|E. Conviction of the Innocent and the Importance of Counsel|
Since the first DNA exoneration case in the United States in 1989, it has become increasingly evident that state court justice systems all too often make egregious mistakes, resulting in innocent persons being convicted while the guilty go free. Even when Gideon and the Supreme Court’s subsequent right-to-counsel decisions were rendered, there was reason to believe that innocent persons were sometimes convicted or felt pressure to plead guilty to offenses brought against them. But the evidence then was not nearly as compelling as it is now. Today, largely because of DNA, we know for certain that our criminal justice systems are not nearly as accurate as some have believed, and this reality furnishes compelling justification for ensuring that indigent defense in the United States is well funded and soundly organized. Effective lawyers not only can secure fair treatment for the indigent accused, they also can play a vital role in protecting innocent persons from wrongful conviction.
While there is now a substantial body of literature dealing with wrongful convictions, two recent studies are especially noteworthy because they explain the scope of the problem and the reasons that mistakes occur. In Exonerations in the United States 1989 Through 2003, researchers from the University of Michigan documented 340 exonerations of innocent defendants. Of this number, 144 were cleared by DNA evidence, whereas 196 were exonerated through other means. As a group, the exonerated unjustly spent more than 3,400 years in prison, on the average about 10 years each.
Of the 340 exonerations, 42 were cases in which an executive authority issued pardons based on evidence of innocence; 263 were cases in which courts dismissed the charges due to evidence of innocence, including DNA; in 31 cases, defendants were acquitted in a retrial based on evidence that they were never involved in the offense; and in four cases, states posthumously declared that the defendants were innocent of the crimes of which they were convicted. The problem is national in scope as the 340 cases were from 38 states, with the most populous states in the country having had some of the largest number of exonerations, i.e., California, Texas, New York, Florida, and Illinois. In developing their database, the researchers purposely excluded cases in which there were mass exonerations, such as the Rampart exoneration cases from Los Angeles in which probably more than 100 defendants were convicted based on police lies and the Tulia, Texas, cases in which 39 defendants were convicted due to the false testimony of an undercover narcotics agent.
The study also identified the most frequent, direct causes of wrongful convictions. The researchers found that mistaken eyewitness identifications had occurred in 64% of the exoneration cases (219 out of 340); 43% of the exonerations involved perjury (146 out of 340); and in 15% of the exonerated cases the accused, often a juvenile or defendant with a mental disability, falsely confessed in response to police pressures (51 out of 340). One of the study’s most disturbing findings is that the vast majority of the 121 rape case exonerations involved mistaken eyewitness identifications (88% of the cases), whereas the study contains only six robbery exonerations even though the number of robberies in the U.S. far exceed the number of rapes and invariably involve eyewitness identifications. Obviously, DNA evidence accounts for the difference in the number of exonerations in these two different kinds of cases. As the authors of the study note: “If we had a technique for detecting false convictions in robberies that was comparable to DNA identification for rapes, robbery exonerations would greatly outnumber rape exonerations….” Ultimately, the authors conclude that “[w]e cannot come close to estimating the number of false convictions that occur in the United States, but the accumulating mass of exonerations gives us a glimpse of what we’re missing…. Any plausible guess at the total number of miscarriages of justice in America in the last fifteen years must be in the thousands, perhaps tens of thousands.”
A second study of wrongful convictions by a University of Virginia law professor published in 2008 tracks the first 200 cases of persons exonerated due solely to DNA evidence. The study identified not only the causes of the wrongful convictions, as in the University of Michigan study, but it also explored how the cases were dealt with on appeal and during subsequent post-conviction proceedings. No previous study had ever sought to examine how the cases of exonerated defendants have been handled in the courts from start to finish.
As for the causes of wrongful conviction, the study determined that mistaken eyewitness identification was involved in 79% of the cases; false forensic evidence (e.g., blood, fingerprint, and hair comparisons) in 55% of the cases; false informant testimony in 18% of the cases; and false confessions of defendants in 16% of the cases. After their convictions in trial courts, the defendants did not fare much better:
… appellate courts did not effectively review the unreliable and false evidence that supported these convictions…. Innocent appellants rarely succeeded in litigating claims that challenged the false evidence supporting their wrongful convictions. Frequently they did not even raise claims challenging that evidence, perhaps due to the expense and difficulty of raising such factual claims. For example, no conviction was reversed based on a challenge to an eyewitness identification…. In many innocence cases, courts denied claims finding that evidence of guilt offset error, sometimes even referring to ‘overwhelming’ evidence of the appellant’s guilt.
Given the often woeful state of indigent defense services in the United States, as we describe in this report, it is entirely reasonable to infer that a substantial number of defendants wrongfully convicted were inadequately represented. And while the foregoing studies point to specific reasons for wrongful convictions other than defense counsel’s performance, sometimes it is perfectly obvious that a lawyer’s ineffective assistance contributed significantly to the error along with other factors. One such case is that of Jimmy Ray Bromgard, who after serving more than 14 years in prison, was exonerated based upon DNA of a brutal rape of an eight-year old girl. While his wrongful conviction was attributable directly to mistaken eyewitness identification and faulty scientific evidence, Bromgard’s attorney clearly failed to do his job. As explained in one summary of Bromgard’s case, the defense lawyer “failed to challenge the girl’s courtroom identification…, undertook no investigation, gave no opening statement, did not prepare a closing argument, … failed to file an appeal, … failed to object when the state’s expert witness testified, without scientific basis, that the chances were only one in one hundred thousand that scalp and pubic hairs found at the crime scene were not Bromgard’s.”
We are not so naïve as to believe that all wrongful convictions can be prevented if defendants are represented effectively by well-trained and able defense counsel. But we are convinced that defendants who are innocent—and there are an unknown number who are—stand virtually no chance of avoiding conviction absent dedicated representation by attorneys who can investigate the client’s case, find witnesses, cross-examine skillfully, and otherwise offer an effective defense to counter the state’s false evidence. The causes of wrongful conviction, such as mistaken eyewitness identifications, faulty scientific evidence, and police perjury, are all matters that competent defense lawyers can address. Former Attorney General Janet Reno had it exactly right: “[i]n the end, a good lawyer is the best defense against wrongful conviction.”
 David Vasquez was exonerated by DNA evidence on January 4, 1989. He had been incorrectly convicted in Virginia for second degree homicide and burglary in 1985 and sentenced to 35 years in prison. See The Innocence Project, available at http://www.innocenceproject.org/Content/276.php.
See, e.g., Martin L. Radelet et al., In Spite of Innocence (1992).
 Justice O’Connor has suggested that the Constitution provides “unparalleled protections against convicting the innocent.” See Herrera v. Collins, 506 U.S. 390, 420 (1993) (O’Connor, J. concurring).
See, e.g., Adele Bernhard, When Justice Fails: Indemnification for Unjust Conviction, 6 U. Chi. L. Sch. Roundtable 73, 75–80, 90–92 (1999) (discusses how innocent persons can be convicted and the difficult burden of establishing ineffective assistance of counsel); Penny J. White, Errors and Ethics: Dilemmas in Death, 29 Hofstra L. Rev. 1265, 1287–95, 1296–98 (2001) (discusses Illinois rules to eliminate causes of errors in capital cases and recommends additional remedies to provide a reliable system in capital cases); James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases 1973–1995, 78 Tex. L. Rev. 839, 1844 (2000) (study of 4,578 capital sentences in state appellate courts and 599 capital sentences in the federal courts, concluding that capital sentences spend much time under judicial review precisely because they are persistently prone to error); Barry Scheck et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (2000); Wrongly Convicted: Perspectives on Failed Justice (Saundra D. Westervelt & John A. Humphrey eds., 2001); C. Ronald Huff & Arye Rattner, Convicted But Innocent; Wrongful Conviction and Public Policy (1996); Michael L. Radelet et al., In Spite of Innocence: Erroneous Convictions in Capital Cases (1992); Martin Yant, Presumed Guilty: When Innocent People Are Wrongly Convicted (1991).
 Samuel L. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523 (2005).
Id. at 524.
Id. at 541.
Id. at 551. The erroneous convictions in the Tulia, Texas, cases, which were due to gross police misconduct and abysmal representation of the defendants, is examined in Nate Blakeslee, Tulia (2005).
Id. at 542–47.
Id. at 530.
Id. at 531.
Id. at 551.
 Brandon L. Garrett, Judging Innocence, 108 Columbia. L. Rev. 55 (2008).
Id. at 89–91.
Id. at 61.
See infra Chapter 2 of this report.
 Lefstein, Lessons from England, supra note 57, at 860. This case illustrates one of the other costs of inadequate systems of public defense besides imprisonment of the innocent. After Bromgard’s release from prison, he sued the State of Montana and settled his claims out-of-court for $3.5 million, the largest sum Montana has ever paid to settle a civil-rights case. Recently, a lawsuit against Yellowstone County for a violation of his civil rights because of its failure to provide him with an adequate defense was dismissed by a federal judge, and an appeal of this decision is likely. The complaint in this case alleges that “[M]r. Bromgard’s conviction was also caused by the deliberate indifference of Yellowstone County officials who knowingly established a woefully inadequate system of indigent defense representation in criminal cases, utterly lacking adequate compensation, screening, supervision and training for its contract counsel.” Complaint, Bromgard v. State of Montana, et al., Civil No. 04-192- M-LB, (D. Mont. 2004), available at http://www.sado.org/fees/Bromgard%20complaint.pdf. See also Clair Johnson, Bromgard Appeals Ruling that Favors County, Billings Gazette, December 24, 2008, available at http://billingsgazette.net/articles/2008/12/25/news/local/20-bromgard.txt. The subject of civil rights claims is discussed infra notes 152–66 and accompanying text, Chapter 3. Since the Bromgard case, Montana has changed its system of indigent defense representation. See infra notes 11, 29, and accompanying text, Chapter 4.
Office of Justice Programs, U.S. Dept. of Justice, Nat’l Symposium on Indigent Defense 2000, at vii (2000).