Eight Myths of Justice

Innocent Americans are routinely convicted and incarcerated. The new book False Justice explains how.

Steve Weinberg November 12, 2010

In the 2006 U.S. Supreme Court rul­ing Kansas v. March, Jus­tice David Souter and Jus­tice Antonin Scalia con­duct­ed a pub­lic debate with­in their oppos­ing writ­ten opin­ions. Dis­cussing the fates of death row pris­on­ers, Souter opined that in such high stakes cas­es, inno­cent men and women are too often found guilty. The unusu­al­ly high inci­dence of false con­vic­tion” is prob­a­bly caused by the com­bined dif­fi­cul­ty of inves­ti­gat­ing with­out help from the vic­tim, intense pres­sure to get con­vic­tions in homi­cide cas­es, and the cor­re­spond­ing incen­tive for the guilty to free the inno­cent,” Souter wrote.

Nobody can know the census of innocent inmates. But Petro, among others, suggests the number reaches into the tens of thousands.

Scalia coun­tered that wrong­ful con­vic­tions are rare in cap­i­tal cas­es because they are giv­en espe­cial­ly close scruti­ny at every lev­el, which is why in most cas­es many years elapse before the sen­tence is executed.”

For 40 years, I have researched, writ­ten about and obsessed over wrong­ful con­vic­tions. Souter’s think­ing – heav­i­ly reliant on the research of Samuel Gross, a Uni­ver­si­ty of Michi­gan law pro­fes­sor who has demon­strat­ed that wrong­ful con­vic­tions are more preva­lent than most law enforce­ment insid­ers under­stand – is spot-on. Scalia’s is mis­guid­ed, informed by a judi­cial cul­ture more inter­est­ed in speedy con­vic­tions than thor­ough investigations.

The law enforce­ment per­son­age who rec­og­nizes the prob­lem of false con­vic­tions is a rare and refresh­ing breed – and often comes from unlike­ly cor­ners of the polit­i­cal ring. Repub­li­can politi­cian Jim Petro, expe­ri­enced an epiphany dur­ing his term as Ohio attor­ney gen­er­al that sur­prised him, his wife Nan­cy and many of his sup­port­ers. The epiphany? Petro real­ized that a sig­nif­i­cant num­ber of pris­on­ers who say they are inno­cent are indeed inno­cent. He real­ized that wrong­ful con­vic­tions occur in mul­ti­ple Ohio coun­ty cour­t­hous­es and in fed­er­al courts. He real­ized that the num­ber of wrong­ful con­vic­tions can be min­i­mized, and that police, pros­e­cu­tors, judges and defense attor­neys can per­form their jobs bet­ter. His new­found cause was well suit­ed to his law-and-order way of think­ing – when wrong­ful con­vic­tions occur, the actu­al per­pe­tra­tors (mur­der­ers, rapists, bur­glars, etc.) go unpun­ished, and often mur­der or rape or bur­glar­ize again.

In my years of research, I have heard only a few pros­e­cu­tors acknowl­edge the breadth and depth of the prob­lem. In his new book False Jus­tice: Eight Myths That Con­vict the Inno­cent (Jan­u­ary, Kaplan), Petro out­does them all. 

Most of the cas­es that raised red flags for Petro, and now ben­e­fit from his lawyer­ing, are Ohio cas­es. Petro was espe­cial­ly gripped by the cas­es of Clarence Elkins, Michael Green and Roger Dean Gillispie, con­vict­ed felons whose exon­er­a­tions in Ohio are com­plet­ed or pending.

Petro and his wife, a busi­ness con­sul­tant, rely heav­i­ly on the Elkins, Green and Gillispie case stud­ies in hope of dis­pelling eight myths” about the crim­i­nal jus­tice system:

Every­one in prison claims inno­cence. Most inmates make no such claim because guilt is obvi­ous. Lots of pris­on­ers com­plain about police cut­ting cor­ners or pros­e­cu­tors offer­ing over­ly harsh plea bar­gain terms, but rarely do they deny their crime completely. 

The Amer­i­can crim­i­nal jus­tice sys­tem almost nev­er con­victs an inno­cent per­son. Nobody can know the cen­sus of inno­cent inmates. But hun­dreds of doc­u­ment­ed cas­es exist, and Petro, among oth­ers, sug­gests the num­ber reach­es into the tens of thousands. 

Only the guilty con­fess. False con­fes­sions show up in at least one quar­ter of doc­u­ment­ed wrong­ful convictions.

Wrong­ful con­vic­tion is the result of inno­cent human error. Numer­ous cas­es have yield­ed evi­dence that police and pros­e­cu­tors had rea­son to doubt the valid­i­ty of the arrest, but made the arrest anyway.

An eye­wit­ness is the best tes­ti­mo­ny. Some­times that is true, but numer­ous well-designed research stud­ies sug­gest the odds of accu­rate eye­wit­ness iden­ti­fi­ca­tion are no bet­ter than 50 – 50.

Con­vic­tion errors get cor­rect­ed on appeal. Appel­late judges tend to side with the pros­e­cu­tion because final­i­ty is an over­whelm­ing val­ue with­in the court system.

It dis­hon­ors the vic­tim to ques­tion a con­vic­tion. In fact, many vic­tims and their loved ones want the actu­al per­pe­tra­tors to serve prison time.

If the jus­tice sys­tem has prob­lems, the pros will fix them. In research­ing the more than 2,300 crim­i­nal jus­tice juris­dic­tions across the Unit­ed States, I have found that the pros almost nev­er ini­ti­ate the repairs. Instead, those repairs begin with inno­cence project advo­cates, jour­nal­ists through their pub­lic inves­ti­ga­tions, law pro­fes­sors, and the rare state leg­is­la­tors and pub­lic offi­cials will­ing to buck against the crim­i­nal jus­tice establishment. 

Any well-informed primer on wrong­ful con­vic­tions is wel­come. Even bet­ter is a primer by some­body like Petro, who has the cre­den­tials to move reform pro­pos­als to cen­ter stage. 

Steve Wein­berg is an inves­tiga­tive reporter in Colum­bia, Mo. His lat­est book is Tak­ing on the Trust: The Epic Bat­tle of Ida Tar­bell and John D. Rock­e­feller.
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