Exoneration registry documents causes of false convictions but not their frequency

There was no DNA to clear Anthony Graves but that doesn't mitigate his innocence. Innocent people set up by corrupt cops in Tulia and the Dallas "Sheetrock"/fake-drug scandal could have never been cleared if DNA were the only means to exoneration, but those cases resulted in false convictions nonetheless.

The big news surrounding the innocence movement this week is a new national "exoneration registry" compiled by the Northwestern University Center on Wrongful Convictions, which attempts to include non-DNA cases in the count of "innocence" cases. The total tops 2,000, including 873 individual cases as well as 13 major police scandals that falsely netted 1,170 other people. (According the the excellent registry website, the total of individual exonerations bumped up to to 891 since the report was published.) Ten of the Texas exonerees listed had been sentenced to death, out of 101 death-row exonerations identified nationally over the 23 year period.

As with DNA exonerations, though, these cases should be viewed as essentially statistical sample through which one may analyze causes of false convictions, but they do not reliably inform us about their frequency. "No matter how tragic they are, even 2,000 exonerations over 23 years is a tiny number in a country with 2.3 million people in prisons and jails. If that were the extent of the problem we would be encouraged by these numbers. But it’s not. These cases merely point to a much larger number of tragedies that we do not know about," said the report (pdf).

The Texas Tribune has compiled a list of the individual exonerations on the registry from Texas, and two of the thirteen mass exonerations listed - the Tulia drug stings and the Dallas "Sheetrock" scandal - were from Texas. I don't understand why a third famous Texas drug scandal in Hearne wasn't included: It's not like nobody knew about it, the episode was chronicled in a feature film directed by Tim Disney called American Violet. Most of the mass exoneration cases described were for drug offenses, whereas most of the individual exonerations were for murder or sexual assault. Once you start to include false convictions from the drug war the numbers add up quickly.

Notably, not every Texan on the list of the exonerated is eligible or innocence compensation. Former death row inmate Clarence Brandley made the list, though the governor's office insisted that the exoneree compensation law (often billed as the most generous in the nation) be written specifically to exclude him, state Sen. Rodney Ellis said on the Senate floor when the legislation passed in 2009. Meanwhile, Brandley's fellow death-row alumnus Kerry Max Cook is not on the list, but dispositive DNA evidence should add him to the registry before long, pending the outcome of ongoing habeas proceedings. That to say, this is a list that can, and will be nitpicked, both by folks who think other cases should have been included and those who think some of those on the list "really did it," which happens all the time.

OTOH, looking at the data by jurisdiction, it's clear the registry number under-represents the real exoneration total: "The 873 exonerations in the Registry come from 43 states, the District of Columbia, the Commonwealth of Puerto Rico, 19 federal districts, and the military. They are very unevenly distributed by state, and especially when broke down by county. This suggests we are missing many cases – both innocent defendants from jurisdictions where exonerations are vanishingly rare, and exonerated defendants whose cases have received little or no public attention."

For example, does anybody really believe there wasn't a single false conviction in San Antonio between 1989 and 2012? There are many who would disagree. IMO that absence of Bexar County exonerations speaks more to a lack of diligence and openness by local officials to reviewing such cases than it does the perfection of Bexar County's decidedly imperfect process. For example, DA Susan Reed has never established a post-conviction review unit like her counterparts in Dallas and Harris Counties to vet possible innocence claims.

Such shortcomings are why this data may only be usefully viewed as a sample, the way a pollster may question 800 people and estimate the opinions of the public at large. This registry allows one to explore the hows and whys of exoneration, but still not the $64 question "How often?" (Grits has discussed this issue in detail and I won't reiterate the arguments here, which have been the subject of much scholarly debate, but Grits' best guess would be in the 1.5% range which, if accurate, would mean more than 2,000 innocent people are presently locked up in Texas prisons.)

One factor that tamps down the numbers in the registry, I can say for a fact having slogged through the Tulia exonerations (back when I worked for Texas ACLU) and more recently having watched nearly miraculous DNA exonerations, often resulting in men freed after 15, 20, 25, even 30 years: The only innocent people who get out are the ones who fight, persistently, over a long period of time, or have someone on the outside doing it for them. And even then, you have to get lucky: I could point to ten different moments during the Tulia saga when, if this or that serendipitous development had not gone defendants' way, those folks would still be in prison. I've little doubt Jeff Blackburn and Vanita Gupta, the attorneys spearheading that exoneration effort, would readily agree.

There's a huge amount of raw luck involved in most exonerations, even in DNA cases: Was the evidence retained? Can it be found or was it lost? Was it contaminated? Is there enough left to test? Kerry Cook went looking for a piece of evidence to test in his 35-year old case and one of the detectives had taken the murder weapon home as a "souvenir." The combination of luck, smarts, persistence, and often media attention that result in exonerations amount to a near-perfect storm that cannot be replicated for every workaday innocence case - certainly not if there are as many of them as published estimates suggest.

Another interesting tidbit from the report that jibes with my experience: One reason most exonerations seem to happen in the most serious types of cases - besides the fact that those are where biological evidence is likely to have been saved - may be that, "With a few exceptions, exonerations take a long time. The overall average is 11.9 years from conviction to exoneration, 13.0 years from arrest," according to the report. So folks with shorter sentences for lesser crimes may just get out in a few years before anybody figures out what's happened to them.

Grits has not yet had a chance to review the report (pdf) or the website carefully and may have more to say on the subject once I've done so, but in the meantime here are links to some MSM coverage of the document:

• Texas Tribune
• Washington Post 
• The Atlantic
• USA Today
• Dallas News (editorial)
• New Orleans Times-Picayune
• MSNBC
• BET