Judge Learned Hand called “the ghost of the innocent man convicted” an “unreal dream.” But in “Convicting the Innocent,” Brandon L. Garrett shows that it can be a “nightmarish reality.” Since the late 1980s, DNA testing has exonerated more than 250 wrongly convicted people, who spent an average of 13 years in prison for crimes they didn’t commit. (There is every reason to think that more people have been wrongly convicted since then, but only these 250 have been definitively exonerated by postconviction DNA tests.) Seventeen of the 250 were sentenced to die, and 80 to spend the rest of their lives in prison. By poring over trial transcripts and interviewing lawyers, prosecutors and court reporters, Garrett, a law professor at the University of Virginia School of Law, seeks to explore who these 250 innocent people are, and why they were wrongly convicted. His alarming conclusion: the wrongful convictions were not idiosyncratic but resulted from a series of flawed practices that the courts rely on every day, namely, false and coerced confessions, questionable eyewitness procedures, invalid forensic testimony and corrupt statements by jailhouse informers. Garrett’s book is a gripping contribution to the literature of injustice, along with a galvanizing call for reform.
CONVICTING THE INNOCENT
Where Criminal Prosecutions Go Wrong
By Brandon L. Garrett
367 pp. Harvard University Press. $39.95
Almost 90 percent of the 250 innocent people later exonerated were falsely convicted of rape, or rape and murder, and 40 of them actually confessed to crimes they didn’t commit, most adding specific details that only the real culprit could have known. How did this happen?
Garrett describes how the police, intentionally or not, fed details of the crime to the suspects — and then recorded only portions of the interrogations so that it was difficult for defense lawyers and jurors to reconstruct the truth. Even the selectively recorded interrogations make for painful reading, as the suspects offer facts that are inconsistent with what happened, and the police browbeat them into false confessions. (Detective: “You hung her!” Vasquez: “O.K., so I hung her.”) Unfortunately, the Supreme Court has refused to focus on whether confessions are reliable, asking instead whether they were coerced, or offered without Miranda warnings. Garrett says the best protection against false confessions would be to require that police record interrogations from beginning to end; at the moment, 11 states and the District of Columbia are required or encouraged to record at least some interrogations.
In addition to false confessions, eyewitnesses wrongly identified the accused in 76 percent of the 250 cases. The unreliability of witness identifications is now widely known, but Garrett was surprised to discover how flagrantly unreliable the procedures were in the cases he examined. In 78 percent of the trials, he found evidence that the police contaminated the eyewitness identifications with suggestive methods, like indicating which suspect in a lineup should be selected, or conducting lineups where one suspect obviously stood out from the others. (Many of the convicted looked nothing like the initial description given by the victims.) Garrett learned that while the witnesses were confident by the time of the trial that they had identified the right suspect, in more than half the cases they had not been confident at the time of the initial identification.
Of those exonerated by DNA, 70 percent were from minorities, and in nearly half of the rape cases involving blacks or Hispanics, the victims were white. (Garrett points out that “most sexual offenses, almost 90 percent, are committed by offenders of the same race as the victim.”) Garrett criticizes the Supreme Court for allowing lineups that were unfairly conducted, and says the best way to avoid erroneous identifications is to use a double-blind procedure where police officers can’t influence the witness because they don’t know which person in the lineup is the suspect.
Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic.
This book review first appeared on the New York Sunday Times Book Review on 26th May 2011