No one will ever know how many innocent people are imprisoned at any one time. Some wrongfully convicted inmates, without funds for legal counsel or investigators, and without knowledge of the work of innocence projects, will never have their claims explored. Others will be released due to issues raised on appeal that have nothing to do with innocence. Some will die in prison.
The number of wrongful convictions may be woefully obscure, but thankfully the law enforcement and legal communities across the country are becoming increasingly clear on the causes of wrongful convictions, as well as their remedies. Chief Justice I. Beverly Lake took the first steps in this state in November 2002 by creating the North Carolina Actual Innocence Commission to study and recommend potential strategies to substantially lessen the incidence of wrongful convictions. The Commission, which is ongoing, is currently studying the work of innocence review commissions. The Commission has issued recommendations for eyewitness identification. North Carolina’s law enforcement agencies are increasingly implementing the Commission’s eyewitness recommendations.
I. Mistaken eyewitness identification: Mistaken Identification is a major cause of wrongful convictions. Yet, eyewitness testimony has for years been the bedrock upon which many cases have been brought to trial. In 1999, the National Institute of Justice estimated that each year 75,000 people are charged with a crime in the U.S. due to eyewitness identification. Indeed, many defendants have been convicted on the basis of this testimony alone. New research on the fallibility of human memory – especially when stored under stress – has now shaken the credibility of this form of identification. Many other influences can affect the accuracy of eyewitness recall: lighting, distance, age, intoxication, and a difference in the races of the perpetrator and the eyewitness. Indeed, even witnesses who consciously try to notice identifying characteristics of the perpetrator – as Jennifer Thompson did during her rape in North Carolina – can be terribly wrong in their subsequent identification of a suspect.
Police procedures long used by victims and witnesses to identify perpetrators are now found to have compounded identification problems. Research reveals that the traditional method of photo line-ups in which an eyewitness is simultaneously shown six to ten pictures - of a suspect and “fillers” – can influence people to choose the individual who looks more like the perpetrator than anyone else in the line-up, rather than identifying the perpetrator himself.
Remedies: In 1999, the U.S. Department of Justice issued recommendations on new eyewitness identification procedures. Law enforcement agencies are slowly starting to institute sequential double-blind photo spreads and line-ups. Eyewitnesses are shown photos or individuals one at a time by a police officer who does not know who the suspect is. This double-blind precaution insures that the officer does not inadvertently influence the witness’ choice. In October 2003, the North Carolina Actual Innocence Commission released its recommendations for eyewitness identification in North Carolina. Defense attorneys are now beginning to challenge faulty eyewitness identification procedures in court.
II. Forensic Fraud or Error: Forensic error can begin at the site of a crime. Improper collection, labeling, or preservation of evidence, or the less than complete processing of a crime scene, can be the first steps in the road to conviction for an innocent person. Once at the lab, errors can multiply. Thousands of cases across the nation have been recently been re-examined after serious problems were uncovered in forensic testing by
One other aspect of forensic testing that cannot be overlooked is testing that has yet to be done. Advances in DNA technology have made possible the testing of rape kits for conclusive proof of guilt or innocence. North Carolina has a backlog of thousands of cases in which kits need DNA testing. Legislation passed by North Carolina’s General Assembly in July 2004 will promote swifter processing of those rape kits.
Remedies: The rights of the innocent would be well served by a formal accreditation system for law enforcement laboratories that would examine a wide range of issues, including training, chain of custody procedures and the analysis of testing results. Additionally, the rigorous examination of scientific testing technique and testimony before a forensic expert takes the stand should be standard operating procedure for prosecutors and defense counsel. Thorough processing of crime scenes allows for the collection of all evidence that would exonerate the innocent and incriminate the guilty.
III. False/Coerced Confessions. The illogic of this term may seem self-evident to the average person on the street (or seated on a jury). After all, an innocent person wouldn’t confess to a crime. … Yet, in the now infamous ‘Buddhist Temple’ case of 1991, four innocent people confessed to multiple homicides.
The reasons for false or coerced confessions are, unfortunately, myriad. Suggestive questioning can lead to a loss of confidence in one’s own reality.
Remedies: Videotaping interrogations creates a real-time record that captures many aspects of the interview process, including any implied or overt threats by officers toward the suspect, body language, the setting for the interview, and the physical condition of the suspect, including any injuries or overt signs of intoxication or exhaustion. Additionally, the knowledge that videotaping is underway acts as a deterrent to any law enforcement officials overly focused on wrapping up a case – at the cost of an innocent person’s freedom. Videotaping of confessions also provides valuable insight into the conditions of the confession and how freely it is given.
IV. Police/Prosecutorial Misconduct: Alan Gell won a retrial because two North Carolina prosecutors failed to present exonerative evidence at his first trial. Such misconduct – while confined to a minority of prosecutors and police - is increasingly drawing the attention of the news media and courts across the country. Political concerns, paired with the pressures of our adversarial system of justice, influence some prosecutors and law
Alan Gell hugs his attorney Jim Cooney after being found not guilty in the 1995 murder of Allen Ray Jenkins at the Bertie County Courthouse.
Remedies: Open discovery. Discovery refers to evidence to be presented at trial that one side (e.g. prosecution or defense) must share with the other. The North Carolina General Assembly recently passed a bill that will require each side to, if requested, reveal more information before trial. Defense attorneys will now have more complete access to police reports and witness statements, among other things. Increase Prosecutorial Accountability via stricter oversight and increased sanctions for prosecutorial abuse. Train police to resist the pressure to bring open cases to premature closure.
V. Inadequacy of Defense Representation: The stories of unacceptable representation on capital cases are now widely known, but such representation is not limited to capital cases. Economics plays no small part in this. In North Carolina, attorneys paid by the state’s Office of Indigent Defense Services [http://www.aoc.state.nc.us/www/ids/] make substantially less money than well-established private attorneys. Thus, while many attorneys paid by the state are highly skilled, the indigent are more at risk than the general population to have counsel who are less experienced. Similarly, public defender offices are often under-funded, thus leading to high caseloads that prohibit adequate trial preparation and minimal investigation. Under these circumstances, the pressure to encourage inappropriate guilty pleas can be enormous. Needless to say, substance abuse among defense counsel and the inadequate use of experts are but a few of the additional flaws in a defense that can lead to the conviction of an innocent person.
Remedies: Increase funding to the offices of public defenders and increase the fee rate of other court-appointed attorneys. Give greater weight to Ineffective Assistance of Counsel claims on the appellate level. Increased oversight of the defense bar.
VI. Jailhouse Informants: The best laid claims of innocence can shattered in an instant under the weight of an informant’s false testimony in court. An informant’s motives for lying on the stand may be many: he may wish to have a sentence reduction for a current conviction or to lessen pending charges. There may be ‘bad blood’ between the informant and the defendant, or an informant may be under threat from another inmate to testify against the defendant. All too often, jurors do not hear about these motives; nor are they told about the deals that prosecutors make with informants. See the opinions appearing the American Bar Association's Criminal Justice Magazine.
Remedies: Open discovery will remove some of the element of surprise for the defense. Sanctions must be developed and enforced against prosecutors who offer undisclosed deals in exchange for testimony or who do not thoroughly investigate the informants’ claims before putting them on the stand.
No discussion of remedies for wrongful convictions would be complete without commenting on the possible establishment of innocence review commissions. These state-sponsored entities would offer a formalized procedure for reviewing credible claims of innocence by inmates. No such agency yet exists in this country, but Britain’s review agency, the Criminal Cases Review Commission, is being studied as a model by the North Carolina Actual Innocence Commission.