Why We Convict the Innocent

Convicting the Innocent
Where Criminal Prosecutions Go Wrong
Brandon L. Garrett
March 31, 2011

By Brandon L. Garrett, a professor at the University of Virginia School of Law. You can follow updates related to Garrett’s book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” at the book’s Facebook page here.

On January 20, 1984, Earl Washington, Jr. was found guilty of rape and murder in the state of Virginia and sentenced to death. After nine years on death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man. 

DNA exonerations have shattered confidence in the criminal justice system by exposing how often we have convicted the innocent and let the guilty walk free.   Wrongful convictions are ubiquitous in the news.  In just the past few weeks, yet another innocent man was freed by DNA tests in Virginia.  Improvements to eyewitness identification procedures in response to wrongful convictions have been considered by legislators, scandals have wracked  dozens of crime laboratories and Congress is considering legislation in response, and the U.S. Supreme Court ruled that civil rights actions can be used to seek DNA testing, In my new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, I examine what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing. I studied their trial transcripts, pre-trial hearings, appellate and post-conviction rulings, and confession statements. 

A close look at the transcripts from Washington’s original criminal trial sheds light on how he was convicted in the first place.  His lawyer had never tried a death penalty case before, and it showed.  The guilt phase of the trial was only five hours long.  The prosecution presented a series of witnesses, but Washington was defended for all of forty minutes. His lawyer never claimed he was innocent, never challenged his confession, and never hired an expert to develop how he confessed due to mental retardation. The jury heard that Washington confessed to a series of details that supposedly only the killer could have known. We now know this confession was false and this mentally retarded young man likely just answered “Yes, sir,” each time law enforcement told him more about how the crime happened.

Had it not been for the invention of DNA technology, Washington, who at one point came within nine days of execution, would have lost his life. We would have rested secure that there was overwhelming evidence of his guilt in the form of his confession. 

As I tell the gripping stories of cases like Washington’s, I show how they do more than show individual miscarriages of justice — more important, they reveal larger patterns of incompetence, abuse, and error. While we now know these defendants were innocent, at the time of the trials, many of the cases seemed uncannily watertight.  The evidence was corrupted by suggestive eyewitness procedures, coercive interrogations, unsound and unreliable forensics, shoddy investigative practices, cognitive bias, and poor lawyering.

Thus, I tell the story of Gary Dotson, who was convicted based on invalid and unreliable forensics.  I tell the story of Habib Adbal, who was convicted based on shockingly suggestive  eyewitness procedures.  I tell the story of Jeffrey Descovic, whose confession, like Earl Washington Jr.’s, was contaminated. I tell the story of David Gray, who was convicted based on the elaborate lies of a jailhouse informant.  Each those dramatic cases are those of the lucky ones — the exonerated.  Very few crimes committed in the United States involve biological evidence that can be tested using DNA. How many unjust convictions are there that we will never discover?  

In the past, criminal procedure was seen as a tradeoff. Courts feared too much due process might enhance fairness but would also let the guilty go free. I argue that these wrongful convictions upset that paradigm. Reforms like videotaping entire interrogations, adopting scientific standards for forensics, and using double-blind line-ups are inexpensive, and they not only protect the innocent but they help law enforcement to secure more accurate evidence against the guilty. A close examination of what went wrong in wrongful conviction cases from the recent past shows how urgent those reforms still are today. In the book, I also tell stories about how we can get it right. I tell the story of Eddie Joe Lloyd, whose false confession led the Detroit Police Department to mandate videotaping of entire interrogations.  I tell the story of Ronald Cotton, whose eyewitness misidentification led to improvement of eyewitness procedures in North Carolina, which created our first Innocence Commission.  While we cannot give those innocent people back any of the years that they tragically lost, we can dedicate ourselves to preventing future wrongful convictions.