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.

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