Innocent People Falsely Convicted of Crimes
Sharon Cornet
Ashford University
Social Science Capstone – SOC 490
Professor: John Moore

March 25, 2010

  

Innocent People Falsely Convicted of Crimes

           People are put in prison for crimes every day in this country, but how do innocent people, accused of a crime, wind up in prison on false charges?  What segment of the population does this happen to?  Why does it happen?  What checks and balances exist to help prevent this from occurring in the adversarial-style criminal justice system in place today?  What help is available to convicted innocents to get exonerated and released?  This author will examine the research that has already been done and compare that with a case study from El Paso, Texas that she is already intimately aware of, in an effort to answer these questions.  The ease for prosecutors, whose job is to “win” convictions, is simply procedural, but it is this adversarial system, as opposed to a restorative approach that makes it so difficult for convicted innocents to find help in exoneration, let alone retribution and/or compensation. 

          Normal procedures for criminal cases typically involve an investigation of an individual based on a tip from someone else, a voluntary confession, or being caught in the act by police officials, among other scenarios.  If there is enough “evidence” an arrest warrant is issued by a Judge, or an arrest can occur with approval of the District Attorney’s (DA’s) office for the county in which the accused resides, as well as voluntary arrest where the person(s) turns themselves in.  Bond is usually posted, and if the person has 10% of the bond money amount, they can typically get out of jail on bail, with strict criteria to not skip out of town, and to attend all court hearings, including the trial, which is usually a jury trial.  The indictment (actual charges against the individual) comes soon after the arrest, and the arraignment follows (this is how the accused pleads – normally as “not guilty”).  After that may be a series of trial dates, which are often postponed until the defense is fully ready to attend the actual trial, which can take up to a few months to a few years.  In the meantime, according to what this author remembers from a 2007 non-credit Continuing Education course in Legal Investigation, the goal of the DA’s office (usually an Assistant District Attorney (ADA), who is also called a Prosecutor) is to work out a guilty plea that the individual would accept, to avoid a trial altogether.  The plea is often a lesser sentence or punishment than the risk they take going to court and being found “guilty” by the jury.  It is important to note that innocent people are sometimes pressured by their attorney(s) or the DA’s office to take a plea deal in order to avoid the often-fearful day in court, even if they are innocent.  Those who hold out, refusing to admit guilt, and yet still find themselves convicted of a crime they did not commit, are considered being of “actual innocence,” although it is very hard to prove, especially once a conviction has occurred.  The details of this scenario will be covered later.

Innocence and violence do not seem to go together, but are both related sociological issues, especially as it applies to a convicted innocent (CI).   The prosecution’s efforts to “prove” to a jury that the accused is “guilty” when they are not (more like “persecution”) could be easily considered an act of violence against the innocent defendant.  The concept of violence against the innocent can also be considered as relevant when a person must defend themselves against false accusations and conviction, since the accused has actually been treated as guilty, via the accusation itself, the arrest, and payment of monies to hire a defense lawyer (or one can obtain a court-appointed lawyer), and every step in between until s/he can try to convince the jury of his/her innocence in their day in court.   An attorney this author spoke with (Anonymous, 2006) said that it is “impossible to prove innocence” even though the goal is to try to avoid a “guilty” verdict (personal communication).  In effect, the violence against the CI is that they even have to go through this process at all, and must stressfully work to redeem themselves.  There is no monetary or psychological compensation for such scenarios if one is finally judged “not guilty,” and compensation for an innocent who is later freed and exonerated only happens in certain circumstances.  Other forms of violence include the actual sentence to prison for months or years, plus dangerous prison inmates who might threaten (e.g. death threats), rape, or otherwise stab or harm the innocent, labels appointed by fellow inmates against them, maltreatment by prison guards, personnel, parole officers, and so on.   These forms of violence by people are side effects of the criminal justice system and how it functions, which produces the situation(s) in which these types of structural violence scenarios occur against the convicted innocent.
           Public policy and private action both are sociological issues that the CI must deal with in working to exonerate themselves once the damage is done.  From prison their resources usually include a law library where they can look up the information needed to help work towards freedom (such as habeas corpus, typically a “last resort” ditch effort after an appeal has been attempted – it is important to note that law libraries are not always up to date and so may be inadequate for looking up public policy/laws).  Other options include:

1.      Hiring another lawyer who knows the up-to-date laws

2.      Utilizing universities, governmental or other entities such as the Judicial or State Bar Associations to file grievances against officials that broke the law to gain the false conviction

3.      Using the media (newspapers, television, books, and so on) to get the word out to the public at large about the false conviction

4.      Contacting non-profit organizations or businesses or individuals who help CI’s find freedom (such as the ACLU, civil rights groups, groups that deal with DNA or non-DNA exonerations)

5.      Utilizing social networks on the outside, including their home church, prison ministries, and friends and family who can write, collaborate and/or work to help the CI find exoneration

 

           So just where does the CI fit into the bigger picture of incarcerated individuals – considered “criminals” even though a minority is innocent?  At a worldwide level the statistics are staggering as to just how many people the United States incarcerates annually (Anonymous, 2008):

China, a repressive country that spies on its citizens and locks them away for relatively minor offenses, has about 1.5 million people in its prisons and jails. The United States has 2.3 million, and our population is only about one-fourth that of China. America imprisons a far higher percentage of its citizens than any other country in the world. About one of every 100 American adults is now in prison or jail. That's five times the rate of incarceration in England and nearly nine times the rate in France. … Obviously, it is absolutely necessary to lock up violent offenders and sexual predators who threaten society. But many of those imprisoned in this country don't fit that description. Nearly half of those incarcerated in Missouri, for example, are nonviolent offenders … and other states also were passing laws requiring parolees to be sent back to jail for "technical" violations of their release, such as missing a counseling session. Again, sometimes these types of violations justify a return to prison. But sending everybody back, regardless of the circumstances, needlessly clogs prisons with inmates. … Some people say that sending more lawbreakers to prison has reduced crime rates. But the statistics on that cut both ways: Crime rates were down in Florida, for example, which increased its prison population by about 5 percent last year, but crime rates also were down in states like New York, which reduced its prison population by 1.1 percent last year. (para. 2-5, 9-10)

 

     Older statistics regarding Texas in 2000, were very similar:

• Texas just earned the dubious distinction of having the largest prison population in the country (163,190), surpassing the prison population of California (163,067), which has 13 million more citizens than Texas. The Lone Star State has more than 700,000 of its citizens under criminal justice control.
The average annual growth of Texas' prison population during the 1990s (11.8%) was not only the highest growth in the nation, but was almost twice the average annual growth of the other US states (6.1%) during the 1990s.
If Texas were a country, it would have the highest incarceration rate in the world, easily surpassing the United States and Russia, the next two finishers, and seven times that of the next biggest prison system in China.
• Blacks in Texas are incarcerated at seven times the rate of whites, and nearly one in three young African American men in Texas is under some form of criminal justice control. The incarceration rate for Blacks in Texas is 63% higher than the national incarceration rate for blacks. (http://www.november.org/razorwire/rzold/20/20019.html). 

 

           Texas’ incredible problems for 2000 put Texas over the top in terms of not just being the worst state in the nation for incarceration rates, but also the world.  According to the Justice Policy Institute’s report there is little connection with tougher policies and lowered crime rates:

Despite the simplistic connection drawn by some that harsher crime policies lead to safer communities, there is little evidence that Texas' severe correctional system is responsible for the drop in crime. In 1980, when Texas had a prison population of 30,000, the state's crime rate was 10% above the national average. Eighteen-years, and 130,000 prisoners later, the Lone Star State's crime rate was 11% above the national average. So, after 18 years, and a monumental growth in imprisonment, Texas' crime rate is not just higher, but increasingly higher, than the national average. (http://www.justicepolicy.org/images/upload/00-10_REP_TXTexasTough1_AC.pdf, p. 8).

 

            According to a lady at a prison ministry that helps families at two prisons in central Texas, it has been her personal observation – over the last 11 years – that this state has been known for its extremely harsh sentences, particularly in Harris County (Houston area), and is especially known for its corruption in El Paso County (Christesson, 2009, personal communication).  Even earlier, in 1995, the statistics by Piehl, and DiIulio (1995) show that most convicts have a history of criminal activity, and that there are issues with accuracy when it comes to plea-bargaining:

Most state prisoners have long juvenile records … According to our New Jersey survey, two out of three prisoners had served time in a juvenile institution. Other studies have shown that about 60 percent of youths aged 18 and under in long-term secure facilities have a history of violence. … more than 90 percent of all criminal cases do not go to trial because the offender pleads guilty to a lesser charge. Even violent crimes are routinely plea-bargained--an estimated 77 percent of rape cases, 85 percent of aggravated assault cases, and 87 percent of robbery cases. Unless one believes that all charges that are plea-bargained away are for crimes that the offender did not commit, then one must admit that actual crimes are swept under the criminal-records rug by plea bargaining. (para. 6-8)

 

            It appears that the problems of the past have infiltrated the present.   This aspect of juvenile criminal history one of the issues that was not applied properly (or rather ignored) in the current case study of a CI, whom we’ll call “Mr. A” in El Paso, Texas.  He was convicted as a sex offender in 2009 for allegedly molesting his step-daughter.  The accused had no history of juvenile delinquency, and in fact had no history whatsoever of criminal activity of any kind.  He was a professional with a PhD in the sciences, was a near-retirement professor, and had raised children in two previous marriages with absolutely zero history of any criminal sexual activity (his ex-wife was a witness and testified to this fact).  Mr. A was falsely accused and framed by a corrupt cop.  This cop had Brady Material on him for committing other illegal activities while on the job, including having a history of coercion, which is what occurred to Mr. A when the cop violated Miranda rights and spousal privilege, and made threats against him.  The cop said that the CI “fit the profile” but evidently ignored the fact that Mr. A had a completely clean record.  Despite the fact that the actual perpetrator (we’ll call him “Mr. B”) lived next door and also had no criminal history, it is important to note that Mr. B confessed and admitted to molesting the girl for a 2-year period, taught her to lie (she already had cognitive problems since birth and was easily swayed, and often confused fact with fantasy), and he was mentally ill and on permanent disability due to his psychotic problems.  Mr. B heard voices, and they told him to molest the 6-8 year old girl, so he did.  Mr. B accepted a guilty plea of 10 years probation with no prison time, is presently a registered sex offender, but is out FREE to live at his house next door (the Judge refused to enforce removing him so the girl could come back home to live with her mother).  Mr. A refused to accept a guilty plea and went to trial (with his step-daughter trying to reverse her original confusion and stories about what she accused him of, as well as his wife and mother-in-law and others as witnesses saying they believed he did not molest her), but the prosecutor brought in the corrupt cop to testify despite the Brady Material, and violated Mr. A’s constitutional rights in order to convict him.   Mr. A is presently serving a 10-year sentence in prison for a crime that the real perpetrator admitted to doing, and has lost his freedom, his job, income, reputation, and tens of thousands of dollars for lawyers and legal fees.  Both men (Mr. A and Mr. B) were prosecuted by the same ADA.

           In this case the effects of the plea bargaining were most obvious, with a no-prison-time type of “freedom” to Mr. B (who actually molested the girl), and an innocent man in prison for what might be the rest of his life (at Mr. A’s age).  The ADA in this case appears to have not done their homework in the discovery process early upon receiving the case, and/or they simply ignored exculpatory evidence that pointed to Mr. A’s innocence (which was provided by the girl in the CPS interview, as well as a conversation the girl had with the ADA in their private office).  According to Yaroshefsky (2008) most state cases dealing with felonies, “in federal court, the process is an adversarial model with a more formal process and, hopefully, adequate defense investigation and strategic discussion with the prosecution” but remember that the prosecution is the one who comes up with the details of the plea deals (para 1).  Yaroschefsky continues by insisting that the “consequence of this ‘guilty plea system of justice’ should be a renewed focus on the ethical obligations” and that “the entry of a guilty plea should require not only the litany of constitutional rights that the defendant relinquishes, but an inquiry of the prosecution as to whether it has complied with its obligation to investigate and disclose all evidence or information known to the prosecutor that ‘tends to negate the guilt of the accused or mitigates the offense’” (para 1).  Had any or all of this occurred in this case, Mr. A’s case would have been properly dismissed rather than pursued all the way to an unconstitutional trial.  Mr. A is presently waiting in prison for an approximate two-year period on his appeal to see if he will be granted a new trial.

           Obviously there were major problems with Mr. A’s case.  What kinds of other problems within the criminal justice system occur that promote the false imprisonment of other CI’s?  According to Acker (2009):

The ICVA (Innocence Commission for Virginia) case review identified nine leading factors contributing to the miscarriages of justice: erroneous eyewitness identifications; suggestive identification procedures; "tunnel vision," or the premature focusing by law-enforcement personnel on a particular suspect; reliance on antiquated or faulty forensic testing methods; inadequate defense counsel; the failure by prosecution, the police, or both to disclose exculpatory evidence; the interrogation of suspects suffering from mental incapacities; overreliance by police on inconsistent statements as evidence of a suspect's guilt; and inadequate post-conviction remedies to address wrongful convictions. (para. 5)

 

            According to the Innocence Project (who deal in DNA cases only) out of New York, wrongful convictions occur due to “eyewitness misidentification; negligence, misconduct and poor training in forensic laboratories; false confessions; the use of jailhouse informants; incompetent or inadequate defense lawyering; and prosecutorial/police mistakes or misconduct.” (http://www.innocenceproject.org/Content/96.php)  The similarities in their findings, compared to the ICVA, into reasons why false convictions occur, are intriguing.  This author thinks that one of the reasons why these things keep reoccurring in cases throughout the nation is due to structural violence… the functional qualities of the criminal justice system (i.e., how it is set up and “runs” or functions), the inherent built-in limitations and lack of checks and balances, and the outright abuses and/or cases of negligence by officials within that system. 

            The criminal justice system in America is Retributive (adversarial - http://www.beyondintractability.org/essay/retributive_justice/?nid=1015) rather than Restorative (http://www.beyondintractability.org/essay/restorative_justice/).  This adversarial system pits one side of the argument (“guilt” by the prosecution) against the other (“innocence,” or rather the negative term “not guilty” by the defense) and causes each side to have to defend their position as extreme opposites, with the defense making their client seem as innocent as possible, while the prosecution makes the defendant look/appear as guilty as possible.  There are rules on exculpatory evidence, evidentiary insufficiency, court behaviors by the attorneys and the Judge, and so on, where the methodology is designed to restrict any possible flaws in the system, but since no system is perfect, and no person acting within it is perfect, errors are inevitable, which every CI personally understands all too well.  Appeals courts are in place because these flaws show up all too often, and should be corrected, although the appellate system is imperfect as well.  A system with more efficient checks and balances would preclude a fair trial.  Actual innocence is hard to prove, and is usually reliant on solid, documented facts or DNA. 

            If Restorative Justice were in place, rather than Retributive, it would be an interesting comparison (or contrast).  The problems mentioned above for Texas – as the world’s leading incarcerator – might have a chance for improvement if more ethical and transparency measures were in place.  Still, what does Restorative Justice focus on exactly?  According to Gottschalk (2006) this type of focus regarding the “carcerial state” (the USA) and violence against women has led to “some promising experiments to address domestic violence and other crimes through restorative justice and alternative community programs that seek some type of reconciliation between victim and offender” (Section V, para. 1) This focuses more action between the victim(s) and the accused, with the State acting as mediator, to work out alternative forms of punishment.  Some programs offer more hours of community service work, or other options.  This method may or may not work for violent crimes, but having more transparency and alternative options toward reconciliation within the criminal justice system would most certainly help prevent the wrongful conviction of CI’s.  There are, of course, other social-cultural factors that contribute to the issues surround wrongful imprisonment.

Social-cultural problems regarding CI’s, which this author includes, are the concepts of deviancy, violence, education levels, gender, socio-economic factors, sub-cultural factors, ethical/moral factors, religion, enculturation and ethnocentrism, public policy, and private action. 

            Criminology works specifically with social controls (including imprisonment) to deal with criminally deviant behaviors.  Americans in general tend to see and treat the concept of deviancy with disgust, even if someone is accused and not yet convicted.  Just having been merely accused of a crime has caused innocent people to lose family coherence, friends, jobs, and more.  One doesn’t have to imagine very far into the result of what conviction would do to these same social groups, against the CI, whether actually innocent of any sort of criminally deviant behavior, or not.
           As stated above, structural violence within the criminal justice system can affect the CI at a personal level by altering their life and freedom.  Similar acts of ethical violence can also occur in or out of court by the DA’s office personnel, expert (or other) witnesses against the defendant, or even physical violence by police, prison guards, or inmates.  Violence can also occur outside of prison, after a CI is exonerated, by neighbors or others who refuse to believe the person is actually innocent. 
            Statistics have shown that there is an inverse relationship between education and crime or deviant behavior (http://www.prisonpolicy.org/scans/research_brief__2.pdf) since higher education levels are a deterrent to committing crimes, and it is well known that the majority of criminals have low education and often come from low-income levels.  In the case of Mr. A, as with a lack of a previous criminal history, he did not fit the profile for low-income, nor low education levels.  Profiling, although commonly used by investigators, is actually the ecological fallacy, where having certain traits found in the aggregate data of groups are attributed to an individual, meaning persons are lumped into certain categories or labels such as “sex offender” just because one “fits the profile” in certain areas of a group’s typical behavior.
           Gender is also a social-cultural factor that is highly involved in the CI’s perplexing position.  Males are incarcerated at a much higher rate than females – only about 7% of all imprisoned individuals are women (http://www.realthinktank.com/2009/10/american-prison-statistics.html).  Just being male (and white, and a step-dad) was a big part of why Mr. A was profiled as a “sex offender” prior to the mere two-hour inquiry-under-duress by the investigator (no real investigation followed).  The CPS Investigator was so convinced of his guilt, prior to any investigation, that he told Mr. A’s family members that “he’s convicted” and then threatened them that if they “went against” him on it he would “fight” them “tooth and nail.”  This kind of I-am-judge-and-jury, anti-due process attitude should not have a place in official positions in governmental agencies.
            According to Lauer and Lauer (2006) there are socio-economic factors that have effects on society, which also relate to the CI; one of these is race, and the US population (in 2002) showed a breakdown of 80.7% for Whites, 12.7’% for Blacks, 13.4% for those of Hispanic origin, 4.2% for Asian/Pacific Islander, and 1% for Amerinds (p. 226).  Unemployment rates for Blacks have been consistently higher than for Hispanics or Whites, in descending order (Lauer and Lauer, p. 231).  Occupation types and income levels are also lowest for Blacks and Hispanics, compared to Whites (Lauer and Lauer, p. 233).  Furthermore, Lauer and Lauer (2006) say that “institutional racism was coined to refer to the fact that established policies and practices of social institutions tend to perpetuate racial discrimination” (p. 240).  This can be seen in the apparent discriminatory behaviors of the criminal justice system in which Blacks make up a much lower percentage of the entire U.S. population, and yet make up a much higher percentage of prisoners – add factors of gender and age to that and it boils up to a bad-tasting racial discrimination soup (http://www.prisonsucks.com/):

U.S. incarceration rates by race, June 30, 2006:
Whites: 409 per 100,000
Latinos: 1,038 per 100,000
Blacks: 2,468 per 100,000

Gender is an important "filter" on the who goes to prison or jail, June 30, 2006:
Females: 134 per 100,000
Males: 1,384 per 100,000

Look at just the males by race, and the incarceration rates become even more frightening, June 30, 2006:
White males: 736 per 100,000
Latino males: 1,862 per 100,000
Black males: 4,789 per 100,000

If you look at males aged 25-29 and by race, you can see what is going on even clearer, June 30, 2006:
For White males ages 25-29: 1,685 per 100,000.
For Latino males ages 25-29: 3,912 per 100,000.
For Black males ages 25-29: 11,695 per 100,000. (That's 11.7% of Black men in their late 20s.)

           If you are male, black, low income, with a low education level, unemployed, and between the ages of 25-29, then the chances of being incarcerated go up considerably.   If you are a CI then the profiling techniques using these statistics may definitely have been used against you.  There are also sub-cultural factors, such as gangs, drugs, social networks (friends, or “who you know” situations), and thought communities that can have a negative effect toward incarceration and becoming a CI.  Affiliation with any of these, or other “deviant” labeled groups, make it that much harder to stay out of prison, or especially to get out once convicted.
            Ethical/Moral factors are also an issue when it comes to social-cultural aspects of wrongful conviction.  Prosecutors know that it is their “job” to prosecute – not to necessarily investigate possible innocence, or worry about defamation against the accused (they have immunity after all); but still, they must adhere to the Criminal Justice code of Ethics, as well as any ethical rules held by the local DA’s office where they work.  Another consideration by prosecutors and lawyers is that of victims rights, although in the case of Mr. A, the ADA willfully broke the law and violated the family’s victims rights (a right guaranteed by law) by now allowing them to make a victims statement to the actual perpetrator (Mr. B) when the family had eagerly waited a year to do so.  Other ethical/moral factors are supposed to be adhered to when dealing with quality of life, as well as civil rights and human rights issues.
            Another social-cultural factor is religion.  Religion can help or hurt a CI before or after imprisonment.  In the case study, regarding the neighbor (the actual perpetrator), the multiple family members of the victim originally did not want to even pursue the criminal justice route against Mr. B due to religious/spiritual reasons and beliefs.  However, Mr. B tried to commit suicide due to his personal feelings of guilt, and told a friend of his what he had done, who then turned him in to the authorities.  After an inquiry CPS called the family and decided to pursue the case anyway.   The family did not want the girl to be interviewed for multiple reasons, including spiritual reasons, her cognitive problems and being emotionally immature for her age, and because she had already been through enough trauma.  Additionally, the mother had been raped as a teen and did not want her daughter going through the horrors of the investigation process like she did, plus Mr. B had already confessed and the family considered that “they had their man.”  When CPS pushed for an interview, the family found a lawyer but said to allow the interview anyway.  The consequences were devastating.  In an alternate scenario, if an Amish family chose to forgive and not condemn an individual, then their spiritual beliefs would be honored.  This was not the case with Mr. A and Mr. B because reconciliation or restorative justice efforts are not typically promoted.  Religious influences can help tremendously with counseling, and prison ministries, and other exoneration efforts, however.
            Enculturation & Ethnocentrism are also factors for the CI.   American ideals such as nationalism or patriotism are often associated with prejudice, bias, or even party affiliations (Republican, Democrat, and so on), which often push certain beliefs pro or con for things like capital punishment.  A CI that is in prison for murder may find themselves in a life or death sentence depending upon the national, regional, or even local attitudes of those who serve in the criminal justice system, or on a jury in a court trial.  Furthermore, there is both enculturation of ideals and attitudes, as well as an ethnocentric bent within the criminal justice system toward the accused.  The social theories of structural functionalism, conflict theory, or even symbolic interactionism do not give answers to the problems of the CI by themselves, but when taken together, along with comparative research design, much insight can be drawn out of the processes of how and why people are wrongfully convicted.  This will be touched on later.
           Public Policy is another social-cultural factor.  Laws or legislation are made by social institutions (Legislators) who are voted in by the public.  Also,
pardons given by a Governor of a state (or in the case of Texas, by a governing board) to an exoneree occasionally occur.  Judges can also be voted in/out of their
positions depending upon whether they have a history of fairness, taking bribes/favors, nepotism, or attributing to the wrongful imprisonment of a CI (or multiple
CI’s), and so on.  Legislation and public policy are also very important tools for the CI before and after incarceration.  For instance, the organization called TIFA
(Texas Inmates Families Association) listed the bills passed in 2009 (81st Legislative Session) in their June 1st email announcement for different areas, including
“Policies that Rebuild Confidence in the Criminal Justice System & Ensure Innocent Individuals Are Not Sent to Prison”:

CSHB 498 [McClendon, Thompson, Gallego, Hodge, Pierson]: Relating to the creation of a commission to investigate and prevent wrongful convictions. - Innocence amendments added to bill; Grits for Breakfast on HB 498

CSHB 1736 [Anchia, Davis, Y., Branch, Hodge, Isett]: Relating to the compensation of persons wrongfully imprisoned. - Signed by the Governor!

HB 2058 [Gallego, Miklos, Hodge, Lucio III, Christian]: Relating to the standards for attorneys representing indigent defendants in capital cases. - Signed by the Governor!

CSSB 1091[Ellis, Duncan]: Relating to the establishment of the capital writs committee and the office of capital writs.

CSSB 1681 [Hinojosa]: Relating to requiring the corroboration of certain testimony to support a criminal conviction.


           Private Action is the last social-cultural factor covered here.  Private action for CI’s is typically dependent upon who/what the person knows, whether they can afford a lawyer, what kind/type of law is being addressed (e.g., constitutional law, criminal, civil for lawsuits, and the like), what organizations and institutions and businesses are available to them, and whether individuals, the law library, or even media can help or aid them in any way to find exoneration at their own expense and effort.

           The two most significant challenges in finding exoneration for CI’s is: Who will help? and Who will pay?  Regarding Who will help?: Aid can be found in various forms of government, such as those mentioned in the legislative bills above, or the Attorney General, County Attorney’s office, the State Bar Association for the state where the false conviction occurred (i.e., filing a grievance), state or federal agencies (the FBI helped the men in the Duke Lacrosse case where the DA was disbarred for malicious prosecution in 2006), non-profit organizations, lawyers, friends/social networks (who you know), and the media (radio, television, books, and Internet sites like www.caught.net who expose corrupt officials).  Regarding Who will pay?: One has to determine the financial liability (personal vs. state) in CI cases, and determine whether hiring a new lawyer or depending on a “chance” factor of the state appointing one to you, as well as whether the immunity issues for crimes by prosecutors is applicable, or if suing the state or local entities, is worth the effort.  Some organizations are also free, but the waiting list is incredibly long, their criteria strict, and funding limited.  Not all CI’s will qualify for one organization or another, for various reasons.

           The Exoneration Initiative in New York (who only takes cases in that state) includes information on their website about the problems associated with exonerating CI’s (who they call the “Actually Innocent”):

Hundreds of DNA exonerations in the United States over the last 20 years have raised serious concerns about the criminal justice system's failure to protect the innocent from wrongful conviction. But the DNA exonerations are only the tip of the iceberg, representing a mere fraction of the wrongful convictions. However without DNA evidence, very few lawyers and organizations have the expertise and the resources to effectively handle these extremely difficult non-DNA cases. (http://exonerationinitiative.org/the_initiative.php).

          
           These non-DNA cases are in apparent abundance; and what to do about them?   Perhaps more research could shed light on what is going wrong, in what areas, and this author has some ideas on what kind of research project might help.  A statistical research project would need to ensue covering a number of areas.

            Innocence and structural violence: Actual innocence in particular cases would need to be verified.  These could include cases that used a habeas corpus, received a pardon, and other factors of the miscarriages of justice would need to be studied, as well as transparency in the criminal justice system in functional processes, immunity of DA/state employees, and safety factors/checks and balances.  Issues of juvenile delinquency and age or prior crime factors would need to be weeded out (since they don’t often show up in first-time convictions of adults).  However, as Hansen (2010) points out “the need for an organization devoted exclusively to some of the unique issues that contribute to the wrongful conviction of youths: adolescent brain development and competency, the increased risk of a false confession, the unreliability of young witnesses, and the limited ability of nonadults to understand the legal proceedings against them.” (para. 1).
           Policy and private action: Research into legislative bills that deal directly with compensation to those exonerated of the crimes they were convicted on (such as those named above) would need to occur in such a research study.  Also, for situations like Mr. A’s wrongful conviction, the Texas Department of Corrections (TDC’s) policies should be researched, not forgetting the DA’s policies, the power of a Judge on a jury to have an effect on the outcome of the trial (Mr. A had his due process rights violated when the Judge did not allow him to defend himself fully), and also study questions such as, who makes the law?… who knows or practices the law?… who are the recipients of such laws?  Lastly, organizational and institutional resources need to be thoroughly examined, as do a handful of specialized attorneys that assist in these types of CI cases.  The law is in place to protect the innocents from real criminals, not to do the opposite. 

           Using the law to accuse, convict, and imprison innocent people is ultimately a social problem, which occurs to people, because of other people, and is administered by even more people in social institutions and systems.  Social problems are often explained within the framework of three separate but overlapping social theories: Structural functionalism, Conflict theory, and Symbolic interactionism.  Lauer and Lauer (2006) define these as (p. 7):

            Structural functionalism:
                A sociological theory that focuses on social systems and how their interdependent parts maintain order.


Conflict theory
:
A theory that focuses on contradictory interests, inequalities between social groups, and the resulting conflict and change.

Symbolic interactionism:
A sociological theory that focuses on the interaction between individuals, the individual’s perception of situations, and the ways in which social life is constructed through interaction.


           It depends upon what part of the social problem of falsely convicted innocents that this author would focus on as to which theory one might draw upon to help explain it.   For instance, to see the inner workings – like cogs in a machine – of the criminal justice system as a whole, and analyze its structure and which department does what, and how they interrelate, then structural functionalism is probably the best approach.  Sociological statistics typically falls in line here, as it is a birds-eye approach to systems, and incorporates the big picture.  This research could be done by this author, especially in utilizing journal articles and research databases, as well as through discussions with officials in the criminal justice system, and other primary sources for statistical information.

            Secondly, to look deeper and see if there are discrepancies within those parts of the criminal justice system, and investigate what parts are in conflict with each other, such as the adversarial system in use today that pits the prosecution against the defense in and out of court, then this author would look at it from a conflict theory stance to help describe these social tensions.  Social science and interdisciplinary approaches generally work well here as the different sides can be viewed, investigated, and can draw upon both qualitative and quantitative research.  This research can also be done by the author, but also gaining information directly from professionals and other authorities on these subjects would be useful.

           To go one step further, to look at a more detailed and intricate view of the criminal justice platform, and discover the why’s and how’s of what occurs that makes innocent people wind up falsely convicted of crimes they did not commit, and their struggles to avoid it, as well as overturn it, then symbolic interactionism would probably be the theory of choice.  Anthropological research methods, especially qualitative data and semi-structured surveys with open-ended questions, would help bring out these details by pulling out information for analyzing the cultural, sub-cultural, socio-psychological aspects of personal interactions within the groups, as well as the many facets of the criminal justice system itself (within and outside of the other functions and conflicts named above). Again, this research could be done by the author, as well as a team of skilled researchers.

           The timeline for this type of research would depend almost entirely upon the amount of hours per week or month that would be available to the author.   It could be done as a side-project, funded solely by other work and income, almost like a serious hobby, which could take many months or years to complete.  It could also be funded by scholarships and used as a thesis project towards a two-year Masters degree and attempted full time.  If this research project were done by a team of individuals through an organization or grant project, then it could be done in a shorter amount of time, such as a year, more or less.

           One of the measures that would need to be evaluated is to see just how many potential innocents are actually sitting behind prison bars, as well as how many have been exonerated.  There are already some studies that have determined some of these estimates (such as those named above), but they would need to be updated as new information comes in.

            Detailed case studies of people who have continually claimed innocence, despite conviction (or who have been exonerated, as a second group for comparison) would be another measure.  Specifically, the use of semi-structured interviews would produce coded qualitative information, which would need to be separated into categories of types of felonies or other charges/convictions.  At that point an inductive search for patterns would ensue, to find out if certain types of charges, areas of law, policing/arrest issues, or prosecutorial alignments of particular practices, biases/prejudices, or other blind spots are indicators that support malicious prosecution.  Then, compare and contrast the findings with what is already known to find suggestions for advancing theory and proposing checks and balances toward solutions.

            Statistical analysis would include comparing the differences between groups (those already exonerated compared with those in-process or hoping to be exonerated), which would utilize an analysis of variance.  Also, an analysis of the measures already identified by other organizations, as well as any data generated through the study could be compared to look for an association among variables using multiple regression.

           Since both qualitative and quantitative methods will be used in the study, there would need to be at least three case studies (as an extreme minimum) per type of charge/conviction being analyzed, which could include sexual assault felony charges against minors, as well as adults, and possibly convictions of murder felonies or other felonies that result in life or death sentences.  Any less than three cases per type of conviction (as a minimum) would not likely be representative, so having even more (tens, or even hundreds of) case studies might be necessary.  Having a representative sample is crucial to applying accurate data to the social problem at hand.   These case studies would need to be compared with existing data showing whether the cases fall in a normal curve, as well as extreme, unusual, or unique cases that might fall between the cracks of “normal.”   The quantitative numbers can come from previous studies done by organizations or institutions, as well as those generated through this study as a whole. 

           The data and proposed solutions based on the research findings would ultimately be helpful to policy makers who propose new legislation that would help innocent people from becoming convicted in the first place.  These would be laws that deal specifically with the criminal justice process and front-end levels, such as the police and investigators who are usually responsible for obtaining statements, confessions (even false ones), and making arrests, or influencing the outcomes at the indictment/grand jury.  Middle level criminal justice processes might also be affected by new legislative efforts, such as laws instituting new forms of checks and balances that are based on hard data, as well as producing possible teams within the DA’s office or criminal justice system that would help investigate areas where innocence might be a factor, or to keep an independently overzealous prosecutor from rushing to judgment and going too far in any particular case.  Lastly, regarding the research project, legislation affecting, or direct policies within the DA’s office might also be updated, especially if there is a case that shows a conflict of interest between the victim and the accused, and if the prosecution violates victims rights in order to promote their own interests, as with what happened in Mr. A’s case.

            There are numerous CI’s besides this case study who fall between the cracks and have continual “between a rock and a hard place” situations.   Finding exoneration where almost no help seems to exist is hard for the CI.  Montross and Mulvaney (2009) mentioned some of these problems for capital punishment cases as “Each of the eighteen men killed by the state of Texas raised substantial questions about the fairness and validity of their convictions and death sentences: representation by ineffective trial counsel, mental illness, violations of international covenants, and failures by state and federal appellate courts to reach meritorious issues because of procedural bars.” (para. 1).  The fairness regarding not only the punishment, but also the actual act of imprisonment, are being questioned by many in recent years. 

            Salerno (2009) says that even confessions have been questioned by the advancements in technology regarding DNA tests, and that “Barry Scheck and Peter Neufeld, [with] the Innocence Project [have] used DNA evidence to clear 16 convicts awaiting execution and 233 prisoners overall; a quarter of them had made self-incriminating statements or outright confessions, or had accepted plea arrangements.  Salerno impresses upon the reader about the criminal “injustice” that occurs within what this author refers to as the criminal “justice” system.  Obviously this CI issue is a definite social problem, with many factors that are commonly taken for granted, and therefore overlooked.  Another example of these is eyewitness errors.

            Clark and Godfrey (2009) suggested that “variations in different aspects of the eyewitnessing conditions produce different kinds of errors that are related to wrongful convictions in very different ways” and that “the eyewitness identification literature, organized around underlying cognitive mechanisms, memory, similarity, and decision processes, assessing the effects on both correct and mistaken identification” and that the “Assessment of innocence risk is critical to the theoretical development of eyewitness identification research, as well as to legal decision making and policy evaluation” (para. 1).   Other warnings about how cases are “investigated” are important here as well.

Johnson and Drucker (2009) claim that “in the past decade DNA exonerations coupled with social science research, have focused attention on how false confessions can arise from common interrogation practice” and that “Modern psychological interrogation, criminal profiling literature, and polygraphy suggest to law enforcement that they can reliably identify ‘criminals’ without adequate investigation. Thus reliance on these sources for evidence of guilt warrants careful review.” (para. 1).  In Mr. A’s case, the investigator relied solely on the word of a child with cognitive problems, was told about these problems, and ignored them.  In addition, the investigator used coercion tactics in his interrogation methods (and when Mr. A told him the truth, the investigator claimed he thought he was lying, and said so in court, with no evidence whatsoever), plus used criminal profiling techniques, and asked if Mr. A would submit to a polygraph test.  Mr. A said emphatically, “Absolutely!” and yet the polygraph was denied him – only to find out later that Mr. A’s potential for a polygraph would not have been allowed as evidence in court anyway since it is not “proof” of guilt or innocence, and is only an indicator of such.  No factual evidence such as DNA is available to help exonerate Mr. A, however.

It is Radelet (2009) who stated that “DNA has confirmed what those earlier case studies had suggested: innocent defendants are regularly (albeit infrequently) convicted because of such factors as tunnel vision by the police, prosecutorial suppression of exculpatory evidence, erroneous eyewitness identification, false confessions, and poor representation by the defense.” (para. 4).  Even with the issues named above in Mr. A’s case, as well as the “tunnel vision” effect of being railroaded by a corrupt cop, and an overzealous DA and his Prosecutor, false “confessions” were obtained through threats, the cop altered the statement (dropping exculpatory evidence from the paper prior to Mr. A signing it, which was not caught until it was too late), and there was no doubt that poor or insufficient counsel by the defense was evident.  Other attorneys who knew Mr. A’s lawyer even apologized to him for the wretched job his lawyer did defending him.  In fact, Mr. A’s lawyer had told him and his wife on at least two occasions that he did “not want to win this case” because “it will set precedence.”  So instead, his client sits in prison awaiting an appeal that may or may not occur in his favor.  Mr. A and his family suspect that his attorney and the prosecutor likely made a deal to find him guilty, but without prison time, which backfired when the jury’s sentence for incarceration actually came in.  His attorney had also, throughout the almost-three-year wait for the trial, convinced him that some of his clients get a guilty verdict, but that he always ensures that they will win on appeal.  CI’s often find that insufficient counsel is a common problem.

The help for such scenarios is amazingly out of reach for many CI’s, which is why the waiting lists are often years long before an organization can help them.  So many of the CI’s out there do not have DNA evidence, or cannot find the factual information that supports actual innocence, and their story only goes so far since the adversarial system makes them look guilty despite their claimed innocence.  The criteria are very stringent and some organizations, such as the Texas Civil Rights Project (TCRP) will only take cases that they know they can win, plus that will help the majority of people with a similar problem (TCRP, 2009, personal communication).  Mr. A’s case is so complex, and unique, that he falls between the cracks for help from this, and other organizations.  His only choice may ultimately be in hiring another lawyer to sue the state and the El Paso Sheriff’s Department for the incompetence of the cop/investigator who set him up.  Paying for that is hard when one has lost their reputation, job, and source for future income.  Getting a job after being a convicted sex offender is not an easy task.  Certainly much damage has been done.  Other organizations, each in a different state (many times applicable only within that state) often have criteria that cannot be met by the majority of CIs.  A list of these kinds of organizations can be found here: http://www.innocenceproject.org/about/Other-Projects.php

The problems of readjusting to society after exoneration can be equally problematic, especially for CI’s who have been behind bars for many years.  On March 21, 2010 a CNN article came out discussing the issues that Greg Taylor has endured since his exoneration (http://www.cnn.com/2010/CRIME/03/24/north.carolina.freed.inmate/index.html?hpt=C2):

After a month readjusting to life outside prison, Taylor has concluded that Facebook is "neat but a waste of time." He's in awe that a flat, round disk called a DVD lets him rewind and fast-forward movies by just pushing a button. He finds the automatic soap dispensers in the mall bathrooms startling.

Taylor is the first man to be exonerated by a state innocence commission, which makes his case stand out from those of the more than 500 people across the country who have been exonerated by the work of private attorneys, according to the Life After Exoneration program. The group that freed Taylor, the North Carolina Innocence Inquiry Commission, … [has] … a state-mandated panel that re-examines questionable cases, including those that don't involve DNA evidence … [and will] proactively flag common errors such as witness misidentification and false confessions before the case go to trial. …

The Life After Exoneration Program found one out of three inmates has lost custody of children. About 25 percent develop post traumatic stress disorder, but access to counseling and medical care is limited without employment. Unlike parolees, who are convicted of crimes, those exonerated don't have access to corrections services. When Taylor left prison, the state of North Carolina gave him a $45 check. It was intended to get him a hotel room and back on his feet. The amount makes him laugh. … Two-thirds of those exonerated will not become financially independent, according to the Life After Exoneration Program.


           If it were not for the new NCIIC Taylor might very well still be behind bars.   This is the sad case for the majority of CI’s.  Finding the one lawyer, organization, or institution that can help is difficult and takes years of searching, applying, and usually winds up in defeat after defeat before possible help is found.  The resources for CI’s are limited because of the great number of CI’s applying to a mere handful of organizations who are limited in what they can do.  One could argue easily that front-end preventions to wrongful imprisonment would help keep people from having to sit in prison for years while searching for help that is rarely found.  Obtaining compensation for the vast losses and collateral damage to families, and the ability to lead a normal life, is also a difficult situation, and usually a separate battle altogether.

It is important to repeat the concept that real help, although usually available all across the country in different forms, and through different sources (organizations, government, and such), is not always reliable due to the limitations of funding, long waiting lists, specific criteria that has to be met in order to qualify, areas of expertise (some are law firms, others are schools or investigators, while others deal in exonerations through DNA or non-DNA evidences), and types of cases they take.  Many CI’s fall through the cracks and cannot be helped by these organizations or entities.  Furthermore, the ease for prosecutors, whose job is to “win” convictions, is simply procedural, but it is this adversarial system, as opposed to a restorative approach that makes it so difficult for convicted innocents to find help in exoneration, let alone retribution and/or compensation.  With the high incarceration rates within the United States, and an astonishing number of CI’s wrongfully imprisoned, and who cannot find the help needed to get exonerated, the amount of falsely convicted innocents sitting in our prison systems tonight will be sleeping alone, away from their families, jobs, and freedom… for nothing.


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References

Acker, J. (2009). The Innocence Commission: Preventing Wrongful Convictions and Restoring the Criminal Justice System . Justice System Journal, 30(1), 114-V.   Retrieved February 23, 2010, from Criminal Justice Periodicals. (Document ID: 1768351981).

Anonymous. (2006). Personal communication with an El Paso, Texas Attorney whom practices criminal law.

Anonymous. (2008, March 5). Editorial: Tough but not smart. McClatchy - Tribune Business News. Retrieved March 13, 2010, from ProQuest Newsstand. (Document ID: 1440229871).

Christesson. (2009). Personal communication with a lady who runs a prison ministry near Abilene, Texas.

Clark, S., & Godfrey, R.. (2009). Eyewitness identification evidence and innocence risk. Psychonomic Bulletin & Review, 16(1), 22-42.   Retrieved February 23, 2010, from Research Library. (Document ID: 1654425781).

Gottschalk, Marie. (2006). Dismantling the Carceral State: The Future of Penal Policy Reform. Texas Law Review, 84(7), 1693-1749.  Retrieved March 13, 2010, from ProQuest Central. (Document ID: 1123225331).

Hansen, M.. (2010). The Age of Innocents. ABA Journal, 96(1), 10.   Retrieved February 23,
       2010, from Research Library. (Document ID: 1935996841).

Johnson, M., & Drucker, J.. (2009). Two recently confirmed false confessions: Byron A. Halsey and Jeffrey M. Deskovic. Journal of Psychiatry & Law, 37(1), 51-72,1.   Retrieved February 23, 2010, from ProQuest Health and Medical Complete. (Document ID: 1903164081).

Lauer, R. H., Lauer, J. C. (2006). Social Problems and the Quality of Life, 10th Ed. New York, NY: McGraw-Hill Companies, Inc.

Montross, W., & Mulvaney, P.. (2009). Virtue and Vice: Who will report on the failings of the American criminal justice system? Stanford Law Review, 61(6), 1429-1461.   Retrieved February 23, 2010, from Research Library. (Document ID: 1740343361).

Piehl, Anne Morrison, & DiIulio, John J Jr. (1995). "Does prison pay?" revisited. The Brookings Review, 13(1), 20.  Retrieved March 13, 2010, from Research Library. (Document ID: 1463235).

Radelet, M.. (2009). New thinking on miscarriages of justice Judicature, 93(2), 77-78.  Retrieved February 23, 2010, from Research Library. (Document ID: 1898672241).

Salerno, S.. (2009). Criminal Injustice. Skeptic, 15(1), 34-41.   Retrieved February 23, 2010, from Research Library. (Document ID: 1798864771).

TCRP. (2009). Personal communication with a Texas Civil Rights Project civil rights attorney.

Yaroshefsky, E.. (2008). Ethics and Plea Bargaining: What's Discovery Got to Do With It? Criminal Justice, 23(3), 28-33,59,2.  Retrieved March 13, 2010, from Criminal Justice Periodicals. (Document ID: 1902991211).

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