Actual Innocence and the Convictions that Ensue
Is it me or is the regularity of false convictions starting to pierce the national media zeitgeist? I don’t remember such a steady drumbeat of stories about innocent people getting convicted prior to this year.
For example, there have recently been a slew of stories about the fragile nature of eyewitness identifications and how easy it is for officers to create a false memory. The overall storyline has been buttressed by the New Jersey Supreme Court case that clearly described and rejected bad identification techniques as well as the fact that the U.S. Supreme Court recently granted cert on an eyewitness identification case. I’ve tried to pull all of the articles together on the eyewitness identification page.
Then, earlier this year, there were a series of stories on NPR, Frontline and ProPublica about sudden child deaths and the misplaced investigations that ensue. Guilty Until Proven Innocent, is the name of one of the articles. Part and parcel of this line of stories is the new evidence making national news about the very shaky basis for shaken baby syndrome. Those articles are on the Shaken Baby Syndrome page.
Rick Perry has been getting a fair amount of grief for his successful hastening of the death of Todd Willingham, widely believed to be innocent and convicted based on discredited arson “science”.
The New York Times has an excellent video essay up right now about “The Innocent Prisoner’s Dilemma“. The innocent prisoner can gain release and other benefits by lying to the parole board about guilt so that “remorse” can be demonstrated. But to show remorse, one has to jettison one’s morality and any chance of proving one’s innocence. The story assumes the protagonist defendant’s guilt even though there’s no DNA that “proves” innocence.
Another angle on the story of innocence is about false confessions. The Economist recently reviewed some of the recent studies showing that “People have a strange and worrying tendency to confess to things they have not, in fact, done”: Silence is Golden. Between a quarter and a half of subjects confessed to incidents which had not actually occurred. Confessions increased significantly when the investigators added the technique of confronting subjects with “evidence” of guilt which they (obviously) did not have. Presumably, using the full Reed technique would increase false confessions even more effectively.
And, of course, we now regularly hear stories about DNA exonerating people of very serious crimes. The Innocence Project has done amazing work not just getting people out of prison but in keeping the issue in the news.
We’re getting to the point at which we can discuss the issue with jurors and expect that they understand that false convictions are a real danger of which they should be incredibly wary. However, this increasing knowledge of the reality of our criminal justice system is still outweighed by our innate and powerful need to live in a world where justice is not random. The idea that the state destroys innocent lives and allows dangerous criminals to roam free is too much to bear. The vast majority of people will still believe that the justice system gets it right the vast majority of the time. They need to believe it. My point is that if you do bring up the disturbing tendency of the criminal justice system to convict innocent people, it’s important to do it in a way that is consistent with the idea that the criminal justice system gets it right most of the time. It’s just that your case is one of those times in which the system got it wrong. It’s sort of like the widespread belief that defendants use the insanity defense to stay out of prison. You don’t need to fight that belief in your GEI defense. In fact, you can leverage it to your benefit if your client is clearly mentally ill, reducing the question to whether the client is, in fact, making the whole thing up. Since he’s obviously not, your case must be one of the rare cases that truly deserves the benefit of the insanity defense.