# Convicted but Innocent: Wrongful Conviction and Public Policy

Books

### C. Ronald Huff, Arye Rattner & Edward Sagarin

• Chapters
• Front Matter
• Back Matter
• Subject Index

## Dedication

This book is dedicated to the memory of our friend and colleague, Professor Edward Sagarin, whose ideas and encouragement contributed greatly to this book and to our lives; and to the convicted innocents, whose cause he championed.

C.R.H.
A.R

## Foreword

Of the many troubled social institutions in American life—including public education, welfare, health, and the family—none is in greater difficulty than the criminal justice system. Many billions of federal dollars have been spent on criminal justice agencies and programs since the introduction of the Law Enforcement Assistance Administration in the late 1960s in the “war on crime” stemming from persistent public pressure for greater personal safety. Astronomic sums have been allocated to upgrade law enforcement equipment; to go on-line in this computer age so that law enforcement agencies can more efficiently collect, record, maintain, and share information; to improve forensic science; to recruit and train additional qualified personnel (more than 100,000 new police officers alone in the latest crime bill, 1994–1995); to reduce racial, gender, and ethnic biases in the system; to speed up the criminal justice process; to rewrite the criminal codes and impose draconian sentences on those convicted of drug offenses; to revive the death penalty; to move toward definite (fixed) sentences, of longer duration; and to upgrade the efficiency and effectiveness of the various criminal justice subsystems, including the police, prosecution, courts, and corrections.

Much, much more needs to be done in nearly every facet of the criminal justice enterprise to modernize policing, prosecution, the judicial arm, and the corrections subsystems, including probation, parole, and adult and juvenile prisons and training schools, and to improve efficiency. The corrections system is currently so large that the adult prison system employs more people than any other agency in state government. Significantly, the cost of supporting the swollen criminal justice enterprise is now about half of the total expenditures of large metropolitan communities, especially in highly urban counties. In every legislative session, more criminal justice bills are introduced, and usually left to die without consideration, than bills in any other substantive area. The vastness of the investment in money, personnel, and physical facilities is neither known nor generally understood by the general public, who continue to rank “the crime problem” among their top three concerns—usually as number one.

The criminal justice system has launched massive and costly efforts, especially in the never-ending “war on drugs,” to prevent and control crime; to incapacitate repeat and dangerous offenders; to neutralize urban street gangs in large and small cities and in the prisons; to reduce the incidence of DUI (driving under the influence of alcohol or drugs); to do something about sex offenders, white-collar criminals, and spouse abusers. Efforts have also been made to rehabilitate offenders through K-12 and sometimes postsecondary education programs in prison, vocational training, work, social skills training, counseling, and all the rest. Still, the record remains bleak and the public dubious about the outcome of these efforts and, more generally, of the “war on crime.” It is, of course, true that official Uniform Crime Reports data show that crime peaked in the 1970s, held steady during the first half of the 1980s, and has declined in the past 10 years. The number of all reported “index crimes”—murder and nonnegligent manslaughter, rape, robbery, aggravated assault, burglary, larceny-theft, auto theft, and arson—fell sharply in 1994 and even more sharply in the first half of 1995. Corroboration of this welcome trend is to be found in victimization studies conducted by the Census Bureau and by academic researchers. For some years now, households and business establishments have reported significant declines in the most common personal and property crimes.

At the same time, incarceration rates (adult and juvenile prison and jail populations) have been increasing, with no sign yet that they have begun to level off. Nationally, there are now more than 1 million prison inmates—more than 100,000 in California alone, and Texas and Florida will approach this number before long. In Ohio, as in many other jurisdictions, the number of prisoners has quadrupled since 1970 and doubled since 1980. Where there were once 7 Ohio adult institutions holding 7,700 inmates (1973), at midyear in 1995 there were more than 43,000 convicts in 28 prisons. California's prison system used to take 4% of that state's budget; it now gets 8%—the additional 4% mostly from funds that could have been spent on education. In Ohio, as elsewhere, the increase in the penal population has occurred primarily because of the “war on drugs”; the legislative upgrade in sentences jumped the average time served in confinement in Ohio from 2.2 years to well over 4 years for inmates paroled in the 1980s and remained constant at 1.1 years for those released on definite sentences. Stricter enforcement of the conditions of parole has resulted in an unprecedented jump in parole violators returned to prisons. An assortment of other changes, including the tightening of the system leading to the incarceration of greater numbers of convicted felons and the shrinking in the proportion granted parole, when eligible, accounts for the rest of the increase. The number of lesser offenders being held in jails (awaiting trial or doing time) has also doubled. Finally, the number of juvenile offenders in training schools and private placement has grown substantially. The incapacitation movement has resulted in huge growth in the numbers of blacks and lower-class young adults under correctional supervision and control. More young black males are in penal confinement or under community supervision than are in college. It is estimated that one-fourth of young African American males are under the control of the criminal justice system.

All that having been said, the great revolution in criminal justice in the 20th century has not been in the crime problem but in the criminal justice process. As any student of this process knows, and as many in law enforcement and the prosecutorial and correctional subsystems have yet to accept, court decisions have transformed the face of the process, adding a whole new dimension to it. Never has the term due process been more rigorously implemented in all phases of the justice system—from arrest to final release from state control. Such phrases as Miranda warnings, the exclusionary rule, equity and fairness, arbitrary and capricious decisions, fair trial, and inmate rights, as well as many other concepts and themes, have been forced on the system by federal and higher state courts.

In his book The Limits of the Criminal Sanction, Herbert Packer (1968) describes two very different criminal justice models: the due process model in the United States and the crime control, inquisitorial, or social defense model in continental Europe. Packer compares the European crime control model to an assembly line in which the law enforcement arm is the chief element. The police apprehend factually guilty or probably guilty suspects and the other actors in the system—prosecutors, defense attorneys, and judges—play specialized roles in translating probable guilt into legal guilt. As Packer notes of this model, “The image that comes to mind is an assembly line which moves an endless stream of cases, never stopping, carrying them to workers who stand at fixed stations and who perform on each case as it comes by the same small but essential operation that brings it one step closer to being a finished product or… a closed file.” Further, he notes, ‘The criminal process is seen as a screening process in which each successive stage… involves a series of routinized operations whose success is gauged primarily by their tendency to pass the case along to [successful] conclusion’ (p. 21).

In sharp contrast, in the model if not always in practice, the due process model is supposed to operate “as an obstacle course.” The general premise is that the movement from probable to legal guilt must be cumbersome and difficult so as to ensure near certainty that persons found guilty are indeed guilty and deserving of punishment. In this approach, there can hardly ever be too many legal hurdles in the process of investigation, arrest, trial, plea, conviction, and disposition. In both models, protection of the public is paramount. In the due process model, an equally important goal is the protection of the rights of suspects as well as those found guilty and those already under state control. The due process model can tolerate some false negatives—guilty persons not arrested, convicted, or sentenced—but it cannot readily tolerate false positives—persons wrongly convicted. The social control model can abide false positives but not false negatives. This puts the two concepts at opposite ends of the philosophical spectrum and leads to irreconcilable conclusions as to the operation of the system, the acted on, and the actors.

This, of course, brings us to the subject of the current volume. Wrongful convictions, however infrequent, are anathema to the American due process system and to all who believe in the fairness of our law enforcement and judicial systems and the constitutional protections guaranteed individual citizens. Not only do such wrongful convictions violate trust in our system, but, as the authors painstakingly assert, such convictions undermine public safety by leaving the “true” positives—the guilty—in the community to commit future grave offenses.

As I know from personal contact with all the authors, this book has been a decade or more in the making. The volume expresses their deeply held commitment to due process and the need to protect equally society, the families and loved ones of crime victims, and the false positives from the inevitable errors that all human institutions sometimes make—unintentionally, accidentally, or through failures in the workings of the system known popularly as snafus (and by many less delicate names as well). In a moderate voice, this book examines the painful issues in wrongful conviction. The focus is geared to answering the core questions: How often does it happen? Why does it happen? How does it happen? To whom does it happen? How can it be prevented from happening? How should the wrongfully convicted be made whole again—what constitutes adequate compensation?

In this well-researched and fascinating volume, Huff, Rattner, and Sagarin mix materials from case files in the literature and those reported in numerous research reports and in the media. They present a great deal of information on research studies, both national and international, concerning the accuracy of eyewitness perceptions. Interviews with individuals who have been wrongly convicted and subsequently exonerated, as well as with some of the actors in the system are included, as are trial documents, court transcripts, and media reports on trials. There is no other book available on the “guilty” but innocent with such a broad focus and so much rich detail. It is a good read, indeed.

The authors begin by discussing some celebrated cases—some known to the general reader, but most known only to specialists. These celebrated historic cases include the Salem witchcraft cases; the Alfred Dreyfus accusation, trial, punishment, and exoneration; the recent release after conviction and imprisonment of “Ivan the Terrible” Demjanjuk, and the famous miscarriage of justice in the case of the “Scottsboro Boys.” (As an aside, when I was so young that I could not quite understand the meaning of the Scottsboro boys' trial and conviction, I remember the street demonstrations and torchlight parades in my community and the marchers shouting, “The Scottsboro boys shall not die!” Fortunately, they did not die, even though eight of the nine black youths were initially sentenced to death for the rapes of two white girls—rapes that never occurred and that were later recanted.) Some readers may also remember the Leo Frank conviction and his lynching by a mob while in custody. More recently, there have been the sagas of Randall Adams and the Jacksons. But hardly anyone is likely to know much about Isidore Zimmerman, his 24 years in prison, the commutation of his sentence 2 hours before execution, his 20 subsequent years spent seeking compensation after his prison release, and his death shortly after receiving $1 million for wrongful imprisonment. One of the major contributions of this volume is the attempt to get at some sort of reliable estimate of the incidence of wrongful conviction in the United States per annum. Based on a questionnaire submitted to experienced criminal justice actors in Ohio—police administrators, sheriffs, county prosecutors, public defenders, and criminal court bench judges—0.5% of those convicted of felonies are estimated to be innocent of the crimes charged. The authors are quick to point out that these more than 10,000 convicted innocents (index crimes alone) were not necessarily without previous criminal involvement. Indeed, for some, their prior records may have led to their arrest and conviction. Assuming the accuracy, or even near reliability, of the above estimate, there are many prisoners who have served or are serving time who might well be the subjects of a subsequent book on the innocent but “guilty.” The question, then, is why innocents, whatever their actual number, are found guilty. Why does our cherished due process obstacle course flatten into a straightaway? What happens to all the hurdles? The authors contend that although becoming legally guilty though factually innocent is the result of interaction among several factors, faulty eyewitness identification is the most critical of these variables and alone accounts for as many as half of all erroneous findings of legal guilt. Experiments have shown that race and ethnicity are also crucial in eyewitness mistakes; so are physical conditions such as lighting, angle of sight, and length of observation. These errors, in themselves, are usually insufficient in the face of diligent investigation; however, when coupled with overzealousness, biases, and ineptitude on the part of some police officers, lawyers, and prosecutors, and pressure for convictions from the community and elected officials, erroneous eyewitness identifications are more than enough to convict. Furthermore, in our criminal justice system, where the same actors may participate in many arrests, prosecutions, and trials over a number of years, there tend to develop interactional bonds that are hard to overcome. Thus, as the erroneous conviction case makes its way up the line, there is considerable reluctance to override the “evidence” and judgments made at the preceding levels. Instead of a hurdle, there is instead the “ratification of error.” This is no different from the working codes and internal cultures in other endeavors—medicine (as in malpractice), law, industry. Loyalty tends to override doubt and even experience. Cases are inexorably pushed forward. The authors also include a chapter on the dynamics of obtaining and using doubtful (false) confessions. Faced with the possibility of going to trial for murder, and the uncertainty of the outcome, some defendants conclude (as may their public defenders or even their personal lawyers) that plea-bargained prison stretches are the safer option. There is also the possibility that a suspect's refusal to accept a plea bargain will influence the severity of his or her sentence—if convicted. In the last chapter, the authors suggest public and professional consideration of 14 policy recommendations growing out of this decade of research. I will mention only the last one here, which pertains to irreversible errors. Huff, Rattner, and Sagarin suggest the substitution of life sentences, without the possibility of parole, in all death penalty cases. Some of their other recommendations are no less interesting and controversial. All are worth your consideration and the consideration of lawmakers on the judiciary committees in legislatures around the country. ## Acknowledgments We have received a great deal of valuable assistance and encouragement throughout the course of our research and during the preparation of this manuscript.1 As for the initial idea to conduct a study of wrongful convictions—both the cases and the processes—we are indebted to our friend and colleague the late Professor Edward Sagarin, whom we have also acknowledged in our dedication. Ed contributed more than ideas; he wrote some of the initial material for this book (which we have incorporated almost entirely verbatim), and his enthusiasm and encouragement were always there for us. Since his death, his widow, Gert, has maintained a genuine interest in this book, one of Ed's last writing projects. We are also indebted to the many judges, prosecutors, defense attorneys, and law enforcement officers who have been willing to complete our surveys, and who also (in many cases) have informally shared their experiences and their insights with us over the past decade, both in the United States and in Israel. This book documents the fact that wrongful convictions often result, at least in part, from incompetent, unprofessional, and/or unethical conduct by law enforcement officers, prosecutors, defense attorneys, and even judges. However, we firmly believe that the great majority of those working in the criminal justice system are genuinely concerned about such errors and their implications for justice and for public safety. For their assistance and collaboration in analyzing cases of wrongful conviction and compensation in the state of Ohio, we would like to thank Professor Anand Desai of the School of Public Policy and Management at Ohio State; Howard Ishiyama, a doctoral candidate at that institution; and Jack Jones and Ted Stanich, former graduate research associates. Our appreciation also goes to Martin Yant, a courageous journalist and author who has published many newspaper articles and a book on wrongful conviction, for his assistance in updating and summarizing some of the cases discussed in this book. Marty exemplifies the kind of independent inquiry and dedication to the pursuit of truth that is essential to a free, democratic society. Two distinguished scholars—professors Rita Simon of the American University and Elizabeth Loftus of the University of Washington—reviewed portions of the manuscript prior to its publication and made many useful and insightful suggestions for improvement, which we have attempted to incorporate. We want to recognize their important contributions while at the same time acknowledging that we are solely responsible for the content of the book and the degree to which it meets, or fails to meet, its purpose: describing and analyzing the problem of wrongful conviction and its public policy implications. Ms. Georgia Meyer, administrative secretary at Ohio State's Criminal Justice Research Center, helped immensely in coordinating the production of the final manuscript. She also remained characteristically cheerful in spite of deadline pressures. We owe a special debt of gratitude to some of the convicted innocents and their families for sharing their experiences—injustice, trauma, and, ultimately, vindication. Special recognition goes to Randall Dale Adams, Bradley Cox, Lenell Geter, Todd Neely, and Todd's parents, Edith and Lewis Crosley, for their openness and their willingness to let us try to learn what the experience of wrongful conviction means on a personal and familial level. The insights they provided helped shape much of what is in this book, which is, after all, their story. Finally, we express our love and appreciation to our own families for their patience with us over the past decade as we pursued our analysis of this important problem. We can never compensate them for the time we stole; we can only hope that this book will make a small contribution to the continuing pursuit of social and criminal justice throughout the world. Note 1. We have contributed equally to the research and writing of this book, and our names are therefore displayed alphabetically. ## Introduction The concept of justice is timeless, as is the corresponding concern about convicting an innocent person. Indeed, as Daniel Webster once proclaimed, “Justice, sir, is the greatest interest of man on earth.” This book addresses a specific kind of injustice—wrongful conviction. The topic, in addition to being timeless, is also timely. As we write this, the case of John Demjanjuk, accused of being “Ivan the Terrible,” a Nazi death camp guard who helped in the mass murder of Jews, is being played out on the world's stage. Sharing that international stage within the recent past have been two cases on different continents. First is the wrongful conviction and imprisonment (for 16 years) of the “Birmingham Six,” alleged members of the Irish Republican Army, for the bombing of two British pubs. This case (which inspired the film In the Name of the Father) led to a high-level review of the entire British criminal justice system, which regularly receives scrutiny through a popular television series titled Rough Justice. Second is the tragic wrongful conviction of Lindy and Michael Chamberlain, an Australian couple whose trial and wrongful conviction in the death of their infant daughter inspired the movie A Cry in the Dark. The Chamberlains were awarded$320,000 in compensation by the Australian government.

The wrongful conviction theme is also important in American popular culture, as reflected in the runaway hit movie attraction The Fugitive. In the movie, Harrison Ford plays the role of Dr. Richard Kimble, a physician who is wrongfully convicted of murdering his wife and who claims that a one-armed intruder was the actual murderer. The movie, and the popular former television series of the same name, is loosely based on the actual wrongful conviction of Dr. Sam Sheppard, an Ohio physician imprisoned for life in 1954 for the murder of his wife.

In the pages that follow, we shall attempt to define, describe, and analyze the problem of wrongful conviction and its implications for society. Not everyone will be pleased with our definition, because we do not include a number of cases in which it is clear that injustice occurred. By our restrictive definition of wrongful conviction, even the case of Jesus would not qualify, because Jesus' behavior, in the name of righteousness, did violate the laws of his day, unfair as they were. We focus here on cases in which the convicted persons did not commit the crimes alleged—in other words, they are behaviorally innocent of the crimes.

We present for the reader's consideration survey data concerning the possible magnitude of the problem and its causes; actual cases of wrongful conviction, as well as some in which doubt remains; detailed analyses of each of the major factors associated with wrongful conviction and how these factors interact; and, finally, a discussion of the public policy implications of our research, including some recommendations for reducing the occurrence of this problem, identifying and compensating those who are wrongfully convicted, and eliminating (or greatly curtailing) the possibility of executing innocent persons.

We will demonstrate that the American system of criminal justice is so large and has so many arrests each year that even if the system were 99.3% accurate, it would still generate more than 10,000 wrongful convictions a year for the eight serious index crimes alone (these eight crimes are murder and nonnegligent manslaughter, forcible rape, aggravated assault, robbery, burglary, larceny-theft, motor vehicle theft, and arson). It is likely that the error rate is even higher for less serious crimes, making it highly probable that wrongful conviction affects a great many Americans each year, even though the error rate may be relatively small.

Finally, throughout the volume we shall attempt to dispel a common, but fallacious, assumption about this topic: that wrongful conviction is an issue that should inherently interest “liberals” more than “conservatives” (who are presumed to be more interested in “law and order” and “public safety”). We attempt to refute this assumption by noting (and vividly illustrating, in many of our cases) that every time an innocent offender is wrongfully convicted, the actual offender typically remains free to continue victimizing the public. Thus, this book concerns a problem that affects not only an individual's right to due process and a fair trial, but also a serious public safety concern. The reader will learn about murders, rapes, and other serious crimes that were permitted to occur because the wrong person was arrested for a given crime.

Finally, we present a framework for understanding this problem within the overall context of the American criminal justice system. Drawing on Packer's (1968) contrasting “crime control” and “due process” models, we illustrate how this conceptual framework can be useful for increasing our understanding of the problem of wrongful conviction and for the formulation of public policy recommendations to reduce the frequency with which it occurs. Although no system of justice can be perfect, we believe that if efforts are focused on preventable errors, the U.S. system can substantially reduce the kinds of injustices discussed in the pages that follow. It would be well worth the effort, and it is our hope that this volume may contribute to that end.

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## Cases

Argersinger v. Hamlin, 407 U.S. 25 (1972).

Bennet v. State, 530 S.W.2d 511 (Tenn. 1975).

Blevins v. State, 108 Ga. App. 738,134 S.E.2d (1963).

Escobedo v. Illinois, 378 U.S. 478 (1964).

Gideon v. Wainwright, 372 U.S. 335 (1963).

Gilbert v. California, 388 U.S. 263 (1967).

Ivan (John) Demjanjuk v. State of Israel, Cr.A. 347/88 (1990).

Jackson v. Fogg, 589 F.2d 108 (2d Cir. 1978).

Kirby v. Illinois, 406 U.S. 682 (1972).

Mapp v. Ohio, 367 U.S. 643 (1961).

Miller v. Pate, 386 U.S. 1 (1967).

Miranda v. Arizona, 384 U.S. 436 (1966).

Nell v. Biggers, 409 U.S. 188 (1972).

O'Neil v. Ohio, Ohio Court of Claims, 81-05750 (1984).

People v. Barad, 362 111. 584, 200 N.E. 858 (1936).

People v. Harris, 28 Cal. 3d 935, 623 P.2d 240 (1981).

People v. Johnson, 38 Cal. App. 3d 1,112 Cal. Rptr. 834 (1974).

People v. Kind, 357 III. 133,191 N.E. 244 (1934).

Powell v. Alabama, 287 U.S. 45 (1932).

Roe v. Wade, 410 U.S. 113 (1973).

Simmons v. United States, 390 U.S. 377 (1968).

State v. Engel. 289 N.W.2d 204 (N.D. 1980).

State v. Landeros, 20 N.J. 76,118 A.2d 524 (1955).

State of Delaware v. Bernard T. Pagano, Delaware Superior Court, Wilmington (1979).

State of Israel v. Ivan (John) Demjanjuk, Criminal Case No. 383/86 (1986).

Stovall v. Denno, 388 U.S. 293 (1967).

United States v. Ash, 413 U.S. 300 (1973).

United States v. Garsson, 291 F. 646,649 (S.D. N.Y. 1923).

United States v. Wade 388 U.S. 218 (1967).

United States v. Williams, 592 F.2d. 1277 (5th Cir. 1979).

## About the Authors

C. Ronald Huff is Director and Professor, School of Public Policy and Management, and Director, Criminal Justice Research Center, at the Ohio State University. He has also held faculty positions at the University of California (Irvine) and Purdue University and served as a visiting professor at the University of Hawaii. His publications include more than SO journal articles and book chapters and 10 books, the most recent of which, an all-new second edition of Gangs in America, will also be published by Sage in 1996. He has served as a consultant on crime and public policy to the U.S. Senate Judiciary Committee, the F.B.I. National Academy, the U.S. Department of Justice, five states, and numerous federal, state, and local organizations. His recent honors include the Donald Cressey Award from the National Council on Crime and Delinquency (1992), the Paul Tappan Award from the Western Society of Criminology (1993), and the Herbert Bloch Award from the American Society of Criminology (1994).

Arye Rattner is Professor of Sociology at the University of Haifa in Israel. He served until recently as Chair of the Department of Sociology and Anthropology at the University of Haifa and has served also as the Chair of the Israel Criminology Council. He has published several articles on wrongful conviction and eyewitness identification and has recently published a number of articles that have dealt with attitudes toward the legal system and have attempted to construct models of legal disobedience. He is currently involved in a research project examining how both Jews and Arabs are processed in the criminal justice system in Israel.

Edward Sagarin (deceased) was Professor of Sociology at City College and City University of New York and also served as Distinguished Visiting Professor of Sociology at the Ohio State University. Prior to his death in 1986, he enjoyed a highly productive career in criminology which was recognized by his peers, who elected him President of the American Society of Criminology and designated him Editor-in-Chief of Criminology: An Interdisciplinary Journal, the Society's official journal. He was regarded as an intellectual, a prolific author of books and articles in both criminology and the sociology of deviance, and an outspoken advocate of justice and compassion for those who were disvalued by society. His intellect, energy, and dedication helped inspire many younger scholars, including his coauthors on this volume.