The Wrongfully Accused: Who Among the Innocent Are Cleared, and Who Are Not?
By David Stout | March 14, 2022 12:00 pm

Some people accused of crimes they didn’t commit are acquitted after a trial, or indeed are cleared before their cases ever go to trial, while others who are innocent are wrongly convicted and sent to prison.

What separates one group from the other? Is it having enough money to hire a good lawyer, being sophisticated enough to know one’s rights and confident enough to assert them, or is it just plain luck? Is it all of those things and more?

“A three-year study conducted by the Washington Institute for Public and International Affairs Research at American University has identified 10 factors common in wrongful convictions, as opposed to cases in which innocent defendants are acquitted or have their charges dismissed before trial,” the Blog of Legal Times reports, citing a just-released 433-page study funded  by the Department of Justice’s National Institute of Justice.

The 10 factors include, not surprisingly, Brady violations by prosecutors, lying by witnesses (or non-witnesses) and forensic errors. States that have the death penalty and a “punitive culture” are most likely to spawn miscarriages of justice.

The researchers, led by Jon Gould of American University, identified 460 erroneous convictions and what are called “near miss” cases, those involving acquittals or dismissals of innocent defendants, from 1980-2012. Crucially, the BLT notes, “the research team included Richard Leo of the University of San Francisco School of Law, an expert on police interrogation and wrongful convictions.”

A vital, threshold distinction should be underlined. The study is not talking about people who really did what they were accused of but whose rights were supposedly violated somewhere between arrest and conviction, or people whose mental illness or deficiencies didn’t get proper attention. The study focuses on people who were actually innocent.

In an interview with BLT, Gould said the most surprising finding was that “a prosecutor with a weak case focuses on an accused [person] even more intently, rather than considering alternative suspects precisely because tunnel vision has set in – in other words, the case seems to add up from the investigation but is sufficiently weak relying on perhaps a misidentification.”

And mistaken identification is a perennial problem, the study found, as victims of violent crime are often too traumatized to accurately recall their ordeal. Perhaps not surprisingly, mistaken identification is likely if a victim is of one race and a suspect of another.

As for the police, they are “erroneously taught that they can learn to become human lie detectors, able to distinguish truth from deception at extraordinarily high rates of accuracy,” the study says. “For example, detectives are taught that the following behaviors are symptomatic of deceptive, and thus guilty, suspects: averting one’s gaze, slouching, shifting body posture, touching one’s nose, adjusting or cleaning one’s glasses, chewing one’s fingernails, and stroking the back of one’s head.”

Moreover, police questioners can sometimes subtly introduce what a layman might call “authenticating details”  into an innocent suspect’s coerced confession — details that only the actual criminal would know.

That an actually innocent person would confess to a crime he didn’t commit is no longer surprising, especially to anyone familiar with the infamous Wylie-Hoffert murder case of 1963, in which  a young, unsophisticated black man confessed under pressure to killing two young white women in New York City. He was eventually cleared and the real killer was caught, but the case was a low point for the New York police. Indeed, it was cited in a prominent footnote in the Supreme Court’s 1966 Miranda decision.

Detectives working on the Wylie-Hoffert case were under heavy pressure, much of it media-generated, to solve the case. The study credits journalists with helping to uncover some miscarriages of justice, but it observes that sensational media coverage can sometimes get in the way. (Although a journalist might ask a non-journalist: How should a crime like, say, Richard Speck’s 1966 murder of eight Chicago nurses, or Ted Bundy’s multi-state killing rampage be covered? Four paragraphs on an inside page?)

And while exonerations based on DNA evidence, sometimes years after the crime, have become familiar in the last quarter-century, there is another side to the forensic narrative, the study says: shoddy lab work with fingerprints, hair samples and the like still lead to wrongful convictions.

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