ILNews

Rising number of exonerees reflects flaws in justice system

Back to TopE-mailPrintBookmark and Share
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.”

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT