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What the National Registry of Exonerations Can't Tell Us

The National Registry of Exonerations has captured the attention of the wrongful conviction community, as well as of our criminal justice system. The stature of the schools behind it, Northwestern Law School's Center for Wrongful Convictions, and the University of Michigan Law School, have given the Registry credibility that can't be ignored. 

 

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The Registry just released a report, which is an analysis of the trends in exonerations up through 2013. Turns out that 2013 was a "banner year" with 87 exonerations, bringing the total up to just under 1300 by year's end. You may download the report by clicking here. It tells us a lot, but there is a lot that it cannot tell us. Professor Sam Gross, the main architect and writer of the reports, emphasizes the more exonerations they uncover, the more they realize that they have only a partial list, possibly "the tip of the iceberg". It should be noted that the Registry's total number does not include 1170 defendants whose convictions were dismissed in 13 "group exonerations" that  followed the discovery of major police corruption. Though they do not qualify based on the criteria of the Registry, we should be aware of them. I doubt the people involved care about the difference.

Those who earlier claimed wrongful convictions is not a systemic problem are dumbfounded by this figure, but those who investigate this know it will only continue to grow in two basic ways. First, as the years move on, there will be more exonerations, Prof. Samuel Gross, University of Michigan Law Schoolprobably at an accelerated pace, since the system is considering things it would not have even looked at before. An example of this is a family's intention to ask for a new trial for their brother who was executed 70 years ago! The climate today is such that only now do they believe they can have a fair trial. Second, the list will grow as the Registry finds exonerations which have already taken place. In 2013, the Registry added 87 new exonerations, but it also added another 147 exonerations from previous years which they only learned about this last year.

We encourage you to read the report yourself and learn, based on sound verified data. But the focus of this article is what the report can't tell us.

When Sam Gross refers to the "tip of the iceberg", he is referring to the remaining yet-to-be discovered exonerations. Let's not forget that exonerations are a small, small portion of wrongful convictions. So, now we are talking about a "tip of an iceberg", and that iceberg itself, in only the tip of a greater iceberg!!! As much as we rejoice in this number of exonerations, the question still plagues us: "How many are there that we will never know about?". We can never know the exact number, but here are a few considerations that will give up a mental picture:
  1. Innocence Projects will tell you that the list of persons they have screened and believe to be wrongfully convicted, dwarfs the number they can actually handle. There are many they know of, but will never get to. Part of the mission of Proving Innocence is to help them to be able to work through more cases with the addition of our investigative efforts.
     
  2. Usually only those who have lengthy sentences will apply to innocence projects. Projects have a way of prioritizing their cases. If a person has a relatively short sentence (less than 5 years?), they have little chance of attracting attention because the need is so much greater elsewhere. Exonerations with very little, if any, jail time do happen, but they are much less frequent. Many with shorter sentences see the handwriting on the wall and do not apply.
     
  3. We can also view the previous point from a different angle than length of sentence, that is types of crimes. A high percentage of exonerations have to do with the crimes of murder, sexual assault and robbery with an armed weapon. Those who have been accused of other "lesser" crimes are equally vulnerable to being wrongfully convicted, but less likely to garner the resources of an innocence project.

    There is a slow increase in exonerations of lesser crimes, but it will be a long time before the more serious crimes do not dominate the scene.  One person who registered on our site told me that he was accused of a "white collar" crime. His attorney told him that if he would take a plea bargain, which the lawyer had worked out with the prosecutor, he would have to serve some time, but could be home on weekends and not be taken away from his young family, which he risked if he went to trial. Though innocent, the concerns for his family overrode his concerns about his innocence. (See our material on the problem of plea bargains.) When he accepted the plea, he confessed his guilt, whether that is factually true or not. But the judge said he didn't care about the deal the prosecutor had made! The judge said it was too lenient, and so, based on his guilty plea, sent this man away to prison for 2 years! It would be rare for an innocence project to work on a case, where the person would be released just about the time they would be ready to go to court . The only way a person like that would ever get exonerated, would be if he had the personal funds to pay for investigators and lawyers, just to clear his name. Few do.
     
  4. Also, consider the fact that there are so many, an unimaginable number of people, who have been wrongfully convicted, who serve their sentence, are released, and that is the end of it. Two days ago, riding the bus to work, I gave a dollar to a person who didn't have the extra 50 cents in order to ride the bus. Afterwards, we started talking. He said he just recently got out of prison, having served 13 years for a crime he didn't commit. (I'm not a lawyer or an investigator, but I seem to attract these people!) Even if true, he will never make it into the Registry. The Registry is of exonerations, and he will never be exonerated. Right now he is more concerned with rebuilding his life than to be running after an exoneration that will never happen. Untold numbers will never be counted in the exonerations database. On the books, these people were tried, found guilty and served their time, wrongful convictions hidden even from the researchers.

There is one more aspect for those of us trying to grasp all the dimensions of the problem of wrongful convictions. There is a second sentence that convicted persons experience, usually not imposed by our government, but by our society. I have no statistics on how many of those convicted of crimes and who served time can find work or who can keep a job for any length of time. For the innocent, no amount of explanation seems to have much affect on hiring practices.  I would not be surprised if the unemployment rate among this group of people is 90%. Victor Hugo's depiction in Les Miserables of Jean Valjean's yellow ticket-of-leave is still very much with us.

One example of this found in the report is the case of 19 year old Malcolm Emory. In Malcolm's case, he actually served no jail time, but the consequences of his conviction were life changing. His full scholarship in Physics from the Navy at Northeastern University in Boston was revoked. He was forced to resign his job at the US Naval Underwater Sound Laboratory and was stripped of his security clearance. He spent the next 15 years doing odd jobs. Not the career path he has made for himself. With no jail term, his life was radically changed for the worse because of false testimony from a policeman. Malcolm was simply standing there, books in hand, watching an anti-Vietnam war protest, when he was clubbed and dragged away by police. In 1985 he tracked down the photographer who had a lot of photos of the demonstration published in the paper, but none contained pictures of Malcolm. After 4 years of negotiations with the Boston Globe to allow him to see the unpublished pictures, he found a picture of the police dragging him away, still clutching his books. The police officer had testified that Malcolm had a brick in one hand and a concrete block in the other and hit the officer in the chest with the brick.  He was simply watching, standing there and holding his books. This picture proved it!

This second sentence not only includes economic stress, but psychological stress, as well. Innocent people who serve prison terms have a harder time making sense of their conviction, for obvious reasons. Today, our knowledge of Post Traumatic Stress Syndrome (PTSD) can give us some insight into this. Many exonerees who are hired have a hard time keeping their job. You can read two articles about this on our site, Psychological Consequences of Wrongful Conviction in Women by Zieva Konvisser and The First Psychiatric Assessment Of The Psychological Effects Of Wrongful Conviction And Imprisonment – The Effects Are Devastating

Also of note is a database compiled by Hans Sherrer of Justice Denied. He has compiled a database of 4,170 exonerations going back to the beginning of this country as well as exonerations from 107 countries. The National Registry covers a much narrower time period, beginning in 1989 with the advent of DNA as evidence. The Justice Denied database is the largest database of its kind anywhere!

The second sentence I alluded to earlier that our government does impose is on those who were convicted of sex crimes. The Norfolk Four were all young sailors who made false confessions at the hands of a corrupt detective (now in prison). Though the real killer has been confirmed by DNA, the governor of VA, could not bring himself to give them full pardons, because he didn't understand how anyone would admit to doing something they didn't do. So he gave them a partial pardon. They all live lives where, though they've been released from prison based on innocence, they still have to report monthly as registered sex offenders! Is there anyone reading this who would hire someone if they informed you they were on the sex registry? That relegates them to employment few of us would even consider, if they are employed at all. Few of us can understand what being a registered sex offender does to one's life trying to form new and healthy relationships. Bit of a date killer when one of the first questions the person asks, "So, what did you do when you got out of the Navy?".  And if you have children, you can't even pick them up from school or attend any of their events.

One wrongfully convicted juvenile, whose attorney told him he should take a plea bargain, had his accuser recant her testimony 2 months after he started his sentence as a minor. After being released, "Coker has had trouble finding good jobs due to the blemish on his record. His family has had to move several times due to protests from neighbors about living near a sex offender. After graduating, he was arrested for attending a football game at his school." Click for article.

Hurray for the National Registry of Exonerations. It is an invaluable collection of data that ultimately will be used in many ways and will make a real difference. But let's not forget that exonerations really are the select few that manage to rise to the top. The depth of suffering to persons wrongfully convicted, to their families and loved ones, is something few of us can stomach thinking about for very long. But it is the reality of that suffering that gives us passion to do whatever we can to help individuals and to bring about changes in the criminal justice system.

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In 2012 Ken Wyniemko was a special guest of Richard Bernstein, who served as co-host with the late Angelo Henderson on 1200 AM Detroit Radio. This segment of the show was dedicated to understanding wrongful convictions and what can be done to free the wrongfully convicted and prevent others from this fate.

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The Research Corner

In The Research Corner, Professor Marvin Zalman presents summaries of current academic research on wrongful conviction in a succinct and readable format. We hope that the summaries will provide you with a more sophisticated understanding of innocence issues and stimulate further interest.

 

 

 

For Those Desiring PI to look at Your Case

 

At this point in our development, PI is only taking on cases in cooperation with other innocence projects. If you have been wrongfully convicted and your case involves DNA evidence, we recommend you contact the Cooley Innocence Project at Western Michigan Cooley Law School. If your case does not involve DNA, please contact the Michigan Innocence Clinic at the University of Michigan Law School. A third member of the Innocence Network is SADO, the State Appelate Defense Organization. For cases outside of Michigan, here is a list of innocence projects by state.