The cost of con­vict­ing the in­no­cent

The Washington Post Sunday - - SUNDAY OPINION - BY SA­MUEL R. GROSS

Iedit the Na­tional Reg­istry of Ex­on­er­a­tions, which com­piles sto­ries and data about peo­ple who were con­victed of crimes in the United States and later ex­on­er­ated. The cases are fas­ci­nat­ing and im­por­tant, but they wear on me: So many of them are sto­ries of de­struc­tion and de­feat.

Con­sider, for ex­am­ple, Rafael Suarez. In 1997 in Tuc­son, Suarez was con­victed of a vi­cious felony as­sault for which another man had al­ready pleaded guilty. Suarez’s lawyer in­ter­viewed the woman who called 911 to re­port the in­ci­dent as well as a sec­ond eye­wit­ness. Both said that Suarez did not at­tack the vic­tim and, in fact, had at­tempted to stop the as­sault. A third wit­ness told the lawyer that he heard the vic­tim say that he would lie in court to get Suarez con­victed. None of these wit­nesses were called to tes­tify at trial. Suarez was con­victed and sen­tenced to five years.

Af­ter these facts came to light in 2000, Suarez was re­leased. He had lost his house and his job, and his plan to be­come a para­le­gal had been de­railed. His wife had di­vorced him, and he had lost parental rights to their three chil­dren, in­clud­ing one born while he was locked up. Suarez sued his for­mer lawyer, who by then had been dis­barred. He got a $1 mil­lion judg­ment, but the lawyer had no as­sets and filed for bank­ruptcy. Bar­ring a mir­a­cle, Suarez will never see a penny of that judg­ment.

The most de­press­ing thing about Suarez’s case is how com­par­a­tively lucky he was. He was ex­on­er­ated, against all odds, be­cause his oth­er­wise ir­re­spon­si­ble lawyer had ac­tu­ally talked to the crit­i­cal wit­nesses and recorded those in­ter­views de­spite fail­ing later to call them at trial.

Suarez served three years in prison for a crime he didn’t com­mit. The av­er­age time served for the 1,625 ex­on­er­ated in­di­vid­u­als in the reg­istry is more than nine years. Last year, three in­no­cent mur­der de­fen­dants in Cleve­land were ex­on­er­ated 39 years af­ter they were con­victed— they spent their en­tire adult lives in prison — and even they were lucky: We know with­out doubt that the vast ma­jor­ity of in­no­cent de­fen­dants who are con­victed of crimes are never iden­ti­fied and cleared.

The reg­istry re­ceives four or five letters a week from pris­on­ers who claim to be in­no­cent. They’re heart­break­ing. Most of the writ­ers are prob­a­bly guilty, but some un­doubt­edly are not. We tell them that we can’t help; we are a re­search pro­ject only, we don’t rep­re­sent clients or in­ves­ti­gate claims of in­no­cence. Fair enough, I guess, but some in­no­cent pris­on­ers who have been ex­on­er­ated wrote hun­dreds of these letters be­fore any­body took no­tice. How many in­no­cent de­fen­dants have I ig­nored?

In­no­cence projects do han­dle these cases, or at least some of them. They re­ceive many times more letters than we do. I’ve spo­ken with lawyers who do this work, and who have suc­cess­fully ex­on­er­ated dozens of de­fen­dants. Most of them have clients who re­main in prison de­spite pow­er­ful ev­i­dence of their in­no­cence that no court will con­sider. And they all know that there are count­less in­no­cent de­fen­dants hid­den in the piles of pleas for help that they will never have time to in­ves­ti­gate.

How many peo­ple are con­victed of crimes they did not com­mit? Last year, a study I co-au­thored on the is­sue was pub­lished in the Pro­ceed­ings of the Na­tional Academy of Sciences. It shows that 4.1 per­cent of de­fen­dants who are sen­tenced to death in the United States are later shown to be in­no­cent: 1 in 25.

Death sen­tences are uniquely well­doc­u­mented. We don’t know nearly enough about other kinds of crim­i­nal cases to es­ti­mate the rate of wrong­ful con­vic­tions for those. The rate could be lower than for cap­i­tal mur­ders, or it could be higher. Of course, in a coun­try with mil­lions of crim­i­nal con­vic­tions a year and more than 2 mil­lion peo­ple be­hind bars, even 1 per­cent amounts to tens of thou­sands of tragic er­rors.

The prob­lem may be worst at the low end of the spec­trum, in mis­de­meanor courts where al­most ev­ery­body pleads guilty. For ex­am­ple, in July 2014 Was­sil­lie Gre­gory was charged with “ha­rass­ment” of a po­lice of­fi­cer in Bethel, Alaska. The of­fi­cer wrote in his re­port that Gre­gory was “clearly in­tox­i­cated” and that “I kindly tried to as­sist Gre­gory into my cruiser for pro­tec­tive cus­tody when he pulled away and clawed at me with his hand.”

The next step in the case would nor­mally be the last: Gre­gory pleaded guilty, with­out the ben­e­fit of a de­fense lawyer. But Gre­gory was ex­on­er­ated a year later af­ter a sur­veil­lance video sur­faced show­ing the of­fi­cer hand­cuff­ing him and then re­peat­edly slam­ming him onto the pave­ment.

In the past year, 45 de­fen­dants were ex­on­er­ated af­ter plead­ing guilty to low-level drug crimes in Harris County, Tex. They were cleared months or years af­ter con­vic­tion by lab tests that found no illegal drugs in the ma­te­ri­als seized from them.

Why then did they plead guilty? As best we can tell, most were held in jail be­cause they couldn’t make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-to­day-only of­fer: Plead guilty and get pro­ba­tion or weeks to months in jail. If they re­fused, they’d wait in jail for months, if not a year or more, be­fore they got to trial, and risk ad­di­tional years in prison if they were con­victed. That’s a high price to pay for a chance to prove one’s in­no­cence.

Po­lice of­fi­cers are sup­posed to be sus­pi­cious and proac­tive, to stop, ques­tion and ar­rest peo­ple who might have com­mit­ted crimes, or who might be about to do so. Most of­fi­cers are hon­est, and, I am sure, they are usu­ally right. But “most” and “usu­ally right” are not good enough for crim­i­nal con­vic­tions. Courts — judges, pros­e­cu­tors, de­fense at­tor­neys, some­time ju­ries— are sup­posed to de­cide crim­i­nal cases. In­stead, most mis­de­meanor courts out­source de­cid­ing guilt or in­no­cence to the po­lice. It’s cheaper, but you get what you pay for.

We can do bet­ter, of course — for mis­de­meanors, for death penalty cases and for ev­ery­thing in be­tween — if we’re will­ing to foot the bill. It’ll cost money to achieve the qual­ity of jus­tice we claim to pro­vide: to do more care­ful in­ves­ti­ga­tions, to take fewer quick guilty pleas and con­duct more tri­als, and to make sure those tri­als are well done. But first we have to rec­og­nize that what we do now is not good enough.

The writer, a law pro­fes­sor at the Univer­sity of Michigan, is the editor of the Na­tional Reg­istry of Ex­on­er­a­tions.


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