Posted Tuesday, Aug. 17, 2010, at 12:25 AM
In the spring of 1981, a 12-year-old boy was beaten and forced to watch as his 11-year-old female cousin was raped by a stranger in a park in Cleveland, Ohio. Several weeks later, a man named Raymond Towler was stopped by a ranger for running a stop sign in the same park and brought into the police station for questioning. * After hesitating for 10 and 15 minutes, respectively, both the boy and the girl eventually chose Towler's picture from a photo array. On the basis of that identification, and despite testimony by multiple witnesses that Towler had been home at the time of the crime, he was convicted and sentenced to life in prison. This May, after 28 years behind bars, Towler was exonerated when DNA evidence showed that he was not the girl's rapist. He was 24 on the day he was convicted and 52 on the day he walked out of prison.
With his exoneration, Towler became the 258th person to be freed by the Innocence Project . Founded in 1992 by Peter Neufeld and Barry Scheck, the Innocence Project uses DNA evidence to overturn wrongful convictions while also advocating for reforms to the criminal justice system to help prevent future mistakes. In the interview below, I speak with Neufeld about the origins of wrongful convictions, how police and prosecutors face up to their mistakes (or don't), and why he doesn't speculate about the outcome of his cases anymore.
How do most wrongful convictions come about?
The primary cause is mistaken identification. Actually, I wouldn't call it mistaken identification; I'd call it misidentification, because you often find that there was some sort of misconduct by the police. In a lot of cases, the victim initially wasn't so sure. And then the police say, "Oh, no, you got the right guy. In fact, we think he's done two others that we just couldn't get him for." Or: "Yup, that's who we thought it was all along, great call."
It's disturbing that misidentifications still play such a large role in wrongful convictions, given that we've known about the fallibility of eyewitness testimony for over a century.
In terms of empirical studies, that's right. And 30 or 40 years ago, the Supreme Court acknowledged that eyewitness identification is problematic and can lead to wrongful convictions. The trouble is, it instructed lower courts to determine the validity of eyewitness testimony based on a lot of factors that are irrelevant, like the certainty of the witness. But the certainty you express [in court] a year and half later has nothing to do with how certain you felt two days after the event when you picked the photograph out of the array or picked the guy out of the lineup. You become more certain over time; that's just the way the mind works. With the passage of time, your story becomes your reality. You get wedded to your own version.
And the police participate in this. They show the victim the same picture again and again to prepare her for the trial. So at a certain point you're no longer remembering the event; you're just remembering this picture that you keep seeing.
Other than misidentifications, what other factors play a role in wrongful convictions?
The second most common cause is the misuse of forensic science other than DNA. In most of our cases, DNA [identification] didn't exist at the time of the conviction, so prosecutors relied on other types of forensic science. It could be serology, which was the old A/B/O blood typing. It could be bite marks. It could be fingerprints. It could be other forensic disciplines: tire marks, shoe print comparisons, fiber comparisons. None of these is bulletproof — some of them aren't even credible — so we see a lot of wrongful convictions stemming from those.
And there are several other very common causes as well. You have police and prosecutor misconduct. You have incompetent defense attorneys. You have jailhouse snitches, who as you can imagine are not the most reliable sources. And you have false confessions. Twenty-five percent of wrongful convictions involve false confessions. Most people can't imagine why anyone would ever confess to a crime they didn't commit, unless they were beaten into it. But these people weren't beaten. They wouldn't even meet the legal definition of coercion. It's just that the [interrogation] methods that are effective for getting confessions from guilty persons are so powerful that they net innocent people as well — particularly innocent people who are juveniles or have some kind of intellectual impairment or mental health problem.
I'm curious about police and prosecutor misconduct. I assume that most people in these jobs aren't actually trying to convict innocent people. So how does such misconduct come about?
I think what happens is that prosecutors and police think they've got the right guy, and consequently they think it's OK to cut corners or control the game a little bit to make sure he's convicted. The thinking goes, "God forbid a guilty guy go free because of smart lawyering by the defense" or what have you. They're so convinced that they are right that they feel exempt from behaving right. They don't realize that it's wrong to be unethical. And not just because it could convict an innocent person. It's simply wrong to be unethical.
How do prosecutors typically respond to the work of the Innocence Project, given that you're essentially challenging the validity and quality of their work?
You can divide prosecutors into two classes: those who believe in DNA wholeheartedly and want to cooperate with us, and those who oppose us. There's still a whole category of prosecutors and detectives who say, "No, I'm sure [the guy I convicted] is guilty. I can't tell you how, I can't give you a logical explanation, but he's guilty."
What's scary is that these people are part of a system that's predicated on logic and reasoning to see that justice is done. Yet they will ignore all logic and reason to protect their egos and their psyches. And it requires a complete disconnect, too, because these guys rely on DNA to convict bad guys all the time. But when the DNA works against them, they say something must have gone wrong.
Can you give me an example?
We took a deposition last week of a guy who was the lead detective in the prosecution of a young man named Jeffrey Deskovic . Jeff Deskovic was a 16-year-old white kid in Peekskill, N.Y., with no criminal record, when a 15-year-old girl was raped and murdered on her way home from school. This was in 1990. Jeffrey went to the police and said, "I knew her, I liked her, is there's anything I can do to help you solve this crime?" Well, the detective he spoke to had been told by somebody in the police academy that people who commit crimes often come forward offering to help. So this guy locked his sights on Jeffrey and after multiple encounters, the kid confesses. They then did DNA testing on the semen recovered from the girl, and Jeffrey was excluded. But [the prosecutors] never disclosed that; they simply dropped the rape charge and argued at trial that she must have had consensual sex with somebody else and Jeffrey was the murderer. Twenty-five years later, we took that DNA profile and ran it through the convinced felons database, and the profile of the semen matched a serial rape-murderer who was serving life in prison for attacking and killing another teenage girl in another town in Westchester a year and a half after the victim in Jeff's case was killed.
Given that factual backdrop, you'd think that people would say, "You're right, we made a terrible, terrible error, we investigated the case incorrectly, and it led to this tragic result." But no. Even with the DNA evidence, even though the serial murder-rapist gave a full, detailed confession and provided all kinds of details that no one knew, but the real perpetrator could know, this detective just last week said, "I'm sorry, that's ridiculous, Jeffrey Deskovic is guilty. The only false confession in this whole matter is the false confession given by the serial rape-murderer."
Would you say that detective was an outlier, or is that kind of denial routine?
I'd say, just based on my own experience, that about half the time police and prosecutors bury their heads in the sand and insist that they were right no matter what the evidence says. Look at the New York City police in the Central Park jogger case. It's right on point. They're in terminal denial. They still haven't got any insight. A woman is viciously attacked by somebody, raped, and left for dead. Five kids are picked up in the park that night, they're all interrogated, the interrogations are not recorded but the ultimate confessions are. Later the kids say the confessions were coerced and that they're innocent, but they get convicted.
Years later, DNA testing shows that some other guy who had three rape convictions and didn't know any of these kids committed this rape. Everyone in the DA's office who did the investigation has now concluded that this guy acted alone, and they vacated the convictions [of the youth]. The police department hired their own experts to write a bogus report saying, "The DAs were wrong, our confessions were valid, these guys must have been involved." They just can't get beyond that. It's remarkable.
This isn't the first time I've heard stories like this, but I never stop being disturbed by that degree of denial, given the seriousness of the stakes.
It is disturbing. But the truth is, when I run up against this, I don't worry for our clients. Our clients are going to get out. They've got the testing. A prosecutor can say the earth is flat until the cows come home, and eventually we're going to prevail.
What's troubling are all the people who we haven't done testing for, or for whom there's no biological evidence. If a prosecutor or a detective is totally unable to admit they're wrong in one case, what that tells you is that they will be making dozens and dozens more erroneous decisions, because they're not allowing new information to affect their views. If you can't admit you're wrong, you should just stay home and knit sweaters. You shouldn't be involved with any occupation where your decision-making can have an impact on other people's health, life, or liberty.
Stated that way, it sounds like the problem boils down to specific individuals. Do you think that's the issue — so called "bad apples" — or do you think there's something about the legal system or the psychology of what happens when you get involved with a wrongful conviction that actually makes a lot of people resort to denial?
I don't think it's specific to the legal system. I think generally speaking it's difficult for people to admit they're wrong, and the higher the stakes, the more difficult it becomes. So what you really want to do is educate people that it's OK to be wrong. It doesn't mean you're a fool. It's not going to be the end of your life.
I'll give you an example. I'm on the board of a medical center and a medical school, and I've watched the culture of medicine change somewhat over the last 20 years. It used to be much more difficult for doctors to admit error; they would hold on to their original beliefs and were completely inflexible. Today many more people understand that if you do an investigation into a medical error, the individuals involved are not going to be taken out and hung. They're not going to be fired. They're not even necessarily going to be sued. Instead, you'll use what you learn from those errors to improve the system. And through that I've noticed a much greater willingness on the part of health care providers to admit error and move on.
Is there any analogous shift happening in the law?
No. In the criminal justice system, the culture hasn't changed. We don't have inquiries when wrongful convictions occur; they just happen and that's the end of it. We should have a system in place where you do audits when you get a wrongful conviction — where you look at a person's body of work to see if this was a one-off situation or there was evidence of a systemic defect, either with an individual, with a police department, or with a way of doing things. If you could show people that what you were going to do with this data was simply improve the system, I think the culture would change and people would be more willing to admit they were wrong.
What about legislative shifts? As the fallibility of these various investigative tools becomes more obvious, is the legal system starting to implement reforms?
The only way you get national change is through a Supreme Court decision or an act of Congress. But we are moving incrementally to get reforms implemented in a city here, a state there. But it's certainly not the vast majority. It's not even a sizeable minority. It's a few. There's a great deal of resistance because people don't want oversight. Nobody likes oversight, even though we all need it.
In those localities that have implemented reforms, what happened to prompt that change?
It usually takes a kind of perfect storm. You'll have some very compelling narratives of wrongful conviction. You'll have very progressive leadership in the legislature. You'll have a forward-thinking police chief or prosecutor who gets it and wants to be ahead of the curve. But there's only a couple of state legislatures that have introduced these kinds of reforms. Ohio and Vermont gave us reform packages in the last 12 months. New Jersey did it several years ago. That's about it for states. For individual counties or cities, there's a few dozen in the country.
I think many Americans have this perception that our legal system is basically sound and trustworthy, and that wrongful convictions are anomalous. How right or wrong is that perception? To what extent do the 258 wrongful convictions to date reflect the scope of the problem?
The 258 figure is unquestionably just the tip of the iceberg. In many of our cases, the biological evidence has been lost or destroyed in the intervening years, so clearly our exoneration numbers would be much, much, much higher if we could bring more cases to lab. Over the years, our exclusion rate [in which the DNA result excludes the convict as a possible perpetrator of the crime] has been about 50 percent. That's not to suggest that the false conviction rate is 50 percent, because obviously we have a self-selecting data set of people who write to us and claim to be innocent.
Similarly, for 20 years, the FBI has been keeping data on cases that get sent to them by local law enforcement agencies for testing. These are cases where a prime suspect has already been identified based on other kinds of evidence — a confession, an ID, circumstantial evidence, whatever. Over the years, they've had a 25 percent exclusion rate; one-quarter of all initial prime suspects are excluded based on DNA. Now, that, too, doesn't mean the wrongful conviction rate is 25 percent, because some percentage of those cases would have been either dismissed or acquitted even if there hadn't been DNA testing (although the acquittal rate is very low in this country). But what these numbers tell you is that, my God, there are a lot of people in prison from before DNA evidence who are innocent.
Are those numbers dwindling now that DNA testing is routine?
Well, it's certainly better to have DNA testing than not, but it's a misperception to imagine that it's going to solve the problem. People think, "Oh, now we have DNA evidence, so this issue will gradually disappear." The truth is it doesn't disappear, because you can only use DNA testing in a small minority of violent crimes. If there's a drive-by shooting, there is no blood left behind. If there's a robbery, there is no semen left behind. In many crimes, police departments have to rely on less reliable means of investigation to decide who to prosecute.
That's why we have these recommendations for reforms, because we know that DNA alone is not going to solve the problem. Unless we change some of these other root causes of wrongful conviction and make the process more reliable, we will continue to wrongfully convict people at alarming rates.
Do you think working on these issues for so long as changed your own attitude toward rightness and wrongness?
Well, that and marriage. [Laughs] They've both made me much, much more willing to say, "I'm wrong."
I'll tell you something. One of the things we used to do at the Innocence Project is we would try, just informally, to predict which cases would end up being exonerations and which ones would end up confirming guilt when the DNA came back from the lab. And I was wrong more than I was right. What that tells me is that I was raised in the system before DNA evidence, where I relied on all these other types of investigative tools to determine guilt or innocence. That's one of the important things about DNA for me: It taught me how unreliable my own intuition is. Now when people say, "What do you think is going to happen?" I say, "Whatever happens happens, I have no idea and I don't want to speculate."
Last question. If you could hear anyone else interviewed about being wrong, who would it be?
Cheney or Rumsfeld.
They're popular choices.
Good. I like to know that I'm very mainstream.
* Correction, Aug. 18, 2010 : This article originally misidentified Raymond Towler as Raymond Fowler.
This blog features Q&As in which notable people discuss their relationship to being wrong. You can read past interviews with marriage counselor Harville Hendrix , Google research director Peter Norvig , Wikipedia co-founder Larry Sanger , NASA astronaut-turned-medical-error-guru James Bagian , hedge-fund manager Victor Niederhoffer , mountaineer Ed Viesturs , This American Life host Ira Glass , celebrity chef Anthony Bourdain , Sports Illustrated senior writer Joe Posnanski , education scholar and activist Diane Ravitch , and criminal defense lawyer and pundit Alan Dershowitz .