Introduction
The Innocence Movement has profoundly rattled our faith in the accuracy and integrity of the criminal process. In many ways, the DNA revolution enabled this upset. Twenty-five years ago, its rigorous certainty set DNA testing apart from other kinds of evidence and forensic tests which, even at their best, often left room for doubt about any particular individual’s innocence. Hundreds of exonerations later, DNA testing has conclusively demonstrated that we often convict the innocent in the most serious cases. Today, its tantalizing offer of certainty has made DNA a kind of poster child for the Innocence Movement. All fifty states now have post-conviction DNA testing statutes.1 Half a dozen innocence projects – including the flagship Innocence Project in New York – only accept cases involving DNA.2 The Supreme Court recently invoked DNA’s celebrated potential for protecting the innocent to uphold the constitutionality of DNA databases.3
But DNA’s high profile is a double-edged sword. Most wrongful convictions will not involve DNA, since over 80 percent of all criminal cases do not generate biological evidence containing DNA at all, or cannot be resolved through DNA testing.4 As the website for the Innocence Project explains, “Only a fraction of criminal cases involve biological evidence that can be subjected to DNA testing, and even when such evidence exists, it is often lost or destroyed after a conviction.”5 Yet the clarity of DNA exonerations casts a shadow over other kinds of innocence claims. It is hard to achieve DNA-style certainty in cases involving evidence with larger margins of error and a greater role for human evaluation. We may never know for certain what the eyewitness actually saw, whether the informant actually lied, or whether the fire was an accident. Instead, such cases call upon us to make inferences and judgments about the likelihood of innocence. DNA’s rigor makes such common innocence claims look shaky by comparison, even though ironically we rely on precisely such inferences and judgments to establish guilt in the first place.6
More fundamentally, the excitement over DNA’s hyper-accuracy promotes a narrow theoretical framework for understanding why we convict innocent people in the first place.7 It suggests that evidentiary inaccuracy is the primary reason for wrongful conviction, and that conversely, if we could get more accurate evidence we could solve the wrongful conviction problem. This sounds like an obvious truth. But it is at best partial and at worst misleading. The vast bulk of the U.S. criminal system is not engaged in a quest for accuracy based on evidence in the first instance. Instead, it is engaged in bargaining. The plea bargaining process has turned evidence and accuracy into commodities that are traded and negotiated along with all the other inputs into the bargaining process. This does not make evidentiary accuracy irrelevant, but it competes with many other potential deal breakers such as attorney time and skill, a defendant’s cooperation, a defendant’s criminal record, whether the defendant is out on bail, and local bargaining habits, to name just a few. The systemic power of evidentiary accuracy – and therefore the importance of forensics generally and DNA in particular – ultimately turns on its actual role in producing convictions along with all these other inputs. Because approximately 95 percent of criminal convictions are the result of pleas, not trials,8 the role of evidentiary accuracy turns out to be contingent on many other factors.
To put it another way, the quest for DNA-like accuracy tempts us to forget that most criminal guilt is negotiated, not “discovered.” This is a standard insight in the plea bargaining literature,9 but it creates some tension with an innocence culture that has traditionally focused on poor investigative techniques and evidentiary accuracy rather than the mechanics of a criminal justice marketplace in which evidence and guilt are negotiable commodities.
That marketplace, however, may be on a collision course with the Innocence Movement. Fourteen percent of the wrongful convictions listed in the National Registry of Exonerations are the result of a plea.10 The Innocence Project has taken on a number of DNA-related wrongful plea cases.11 Scholars are increasingly scrutinizing the systemic pressures on innocent people to plead guilty.12 In a scathing article entitled “Why Innocent People Plead Guilty,” U.S. District Court Judge Jed Rakoff recently took public aim at what he called “the prosecutor-dictated plea bargain system [which] creat[es] such inordinate pressures to enter plea bargains [that it] appears to have led a significant number of defendants to plead guilty to crimes they never actually committed.”13
Plea bargaining pressures all kinds of defendants. Thirty-one of the first 330 post-conviction DNA exonerees pled guilty to serious crimes – including homicide and rape – typically in order to escape the death penalty or a life sentence.14 But the problem is different, and more widespread, in connection with minor crimes where a guilty plea can permit an innocent defendant to go home with a relatively light sentence of probation or time-served. Minor crimes are typically handled in bulk, rushed through assembly-line plea processes and court proceedings, in which lawyers and judges lack the time and incentives to check whether misdemeanants are actually guilty.15 In this world, thousands of people routinely plead guilty to misdemeanors of which they are demonstrably innocent.16 It is here in the quick-and-dirty misdemeanor context – in which there is little evidence, let alone DNA – that the plea bargaining marketplace has truly relinquished its commitment to accuracy.17
The extremes of the misdemeanor context teach us something profound about our entire system: more than 90 percent of U.S. convictions are generated by a process that is structurally tolerant of inaccuracy. The bargained nature of the criminal conviction means that evidence is just one piece – and not always the most important piece – of the larger negotiation process that establishes guilt. More accurate facts may shift the bargaining environment in certain kinds of cases, and felony defendants are less likely to succumb to wrongful pleas than misdemeanants, but accurate facts are not enough to ensure accurate convictions across the board. Twenty-five years of DNA-based exonerations have taught us, ironically, that more accurate evidence alone cannot fix the wrongful conviction problem.
Although plea bargaining per se is a relatively new concern for the Innocence Movement, the innocence discourse has long grappled with a closely related problem: the dangers of the negotiated convictions available to criminal informants. Informant deals are, in effect, a special kind of plea, in which suspects trade evidence in exchange for leniency.18 That bargained-for evidence, in turn, famously generates wrongful convictions. Indeed, in its 2004 study, the Center on Wrongful Convictions concluded that “snitches [are] the leading cause of wrongful conviction in U.S. capital cases.”19 Informants are thus a special and familiar example of the larger threat that the criminal deal poses to accurate convictions. This chapter argues that we should understand the criminal deal itself as a primary source of wrongful conviction, precisely because it commodifies and trades away accuracy – even DNA’s – in exchange for other institutional values. What Sam Gross calls the “canonical list of wrongful conviction sources” – eyewitness identifications, informants, false confessions, sloppy forensics – should be amended to include the plea bargain, especially the misdemeanor plea.20 This will not only provide a more accurate picture of the scope of the wrongful conviction problem, but new analytic tools for discerning why we convict the innocent as often as we do.
The chapter proceeds as follows. First, it traces the variable role and influence of evidentiary accuracy itself. In the world of trials and formal adjudication, accuracy matters a lot. In the plea bargaining universe, accuracy is negotiable and thus matters less. This latter point is on display in two bargaining arrangements that routinely lead to wrongful convictions: informants, where evidence is obtained by bargaining, and the misdemeanor assembly-line process where convictions are obtained by bargaining. These insights are reinforced by new innocence scholarship that goes beyond the traditional evidence/accuracy model to offer more expansive explanations – including psychological and institutional – for why we wrongfully convict. These expansive approaches suggest new ways of thinking about innocence reform, most importantly the need to add plea bargaining to the master list of wrongful conviction sources.
1 Evidence, Accuracy, and the Trial Model
A fundamental ideal behind the adversary system is the proverbial quest for truth. The Supreme Court often invokes the “truth-seeking function of the trial”21 in justifying various rules about evidence, disclosure, and process. To be sure, practice often diverges from this ideal. Trials are infrequent. Legal rules serve multiple purposes, which may or may not promote accuracy.22 Post-conviction rules severely limit the extent to which factual error – as opposed to legal error – will ever be reviewed.23 But the adversarial truth-seeking model still dominates important criminal justice stories about what the system does and how we convict people.24
Evidentiary accuracy, in turn, drives important aspects of the trial model. Much – although not all – of trial procedure and evidence law is motivated by the understanding that parties are fighting precisely over evidentiary relevance, inferences, and burdens of proof, all driven by the actual evidence in the case.25 Trials are largely designed around the parties’ presentation of evidence and the fact-finders’ interpretation of that evidence. Accordingly, in such a world, it makes sense to think that more accurate evidence will generally lead to more accurate results.26
Most current innocence reform is aimed at this trial-centric model and the wrongful convictions produced by it.27 This is due in part to history and mechanics. The vast majority of exonerations occur after a defendant has gone to trial and lost. Out of 1,700 exonerations in the National Registry, 85 percent were the result of a failed trial.28 This is no accident – it is easier to revisit a conviction where the defendant has maintained his or her innocence and there is a factual record that can be reinvestigated and legally challenged. The classic exoneration story typically involves a lawyer and investigator going back with a fine-toothed comb over a faulty trial record, dismantling and disproving the evidence presented at trial.29 It is also a model consonant with the (increasingly outdated) notion that a truly innocent defendant will resist pleading guilty. Indeed, some states’ post-conviction DNA testing statutes expressly exclude defendants who have pled.30 As a result, the bulk of the Innocence Movement’s proposed reforms are designed with the trial-oriented evidentiary model in mind. Double-blind line-ups, corroboration requirements for jailhouse informants, and recorded interrogations and confessions are all ways of ensuring that evidence itself is produced in more reliable ways.31 The focus on evidentiary accuracy – and the excitement over DNA’s hyper-accuracy – flows from this implicit structural understanding about how we generate convictions and what makes them inaccurate.
2 Plea Bargaining
By contrast, few mistake plea bargaining for a quest for the truth.32 It is by definition a negotiation in lieu of the trial-based truth-seeking process, and it openly sacrifices factual accuracy on all sorts of issues – from the nature of the crime committed to the amount of money or drugs at stake – in exchange for agreement.33
Of course, such convictions must still defend their legitimacy: they must be sufficiently accurate and fair to substitute for trial outcomes.34 When it upheld plea bargaining’s constitutionality, the Supreme Court dismissed concerns about wrongful pleas on the theory that innocent defendants are unlikely to accede to their own wrongful conviction and that courts can and do check the accuracy of guilty pleas.35 As the Court explained in Brady v. United States:
We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants’ admissions that they committed the crimes with which they are charged.36
More theoretically, plea dynamics are often conceptualized – and rationalized – as contracts negotiated “in the shadow of trial.”37 The idea is that plea outcomes will not diverge too greatly from what the evidence would show, because if they do, the defendant can simply exercise his trial rights. More subtly, if the defendant has a strong chance of prevailing at trial, this will affect the “price” of the bargain. Perhaps the prosecutor will reduce the charges, or recommend a lower sentence. If the defendant is unsatisfied with the deal, again, he can opt for trial and try to uncover the “truth.”38
It is important to recognize that this scenario does not preclude wrongful pleas, it merely describes how they take place. An innocent defendant may still face substantial risks of conviction at trial because his or her likelihood of success depends on all sorts of factors unrelated to guilt, most famously whether the defendant has a prior record39 or is represented by an overwhelmed public defender who lacks investigative and other trial resources.40 For many defendants, those risks – and the much longer sentences associated with going to trial – are enough to make pleas “a good deal,” even for innocent defendants.
But even with these caveats, the “shadow of trial” model overstates the protections against wrongful pleas. A decade ago, William Stuntz and Stephanos Bibas showed that trials – and the strength of the evidence – do not cast a particularly strong shadow over bargained outcomes at all.41 Instead, the peculiarities of the market and the psychological characteristics of the players largely determine bargains. As Bibas put it, plea bargains are a function of, inter alia, “[a]gency costs; attorney competence, compensation, and workloads; resources; sentencing and bail rules; and information deficits; … psychological biases and heuristics []: overconfidence, denial, discounting, risk preferences, loss aversion, framing, and anchoring.”42 As a result, “plea bargaining effectively bases sentences in part on wealth, sex, age, education, intelligence, and confidence.”43
Because plea bargaining is driven only partially by accuracy, the role of evidence recedes.44 Evidence is one of many inputs, and its value will depend on the nature of the case, the interests of the parties, and myriad other factors. To be clear, this does not make innocence irrelevant. Presumably most prosecutors do not intend to convict the wrong person.45 Some studies indicate, moreover, that innocent defendants are more likely to resist pleading. For example, in one academic experiment, guilty participants pled at a rate of 89 percent, while innocent participants pled at a lower 56 percent rate.46 In the Rampart mass exoneration, guilty defendants pled 88 percent of the time while actually innocent defendants pled 77 percent of the time.47 Such percentages show that while innocence may affect the likelihood of a deal, it is far from enough – notwithstanding the Supreme Court’s opinion to the contrary – to prevent a wrongful plea. Instead, we should understand innocence and accuracy as ingredients in the bargain that compete with all the other pressures and inputs that the plea bargaining process involves.
Of course sometimes inaccuracy is good for defendants.48 Indeed, if the deal is too accurate, that is, no better than an accurate trial outcome, a rational defendant should theoretically proceed to trial. Accordingly, the paradigmatic favorable plea bargain is often inaccurate in the defendant’s favor: it will be one in which a defendant is convicted of a lesser crime and/or punished less than an accurate evaluation of the facts would warrant.49 In practice, this model is heavily distorted by the trial penalty,50 especially under the U.S. Sentencing Guidelines,51 but it nevertheless captures some of the basic plea bargaining dynamics.
Other kinds of inaccurate bargains also help defendants. For example, it is common in federal drug cases to negotiate the amount of drugs that will be attributed to the defendant for sentencing purposes.52 A defendant caught with ten kilograms of cocaine could, as part of a plea, negotiate that amount down and substantially reduce the sentence.53 Likewise, in minor cases, defendants may plead to crimes they have not committed at all so as to avoid convictions that have more serious collateral consequences. A drug possession charge with immigration implications, for example, can be bargained into a disorderly conduct charge, even though factual speaking there is no evidence of that latter crime whatsoever.54
To put it another way, plea bargaining is often inaccurate for complex, even sound reasons, and accuracy is not the system’s only foundational value.55 But accuracy still matters, and the innocence discourse is an important reminder not to let the cost-benefit instrumentalism of plea bargaining obscure the injustices of wrongful conviction. The pressures on innocent defendants to plead are well known. Because overwhelmed public defenders typically lack the resources to investigate innocence claims, factual records remain lopsided in the government’s favor. The threat of the death penalty – and the chance to avoid it – may induce innocent defendants to plead.56 Defendants with prior convictions are famously leery of going to trial because jurors are more likely to convict once they learn of the defendant’s priors.57 Misdemeanor defendants held without bail, or on bail they cannot afford to pay, often plead guilty to time-served rather than remain incarcerated pending trial.58
Even with respect to DNA itself, we are already seeing how its vaunted accuracy is being bargained away. Faced with exonerating DNA evidence, the prosecutors who convicted Bruce Goodman of murder did not change their minds. Instead, they revised their original theory of Goodman’s guilt and then negotiated a post-conviction deal that would release but not exonerate him.59 Some prosecutors now demand that defendants waive their rights to post-conviction DNA testing as a condition of a plea.60
In all these ways, factual accuracy can fade or even disappear into the crucible of the bargaining process. Accordingly, improving the accuracy of evidence remains a partial response to the wrongful conviction problem.
3 The Informant Deal – Negotiated Evidence
The Innocence Movement has long grappled with one infamous way that bargaining distorts accuracy. Criminal informants – sometimes referred to as “snitches”– generate a large percentage of known wrongful convictions by fabricating false evidence.61 But the underlying reason that most informants lie is because of the deal: the promise that in exchange for evidence or cooperation the informant will escape liability or punishment for his or her own crimes. Without the incentive of a deal, an informant would be just another witness with no particular reason to lie or fabricate and therefore no more or less reliable than an uncompensated lay witness.62 The source of informant unreliability thus lies not in the individual person but in the bargaining market.63
Informants pervade the U.S. criminal system. While the proverbial “jailhouse snitch” has received the lion’s share of attention,64 informant deals are routinely cut in connection with every type of defendant and every type of crime. In particular, drug enforcement relies heavily on informant deals to produce arrests; it is sometimes quipped that “every drug case involves a snitch.” Since drug cases make up approximately one-third of federal and state criminal dockets, the potential for fabricated evidence and wrongful conviction is far-reaching.65
For example, in Hearne, Texas, a federally funded drug task force relied on a single drug informant to generate dozens of arrests in a local housing project. Some arrestees pled guilty immediately in order to obtain release.66 It turned out that the informant – a drug dealer with mental health problems facing a new burglary charge – had lied across the board, a debacle that resulted in dozens of exonerations, an ACLU lawsuit, and a movie.67 But Hearne was not unusual: drug task forces commonly rely on unreliable compensated criminal informants. In other words, built into the war on drugs is a mechanism likely to produce wrongful convictions based on informant-generated, bargained-for evidence.
Despite the prevalence of informant use and a number of high-profile exonerations, informants are not commonly at the top of the wrongful conviction list. One reason is that snitch-based wrongful convictions can be difficult to prove. Rife with uncertainty, they often lack physical evidence, while human reliability is difficult to “test.” Courts have been staunchly skeptical of informant recantations, even when the original informant testimony was the sole evidence on which the defendant was convicted.68 Because post-conviction burdens of proof are reversed, a shaky informant may be enough for the government to get a conviction but that same informant’s recantation will not be enough for a defendant to prove actual innocence. For example, in a recent case in Washington State, three young men were wrongfully convicted based solely on the trial testimony of a highly compensated informant.69 A week after trial, another codefendant came forward and admitted that he and the informant had fabricated the evidence against the three innocent young men. This recantation explained in detail how the informant had gotten his information and his incentives for doing so, including the extraordinarily lenient deal that he received, and the fact that one of the real perpetrators was his own brother.
Nevertheless, the court held that the codefendant recantation was not enough for a new trial. Years later, the convictions were vacated based on ineffective assistance of counsel, and the three men sought damages for wrongful conviction and their four years of incarceration. The court again denied their claims, finding that the recantation was insufficient to show actual innocence and concluding that so many people had lied in connection with the case that actual innocence could not be shown.70
Informant cases and the deals that generate them may also command less attention because they make up a smaller percentage of the highly scrutinized set of DNA exonerations that constitute the basis for so much innocence scholarship.71 This trend is likely to continue. Drug cases are not typical candidates for DNA exonerations. Moreover, the kinds of high-profile cases most likely to turn on informant testimony – the jailhouse snitch who comes forward to solve a homicide, for example – will often lack other solid evidence that could provide definitive proof of innocence. Perhaps the most infamous example is the Cameron Todd Willingham execution, a case that ostensibly rested on faulty arson expertise but that was bolstered when a jailhouse informant came forward alleging a confession.72 Indeed, this is why informant testimony is so risky in the first place – it often comes into being precisely in order to shore up weak cases in which other evidence is not dispositive. But from an exoneration perspective, the lack of additional evidence makes it more difficult to prove innocence after the fact.
These are the sorts of hurdles that such non-DNA exonerations confront. The lingering uncertainty about whether an informant lied, even though we know an enormous amount about their incentives and opportunities to do so, can never be conclusively resolved through a test or a lab. The more we grow accustomed to DNA-type certainty, the harder it will be to exonerate based on the run-of-the-mill certainty of human judgment and common sense.
4 Misdemeanor Wrongful Convictions – Negotiated Guilt
One of the greatest underappreciated sources of wrongful conviction occurs in the misdemeanor context. These wrongful convictions are largely plea bargains, not trials, and offer a different way of understanding the sources of wrongful conviction than the evidence-oriented analysis typical of serious cases. The basic dynamic is captured by Sam Gross:
The [wrongful conviction] problem may be worst at the low end of the spectrum, in misdemeanor courts where almost everybody pleads guilty… . In the past year, 45 defendants were exonerated after pleading guilty to low-level drug crimes in Harris County, Tex[as]. 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.73
Similarly, for many years New York police pursued an order-maintenance policy of arresting young black men in public housing projects and charging them with trespassing, regardless of their right to be on the premises. Because most of those arrested pled out to avoid pretrial detention, that police policy resulted in numerous wrongful convictions. One Bronx public defender – who now works for the Innocence Project – explained the phenomenon back in 2007:
In the Bronx, well over half of my cases are misdemeanors, and I have had a disgraceful number of innocent clients, many of whom plead guilty to a trespassing charge. … Trespassing arrests are up a staggering 25 percent since 2002 and this is no crime wave, no trespassing epidemic. The Clean Halls program is a major component of “Operation Impact,” which was launched by the NYPD in 2003 and targets [low income African-American] neighborhoods [] by flooding them with rookie police officers trying to make as many arrests as possible. In the 28-month period following the launch of the operation, 72,000 arrests were made in the targeted areas. I have handled more trespassing cases than any other single criminal charge, and I’ve never had one actually go to trial.74
In Baltimore, police use loitering and other low-level arrests to maintain authority and order in low-income, high-crime African-American neighborhoods. As former police officer and now-sociology professor Peter Moskos described it, “[t]hough any minor charge will suffice, loitering is the most widely used minor criminal charge in Baltimore. Loitering is defined, in part, as ‘interfering, impeding, or hindering the free passage of pedestrian or vehicular traffic after receiving a warning.’ In practice, loitering is failing to move when ordered to move by a police officer.”75 Prosecutors dismiss approximately one-third of Baltimore loitering arrests.76 Given high plea rates, the remaining two-thirds likely result in convictions even though the underlying conduct will rarely meet the legal standard for loitering.77
Innocent misdemeanants like these do not plead guilty because the evidence in their cases is inaccurate. They plead because accuracy and evidence do not matter much at all. The pressures to plead are structural and often divorced from the evidence. They flow instead from police arrest practices, the threat of pretrial incarceration, overburdened public defenders, cookie-cutter prosecutorial charging policies, and the legislative decision to authorize incarceration for the most minor offenses.78
Pressure to plead also flows from assembly-line courts’ institutional need to clear massive caseloads. Many lower court judges are reluctant to permit substantive litigation over minor cases because it holds up their dockets. Litigators in lower courts report that judges are often openly hostile to defense counsel who attempt to litigate rather than plead. Now a law professor, Eve Brensike Primus recalls attempting to raise substantive issues before misdemeanor judges who told her, when she was a public defender, to “save it for appeal.”79 Such judicial hostility to the truth-seeking process thus forces bargains even in the face of meritorious innocence claims.
For all these reasons, the fact that misdemeanor defendants are innocent does not, as the traditional model assumes, give them sufficient leverage to avoid conviction. In New York, it took several lawsuits to persuade the Bronx District Attorney’s office to stop prosecuting those trespassing cases.80 In Maryland, an appellate court has already explained that defendants who are arrested for sitting or standing on street corners, or failing to move when police order them to do so, are factually innocent of loitering.81 None of these defendants are being wrongfully convicted because the evidence is unreliable, or inaccurate, or should have been tested by a different lab. It is an entirely different problem, one that is missed when we focus solely on evidentiary accuracy.
Focusing on felonies also skews our understanding of the scope of the wrongful conviction problem. The United States files approximately two to three million felony cases a year, of which 1 or 2 percent are homicide and rape cases – the kinds of cases that dominate DNA exonerations, innocence project caseloads, and media attention. By contrast, over ten million misdemeanor cases are filed every year, under low visibility circumstances in which appeals are rare and exonerations even rarer.82 If wrongful misdemeanor pleas are anywhere near as common as the examples above suggest, that means that hundreds of thousands of low-level arrestees are pleading guilty every year to crimes they did not commit. While some will avoid going to jail, the criminal records, fines, and collateral consequences of those wrongful convictions can nevertheless burden those defendants for a lifetime.83
As these examples show, there is an underappreciated racial dimension to wrongful convictions. The kinds of baseless minor arrests highly likely to result in wrongful convictions are also those most likely to be visited upon African Americans: urban order offenses like loitering, trespassing, and disorderly conduct. Because we overpolice and overarrest young black men in place like Baltimore and the Bronx for precisely these types of offenses, and because the misdemeanor process then exerts enormous pressure on them to plead guilty, many of these young African Americans are probably actually innocent.84
Such racially skewed wrongful convictions will remain unaffected by the availability of DNA testing, more accurate forensic labs, and double-blind line-ups. They might be affected by bail reform to permit minor offenders to stay out of jail pending trial.85 They might be affected by reduced public defender caseloads.86 They might be affected by judicial resistance to massive assembly-line dockets, or community resistance to racial profiling. But as of yet, such reforms are not conventionally understood as innocence reforms. Someday they will.
5 Expanding the Wrongful Conviction Model
The innocence conversation is expanding. While evidentiary inaccuracy remains the touchstone, scholars are rapidly adding new dimensions to the wrongful conviction model. From prosecutorial tunnel vision87 to police misconduct88 to human cognitive failure more generally,89 we are seeing a variety of institutional and structural critiques of the criminal process that go beyond claims about evidentiary inaccuracy. Scholars are starting to ask about the independent roles of race, class, unconscious biases, and plea bargaining that lead to wrongful conviction.90 These efforts ask us to “‘step[] back’ from the traditional focus on the direct or immediate causes and consequences of wrongful convictions and examin[e] criminal justice systems, the actors in them, and the sociopolitical environments in which they operate to help explain how and why justice miscarries in the form of wrongful conviction.”91
These new critiques further illuminate the risks inherent in the plea bargaining marketplace. They tell us that the criminal process should be understood as a diverse collection of fallible human actors – from police to prosecutors to defense attorneys and judges – laboring under cognitive and psychological limitations, driven by professional incentives and implicit biases. Plea bargaining empowers those very same cognitively constrained actors to negotiate convictions through a highly subjective unregulated bargaining process. Or, as Albert Alschuler recently described it, “a nearly perfect system for convicting the innocent.”92 In sum, these conceptual expansions all point to the need for more attention to plea bargaining as a primary source of wrongful conviction.
Conclusion
In many ways, DNA exonerations enabled the entire innocence revolution. They showed conclusively, without room for speculation, that the evidence and processes that we use to convict serious offenders are deeply flawed.93 To the extent that DNA continues to destabilize our faith in the accuracy of other forms of evidence and the conviction process more generally, it helps all types of innocence cases – a rising tide that lifts all boats.
But the structural lessons of DNA are limited.94 DNA’s hyper-accuracy not only overshadows more common, less “testable” innocence claims, it banks on the notion that our criminal system is primarily committed to accuracy in the first instance. Since it is not, innocence advocacy should take aim at the plea bargaining market that produces more than 90 percent of our nation’s criminal convictions and that reduces accuracy, evidence, and guilt to negotiable commodities.
This, of course, is easier said than done. Regulating the plea environment is an enormous undertaking, in part because it strikes at the heart of police and prosecutorial discretion, a defining characteristic of American law enforcement and our justice process.95 Were the innocence revolution to challenge plea bargaining’s tolerance of inaccuracy, it would pose a significant threat to business-as-usual in nearly every case and for every official player.
Despite these far-reaching implications, a few states are already toying with the idea of constraining the plea bargaining market in order to avoid wrongful convictions. In the Texas legislature, for example, a bill introduced in 2015 would ban the use of compensated informants in death penalty cases. H.B. 564 bill reads in part:
[T]estimony of an informant or of an alleged accomplice of the defendant is not admissible if the testimony is given in exchange for a grant or promise by the attorney representing the state or by another of immunity from prosecution, reduction of sentence, or any other form of leniency or special treatment.96
In effect, the bill concludes that informant evidence procured by deal is inherently too unreliable to be used in capital cases at all. Not only would this be a major change in the informant law landscape, it could open the door to flat restrictions on other forms of highly unreliable evidence.
Similarly in New York, an informant regulation bill would prohibit prosecutors from striking cooperation deals with defendants chargeable with homicide, rape, or kidnapping.97 Part of the motivation is the classic innocence concern over evidentiary reliability: the prospect of avoiding punishment for such crimes is a massive incentive to fabricate. But it may also reflect an even deeper impulse to regulate plea bargaining more generally, on the notion that some crimes should not be negotiable at all.
Informant reform is a promising start, but it represents just one part of the bargaining landscape. Even if we banned compensated informant-generated evidence altogether,98 it would not protect defendants from agreeing to their own wrongful conviction. As long as defendants retain the right to waive the factual bases for their own guilty pleas and the government retains the power to pressure them into doing so,99 we invite wrongful convictions as a routine matter. No amount of DNA testing can fix this structural challenge. Instead, we should amend the master list of wrongful conviction causes to include the phenomenon of plea bargaining in its own right. Then we can better bring the powerful tools of innocence advocacy and scholarship to bear on this troubling source of miscarried justice.
One lesson of the DNA forensic age is that recantations of trial testimony by prosecution witnesses deserve to be taken seriously,1 notwithstanding time-honored dicta to the contrary.2 Unfortunately, the lesson seems to have been lost on some prosecutors and judges.3
The nation’s first DNA exoneration – of Gary Dotson in Cook County, Illinois, in 19894 – exemplifies a dichotomy that persists between innocence advocates and law enforcement more than a quarter of a century later. A decade before his exoneration, Dotson was convicted of a crime that had not occurred: the abduction and rape of 16-year-old Cathleen Crowell, who recanted in 1985, by which time she had become a born-again Christian, gotten married, and was known as Cathleen Crowell Webb.5 She said she had faked the rape out of fear that she was pregnant by her boyfriend, her intent having been to create a cover story for her parents in case her fear came to fruition – which it had not.6 Her recantation was deemed false by prosecutors, by the judge before whom Dotson had been tried, by the Illinois Prisoner Review Board, by the governor of Illinois, and by reporters covering the story for the state’s most influential newspaper, the Chicago Tribune.7 Dotson’s conviction stood for another four years, until August 14, 1989, when DNA established his innocence and the validity of Webb’s recantation.8
As of August 14, 2015, the twenty-sixth anniversary of the Dotson exoneration, the Innocence Project had chronicled 320 DNA exonerations,9 of which 47 (14.7 percent) involved recantations by prosecution witnesses.10 During the same period, in cases that the Innocence Project does not attribute to DNA, the National Registry of Exonerations chronicled 1,319 exonerations, of which 383 (29 percent) involved recantations by state witnesses.11
If, at first glance, the numbers suggest that the system is open to fair and prompt evaluation of recantations, they actually suggest nothing of the sort. Because post-conviction DNA testing is a statutory right in all states,12 the criminal justice system’s tacit acknowledgment of the veracity of recantations following DNA exclusions is independent of what prosecutors and judges may think of them. The non-DNA cases seem more telling. That the mean time between recantation and exoneration in them is more than twice that in DNA cases – 5.3 years versus 2.5 years13 – may well reflect to some degree the skepticism that law enforcement harbors about recantations.
What the numbers leave no doubt about is that recantations are not inherently unreliable. Nonetheless, while some prosecutors and judges persist in assaulting that reality with archaic dicta,14 a new mode of attack has been launched on recantations in the birthplace of the DNA exoneration. The attack is the brainchild of former Cook County State’s Attorney Anita Alvarez. Her weapon is the Illinois perjury statute, which provides that, when materially conflicting statements have been made under oath, the prosecution “need not establish which statement is false” – no matter how long ago or under what circumstances the first statement was made.15
The case that provoked Alvarez’s ire began in 1992, when Willie Johnson, a drug dealer, was seriously wounded and two of his cohorts were fatally shot on the front porch of his home in Chicago.16 As he was being prepped for surgery, Johnson gave police a description of the shooters – one of whom, he said, was known as “Duke” and drove a white Oldsmobile.17 Within hours, police stopped such a car driven by 17-year-old Albert (“Duke”) Kirkman and in which Cedric Cal, also 17, was a passenger. Police returned to the hospital with an array of photos, from which Johnson identified Kirkman and Cal as the killers.18 In 1994, based solely on Johnson’s testimony, a Cook County jury found the youths guilty of the double murder and aggravated battery with a firearm.19 They were sentenced to natural life in prison.20
Fifteen years later, in 2009, Johnson recanted his trial testimony, stating in an affidavit, “I am coming forward now because Duke and Cal don’t belong in prison for shooting me and killing my best friends. They didn’t do it. They weren’t there and [had] nothing to do with what went down that night.”21 Johnson said he had falsely accused the youths to protect himself and his family from reprisal by one of the actual killers – a drug dealer who knew Johnson could identify him; Kirkman and Cal were simply scapegoats, whom Johnson regarded as “enemies” in a rivalry over drug turf.22 In the fifteen years since the trial, Johnson said, he had matured, he no longer feared reprisal from the drug dealer, and he regretted ruining two innocent men’s lives.23
Johnson’s recantation seemed sincere, if only because it was unlikely that he would go out of his way to help the men who had killed two of his best friends and tried to kill him. But there were other reasons to believe it: A witness who knew Johnson, Kirkman, and Cal testified at the 1994 trial that about a month after the shooting Johnson told him that the youths were not involved.24 The recantation was corroborated by Johnson’s sister and by his then-girlfriend.25 Moreover, Kirkman and Cal had credible alibis.26
In sum, Johnson’s recantation was as plausible as Cathleen Crowell Webb’s. As the saga played out in the Cook County criminal justice system, however, it was déjà vu all over again – only worse. After hearing Johnson’s revised rendition of the crime, Circuit Court Judge Michael Brown deemed it “not credible.”27 Based on a brief telephone conversation that Johnson testified he had with a gang leader who told him “to do the right thing,” Brown inferred that the recantation must have been coerced, saying, in ruling from the bench, “I have no idea why [the gang] would urge Willie Johnson to come forward. Nonetheless, it does not appear for a desire to see that [justice] is done, but to further their own ends.”28
A month after Brown ruled, Alvarez obtained Johnson’s perjury indictment, which was highly unusual, if not unprecedented, in a post-conviction case.29 Shortly thereafter, twenty-three former judges and prosecutors sent Alvarez a letter urging her to drop the case, pointing out that, unless she could prove the recantation itself false, prosecuting Johnson stood to chill recantations generally, running counter to sensible public policy, which ought to encourage – not discourage – truthful recantations.30
Alvarez responded, “I agree wholeheartedly with your contention that a prosecutor should never engage in tactics or enforce policies that would chill truthful testimony of any kind, at any stage of a criminal proceeding.”31 But she then proceded to do precisely what she assured the judges and prosecutors she would not do: In response to a motion to dismiss the case, which was pending before Circuit Court Judge Dennis J. Porter,32 she argued that, “The statute under which defendant is charged does not require proof of which of the two statements is false.”33
Alvarez had done other things that called her commitment to justice into question, as those in the Innocence Movement who have dealt with her could attest.34 In 2012, after DNA exonerated four young men of the rape and murder of a 14-year-old girl and linked a known sex criminal to the crime, she asserted in a Sixty Minutes interview that, notwithstanding the DNA, the youths might be guilty and justified not charging the sex criminal on the ground that it was “possible that this convicted rapist wandered past an open field and had sex with a fourteen-year-old girl who was dead.”35 In 2013, Alvarez similarly declined to charge a man linked by DNA to a murder for which another man had been wrongly convicted and exonerated,36 and belatedly acquiesced – after years of stubborn resistance – to the exoneration of a man who had been imprisoned more than twenty years for a home invasion and double murder he could not have committed because he had been in jail when the crime occurred.37
Gary Dotson and eleven other exonerated Illinois defendants who had been convicted as a result of perjured prosecution testimony that had been recanted after their trials joined the twenty-three former judges and prosecutors in an amicus brief supporting a motion to dismiss the Johnson indictment, urging Judge Porter to bar the prosecution.38 Amici asserted that Alvarez had “a disabling conflict of interest and clear bias in the application of the perjury law” – using it to punish Johnson for a recantation unfavorable to the prosecution while ignoring perjury by police officers whose lies under oath had been documented by video footage.39
Judge Porter denied the motion, after which Johnson – having no defense, it being obvious that both his 1994 testimony or his 2009 recantation could not be true, and facing, in view of his felony record, up to ten years in prison and a $25,000 fine if convicted at trial – pleaded guilty in exchange for a thirty-month prison sentence.40 To mitigate harm to Kirkman and Cal, Johnson’s lawyers emphasized that he remained adamant that they were innocent and had taken the plea deal only “when confronted with the probability that the truth of his 2011 recantation would be considered irrelevant and inadmissible” if he had gone to trial.41
Johnson was packed off to prison, the victim of a classic Catch-22 – living proof, perhaps, of the old adage that no good deed goes unpunished. Illinois Governor Pat Quinn grasped the injustice that Alvarez had wrought and, on his final day in office, commuted Johnson’s sentence to time served.42 But Johnson’s release after serving only a little more than three months of his thirty-month sentence, left his conviction intact and did nothing to change what Johnson had portrayed as a worse injustice – the wrongful convictions of two innocent teenagers who remain behind bars more than two decades later. Kirkman and Cal are pursuing federal writs of habeas corpus,43 but even if they are vindicated, the prosecution of Johnson, as his lawyers put it, “will have a palpably chilling effect on the willingness of witnesses to give truthful recantations in the future. … [E]very witness who gives a sworn recantation of earlier sworn testimony will have created a record upon which a perjury indictment may be obtained.”44
The Johnson case has ramifications beyond Illinois. Alvarez’s handiwork could go viral – spreading to other states where prosecutors disdain actual innocence claims and where the law allows perjury prosecutions based on conflicting statements without regard to when the first statement was made.45 Actual prosecutions, however, are unnecessary to chill recantations since the mere specter of perjury prosecutions is sufficient to deter witnesses from repudiating their fraudulent trial testimony.46
It may be tempting to dismiss Alvarez as an inconsequential aberration in an age of enlightenment spawned by the DNA revolution. Before she failed in her bid for reelection in 2016, she had developed a national profile and managed to cast herself as an authority on ethics – as one of four keynote speakers at a National District Attorneys’ Association Summit on Prosecution Integrity in July 2015.47 She also indignantly condemned perjury by one of her assistant prosecutors, who had been caught lying under oath to justify what an audio recording indicated had been an illegal search and seizure in connection with the shooting of a Chicago police officer in 2012.48 Alvarez thus has positioned herself as a no-nonsense, let-the-chips-fall-where-they-may defender of truth and justice, and it is conceivable that she could still emerge as a national role model in a movement to undermine the advances of the DNA revolution. Because the threat of perjury prosecutions is real, it is of paramount importance to stop them. But how?
For starters, when perjury charges are brought based on conflicting statements, innocence advocates should enlist local legal luminaries and mainstream news media to expose the wrongheadedness of discouraging truthful recantations49 – the goal being to persuade prosecutors to adhere to Alvarez’s claim “that a prosecutor should never engage in tactics or enforce policies that would chill truthful testimony of any kind, at any stage of a criminal proceeding.”50
On the legislative front, it would be useful if innocence advocates in states where perjury prosecutions are not expressly precluded worked to bring those states’ statutes into conformity with those barring prosecutions unless the earlier statement is made within a statutory limitation period.51 Even in the unlikely event of success, however, imposing limitations would not solve the problem, which primarily affects pretrial recantation cases. In light of the coercive nature of perjury prosecutions,52 one way to confront the issue would be to move to recuse prosecutors’ offices in all cases in which recanting witnesses are charged with perjury. There is authority, albeit scant, for recusal of entire prosecutors’ offices when conflicts of interest create appearances of unfairness53 – as they do in inherently coercive perjury prosecutions of recanting witnesses.
But, in the final analysis, the overarching goal of innocence advocates should be to establish statutory and case law providing that convictions should not be allowed to rest solely on the testimony of liars – which, except under rare circumstances,54 recanting witnesses are.
Introduction
The “Innocence Movement”1 came of age in the 1990s, which was also a decade of growth for clinical legal education.2 The turn of the century brought further expansion of both causes’ mission. Published in 2000, Actual Innocence3 is heralded as the “foundational document of the innocence paradigm.”4 Its gripping narrative of the wrongly convicted was accompanied by an agenda of criminal justice reforms to protect the innocent.5 Clinical law faculty, whose numbers nearly doubled in the decade preceding Actual Innocence,6 responded to its call to establish clinics “to represent clients in DNA and non-DNA cases.”7 The number of law school clinics providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they were convicted grew exponentially in the following years.8 Since 1992, when the Innocence Project in New York City launched the first innocence clinic at Cardozo Law, thousands of students have either represented or provided legal assistance to prisoners exonerated through DNA testing or other newly discovered evidence.
The partnership between the Innocence Movement and clinical legal education is fitting given the shared benefit to each of involving students in the exoneration of wrongly convicted clients. Doing so furthers the Innocence Movement’s primary goal of freeing innocent prisoners. And, client representation innocence clinics address clinical legal education’s mission to teach students essential lawyering skills while achieving social justice.9 However, the Innocence Movement has not expanded the partnership to advance its secondary goal of policy reform. Drawing from lessons learned from DNA exonerations, social scientists, and legal scholars have shaped an agenda of criminal justice reforms to prevent the arrest, prosecution, and conviction of innocent persons.10 Yet very few innocence organizations, including those based at law schools, employ faculty or staff who focus on policy reform. Only one organization, Innocence Project Northwest (IPNW), offers a clinical law experience devoted to policy advocacy. Since the IPNW Legislative Advocacy Clinic was first offered in 2011, law students have successfully advocated for bills to compensate the wrongly convicted and preserve biological evidence.
This chapter will summarize the Innocence Movement’s successes, and describe the challenges it faces moving forward in regard to client and policy advocacy. It will discuss why the Innocence Movement’s early focus on client representation was a natural fit for clinical legal education programs. The chapter will explore having the Innocence Movement join forces with a new wave in clinical legal education, which recognizes the advantages of engaging students in policy advocacy and community education to achieve social change.11 Some law school offerings are “integrated” or “combined” clinics, where students represent clients and participate in broader-scale projects.12 Others, like the IPNW Legislative Advocacy Clinic, immerse students in an exclusive policy experience. The integrated/combined and project-based clinics expand a student’s toolkit of transferable legal skills by engaging students in a wide range of nonlitigation strategies. Most importantly, as the IPNW experience demonstrates, the clinics are effective in achieving social change. This may be the time for the Innocence Movement to issue a new call to law schools: “to establish clinics to redress the causes of wrongful conviction.”
1 The Innocence Movement’s Dual Mission: Client Advocacy and Reform
The Innocence Movement has achieved success in its mission to free innocent prisoners. Still, the need for client representation has not abated even as the number of exonerations has risen and the number of innocence organizations has grown. Projects continue to receive thousands of requests for assistance each year.13 The Innocence Movement’s reform agenda, as discussed later, has proven difficult to implement. Policy reform is complex and multifaceted; it encompasses not only legislative advocacy,14 but also strategic litigation,15 administrative rule changes,16 and community education.17 Many successful reform efforts were driven by state coalitions18 or commissions.19 However, a review of the Innocence Movement’s ambitious reform agenda reveals that very few states have undertaken comprehensive reform measures to ameliorate the problem of wrongful conviction.
1.1 Client Advocacy
Few miscarriages of justice compare to imprisoning innocent people for crimes they did not commit. As Barry Scheck and Peter Neufeld discuss in this book’s Foreword, the advent of DNA technology sparked a revolution in a criminal justice system that had previously considered wrongful conviction to be a rarity.20 As of December 2015, the Innocence Movement has exonerated 337 people, after post-conviction DNA testing established to a scientific certainty they were imprisoned for crimes they did not commit.21 DNA exonerations have also led to an increased acceptance that wrongful convictions occur in cases where there is no biological material to test. The National Registry of Exonerations maintains an up-to-date list of all known exonerations since 1989.22 The Registry has identified more than 1,700 cases of wrongful convictions overturned through DNA testing and other new exculpatory evidence.23 The combined years of incarceration served by innocent prisoners freed since 1989 exceeds 15,000 years.24 The damaging consequences of convicting the innocent reach much further than overall years of wrongful imprisonment. Litigating cases against innocent suspects places a tremendous drain on resources,25 is devastating to innocent defendants and their families, harms public safety as the actual perpetrator remains free to commit additional crimes,26 and leads to an erosion of trust in the criminal justice system.27
The Innocence Movement’s early focus on client representation addressed a pressing need to provide legal services to individuals who had no other access to justice. Before innocence organizations were formed, innocent prisoners had very few resources to help navigate the complex post-conviction process. Because post-conviction proceedings are civil actions, there is no constitutional right to court-appointed counsel.28 Most prisoners are poor and cannot afford to hire a lawyer.29 The growth in innocence organizations has corresponded with, if not directly caused, a spike in exonerations. DNA exonerations steadily increased after 1989 and recently plateaued, while non-DNA exonerations increased sixfold.30
Each exoneration illustrates the need to remedy the causes of wrongful conviction to prevent future miscarriages of justice and to advocate for compensation for the wrongly convicted. The joy of freedom is tempered by the suffering experienced by persons convicted and imprisoned for crimes they did not commit. Once released, exonerees face an uphill battle to reenter a world that is much more complex than the one they left. Upon reentry, they endure even more significant hardships than properly convicted defendants. These burdens include loss of family ties, the inability to secure employment and housing, difficulties in obtaining health insurance, as well as counseling and other social services.31 Thus, the Innocence Movement’s mission of investigating and litigating cases of wrongful conviction is critical, not only for its impact on the individual, but also because exoneration narratives motivate reform.32
1.2 Reform
Actual Innocence’s detailed list of reforms has developed and grown in the years since the book’s publication. Although this chapter cannot provide a comprehensive summary of the social scientific research supporting key innocence reforms, the agenda can be divided into three broad categories: (1) improving prisoners’ ability to establish innocence – through DNA testing, reforms to the post-conviction process, and the formation of commissions to investigate allegations of wrongful conviction; (2) obtaining fair and adequate compensation for the wrongly convicted; and (3) implementing “best practices” to address known sources of error, thereby decreasing future cases of wrongful conviction. As discussed later, much remains to be done to remedy the range of flaws in the criminal justice system: flaws identified through the work of innocence advocates, social scientists, and legal scholars.
1 Improving Prisoners’ Ability to Establish Innocence. Only one reform, the right to post-conviction DNA testing, is found in every state.33 This accomplishment is diminished by the fact that many state laws contain restrictions that prevent individuals from accessing scientific evidence to prove their innocence.34 Some post-conviction DNA testing statutes expressly bar relief to people who confessed or pled guilty,35 even though data shows 21 percent of the first 330 DNA exonerees confessed, pled guilty, or made incriminating statements.36 A number of statutes do not allow individuals who are released from prison to request testing, despite the continued stigma and collateral consequences they face due to their criminal convictions.37 Other statutes limit applications for testing to certain types of felonies,38 impose a statute of limitations on requests,39 and do not allow for an appeal of an order denying testing.40
Prisoners litigating post-conviction claims on the basis of exculpatory DNA results, or other new evidence, face onerous legal barriers. State courts impose heavy burdens of proof on defendants seeking to prove their innocence through newly discovered evidence.41 Statutes of limitations may prevent defendants from advancing meritorious claims.42 In federal court, limits on litigating freestanding innocence claims and the procedural barriers to any habeas litigation – especially in the context of successive petitions – force prisoners through an almost impassable procedural gauntlet.43 The judicial system’s inability to adequately address innocence claims has led scholars to recommend formation of permanent criminal justice review commissions for that purpose.44 The model innocence commission would be comprised of members from throughout the criminal justice system.45 Its features would include subpoena powers, investigative resources, and political independence.46 To date, only three states have formed permanent criminal justice reform commissions.47 Another eight states formed ad-hoc commissions, which convened for a given period of time and disbanded after issuing a report with policy recommendations.48
2 Fair and Adequate Compensation. Statutes providing for some form of compensation are in place in thirty states, Washington D.C., and the federal system.49 Laws governing compensation for the wrongfully convicted vary widely. Many provide insufficient monetary compensation or inadequate support for necessary housing, counseling, health, and educational services.50 Others contain restrictions or disqualifications limiting an exoneree’s ability to receive compensation.51 Twenty states do not publically recognize society’s moral obligation to provide assistance to exonerees in cases where wrongful convictions resulted from an honest error, rather than from intentional civil rights violations.
3 Best Practices. The factors contributing to wrongful conviction and how to prevent their effects have been studied for more than a century. The body of social scientific research was recently analyzed by Jon B. Gould and Richard A. Leo, who are law professors and social scientists.52 They identify seven common sources of error: mistaken eyewitness identification, false confessions, tunnel vision, informant testimony, imperfect forensic science, prosecutorial misconduct, and inadequate defense representation.53 Gould and Leo conclude that the factors producing wrongful convictions on the front end, and prolonging the incarceration of innocent prisoners on the back end, are detectible – and they can, in theory, be remedied.
However, when criminal justice scholar Robert J. Norris and his colleagues surveyed the fifty states to determine what safeguards were in place as of November 2010 to prevent wrongful convictions, the results were disheartening.54 Although eyewitness identification plays a major role in convicting the innocent, only ten states had some form of eyewitness identification policy.55 Errors in forensic science are substantial contributors to wrongful conviction, yet only thirteen states had created permanent forensic science oversight entities by statute, and in two additional states, the state attorney general established oversight entities.56 Although a significant number of people exonerated through DNA testing confessed, only nineteen states had addressed the electronic recording of custodial interrogations.57 False informant testimony is a leading factor of wrongful capital convictions; nonetheless, only eight states had reformed the use of criminal informants in some way that it would likely increase the accuracy of such evidence.58 As Gould and Leo conclude: “[w]ith all of the information that has been amassed over the last century of inquiry, it is embarrassing to the point of shameful that criminal justicians, policy makers, and politicians do not follow the example of other professions and seek to learn from and prevent systemic error.”59
The challenges and difficulties in actualizing policy reforms were analyzed by Professors Keith A. Findley and Larry Golden, who were early leaders in the Innocence Movement.60 Findley and Golden identify three obstacles to success. First, the fragmented and diffuse nature of the criminal justice system necessarily requires a piecemeal approach to reform.61 The rules, procedures, policies, and politics vary among counties and municipalities, and local police and prosecutors may resist reform efforts because they believe change will lead to a decreased ability to prosecute guilty suspects.62 Second, the criminal justice system’s preference for finality acts as a barrier to reform.63 Third, the Innocence Movement’s organizational challenges, which include resource disparity among projects, add to the difficulties in making headway on policy initiatives.64 Findley and Golden describe the challenges in the policy arena as “formidable” and conclude that success will be tied to sufficient funding for individual projects, developing frameworks to accommodate the “varied, locally autonomous organizations” and identifying ways to “cut through the morass of state and local laws, regulations, practices, and interests that compose the nation’s criminal justice system.”65
Despite these challenges, Innocence Movement activists recognize that minimizing wrongful convictions requires combining litigation on behalf of the wrongly convicted with systemic reform.66 To further this mission, the Innocence Project added a policy department when it transformed from a clinical law program to a national organization.67 In this regard, the Innocence Movement experience parallels that of other public interest legal organizations. A study of approximately fifty public interest organizations found that “although litigation is still crucial, it is used more selectively in tandem with other approaches.”68 The following sections will explore how the Innocence Movement can partner with clinical legal education to achieve broad social change by complementing litigation with other advocacy tools.
2 The Innocence Movement’s Partnership with Clinical Legal Education
The Innocence Movement’s initial focus on client representation was partially driven by a need to overcome the common perception that wrongful convictions were an anomaly.69 And the trend toward client representation continued when talented litigators, who were not trained in policy advocacy, were the first to found innocence organizations.70 Clinical legal education was also founded on a litigation paradigm.71 Professor Margaret Martin Barry traces this original focus to funding sources.72 In the 1960s, the Council on Legal Education for Professional Responsibility offered seed funding to establish clinics at law schools to provide legal assistance to indigent persons.73 The influential American Bar Association’s MacCrate Report, published in 1992, “triggered a flurry of activity in the world of legal education” which was also litigation-centric.74 The Report identified fundamental lawyering skills and professional values law students ought to possess upon graduation in order to practice law.75 They included problem solving, legal analysis and reasoning, legal research, factual investigation, communication, counseling, negotiation, litigation and alternative dispute resolution procedures, organization and management of legal work, and resolution of ethical dilemmas.76 In the same year, the American Association of Law Schools Committee on the Future of the In-House Clinic set forth nine goals of clinical education, which would be met in “In-House, Live-Client Clinics.”77
Following the client-centric trend of clinical legal education, scholarship on innocence clinics has focused on teaching a client representation clinic. Jan Stiglitz, Justin Brooks, and Tara Shulman drew from their experiences in the California Innocence Project to create a blueprint for a law school innocence litigation clinic.78 They discuss course content and issues regarding whether to accept non-DNA as well as DNA cases; whether to continually accept cases or have a fixed number of cases; credit hours; grading versus a credit/no-credit course; faculty-student ratio; supervision; student selection; and physical plant needs.79 They explain that the course content for an innocence clinic will change from year to year because it will be driven by the needs of the clinic’s projected casework.80 They recommend the curriculum include classes combining substantive and skills topics needed to effectively work on cases; sessions on the law and procedures governing post-conviction practice; “firm meetings” where students present their cases to their classmates; and experiential learning opportunities provided by videos, guest speakers, and field trips to prisons, crime labs, and courthouses.81
Professors Daniel S. Medwed and Keith A. Findley, who taught client-representation innocence clinics, engage in a thoughtful discussion of a question that has long interested clinical legal educators: the comparative advantages and disadvantages of students’ participating in small individual representation clinics versus working on institutional larger scale projects.82 Advocates of clinics with small, individual cases argue the clinics enhance student learning by facilitating ownership and client-centered representation through following a case from start to finish as the “first chair.”83 Innocence clinic cases do not fall into this category. They are complex, can span over many years, and the stakes for the client are tremendous. Medwed describes the challenges to clinical teaching methodology posed by innocence cases’ size, complexity, and unpredictability.84 He argues it is difficult, and perhaps impossible, to allow law students to take ownership of the cases and to gain the benefits of nondirective clinical supervision.85 Medwed suggests innocence clinic students take a more limited role in a case’s trajectory by screening or reviewing, rather than litigating, cases.86
Findley suggests Medwed’s concerns can be addressed through a teaching methodology developed at the Wisconsin Innocence Project, where students are involved in the initial case screening process, as well as post-conviction litigation, when applicable.87 The model requires integration of three teaching methodologies (1) immersion (requiring a substantial time commitment from students); (2) strategies for making big cases smaller, such as compartmentalization, connection, collaboration, and continuity; and (3) offering students a variety of cases and problems.88 Findley provides concrete examples of the Wisconsin Innocence Project’s successful implementation of these strategies.89
To be sure, students in client advocacy innocence clinics learn valuable skills, including fact development, interviewing, counseling, negotiation, legal research and writing, and oral advocacy. Because innocence cases are so complex, students must learn organization and time management skills. As Findley concludes, innocence clinics also provide an effective means for teaching “about the importance of being thorough and skeptical, about professional ethics and values, about fostering a capacity for critical reflection about doctrine and the criminal justice system, and, ultimately, about judgment.”90 Innocence clinics can bolster a student’s awareness of and attachment to social justice. In Findley’s words, “[o]ne of the tremendous virtues of innocence projects is that the dominant mission – to free the innocent – is one that engenders passionate commitment by clinical faculty, students and volunteers alike.”91 And Medwed agrees: “Merely participating in an innocence project and striving toward the exoneration of a wrongfully convicted prisoner has a certain intrinsic value: a chance for a student to associate herself with a socially desirable objective and, accordingly, derive some personal fulfillment from that association.”92
Although innocence clinics have been grounded in litigation, there are other examples of successful social justice legal clinics, where students represent clients while also participating in community projects.93 Barry, an early champion of such efforts, argues that clinical legal education fails clients and students if it confines itself to litigation-centric models.94 She contends that clinics and poverty lawyers achieve broad social change only by “complementing litigation with other tools such as transactional services, community organizing and housing development.”95 By engaging in such work, law students learned to collaborate (rather than being ensconced in an adversarial position) and are obliged to educate themselves about the social and political environment of the community in which they operated.96
Against this backdrop, clinical legal education programs have expanded beyond the client representation model, by offering integrated/combined clinics, or project-based clinics. The integrated/combined model can take a variety of forms, but all offer students the opportunity to simultaneously immerse themselves in more than one legal advocacy strategy.97 For example, a clinic may combine individual and organizational representation in litigation with legislative advocacy and community education, or pair transactional work with policy advocacy and community education.98 The project-based model engages students in a range of nonlitigation advocacy and transactional work, which can take place in any area of substantive law.99 Professor Anna E. Carpenter discusses the Air Quality Project, at Georgetown University Law Center, as one such endeavor.100 In that clinic, students worked with public health experts to support a community that was concerned about their neighborhood’s air quality.101 The students helped the public health experts understand the legal and policy implications of their research findings and worked with the community members to assist them in advocating for improved air quality.102
Clinical law scholars have articulated the pedagogical benefits of teaching multidimensional advocacy skills in a clinical setting.103 Students learn firsthand about a variety of strategies and legal tools which can be employed to create social change, including individual representation, organizational representation, community education, and policy advocacy.104 Project-based clinical work, which can encompass legislative and policy reform, has the advantages of teaching many different lawyering skills, such as complex problem-solving, strategic planning, strategic communication, negotiation, collaboration, and project management skills.105 As Carpenter notes, “through projects, students are challenged to find creative solutions to complex and ill-defined problems that have no clear litigation remedy, to understand how lawyers might have a role in solving such problems (including when lawyers need to collaborate with other professionals or lay experts), and to take into account the textured social and political aspects of complex problems.”106
By engaging in more than one form of legal advocacy at a time, students can more fully experience, and reflect upon, law’s impact on social change.107 The benefits to students, as well as to the clients they serve, in having a clinical law program that addresses both client representation and policy advocacy have been borne out by the experience of Innocence Project Northwest.
3 Innocence Project Northwest
Founded in 1997, Innocence Project Northwest (IPNW) was the third national innocence organization.108 Originally a volunteer organization, it transitioned to a clinical law offering at the University of Washington School of Law in 2002.109 For more than a decade, IPNW focused on providing investigative services and legal representation to indigent people imprisoned for crimes they did not commit.110 Recognizing the need for policy reform, IPNW added a Policy Staff Attorney in 2010, and launched the IPNW Legislative Advocacy Clinic in the fall of 2011.
3.1 Client Representation
Students in the IPNW Clinic investigate and litigate claims of actual innocence on behalf of prisoners under the supervision of law school faculty. The seminar component of the course covers legal issues commonly raised in post-conviction practice, such as ineffective assistance of counsel, prosecutorial misconduct, police misconduct, newly discovered evidence, witness misidentification, the use of unreliable jailhouse snitches and government informants, false confessions, and unreliable forensic evidence. The curriculum shifts each year depending upon the students’ anticipated casework.
The IPNW Clinic follows the model described by Findley: students work on cases at every stage of the proceedings. In the practice component of the course, students will review prisoners’ applications to the project to identify cases where there may be a viable claim of innocence and where there is evidence, such as post-conviction DNA testing, to support the claim. Students will conduct an investigative review in cases where there is strong evidence of innocence. This includes corresponding and meeting with clients in prison, gathering and reading police reports, trial transcripts, and appellate briefs. In cases where there is potential for DNA testing, students will investigate whether physical evidence still exists and if so, under what conditions it was stored. They may also conduct a factual investigation, including locating and interviewing fact witnesses (often with an investigator), expert witnesses, and trial and appellate counsel. If the case proceeds to litigation, students conduct research, draft motions and briefs, and advocate in all appropriate forums for the release of clients. IPNW Clinic students have represented clients throughout Washington State and argued motions in the state trial and appellate courts,111 the Washington Supreme Court,112 and the United States Court of Appeals for the Ninth Circuit.113
This model seems to work. IPNW faculty, staff, volunteers, and students have obtained exonerations for fourteen individuals who collectively served more than 100 years in prison for crimes they did not commit. The factors contributing to their wrongful conviction are ones that have been identified nationwide as causing conviction of the innocent.114
3.2 Legislative Advocacy
The decision to create a separate clinic, rather than integrate policy advocacy into the client representation clinic, was driven by several pragmatic circumstances. First, IPNW’s Policy Director, Lara Zarowsky, is a “legislative lawyer.”115 She came to law school intending to work as a policy advocate, participated in the IPNW Clinic during law school, and worked for the legislature after graduation. Second, the law school’s successful Child and Youth Advocacy Clinic provided a framework and a partnership for legislative advocacy. And finally, the classroom components of the client representation and legislative advocacy clinics focus on different substantive and skills training, and the practice components of each clinic are time intensive.
The IPNW Legislative Advocacy Clinic teaches students a broad array of advocacy skills in order to actively participate in the state legislative process on issues involving the identification, rectification, and prevention of wrongful convictions. In the fall quarter, students participate in class sessions, trainings, and meetings designed to comprehensively understand the Washington State legislative process and develop skills necessary to participate in that process. The course includes guest lecturers from professionals involved in policy making, such as lobbyists, legislators, legislative staff, and state agency representatives. Students also begin to work with stakeholders interested in introducing bills, or preparing to respond to proposed legislation. During the winter quarter, when the legislature is in session, students work to bring about the introduction of bills, draft bill language, work with stakeholders and legislative staff, develop oral and written testimony, identify additional witnesses, shepherd their bills through the committee process, and work to get the bills adopted into law. They may testify on behalf of the bill and craft a media strategy. Students track and analyze bills relevant to their work and formulate a position and strategy for supporting, opposing, or amending legislation proposed by outside organizations.
In 2013, the Clinic worked closely with a broad coalition of supporters to pass a comprehensive wrongful conviction compensation statute.116 The statute recognizes the tremendous injustice of wrongful conviction and seeks to address the unique challenges exonerees face upon release. The compensation statute, which passed with near unanimous consent, provides $50,000 per year of wrongful incarceration and $25,000 per year spent wrongfully on parole, in community custody, or as a registered sex offender.117 It also includes payment of child support accrued during wrongful incarceration and provides the wrongly convicted with reentry services118 as well as tuition waivers to state universities and colleges.119 When signing the bill into law, Governor Jay Inslee acknowledged, “[w]hile the impact on the person and his or her family cannot be quantified, some measure of compensation will help those wrongly convicted get back on their feet.”120
The IPNW Legislative Advocacy Clinic has earned wide respect in the Washington State Legislature, as evidenced by the overwhelming bipartisan support for its bills. Building on the relationships formed in prior years, the Clinic had another legislative victory in 2015 when the evidence preservation bill it championed passed into law. Prior to the law’s passage, no state law prevented the destruction of crime scene DNA evidence. As a result, IPNW was forced to close many cases after discovering that critical DNA evidence, often the only evidence capable of exonerating an innocent person, had been destroyed without having been subjected to scientific analysis. The new law requires the preservation of biological material collected from a crime scene and prepared for scientific testing throughout the length of the sentence imposed for the crime.121 In the case of unsolved or “cold” cases, such evidence must be preserved through the statute of limitations for the crime.122
Many synergies exist between the IPNW client representation and the legislative advocacy clinics. The two clinics hold joint class sessions on common topics of interest and students attend each other’s court and legislative hearings. The legislative advocacy clinic also works closely with IPNW Clinic exonerees, empowering them to become a voice in the statewide and national Innocence Movement. IPNW Clinic clients Alan Northrop, Larry Davis, James Anderson and Ted Bradford’s compelling testimony in support of the compensation bill was critical to its passage. Ted Bradford, who was exonerated through post-conviction DNA testing, has testified in the Oregon and Nebraska Legislatures in support of bills to expand the availability of DNA testing. And the culmination of both clinics’ work occurred when a client exonerated through the IPNW Clinic’s advocacy received compensation through the bill championed by the IPNW Legislative Advocacy Clinic.123
Conclusion
To be sure, innocence-related policy work can take place in a number of different forums, but there is space for it under the umbrella of clinical legal education. IPNW serves as a model for clinical law programs across the country to engage in both litigation and policy advocacy as a means of implementing systemic reform to improve prisoners’ ability to establish innocence, provide for fair and adequate compensation, and implement best practices to minimize wrongful convictions. The two IPNW clinics work symbiotically. The Legislative Advocacy’s undertakings are grounded in the compelling stories of the clients exonerated through the work of the IPNW Clinic; students in the IPNW Clinic who provide individual client representation receive a broader perspective from the policy work done by the IPNW Legislative Advocacy Clinic. Students have the opportunity to reflect on lawyering strategies within the context of the other clinic. Doing so not only enhances the Innocence Movement’s goals, but it also furthers clinical legal education’s goal of developing thoughtful, reflective practitioners.
