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A Study Of Weaknesses In The Trial Process That Led To Wrongful Convictions And Weaknesses In The Appellate Processes That Rarely Exonerated – Most Of The 200 Exonerees Would Still Be In Prison If They Did Not Get Access To DNA Testing

Brandon L. Garrett
Judging Innocence.
Columbia Law Review 108: 55-141 (2008).

This complex study of the first 200 DNA exonerees examined their trials, appeals, post-conviction proceedings and exonerations, in great detail. Convictions were associated with familiar errors (eyewitness, forensic, informant, confessions).  Direct and habeas appeals were inadequate to review factual errors. The exonerees were disproportionately minority. Almost all of the convictions were for murder or rape.

Garrett also compiled a matched comparison group of cases for comparison, but because of its small size direct statistical comparison was not feasible.

The factors related to the wrongful convictions included eyewitness testimony (79%), forensic evidence (57%), informant testimony (18%) and false confessions (16%).  The forensic errors were chiefly serological analysis and microscopic hair comparison, and these kinds of analysis are no longer performed or relied on to convict defendants.

Appellate courts did a poor job of catching these errors, reversing 14% the erroneous convictions, but only 9% if only noncapital cases are included. These rates are admittedly higher than the nominal 1% to 2% reversal rates during criminal review generally.  Even when appellate courts found errors, they often held that “overwhelming evidence” outweighed the errors and refused to order new trials.

Barriers exist to gaining access to DNA evidence.  Seventy-nine percent of the prisoners sought DNA testing through innocence projects or postconviction attorneys. Twenty-three exonerees (12%) initially pursued DNA testing pro se.  In twenty-two cases (12%) police or prosecutors or the FBI initiated the DNA testing.  Seventy-four DNA exonerations (37%) resulted in finding the actual perpetrator, 49 by DNA “cold hits” and 25 by non-DNA means.

The exonerees served an average of twelve years before exoneration; almost all were exonerated long after DNA testing had already been available. Despite instances of resistance, 119 exonerees (60%) received access to DNA testing with law enforcement or prosecutors’ consent.

Eighty-two (41%) of the exonerees received some kind of compensation, according to news reports; 49 who brought wrongful conviction lawsuits received favorable judgments or settlements.

The author, noting that the law privileges procedural review over factual review, argued that “reversal rates in serious rape and murder cases suggest reasons to invest in enhanced factual investigation and review.”  For appellate courts to have better factual records “would require investment in accuracy enhancing procedures such as videotaping, providing resources for investigation, auditing of forensic evidence, and eyewitness identification reform. Most jurisdictions have not yet made these changes, though some reforms, such as blind administration of lineups, are extremely inexpensive and may increasingly take hold.”

Finally, the law does not provide relief “even after DNA technology offered the truth”: 41 had to obtain an executive pardon, because they lacked any judicial remedy or because courts denied relief. 

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