This is a guest post from Sarah Lucy Cooper, Senior Lecturer in Law at Birmingham City University Law School, UK, and Fellow, Arizona Justice Project. It was originally published on the Human Rights and Public Law Blog.
In 2010 I joined the Arizona Justice Project – a non-profit organization that represents Arizona inmates with significant claims of innocence and ‘manifest injustice’ — as an Adjunct Fellow. The Justice Project is the fifth oldest member of the Innocence Network, which brings together over 60 such projects worldwide.
As a Fellow, I started to engage with the many and varied controversies of innocence work at a time when the American Innocence Movement had found its stride, with around 1000 exonerations to its name. These controversies ranged from the impact of restricted resources and antipathetic attitudes towards reform, to the difficulties of investigating common causes of wrong convictions such as false confessions, eyewitness misidentification and flawed forensic evidence, and the challenges of navigating complex and stringent post-conviction relief rules.
In the heat of the Justice Project trenches, further exploration often led to more questions than answers. Luckily, however, in 2011 Ashgate Publishing Ltd commissioned the Centre for American Legal Studies at Birmingham City University to produce an edited collection series — Controversies in American Constitutional Law — and presented me with the opportunity to provide some answers.
My collection is titled Controversies in Innocence Cases in America and the final line up of contributors includes some of America’s finest ‘innocence’ scholars and lawyers. This includes frontline members of the Innocence Network Keith Findley and Jacqueline McMurtrie, and scholars at the forefront of innocence associated research, namely Jules Epstein, Richard A. Leo, Deborah Davies, Lissa Griffin, Marvin Zalman, Nancy Marion, Michael J. Williams, Carrie Leonetti and Francine Banner, as well as scholars working live innocence cases daily, namely D. Michael Risinger and Lesley C. Risinger at Seton Hall’s Last Resort Exoneration Project and Carrie Sperling the Co-Director of the Wisconsin Innocence Project.
With this diversity of perspective and experience, the collection naturally formed into anthology that provides a 360 degree view of controversies associated with the American Innocence Movement. Moreover, to underscore the practical significant of the collection, the Arizona Justice Project provides a foreword intertwining the collection’s themes with its real-life experiences.
The collection is presented in four sections. Below I discuss some of the highlights across the collection.
PART I: THE RISE OF THE INNOCENCE MOVEMENT IN AMERICA
Part I charts the rise of the American Innocence Movement from the unique perspectives of Keith Findley, the President of the Innocence Network, and Jacqueline McMurtrie, the Director of the Innocence Project Northwest and founding member of the Innocence Network.
Findley considers the Innocence Movement as the “new revolution” in American criminal justice, whereas McMurtrie approaches the journey of the Innocence Network “from beginning to branding,” considering notions of collaborative governance and future research about developing an Innocence Network brand. As such, these accounts of the development of this crucial era of American criminal justice are unrivalled.
PART II: HOW ARE INNOCENT PEOPLE CONVICTED? COMMON CAUSES OF WRONGFUL CONVICTIONS
Part II explores some of the most common causes of wrongful convictions in America, providing a clear insight on how innocent people are convicted of crimes they did not commit. In chapter 3, Jules Epstein considers the “conundrum” of eyewitness misidentification, the most common cause of wrongful convictions in America with research showing around 75% of the DNA exonerations are attributable to such errors. More information about this pervasive issue can be found here.
In Chapter 4, Deborah Davis, Richard A. Leo and Michael J. Williams, examine the issue of false confession, with a particular concentration on interrogation-induced false confessions. They conclude a “real overhaul” of core interrogation techniques is required to resolve this problem. The cases of John Watkins and Eddie Joe Lloyd showcase the need for this research. See: http://www.innocenceproject.org/understand/False-Confessions.php.
In Chapter 5, Lissa Griffin tackles the issue of the suppression of exculpatory evidence by prosecutors. Griffin explores the Brady doctrine from its conception in the United States Supreme Court to notions of formalised reform. She concludes that Brady has not provided “meaningful” protection for innocents.
Finally, in a bespoke, Chapter 6, Carrie Leonetti considers the largely untouched issue of America’s contribution to wrongful convictions abroad via foreign aid programmes that provide far more extensive resources for prosecution bodies than defense. Leonetti concludes that America needs to “foster a domestic conversation” about the end goal of American rule of law programs, boldly stating “blindly doing more of the same will not work.”
PART III: REALITY BITES: PROBLEMS WITH INVESTIGATING, PROVING AND DEFINING INNOCENCE
In their foreword, leaders of the Arizona Justice Project state this section of the collection “largely reflects the debates and challenges we engage in daily.” They note familiarity with the “innocence lawyer” role discussed by D. Michael Risinger and Lesley C. Risinger in Chapter 7.
The Risingers argue the emerging role of ‘innocence lawyer’ is different from the traditional criminal defense role, and warrants different ethical considerations. They say this role involves signalling a “well-warranted belief in actual innocence, or at least the gross unsafety of the verdict in regard to actual guilt.” They conclude that this role should be supported by any “mature legal system calling itself a system of individual justice.”
In Chapter 8, Carrie Sperling – by highlighting the myriad of complex and stringent post-conviction procedures faced by a hypothetical innocent inmate – cleverly narrates the difficulties that result when finality and innocence collide. The Arizona Justice Project label the problems faced by the hypothetical inmate as “all too familiar.”
Finally, in Chapter 9, Francine Banner critically examines the contemporary post-conviction innocence standard in light of the rise of DNA evidence; a crucial discussion in any anthology dedicated to innocence issues. To date, 316 people have been exonerated by post-conviction DNA evidence in America and access to DNA testing has been labelled a priority issue by the Innocence Network’s most famous member, The Innocence Project. The Innocence Project’s recommendations about access to DNA statutes can be found here.
PART IV: INNOCENCE REFORM
The final section of the collection looks at how the Innocence Movement has encouraged reform across the American criminal justice system. In Chapter 11 I focus on the concept and development of innocence commissions across America since the new millennium. The chapter highlights how these bodies face tensions with traditional facets of the criminal justice system, framing issues, complex group dynamics and a lack of legitimacy and resources, which has, generally, prevented them from successfully integrating into the criminal justice system, as mechanisms for reducing the likelihood of wrongful convictions.
In Chapter 10, Marvin Zalman and Nancy Marian take a wider, more eclectic approach to reform, exploring the policy work of the Innocence Movement in light existing policy making theories. They suggest innocence reform can be explained by borrowing elements from various existing theories, but no single theory. They conclude by encouraging scholars to engage in further research.
The collection has been described as a “provocative, insightful and valuable resource” by Barry C. Scheck and Peter J. Neufeld, the widely recognised God-fathers of the Innocence Movement. Similarly, Professor Daniel Medwed has described the collection as a “thoughtful and wide-ranging treatment of the topic and a major addition to the academic literature.” Larry Hammond, former President of the American Judicature Society, hails the “Hall of Fame” of contributors and describes the collection as a “roadmap” that might help “us more unerringly to convict the guilty and to free the innocent.”
Admittedly, the collection is not exhaustive, but it would be impossible to – no pun intended — ‘do justice’ to such a vast, complex and ever-evolving area of discourse in a single collection. To that end, it has been a privilege to bring together a discussion of some of the most important issues in the world of innocence from the perspectives of people who engage with it in the most meaningful ways.