Introduction

Convicting the innocent is nothing new. In 1932, Edwin M. Borchard wrote Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice. Borchard was not a defense attorney and in the introduction he reveals he was not particularly interested in criminal law, but as a law professor at Yale University, he could not ignore injustice. He found flaws in the criminal just system that were too shocking to tolerate. Today the Innocence Project and others find the same flaws, often through new DNA evidence that exonerates the wrongfully convicted. How did Borchard argue innocence without DNA? One explanation is that some were convicted of crimes when no crimes occurred. When a murdered person returns or is found, and says, “Hi, I’m alive,” the person convicted for the alleged murder obviously did not commit a murder. No one did. As Borchard writes:

In the cases chosen for inclusion, the innocence was established in various ways: by the turning up alive of the alleged “murdered” person; by the subsequent conviction of the real culprit; by the discovery of new evidence demonstrating in a new trial or to the Governor or President, as the basis for a pardon, that the wrong man was convicted. There are, in practice, many cases in which pardons are granted without indication or admission of an erroneous conviction, although it seems fairly evident that the prisoner was actually innocent, presumably in order to save the prestige of prosecuting officials or for some other reason. Such cases could not be used for this collection.

The Innocence Project confirms what Borchard found:

DNA Exonerations Nationwide
There have been 317 post-conviction DNA exonerations in the United States.

• The first DNA exoneration took place in 1989. Exonerations have been won in 38 states; since 2000, there have been 250 exonerations.
• 18 of the 317 people exonerated through DNA served time on death row. Another 16 were charged with capital crimes but not sentenced to death.
• The average length of time served by exonerees is 13.5 years. The total number of years served is approximately 4,249.
• The average age of exonerees at the time of their wrongful convictions was 27.

Races of the 317 exonerees:
199 African Americans
94 Caucasians
22 Latinos
2 Asian American

• The true suspects and/or perpetrators have been identified in 154 of the DNA exoneration cases.
• Since 1989, there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused.
• In more than 25 percent of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted during the criminal investigation (the study, conducted in 1995, included 10,060 cases where testing was performed by FBI labs).
• 65 percent of the people exonerated through DNA testing have been financially compensated. 29 states, the federal government, and the District of Columbia have passed laws to compensate people who were wrongfully incarcerated. Awards under these statutes vary from state to state.
• An Innocence Project review of our closed cases from 2004 – 2010 revealed that 22 percent of cases were closed because of lost or destroyed evidence.
• The Innocence Project was involved in 173 of the 317 DNA exonerations. Others were helped by Innocence Network organizations, private attorneys and by pro se defendants in a few instances.
• 30 of the DNA exonerees pled guilty to crimes they did not commit.
Leading Causes of Wrongful Convictions

These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed. For more than 15 years, the Innocence Project has worked to pinpoint these trends. Many wrongful convictions overturned with DNA testing involve multiple causes.

Eyewitness Misidentification Testimony was a factor in 73 percent percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions. At least 40 percent of these eyewitness identifications involved a cross racial identification (race data is currently only available on the victim, not for non-victim eyewitnesses). Studies have shown that people are less able to recognize faces of a different race than their own. These suggested reforms are embraced by leading criminal justice organizations and have been adopted in the states of New Jersey and North Carolina, large cities like Minneapolis and Seattle, and many smaller jurisdictions.

Unvalidated or Improper Forensic Science played a role in 49 percent of wrongful convictions later overturned by DNA testing. While DNA testing was developed through extensive scientific research at top academic centers, many other forensic techniques – such as hair microscopy, bite mark comparisons, firearm tool mark analysis and shoe print comparisons – have never been subjected to rigorous scientific evaluation. Meanwhile, forensics techniques that have been properly validated – such as serology, commonly known as blood typing – are sometimes improperly conducted or inaccurately conveyed in trial testimony. In other wrongful conviction cases, forensic scientists have engaged in misconduct.

False confessions and incriminating statements lead to wrongful convictions in approximately 27 percent of cases. Looking only at the homicide cases, false confessions are the leading contributor to wrongful convictions, contributing to 64 (62%) of the 104 homicide wrongful convictions that were overturned by DNA evidence, where as misidentifications contributed to only 32 (31%) of the homicide wrongful convictions. Thirty of the DNA exonerees pled guilty to crimes they did not commit. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings.

Informants contributed to wrongful convictions in 18 percent of cases. Whenever informant testimony is used, the Innocence Project recommends that the judge instruct the jury that most informant testimony is unreliable as it may be offered in return for deals, special treatment, or the dropping of charges. Prosecutors should also reveal any incentive the informant might receive, and all communication between prosecutors and informants should be recorded.

In 1937 and 1938, when Albert Dyer was tried an hanged, there was no DNA evidence to prove his innocence or guilt; there was, however, enough knowledge, including what we would call “forensic evidence,” to show Dyer innocent, had anyone slowed down enough to look at it closely. While it is possible back then no one thought any innocent capable of confessing to an atrocious crime, Borchard recounted how it happens in his chapter titled “A Corpse Answers an Advertisement: The Boorn Brothers”:

Russel Colvin was missing and there was strong suspicion he was murdered. Jesse Boorn charged his brother Stephen with the murder and repeated a story Stephen supposedly had told him. Eventually Stephen Boorn confessed to killing Russel Colvin. After a jury guilty verdict the Boorn brothers where sentenced to hang on January 28, 1820, but Stephen talked his lawyer into putting an advertisement in the paper to locate Colvin.  “The day after the article appeared in the Post, it was read aloud in a New York hotel. James Whelpley, a former resident of Manchester, was present. He knew Colvin and told a number of anecdotes about him. Mr. Tabor Chadwick of Shrewsbury, New Jersey, happened to be standing nearby, and the story made a deep impression upon him. It finally occurred to him that a man answering Colvin’s description was living with his brother-in-law, William Polhemus, in Dover, New Jersey. Mr. Chadwick wrote the Post, saying that the man who lived with his brother-in-law appeared to have once been a resident of Vermont, for he occasionally spoke of Manchester, mentioned the names Boorn, Jesse, etc., and seemed to have considerable knowledge of the town and its people. Mr. Whelpley saw Mr. Chadwick’s letter in the Post and decided to go to Dover and investigate.

“Mr. Polhemus was informed of the mission, and it was agreed that nothing should be said to Colvin until Mr. Whelpley decided whether he recognized him. When Colvin came in from work he looked sharply at Whelpley, but said nothing. Presently Whelpley called him by name. Colvin said there must be some mistake; that Colvin had been his name once, but that he was another man now. By gradually drawing him out, Whelpley became convinced that there was no doubt as to his identity.

“Colvin would not consent to go home, however, and only after considerable persuasion would he return to New York with Whelpley. By a ruse Whelpley got him on to a boat bound for Troy. As Troy was not far from Manchester, Colvin finally agreed to return to his old home. The arrival of Whelpley and Colvin in Manchester was a festive occasion. After Colvin had been greeted by his former friends and neighbors, he and Stephen were brought face to face. Seeing the fetters on his brother-in-law, Colvin asked, ‘What is that for?’

“’Because they say I murdered you,’ Stephen replied.

“’You never hurt me,’ said Colvin. ‘Jesse struck me with a briar once, but it did not hurt me much.’”

A more contemporary case in our age of enlightenment since the Supreme Court of the United States required the well known Miranda warnings (You have the right to remain silent….) is recounted in recent book also entitled Convicting the Innocent. Author Brandon L. Garrett subtitles his “Where Criminal Prosecutions go Wrong,” and he tells of an interrogation and false confession uncannily similar to Albert Dyer’s:

Recording entire interrogations is an important step but is not enough. If the recording shows that the confession was contaminated, and prosecutors nevertheless pursue the case, the judge should step in to assess whether the confession should be excluded as unreliable. David Vasquez’s case provides a cautionary tale. Vasquez was borderline mentally retarded, and he was interrogated by the police after becoming a suspect. The police had determined “that the bindings used to secure [the victim’s] hands had been cut from the venetian blinds in the sunroom. The noose employed for her execution had been cut from a length of rope wrapped around a carpet in her basement.” Part of the interrogation was recorded. It was obvious from the recording that Vasquez had no idea what was used to bind and murder the victim:

Det. 1: Did she tell you to tie her hands behind her back?
Vasquez: Ah, if she did, I did.
Det. 2: Whatcha use?
Vasquez: The ropes?
Det. 2: No, not the ropes. Whatcha use?
Vasquez: Only my belt.
Det. 2: No, not your belt…Remember being out in the sunroom, the room that sits out to the back of the house?…and what did you cut down? To use?
Vasquez: That, uh, clothesline?
Det. 2: No, it wasn’t a clothesline, it was something like a clothesline. What was it? By the window? Think about the Venetian blinds, David. Remember cutting the Venetian blind cords?
Vasquez: Ah, it’s the same as rope?
Det. 2: Yeah.
Det. 1: Okay, now tell us how it went, David—tell us how you did it.
Vasquez: She told me to grab the knife, and, and, stab her, that’s all.
Det. 2: (voice raised) David, no, David.
Vasquez: If it did happen, and I did it, and my fingerprints were on it…
Det. 2: (slamming his hand on the table and yelling) You hung her!
Vasquez: What?
Det. 2: You hung her!
Vasquez: Okay, so I hung her.

The feeding of facts to David Vasquez was blatant—and it was caught on tape. Nevertheless, the judge denied the motion to suppress the confession. Facing the death penalty, Vasquez then chose to plead guilty rather than risk a trial. He was exonerated by postconviction DNA testing five years later.