Week after week, the story unfolds before our eyes: “Wrongfully Imprisoned, Groundskeeper Returns” (The New York Times, March 28, 2018); “$10 Million for Man Wrongly Convicted of Murdering Parents” (The New York Times, April 21, 2018); “Philadelphia Man Freed After Serving 11 Years for Murder He Did Not Commit” (The New York Times, May 16, 2018). Since 1989, when what’s known today as the innocence movement started gaining momentum, over 2,200 convicted people have been exonerated in the United States, according to the National Registry of Exonerations.
That suggests, of course, that a worrisome number of guilty people may never have been caught (although about half of DNA exonerations actually result in the conviction of the true perpetrator). Estimates of wrongful convictions range between 2 and 5 percent, meaning that as many as 100,000 innocent people may be sitting in the country’s vast prison network. Death row exonerations have, at last count, reached 162. The image of these exonerees (an awkward word that entered the dictionary only in 2002) blinking in the sunlight after years or decades in prison is touching, troubling, and infuriating.
By now we know all this. The question is how and why wrongful convictions occur. The four books under review are among the latest to tackle aspects of the subject, through anecdote, personal testimony, and meticulous historical reconstruction. In different ways, each of the four contributes to a deeper understanding of the problem in its several dimensions: poor police work, unreliable witnesses, prosecutorial misconduct, juror gullibility, defense inadequacy, bad forensics passing for science, racism, and more.
Among the four books, the most powerful narrative, S. Jonathan Bass’s He Calls Me by Lightning, is not about an exoneration and lacks a happy ending. It recounts the fourteen years a young, barely literate black man, Caliph Washington, spent imprisoned in Alabama, most of the time on death row, for killing a white police officer in what was almost surely not an act of intentional homicide. Released in 1971 by a writ of habeas corpus from a state court, Washington spent the remaining thirty years of his life reindicted and under threat of another murder trial; having mislaid crucial evidence, prosecutors couldn’t move forward, but neither would they give up as long as Washington walked the earth a free man. In this convoluted but well-told tale, the most profound analysis may have come from Washington himself before he died in 2001: “My problem began when I was born.”
Any effort to tackle the subject of wrongful convictions faces the high bar set by two books published earlier this decade. One is Bryan Stevenson’s best-selling Just Mercy: A Story of Justice and Redemption (2014), a first-person account by a visionary death-penalty defense lawyer of his efforts, not all of them successful, on behalf of a series of hopeless and despised clients. Stevenson, a MacArthur Fellow and the founder of the Equal Justice Initiative, centers the book around his representation of Walter McMillian, a black man who had the temerity to become sexually involved with a white woman in Monroeville, Alabama, and soon found himself framed and condemned to death for the murder of the eighteen-year-old daughter of a prominent local family. Stevenson saved his client and described how, years later, he spoke at McMillian’s funeral:
I explained that we all owed Walter something because he had been threatened and terrorized, wrongly accused and wrongly condemned, but he never gave up…. He had stood strong in the face of injustice, and his exonerated witness might just make the rest of us a little safer, slightly more protected from the abuse of power and the false accusations that had almost killed him.
The 1986 murder of Ronda Morrison remains unsolved.
The other earlier book, Dan Simon’s In Doubt: The Psychology of the Criminal Justice Process (2012), is much less well known but in its way just as valuable. Simon, who holds a joint appointment in law and psychology at the University of Southern California, applied the tools of experimental psychology to understand how the two distinct but interlocking halves of the criminal justice process—the investigation and the trial—break down. A central insight of the book is that because the trial itself is unlikely to repair any flaws in the evidence-gathering process, it is important to make that process as transparent as possible. Recording all interactions with witnesses in real time, for example, will guard against the failings of memory:
Over the natural course of the process, testimony often changes, as previously unreported details come to be included in witnesses’ statements, narratives are crystallized, gaps get filled, ambiguity fades away, and tentativeness is replaced by certitude.
Of course, the great majority of criminal prosecutions today are resolved by plea bargains, not trials. More accurate and transparent evidence, Simon maintains, will make plea bargains “fairer and better calibrated with the defendant’s actual guilt.”
On any shelf of recent books about criminal justice, these two would serve as bookends, one passionate and anecdotal, the other academic and analytical. Where do the more recent four fit in? The editors of Anatomy of Innocence invited well-known writers of mysteries and police fiction, including Sara Paretsky, Lee Child, and Brad Parks, to write about wrongfully convicted people. Each chapter concludes with an editors’ note providing background for the flaw in the criminal justice system that each story revealed: withholding evidence to which the defense was legally entitled, as in the case of Alton Logan, convicted of a murder he didn’t commit based on faulty identification by a witness; inadequate defense representation, as in the case of Antione Day, wrongly convicted of murder after his lawyer failed to interview alibi witnesses.
The idea for this book surpassed its execution: cramming fourteen stories into 260 pages means that the individual accounts are so truncated as to make it hard to discern what actually caused the prison gates to open. The story of Ginny Lefever, wrongly convicted of murdering her estranged husband, who had actually committed suicide, offers an example. The twelve-page account includes many paragraphs about Lefever’s effort to lose weight in prison (“Ginny sweated. She waddled. She grunted and groaned”) while leaving the reader to guess how she managed to persuade a judge to grant the petition for habeas corpus that released her from prison after twenty years.
The Cadaver King and the Country Dentist is similarly frustrating. The title refers to Steven Hayne, a Mississippi county coroner, and Michael West, a dentist who specialized in forensic odontology—bite-mark analysis. Often working in tandem, the two were expert witnesses for the prosecution in Mississippi death penalty cases for twenty years. The book tells the stories of two prosecutions gone wrong in their hands. In dizzying fashion, it toggles between these cases, occasional others, and reflections on the quality of Mississippi justice:
To fully understand the story of Kennedy Brewer, Levon Brooks, and many other similar cases, it’s important to appreciate the pliability of Mississippi’s medicolegal system—how sheriffs, police chiefs, and prosecutors have manipulated it to achieve a particular end. The system was designed this way. Sometimes it solved crimes, but that wasn’t necessarily its chief purpose. Instead, its purpose has always been to facilitate law enforcement’s desires as reflected by the prevailing status quo.
The book has two coauthors, Radley Balko, a writer for The Washington Post, and Tucker Carrington, director of the Innocence Project at the University of Mississippi School of Law, and it may be that they were unable to achieve the seamless collaboration necessary to sustain a coherent narrative. In any event, its value lies in showing how vulnerable the criminal justice system is to manipulation through junk science. The bite-mark analysis that was Michael West’s specialty has long been repudiated by actual experts, and was highly questionable even when he was making his living from it in the 1990s. In one of the book’s main cases, the wrongful conviction of Levon Brooks for the murder of a three-year-old girl, Courtney Smith, Dr. West claimed that his bite analysis had ruled out a dozen other suspects, and he testified at the trial that “I have no doubt that the teeth of Levon Brooks did and indeed leave the bite mark on the wrist of Courtney Smith.”
In fact, the other suspects had already been ruled out by the prosecution, and the wounds on the girl’s body, which had been underwater for thirty-six hours, were not bite marks at all. Brooks, convicted and sentenced to life in prison, was exonerated after sixteen years when another man, identified by DNA evidence as the perpetrator of another murder at about the same time, confessed to the crime. How could something have gone so wrong? To the authors, the explanation lies deep in Mississippi’s history:
The common denominator in these cases is the facilitation of those in power, whether in covering up a lynching, finally bringing to trial a civil rights–era murder case, or merely convicting the man police and prosecutors were convinced committed the crime. In this sense, Mississippi’s death investigation system rarely failed. Instead it tended to perform exactly as intended.
Mark Godsey, the author of Blind Injustice, is a former federal prosecutor who is now a law professor and cofounder of the Ohio Innocence Project. The subtitle of his book is “A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions,” and Godsey explains the origin of his book as follows:
From my perch as a prosecutor turned innocence advocate, I have witnessed bizarre human behavior that has left me both fascinated and shaken. I have seen how witnesses get it wrong but adamantly believe they are right. How witnesses have their stories twisted and rearranged by the police and prosecutors, without even realizing they have been manipulated and without the police and prosecutors realizing they have altered witnesses’ statements to fit their theory of the case. How prosecutors, police, judges, and defense attorneys develop tunnel vision and make irrational case-decisions because they refuse—no matter the evidence—to question their initial instincts. How politics and internal pressures have caused people in the system to act unjustly and unfairly, all the while in denial about their true motivations. How they have become stubborn and arrogant about their ability to divine the truth, while they are in denial about their human limitations. And I have seen how these human flaws have resulted in tragic, gut-wrenching injustices.
Godsey cites Dan Simon’s In Doubt and is clearly informed by that book in his discussion of how confirmation bias—the tendency to believe what one wants to hear—infects the criminal justice system:
For example, detectives tend to believe witnesses who tell them stories that confirm their own beliefs about a case. Witnesses who give contradictory information are seen as lying or mistaken and are often pushed to the wayside.
Godsey’s chapters describe the psychological and systemic elements that reinforce each other and all too easily defeat the goals of justice: “Blind Denial,” “Blind Ambition,” “Blind Bias,” “Blind Memory,” “Blind Intuition,” “Blind Tunnel Vision.” In addition to the confirmation bias that leads investigators to see what they want to see, there are the tricks that memory plays, the suggestibility of eyewitnesses, the bureaucratic allergy to admitting error, and just plain “administrative evil.” His final chapter, “Seeing and Accepting Human Limitations,” argues that in order to reform a system that “consistently resists introspection and change,” it’s necessary to compensate for human nature rather than fight it—by taking much more care with eyewitness identification and making sure that interrogations are videotaped from beginning to end, for example. The flood of wrongful convictions is “indicative of a disaster. A mass disaster.” No one reading any of these books is likely to disagree.
In his opening pages, Godsey tells us that he will avoid discussing the “complicated and pervasive” problem of “systemic racism” because it is extensively treated elsewhere and he wants to focus on additional, less appreciated causes for wrongful convictions. There is, however, ample evidence that racism is a strong risk factor, with black people substantially more likely to be wrongly convicted than whites.
S. Jonathan Bass took the title of He Calls Me by Lightning from a Negro spiritual: “My Lord, He calls me. He calls me by lightning. He calls me by thunder. The trumpet sounds within my soul.” Caliph Washington, toward the end of his blighted life, became a minister. Bass’s parents grew up in Bessemer, Alabama, a small mining and steelmaking city on the outskirts of Birmingham, as did Washington. Like Washington, the Bass family was poor, but privileged due to its race. Bass skillfully interweaves the story of the city with the life of one of its most humble residents, who in a saga lasting close to fifty years never received anything resembling justice. In 1970, at the last of Washington’s three trials, one of his lawyers cross-examined the police detective who had conducted the initial interrogation after Washington’s arrest thirteen years earlier. Had the detective advised the suspect of his right to remain silent or to consult a lawyer? “I didn’t tell him nothing,” the detective answered.
The Supreme Court’s Miranda decision, handed down in 1966, came too late for Washington. The Supreme Court, in fact, is barely mentioned in any of the four books, although Bryan Stevenson, who appears frequently before the Supreme Court in death penalty cases, discusses its current jurisprudence extensively in Just Mercy. Beginning in the 1970s and at an accelerating pace since then, the justices have made it ever more difficult for inmates convicted in state courts to get before a federal judge to challenge the validity of a conviction or constitutionality of a sentence. The Supreme Court’s motivation derives in large measure from its view of the narrowly restricted responsibility of the federal courts in supervising the quality of justice meted out by the states.
In addition, a majority of today’s Court seems to agree with a statement Justice Sandra Day O’Connor made in a concurring opinion twenty-five years ago in Herrera v. Collins (1993), explaining why the court was correct in refusing to intervene in a Texas death penalty case on behalf of an inmate who claimed he was actually innocent:
Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.
Back then, the statement seemed discordant. Now it sounds willfully naive.
June 28, 2018
It Can Happen Here