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Rising number of exonerees reflects flaws in justice system

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Justice in Question

The legal system isn’t perfect, and sometimes innocent people go to prison.

That’s true even in Indiana, a state with its share of exonerees as evidence that justice failed the first time around. The potential for that number to rise is expanding here just as it is nationally, as a growing number of convicts hope to add their names to the list of the exonerated. They’re doing this by turning to methods that have freed others who were wrongfully convicted, as well as new issues that continue surfacing in the nation’s court system.

Attorneys and advocates may recite any number of underlying, intangible reasons - a demanding public and political pressure on police and crime-tough prosecutors, overloaded public defenders, and congested court calendars. But the practical reasons can be found with witness misidentifications, invalid or faulty forensic science, or investigative techniques that have been modified or disproven through the years.

Whatever the reason, attorneys know it all comes down to getting it right the first time, and when that doesn’t happen, cleaning up the legal or investigative mess from years or even decades before. They must look in the mirror and at the state’s system, learning from wrongful-conviction cases about how to ensure better justice in the future.

“This is very frustrating work,” said Hilary Bowe Ricks, an Indianapolis attorney who represents clients believed to have been wrongfully convicted. “It’s a very long process, and you can’t fix what happened. You can only make sure it doesn’t continue. But maybe, by doing all of this, we can show that we’re sometimes too quick to judge.”
 

Common causes

Contributing causesThe most common factors leading to wrongful convictions are eyewitness misidentifications and invalidated or improper forensics, followed by false confessions or admissions, and bad information from informants or snitches. The New York-based nonprofit Innocence Project reports that 238 people have been exonerated nationally because of post-conviction DNA testing. In Indiana, four of the five DNA exonerations have also involved witness misidentification, consistent with the national trend of that being a factor in 75 percent of wrongful-conviction cases, according to Stephen Saloom, an attorney and the Innocence Project’s policy director.

“These DNA cases give us a window into the arena of wrongful convictions and what causes them, and that goes far beyond the window through which we’re looking,” he said.

Some say the legal review process should be more like when an airplane crashes and investigators scour the wreckage to discover what went wrong and learn from the experience. Even with appellate review the courts don’t always take notice of the errors that can occur in the initial stages, a result of appeals judges not typically reconsidering a jury’s factual findings but instead focusing on procedural matters, whether the trial judge handled evidence and issues appropriately, and broader legal theories.

A Columbia Law Review article published in 2008 by University of Virginia Law professor Brandon L. Garret looked at the trials and appeals of 200 people convicted of violent crimes for which they were later exonerated because of DNA evidence. He found only 18 were granted reversals, while 67 had their appeals denied without any written ruling. In 63 cases, the appellate court’s opinion referred to the defendant’s guilt while in 12 others, the courts referred to the “overwhelming” evidence of guilt. Of the remaining cases, the appeals courts either found the defendant’s appeal without merit, or found some merit in defendant’s claims but ruled the trial court’s errors were “harmless” or unlikely to have affected the jury’s verdict.

That’s only to date, though. Even without DNA factors, emerging areas of forensic science are casting more doubt on the justice once given by juries and judges and later reviewed by higher courts. For example, one of the most recent trends leading to wrongful-conviction claims involves what’s known as “junk” forensic science, particularly in arson cases. The issue has surfaced in recent years and is becoming a more frequent claim in post-conviction cases, as well as at the trial level. These re-examinations come as many forensic disciplines face scrutiny for playing a role in wrongful convictions that have been exposed by DNA and other scientific advances.

In February 2009, the National Academy of Sciences issued a congressionally mandated report finding serious deficiencies in the nation’s forensic science system and called for major reforms. Part of that report says that in many fire cases, investigators routinely relied on indicators that were common at the time but have since become outdated and discredited by scientific research. Bottom line: Fires once thought to be arsons are now being proven to be the result of some other factor.

“That’s why to this day there are people in prison convicted on arsons that have been debunked before, after, or during their adjudication. But many are still in prison because of the scattershot nature of understanding the advance in that practice and applying it to these cases so long after the fact,” Saloom said.
 

Calls for reform

Indiana gets mixed reaction from people opining about how the state compares to others in adjudicating justice and analyzing injustice. Some say the system is ahead of the curve in various ways, while others point to it being behind nationally; still others say Indiana differs from nearby states by offering automatic post-conviction relief hearings and how appellate or postconviction courts have ways to review the trial court process. They also point to how the Indiana Supreme Court and General Assembly are exploring ways to make the system even stronger.

Saloom“My sense would be that we are definitely in the game, meaning we recognize the existence of invalid science used to convict and the appropriateness of providing common law and statutory remedies for newly discovered evidence,” said attorney and law professor Fran Watson, who leads the wrongful-conviction clinic at Indiana University School of Law - Indianapolis.

Watson said several state efforts put Indiana ahead of the curve, such as the automatic post-conviction relief hearings available to convicts, the post-conviction DNA testing they can utilize, and how Indiana has a statewide public defender agency to work on post-conviction cases. She’s also encouraged by efforts the courts are making to study the wrongfulconviction causes even more.

Whether that’s enough is debatable, according to some looking at Indiana from the outside.

“When it comes to preventing wrongful convictions, virtually no jurisdiction in Indiana and certainly not the state itself has significantly implemented reform on those leading causes,” Saloom said. “That puts them slightly behind most of the country.

“The good news is that (Indiana) is talking about it, there’s general preservation practices in place, and the court is taking some of these issues seriously,” he added. “While Indiana’s slightly behind, fortunately there are indications that the state does take these issues seriously and may very soon consider taking affirmative action on those reforms.”

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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