Rising number of exonerees reflects flaws in justice system

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

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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