Wednesday, September 24, 2008

Innocent until reported guilty

I've spent a great deal of time on Grits discussing a panoply of possible innocence reforms, from improving eyewitness ID procedures to requiring corroboration and reliability tests for informants to improving forensic labs and recording police interrogations. But in Miller-McCune Magazine Steve Weinberg suggests that improved journalism about crime and punishment may be the best remedy:

One solution for wrongful convictions, however, has not been explored in a sustained, meaningful manner. It is a solution that cannot be legislated or even come from the government. The solution requires writers and editors for newspapers, magazines, radio stations, television stations, Web sites and books to practice preventive journalism rather than after-the-conviction, too-late journalism.

Until and unless journalists improve their performance, far more innocent people will be imprisoned than the criminal justice system seems likely ever to acknowledge. The logical extension of the preceding statement seems obvious, but I’ll say it anyway: Unless journalists get better at covering the justice system, many criminals will continue to go unpunished, free to murder or rape or rob again. So investigating wrongful convictions is not — as perceived by too many police, prosecutors and judges — an assault by soft-on-crime bleeding hearts. Rather, it is an attempt to serve law and order, to improve the administration of justice and to foster faith in the criminal justice system.

Writing in the University of Missouri, Kansas City Law Review, researcher Rob Warden noted just six years ago, “Throughout most of history, until quite recently, journalism generally was hostile to claims of innocence by those convicted or accused of serious crimes. The annals of reporting are replete with instances of prejudicial sensationalism, often published in concert with police and prosecutors under pressure to convict someone without credible evidence. On rare occasions when post-conviction discoveries of innocence were chronicled, the reporting invariably was subdued and devoid of any explicit suggestion that there might be systemic problems.”

But advances in DNA testing over the past 15 years have led more and more journalists to listen carefully when contacted by inmates claiming innocence. High-profile exonerations based on DNA testing demonstrate the wrongful-conviction problem convincingly; those exonerations also suggest the scope of the problem in the vast majority of cases that have no testable DNA evidence.

Weinberg wraps his critique around the remarkable story of a wrongful conviction in Missouri based on a pair of jailhouse informants who accused an innocent woman, showing how any cursory investigation by a reporter would have revealed the main flaws in the case many years before the courts finally admitted it. He continues:

The typical situation within newsrooms today looks like this: Coverage of criminal cases is spotty and often superficial when it occurs. Elected prosecutors tend to be treated as the last of the sacred cows, the white hats who keep the streets safe for law-abiding citizens. The lawyers hired by the elected prosecutor are rarely mentioned in print and even more rarely subjected to meaningful scrutiny, despite their considerable power. The police in general are not treated so sacredly by journalists. That said, almost all individual police officers operate anonymously as far as most journalists are concerned, allowing rogues to make questionable arrests with relative impunity.

The criminal cases that do receive coverage are usually those proceeding all the way to trial. Because in a typical jurisdiction only about 5 percent of defendants reach trial (the other cases are dismissed or plea bargained by the prosecutor), the math is basic: Around 95 percent of criminal cases never receive coverage by journalists after the arrest.

Even the cases that reach trial almost never receive the kind of journalistic scrutiny that could reveal a wrongful conviction in the making. Instead, reporters and editors handling trial coverage simply summarize what is occurring within the confines of the courtroom, rather than conducting an independent inquiry.

To be fair, I'd add to Weinberg's assessment that among innocence cases, there have definitely been instances, at the Dallas News and Houston Chronicle, for example, where journalists were ahead of the curve. In Austin recently, the Austin Chronicle's Jordan Smith has tracked the infamous Yogurt Shop murder cases at a level of detail that leaves little doubt the defendants falsely confessed after DNA from the rapist was recovered from a vaginal swab that matched none of the defendants. Here's a typical paragraph from Jordan's coverage:
The revelation in April that there was a new male profile collected from semen found on a vaginal swab taken from the youngest victim, 13-year-old Amy Ayers, appeared to deliver another stunning blow to the state's already weak case against Scott and Springsteen. Indeed, although the state insists the two are responsible for the murders, there is absolutely no physical evidence tying either man to the crime. The same is true for two other suspects – Maurice Pierce, the man the state has said was the "mastermind" behind the crime but against whom all charges were dismissed in 2003, and Forrest Welborn, who was dropped as a suspect after two grand juries failed to indict him – even though plenty of physical evidence was recovered from the scene, inside a North Austin yogurt shop.
That's exactly the type of independent assessment Weinberg's calling for, and while I agree it's not typical, it's not entirely accurate to say it never happens. By comparison, the daily newspaper has tended to provide so-called "balanced," he-said she-said coverage that fails to delve deeply into the facts of the case. So I certainly agree with Weinberg that critical reporting about crime stories isn't typical, and we'd all be better off if it happened more often. Via CrimProf Blog.

BLOGVERSATION: At Simple Justice.


Anonymous said...

The conviction based on 'numbers' has to be solely looked at as something to be leery of. When you look at the yogurt shop case above, you see something that even a layman could scratch his head about, wondering how these men ever made it past the grand jury with an indictment.

Far too long, we have allowed elected citizens to choose who is to be hanged, or who is to be saved. The cases are not based on solid evidence, but on words of persons that either have been offered an incentive to testify, or are still wrapped up the what ever event happened to them. Cases need to be decided on hard proof alone, and leave the words out of it.

We have seen recently two men that were wrongly imprisoned for long lengths of time, only to find that their accusers were just plain wrong, or the DA had some sort of a tough on crime agenda. One of these men died in prison, a life wasted all due to a woman who wanted 'justice' for herself, and another who was unlucky enough to have a prosecutor against him that wanted to make his conviction rate numbers go up by one.

Anonymous said...

So now you have to be a better journalist. Ha.

A Voice of Sanity said...

Why I Don’t Believe Everything I see on TV…

An interesting note considering the extraordinary exploitation of this case by the media.

Unknown said...

The article cited in the blog is excellent.

As to how some cases make it past the grand jury, don't the stats show that grand juries indict 98% of all cases? Someone famously said that a grand jury would indict a ham sandwich.

There's a place to start for criminal justice reform -- grand jury procedures and secrecy.

As to the media . . . sad to report, I have first-hand experience with how poor journalism contributes to wrongful conviction.

The only good news is that I am grateful to report that at least one journalist in San Antonio has had the courage and taken the time to dig deep and expose the many problems with the case. Hats off to John MacCormack of the San Antonio Express News.

ABC's 20/20 plans to air a segment on the case on Oct 24. It remaains to be seen how gutsy they'll get in exposing the problems with the case.

The Corpus Christi Caller Times and local TV stations tried & convicted my niece well in advance of her trial. When an affidavit filed by a CPS representative was proven false in family court, they didn't report that. They had, however, already reported the falsehoods in the affidavit. So they just stopped reporting most of the falsehoods, instead of making news about the fact that there were unprovable, false claims in a sworn affidavit.

Pre-trial and during the trial, my niece and her husband were instructed not to talk to anyone about the case. They didn't. The judge issued a gag order. But that didn't stop the media from reporting on the case, always with info that helped the prosecution, some of it information known only to those who were in conversation at the bench.

The couple offered, through their attorney, to quietly turn themselves in if a warrant were issued. The police agreed. But late on a Friday afternoon, no less than 8 police cars came to arrest them, with media in tow.

There's nothing like a really unflattering mug shot and footage of someone being hauled off in handcuffs to make them look guilty. Add in some sensationalized unsubstantiated "facts" and a bogus report of a confession, and you hardly have to prepare for trial at all if you're the Ass't DA.

The case is Hannah Overton's conviction for capital murder by omission.

A Voice of Sanity said...

For another excellent example of how newspapers should behave, see Tainted Trials, Stolen Justice for a great series of articles. Instead of the cold, competent and logical analysis the law should be, it operates like a bad meat packing plant, turning out thousands of pounds of product sometimes so bad it must be recalled.

FleaStiff said...

"...There's nothing like footage of someone being hauled off in handcuffs to make them look guilty. Add in sensationalized unsubstantiated facts and a bogus report of a confession, and you hardly have to prepare for trial at all if you're the Ass't DA..."
It helps the DA win.
And the DA's goal is to win.
Stop thinking there is some sort of find the truth goal. The goal is to win.