Scheck and Peter Neufeld. Garrett, 6-7. Moreover, he obtained and analyzed the trial transcripts of 207 of the 234 exonerees who went to trial. Id. at 286. (Amazingly, 16 of the exonerees pleaded guilty.) This gave him by far the richest universe of any writer who has studied wrongful convictions.

My second criterion of importance and influence is stylistic—the book should have an intriguing title and should identify and discuss the problem(s) in a crisp and compelling fashion. A book is not going to be influential if it is not read. Courts on Trial is one of my favorite titles, The Process Is the Punishment is also very good, and there is nothing wrong with The Limits of the Criminal Sanction. The Packer, Feeley, and Frank books are also good reads. Convicting the Innocent is a good, if not original, title, and Garrett picks moving examples of the categories of wrongful convictions and writes about them with passion.

My third criterion is that the book should cause readers to think about the problem in a new way. Packer’s careful explication of the harms caused by over-use of the criminal sanction advanced by miles the tired Hart-Devlin debate about victimless crimes. Feeley drew back the curtain from the misdemeanor courts in a way that made it impossible to think about “minor” crimes in the same way as we did before. Frank’s notion that American justice is nothing more than a fight between parties, carried out under a set of abstract rules, makes one re-consider whether our adversarial system is really better than the European inquisitorial system. I tried to build on Frank’s powerful insights in my 2008 book, The Supreme Court on Trial.

The major causes of convictions of innocent defendants, documented for years on the Cardozo Innocence Project website, are erroneous eyewitness identifications, un-validated or improper forensics, false testimony by informants, and false confessions. Beginning with false confessions, Garrett’s meticulous research produced an original and surprising piece of evidence. Like Garrett, I had assumed that false confessions tended to be vague admissions of guilt. How could an innocent suspect know minute details of the crime? But Garrett found that in 95% of the false confessions cases (38 of 40), the innocent suspect supplied “rich, detailed, and accurate information about the crime.” Garrett, 19. This powerful finding suggests that almost all false confessions are what he calls “contaminated confessions.” It also raises disturbing questions about over-zealous police interrogation. The colloquy on pages 43-44 where the interrogator repeatedly feeds details to the clueless suspect should be required reading for all interrogators and criminal court judges.

Along with many others, Garrett recommends recording interrogations as a safeguard against contaminated confessions. Yet while he documents the problem of police “tuning up” suspects while the recorder is not running, he ignores it when he gets to the reform section. A recording of the formal interrogation is not worth much if police, off-camera, provide details of how the crime occurred or threaten to beat the suspect senseless unless he confesses once the camera is running. Quite a few jurisdictions now routinely record interrogations, though it is unclear to me whether the “tuning up” problem has been addressed.

Garrett embraces the various eyewitness identification reforms that North Carolina, New Jersey, and several other states have adopted. Most of these reforms require sequential identifications, rather than lineups, that are conducted by officers who do not know which of the individuals is the suspect. The best of these reforms also require making a record of the identification process and the level of certainty of the eyewitness. These records are then supplied to the defense.

When discussing forensics reform, Garrett recounts the oft-discussed Fred Zain case from West Virginia. Zain, who lied about his qualifications to obtain a position in the state serology lab, was found to have committed fraud that led to convictions of innocent defendants as a result of “systematic practice rather than an occasional inadvertent error.” Garrett at 253 (quoting a national laboratory accreditation board). To ameliorate the forensics problem, Garrett urges the adoption of clearer standards for testing, external oversight of all crime labs, and testing of examiners for proficiency. Unlike recording of interrogations and eyewitness reforms, Garrett can point to little evidence that forensic reforms are being adopted. The only reform he mentions are new guidelines for matching fingerprints that “more clearly acknowledge the limitations” of fingerprint identifications. Id. at 255 n. 57. I suspect making progress here is going to prove very difficult, but that is no reason not to try. Garrett also recommends making the State pay for defense experts and better judicial screening of proffers of scientific evidence, reforms that seem more likely to be adopted.

As for false testimony from informants and snitches, Garrett recommends recording all conversations between the State and the informant to avoid the leakage of information to the informant that would make his courtroom testimony appear “uncannily reliable.” Id. at 256. Garrett also recommends required disclosure of cooperation of the informant in other cases and the details of any leniency offered in exchange for the testimony. These recommendations make sense, but I don’t see them happening without a court or legislature getting involved. And I cannot see legislative action. Garrett concedes that the only movement here was in Los Angeles, where a false testimony scandal in the 1980s caused the district attorney’s office to impose guidelines about informant testimony. He concludes, “Far more needs to be done.” Id.

Garrett recommends reforms beyond the four categories identified by the Innocence Project: death penalty reform, prosecution reform, defense reform, and reform at the federal level. The recommendations here are what one would expect—more accurate determinations of guilt in death penalty cases, more thorough review of cases by prosecutors, more money for indigent defense, and getting Congress to focus on the problem of wrongful convictions.

There is much to praise here, but I was disappointed by how the book ended. After 240 pages in which the problem of convicting the innocent is laid out in vivid detail, the specific reform proposals offered in the last chapter seem scattered and almost perfunctory. There are many ideas thrown at the problem but very little that is new. Garrett’s proposed reforms have been around for many years, though the casual reader would not appreciate their shop-worn nature because Garrett stints on credit to others. For example, he writes for many pages about false confessions without a mention in the text of the pioneering work of Richard Leo, Richard Ofshe, and Saul Kassin in this field.

Another problem is that Garret’s reform ideas are not particularly bold. One recommendation in my 2008 book was to create a pool of criminal trial specialists who would alternate between defending and prosecuting routine criminal cases. The idea was to keep defenders and prosecutors from becoming entrenched in their roles to the point that they lose sight of the need to treat each other fairly and, in the case of prosecutors, to value accurate outcomes over convictions. The idea has obvious problems of implementation and is probably unrealistic, but it is bold. By comparison, Garrett’s recommendation to remedy the “woeful state of indigent defense services” is to improve the funding. Garrett, 261. Probably a hundred writers have recommended ameliorating the ineffective indigent defense problem by allocating more money to indigent defense. That is not only a tired way to think about the problem but also, as he concedes, unlikely to happen. I am convinced to a moral certainty that no state is going to suddenly discover enough loose change in its budget couch to fund indigent defense at the same level as prosecution.

Garrett’s book thus meets two of my three criteria for an important and influential criminal justice reform book. t But except for the contaminated confession finding, it did not cause me to think about a problem in a new way. It is not the first look at a major problem, as was Feeley’s book and Frank’s book. Nor does it offer reform ideas that put the problem in a new perspective, as did Packer, Frank, and, to some extent, Feeley.

Perhaps it is unfair to compare Garrett to Packer, Frank, and Feeley, however. Who among us is likely to achieve that kind of influence? Thus, I shall break my self-imposed rule and talk about one of the books on justice that qualifies as important but has yet to have the influence it deserves—Craig Bradley’s 1993 book, The Failure of the Criminal Procedure Revolution. Begin with the title. It is evocative and mysterious. What was the revolution? Why did it fail? Bradley’s writing style is engaging and easy to follow. As for substance, Bradley posits that the rules governing criminal procedure in the United States are confusing, cumbersome, and incomplete. He argues that the Warren Court criminal procedure revolution, imposing Bill of Rights guarantees on the fifty state systems, is at the heart of the problem.

Bradley’s argument is not one more tired state’s rights argument. Rather, his key insight is that the very nature of case-by-case adjudication, coupled with stare decisis and legislative inaction, is the cause of our uncertain “code” of criminal procedure. The Supreme Court grants cert in only a handful of criminal procedure cases each year and usually (the Warren Court revolution to one side) decides them as narrowly as possible. That is the common law tradition. As precedents prove distasteful or un-workable to later Courts, stare decisis encourages majority opinions that pay lip service to the precedent with holdings based on fine and often labored distinctions. What results is doctrine that is complex and ambiguous as well as incomplete.

England and Canada, common law nations, have enacted national legislative codes of criminal procedure. Why not the United States? Bradley finds the English rules attractive enough that he includes them as appendices. A reform commission can at least be tasked with looking at the big picture and producing a complete and relatively clear code. But when the Warren Court began to wrest criminal procedure doctrine away from the states, legislative reform efforts died. Legislative reform is Bradley’s prescription for what ails American criminal procedure. While his idea for a national reform commission, whose work Congress could enact, might seem a bit idealistic today, it is at least a reform idea that causes the reader to think about criminal procedure doctrine in a new light.

Not so Garrett’s book. But I hope I am wrong about the potential for Garrett’s book to be influential. Given the likelihood that as many as 1-2% of American convictions fall on innocent defendants—see Thomas, supra, at 39-41; D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & Criminology 761 (2007)—I hope Garrett’s skillfully wrought descriptions of the cases in the Innocence Project database resonates with legislatures, academics, and think tanks. The database, after all, contains more than cases. Each case features a real human being who was innocent of the crime for which he was convicted. We owe innocent defendants far more protection than we currently provide.

George C. Thomas III is the Board of Governors Professor of Law and Judge Alexander P. Waugh, Sr. Distinguished Scholar at Rutgers School of Law-Newark.

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