False convictions: Beyond atomic reforms to a societal critique

This Oct. 24 New Yorker item on an ATF agent, Peter Forcelli, who investigates wrongful convictions for the agency, included an excellent discussion of the systemic barriers to challenging, much less preventing, false convictions of innocent people:

Legally, when defendants maintain their innocence, there are two main avenues for overturning their convictions. One is to go to prosecutors with new evidence in the hope of convincing them that the conviction should be overturned. Increasingly, prosecutors’ offices have been establishing their own conviction-review units, which typically meet with defense lawyers, reinvestigate cases, and determine whether convictions should stand. There are now nearly thirty such units across the country. The Bronx D.A.’s office created one this year. ...

But post-conviction claims mostly fail, because courts usually limit appeals to those arising from procedural mistakes, and make it hard to introduce new exonerating evidence. The Supreme Court has declined to establish a right to federal review of claims based purely on innocence. In its most recent major discussion of the issue, in 1993, Chief Justice William H. Rehnquist wrote that “few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence.” Rehnquist’s words hint at a deeper problem: the justice system has not yet learned to confront the fact that, even when there are no easily identifiable missteps, it can produce an unjust outcome. Many observers think that the best hope for remedy, therefore, is before conviction. Nancy J. King, a law professor at Vanderbilt University, told me, “The place to focus efforts for reforms for wrongful conviction is not on the back end—it’s on the front end.”

In recent years, as more defendants have been exonerated, criminologists and legal scholars have pinpointed factors that compromise investigations and trials. As a result, evidence from jailhouse informants is now viewed with more skepticism, as is any confession obtained under duress. A more sophisticated understanding of forensic science has enabled lawyers to dispute expert testimony that was once taken as gospel, on matters ranging from ballistics and fingerprints to fire investigation. A prevalent source of error is mistaken eyewitness testimony. Forcelli recently rewrote the A.T.F.’s manual on eyewitness identifications, with the aim of improving procedures in order to safeguard against error.

These are real advances, but many shaky convictions arise from a concatenation of factors. There is no manual that Forcelli could write that would stop police departments from pressuring detectives for results or prosecutors from taking on dubious cases. The more Forcelli has looked into the matter, the more he sees a broken system, with no clear remedy. “The sad part is that getting an innocent man out of jail is way, way, way harder than putting a guilty man in jail,” he said.

Academic researchers have also focused on the systemic nature of many conviction errors. Richard A. Leo, a professor of law and psychology at the University of San Francisco, told me, “The way everyone talks about it is very legal—false confessions, police coercion, eyewitness I.D.s.” He believes that the real issues are far broader, and include the adversarial structure of trials, confirmation bias, cultural notions about what indicates guilt, and a basic human tendency to attribute meaning to details that may be coincidental. “It’s not a narrow evidentiary problem,” he said. “It’s a social problem. It’s an institutional problem.” Leo said that he’d once tried to calculate the number of people involved in a wrongful conviction, from police officers and prosecutors to jurors: “It’s staggering—it’s, like, fifty people involved in every single one.”