A Constituency for the Innocent
The phenomenon is not new: The first documented wrongful conviction case in the United States (not counting the Salem witch trials) came to light in 1820, when the purported victim of a murder for which two men had been sentenced to death in Vermont turned up alive and well in New Jersey. Over the next 181 years, hundreds of additional cases have come to light, including 65 memorialized by Yale Law Professor Edwin Brochard in his 1932 book Convicting the Innocent, more than 400 Twentieth Century cases identified by Michael L. Radelet, Hugo Adam Bedau, and Constance E. Putnam in their 1992 book In Spite of Innocence, and 13 Illinois cases in which innocent men were exonerated and released from death row during the last 15 years.
The reason was that the wrongfully convicted lacked a constituency — a disheartening reality that, it now appears, was rooted less in disinterest than in disbelief: It wasn’t that Americans didn’t care that innocent men and women were rotting in prison or on death row, but rather that most people simply couldn’t accept the fact that such miscarriages of justice could happen on a large scale.When the public and the legal profession finally did come to recognize the alarming scope of the problem, it turned out that there was a great deal of interest.
A key turning point was the National Conference on Wrongful Convictions and the Death Penalty at the Northwestern University School of Law in November 1998 — an event that brought together on the stage of Thorne Auditorium 28 innocent former prisoners from around the country who had been sentenced to death for crimes they did not commit.
The conference was the brainchild of Northwestern Law Professor Lawrence C. Marshall, who had recently won the cases of three innocent men — Rolando Cruz, who had been under sentence of death for the 1983 murder of Jeanine Nicarico in DuPage County; Willie Rainge, one of the Ford Heights Four wrongfully convicted of an infamous 1978 rape and double murder in Cook County; and Gary Gauger, who had been sentenced to death for the murders of his parents in McHenry County. The conference made headlines nationally and internationally, greatly raising the salience of the innocence issue, particularly in the context of capital punishment.
Then, two and a half months after the conference, there was another dramatic development — the exoneration of Illinois death row prisoner Anthony Porter, whose execution had been only two days away when a legal team including Larry Marshall and Legal Clinic students won a reprieve from the Illinois Supreme Court. The reprieve made it possible for Northwestern Professor David Protess and several of his undergraduate students at the Medill School of Journalism to reinvestigate the case. Porter’s innocence was established in February 1999 when Paul Ciolino, a private investigator working with the Protess group, obtained a video-recorded confession from the man who had committed the murder for which Porter had been condemned to die.
The synergy of the conference and the Porter exoneration made it possible at the beginning of the 1999-2000 academic year to launch the Center on Wrongful Convictions with private funding. The two events, along with two groundbreaking series of articles by Ken Armstrong, Steve Mills, and Maurice Possley in the Chicago Tribune, also prompted Illinois Governor George H. Ryan to declare a moratorium on executions in January 2000, a politically courageous step that triggered a nationwide re-examination of the capital punishment system.
Under the auspices of the Bluhm Legal Clinic, the Center’s mission is to identify and rectify wrongful convictions and other serious miscarriages of justice, a mission that has three components: representation, research, and public education. Center faculty, staff, cooperating outside attorneys, and law students investigate possible wrongful convictions and represent imprisoned clients with claims of actual innocence. The research and public education components focus on developing initiatives that raise public awareness of the prevalence, causes, and social costs of wrongful convictions and promote substantive reform of the criminal justice system.
With an annual budget of approximately $450,000, the Center currently has a staff of five with a combined total of more than 70 years experience with wrongful convictions and whose efforts over the years have been instrumental in vindicating nine of the 13 innocent men released from Illinois death row.
Larry Marshall is the legal director, and Rob Warden, a veteran journalist who has exposed more than a score of wrongful convictions, is the executive director. The staff includes two seasoned criminal defense lawyers — Jane Raley, who had represented innocent death row prisoner Alejandro Hernandez, Rolando Cruz’s co-defendant, and Karen L. Daniel, who had preceded Larry Marshall as counsel to Willie Rainge in the Ford Heights Four case. Both Karen and Jane are former assistant Illinois appellate defenders. The fifth member of the staff is Jennifer Linzer, an experienced researcher and former marketing executive with a broad range of responsibilities including development, communications, and public education.
On the representation front, a recent case that typifies of the Center’s work was that of 23-year-old Jose Vasquez, who was freed in November 2000 after serving four years in prison for a Kane County murder he did not commit. The ending, unfortunately, was far from perfect because Vasquez pleaded guilty to a lesser charge. He had no practical alternative. Although there was little question that he had been framed by police, prosecutors conditioned his release on the plea agreement. If Vasquez turned down the deal, he faced additional months, perhaps years, behind bars while his case languished in limbo between reversal of his conviction and a possible, if unlikely, retrial. By demanding a guilty plea in exchange for dropping the murder prosecution, the Kane County State’s Attorney’s Office, as Chicago Tribune columnist Eric Zorn put it, “bullied its way out of an embarrassing spot and now no longer has to confront the scandal of Vasquez’s first trial.”
At present, the Center is representing more than a score of potentially innocent men and women in prison. Among the more notable cases are those of Gordon (Randy) Steidl, who was convicted and sentenced to death in downstate Edgar County for a 1987 double murder that there is persuasive evidence someone else committed; Franklin Thompson, an almost unquestionably innocent man in prison for a Will County murder; and Tabitha Pollock, who was convicted of the first-degree murder of her 3-year-old daughter in Henry County based on a dubious negligence theory.
In the arenas of research and public education, the Center has launched several initiatives. In view of Governor Ryan’s moratorium on executions, for example, the Center researched and identified a series of reforms that would reduce the possibility of executing innocent persons. The proposed reform measures — including modifying eyewitness identification procedures, requiring police to video-tape interrogations and confessions, and banning testimony by informants rewarded with cash or favorable treatment — would have prevented all but one of the Illinois death sentences imposed against men who ultimately were exonerated. The exception — Anthony Porter — underscored the fact that the only sure way to avoid executing an innocent person is to abolish the death penalty.
To highlight the problem of eyewitness fallibility — the leading cause of wrongful convictions — the Center has sponsored two events, one in Texas in connection with the Gary Graham case and one in Michigan in connection with the Maurice Carter case. Among speakers at both events were Kirk Bloodsworth, an innocent man exonerated by DNA after serving eight years on death row in Maryland for the murder of a child because five eyewitnesses mistakenly identified him, and Jennifer Thompson, a North Carolina rape victim who identified the wrong man as her rapist. As a result of Jennifer’s mistake, Ronald Cotton spent 11 years in prison before he too was exonerated by DNA. Unlike the vast majority of witnesses known to have made such mistakes, Jennifer courageously confronted hers and, under the Center’s sponsorship, has become an eloquent advocate for the wrongfully convicted and criminal justice reform.
At the Michigan event, in May 2001, the Center released a study identifying factors involved in wrongful convictions in capital cases throughout the United States since the death penalty was resumed in the mid-1970s. Of 86 cases studied, the Center found that 46, or 53.5%, had been predicated in whole or part on mistaken or perjured eyewitness testimony. In 33 of the cases, the eyewitness testimony was the sole basis of the conviction. Other significant factors identified in the study were police and prosecutorial misconduct in the cases of 17 defendants (19.8%), jailhouse informant testimony in the cases of 10 (11.6%), so-called junk science in the cases of 9 (10.5%), false or coerced confessions in the cases of 8 (9.3%), and various miscellaneous factors, including questionable circumstantial evidence and hearsay, in the cases of 29 (33.7%).
As public opinion has become increasingly enlightened about the criminal justice system and particularly capital punishment in recent years, what appears not to have changed over the centuries are the systemic flaws that lead to wrongful convictions. In fact, several of the elements identified in the Center’s study of recent death sentences imposed against innocent persons were present in the first U.S. wrongful conviction 181 years ago. That case, which stemmed from the mistaken presumption that a Vermont farmhand who disappeared had been murdered, involved junk science, a jailhouse informant freed in exchange for perjured testimony, and two false confessions.
In keeping with its public education mission, the Center also has reached out through the media, locally, nationally, and internationally. Center faculty and staff have been featured in major publications and on national television not only in the United States but also in Britain, Germany, Greece, Italy, and Sweden. The overwhelmingly positive coverage, both electronic and print, has drawn international attention both to the wrongful conviction issue and to the Northwestern School of Law.
In December 2000, the Center joined with the Innocence Project at the Cardozo School of Law in New York City to establish a national Innocence Network to foster wrongful conviction projects in other states. The first national conference of leaders of such projects was held at the Northwestern School of Law last December, and today there are more than 20 university-based wrongful conviction projects in operation or planned around the country. The Innocence Network has created a distance learning course on wrongful convictions. The course, including lectures by 13 of the nation’s leading experts on wrongful convictions, is available to law schools on compact disks.
The overall effectiveness of the Center in pursuing the components of its mission — representation, research, and public education — has enabled it to attract big name celebrities to its cause and enhance its fundraising ability. Among sponsors of a recent Center fundraising event in New York were playwright Arthur Miller, former New York Governor Mario Cuomo, CBS Sixty Minutes mainstay Mike Wallace, and Hollywood stars Susan Sarandon of Dead Man Walking, Mike Farrell of M*A*S*H, Jane Kaczmarek of Malcolm in the Middle, and Bradley Whitford of The West Wing.
In the years ahead, with the help of such dedicated sponsors and a distinguished development board, the Center hopes to raise funds to expand its efforts, particularly in representing potentially innocent prisoners. The Center receives and screens roughly 200 requests for representation per month, but at the current staffing level is in a position to accept only about half of 1% of the cases. There is no question that a significant number of the cases that now must be rejected for lack of resources have genuine merit. Having to say no to scores men and women in desperate need is the hardest part of what the Center does.
