Next Spring we’ll publish a book from Brandon L. Garrett, Professor of Law at the University of Virginia. In the book, Convicting the Innocent, Professor Garrett presents his systematic examination of the facts of the growing number of cases in which a person has been wrongfully convicted of a crime, only later to be exonerated through DNA testing. In forty of these cases, the accused had actually falsely confessed to the crime in question. After last week’s New York Times coverage of his Stanford Law Review article on false confessions, we invited Professor Garrett to discuss his work and the sweeping ramifications of DNA exoneration.
Q. How did you become interested in the topic of wrongful conviction?
Before I became a law professor, and long before I thought I might write a book about wrongful convictions, I was a practicing civil rights lawyer. I worked for Barry Scheck and Peter Neufeld – the founders of the Innocence Project, which pioneered the use of DNA testing to free innocent prisoners.
One of my first cases as a rookie lawyer was that of a man named Eddie Lowery. He was a 22 year-old soldier who was in a minor traffic accident near the house of an elderly woman who had just been raped. Detectives brought him in and interrogated him over many hours. Ultimately he confessed, falsely, thinking that if he just parroted what they demanded that he say, he could finally go home. Instead, he was convicted by a jury and he spent ten years in prison. DNA testing eventually proved his innocence. Afterwards, I helped to file a civil case that resulted in a multi-million dollar settlement to compensate him for those years he lost.
The opportunity to represent several people exonerated by DNA testing gave me an appreciation of the tragic consequences of wrongful convictions. I then began to wonder whether these were isolated accidents, or whether important lessons could be learned from exoneration cases.
More than 250 innocent people have now been exonerated by DNA testing. I wanted to know what the jury had heard in these cases–what was the evidence used to convict so many innocent people? The only way to find out was to obtain the complete criminal trial transcripts.
No one had conducted a trial study of that kind. I contacted defense lawyers, court clerks, court reporters, prosecutors, and innocence projects around the country. Over several years and with their generous help, I located documents ranging from confession statements to judicial opinions, and, most important, the transcripts of more than 200 exonerees’ original trials. That fascinating trial material is the subject of my book.
Q. Why do you think that judges and many legal scholars believed, before the advent of DNA evidence, that false convictions were vanishingly rare? Today, why do people like Antonin Scalia (who cited a wrongful imprisonment rate of 0.027 for convicted felons) continue to believe that false conviction is rare?
A famous example of the traditional attitude towards wrongful convictions was the comment by Judge Learned Hand that “the ghost of the innocent man convicted” is an “unreal dream” that we should ignore as a figment of our imagination. Judges did not typically entertain claims of innocence that prisoners brought years after a trial. Judges maintained that it was the jury’s job to decide the question of innocence.
DNA exonerations changed the face of criminal justice by making it incontestably clear that wrongful convictions are a reality. DNA exonerations now occur with some frequency in thirty-three states and the District of Columbia. Now that it is commonly used, DNA testing also clears thousands of suspects before they even reach trial.
Yet the actual instances of DNA exoneration are just the tip of a much larger iceberg. One of the most haunting features of these exonerations is that so many were discovered by chance. Most convicts who seek post-conviction DNA testing cannot get it, typically because the evidence was destroyed after trial. Some jurisdictions still deny convicts access to DNA testing that could prove innocence. And DNA testing cannot be used in the vast bulk of criminal cases, which unlike rapes and murders do not usually involve biological evidence.
Justice Scalia and others assume that our system works in every case where there has been no exoneration. Unfortunately, we cannot make that assumption. We have not examined those cases. We do not know how many people have been wrongly convicted. There is no reason to think that these 250 are the only ones.
Q. The unreliability of eyewitnesses is fairly well known, but one of your most disturbing findings was the prevalence of false confessions in the cases you examined. How is it that false confessions are so common, and how can we ensure that the judicial system isn’t using them to convict innocent people?
Among the first 250 DNA exonerees, forty had falsely confessed. I was surprised to discover that almost all of them had reportedly confessed to details about the crime that only the killer or rapist should have known. I wondered how these people could say anything more than “I did it,” since they were, in fact, innocent. Almost without exception, the police claimed that each convicted person gave detailed confession statements that neatly matched the crime scenes.
Although many people have a hard time believing that someone would confess to something they did not do, police know it can happen. Detectives ask open-ended questions to find out what the suspect knows. In almost all of the exonerees’ cases, that procedure was not followed.
If the entire interrogation is not videotaped, what goes on and who said what in the interrogation room cannot be known for sure. But if the judge and the jury can see the interrogation for themselves, they can discover cases of contamination—or they can rest secure that the interrogation was handled professionally.
Q. You’re essentially proposing the recording of interrogations as another layer, along with DNA testing, in preventing the conviction of the innocent. A handful of states now require some recording, but what’s your sense of the general attitude towards the practice? Is there reluctance on the part of the law enforcement or legal communities?
Change is slow in our criminal justice system, in part because it is incredibly fragmented. There are over 17,000 local law enforcement agencies. Added to that are the various courts, prosecutors, crime laboratories and criminal defense lawyers. Reform may come one state or one county at a time, and officials sometimes feel that they have little incentive to change.
Nevertheless, these DNA exonerations and the clear evidence of contamination have served as a real wake-up call. Eleven states and the District of Columbia now require or encourage electronic recording of at least some interrogations by statute, and seven more state supreme courts have also done so. At least 500 police departments now videotape interrogations. It is to their benefit. As the Detroit Police Chief commented, “It’s a protection for the citizen that’s being interrogated. But from a chief's point of view, I think the greatest benefit is to police because what it does is provide documentation that they didn’t coerce.”
Q. There seem to be two immediate “effects” of a wrongful conviction: the actual offender is still loose, and an innocent person is going to prison. Can you comment on how those two ramifications differently galvanize the scope of work being done to prevent wrongful convictions?
DNA testing does more than free the innocent—it also identifies the guilty. In 45% of the 250 DNA exonerations, the test results identified the culprit. This most often occurred through a “cold hit” in growing law enforcement DNA databanks. The damage caused by these wrongful convictions extends far beyond the suffering of the innocent convict. Dozens of criminals continued to commit violent crimes for years until DNA testing identified them. Wrongful convictions are a civil rights issue but they are equally a law enforcement issue.
In the past, criminal procedure was seen as a tradeoff. Courts feared that too much due process might enhance fairness but would also let the guilty go free. These wrongful convictions upset that paradigm. Reforms like videotaping entire interrogations and double-blind line-ups both protect the innocent and secure more accurate evidence against the guilty. That is why criminal defense lawyers, prosecutors, judges, police, and lawmakers all share an interest in righting what went wrong in these exoneration cases. We all hope that our criminal justice system can more accurately convict the guilty and free the innocent.