Judging innocence

Columbia Law Review

Volumn 108, Issue 1, 2008, Pages 55-142

  Garrett, Brandon L ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 39649105670     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (471)

1. United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923); cf. Herrera v. Collins, 506 U.S. 390, 420 (1993) (O'Connor, J., concurring) ("Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent.").
2. Kansas v. Marsh, 126 S. Ct. 2516, 2544 (2006) (Souter, J., dissenting).
3. See The Innocence Project Home Page, at http://www.innocenceproject.org (last visited Nov. 8, 2007) (on file with the Columbia Law Review) (providing count of U.S. postconviction DNA exonerations; the number as of November 2007 is 208).
4. Marsh, 126 S. Ct. at 2544-45 (Souter, J., dissenting) (citing "a growing literature" regarding exonerations in capital cases). Justice Thomas, writing for the majority, questioned any " 'new empirical demonstration of how "death is different"' " and called the subject an "incendiary debate."
5. Id. at 2528 (majority opinion)
6. (quoting id. at 2545 (Souter, J., dissenting)). Justice Scalia responded that DNA exonerations arise from selfcorrection in our system and their numbers suggest only "insignificant" risks of error.
7. Id. at 2536-38 (Scalia, J., concurring).
8. But see Harvey v. Horan, 285 F.3d 298, 305-06 (4th Cir. 2002) (Luttig, J., concurring) ("[S]cientific advances [permitting DNA testing] must be recognized for the singularly significant developments that they are . . . .");
9. U.S. v. Quinones, 205 F. Supp. 2d 256, 268 (S.D.N.Y. 2002) (declaring Federal Death Penalty Act unconstitutional and citing to examples of postconviction DNA exonerations), rev'd, 313 F.3d 49, 69-70 (2d Cir. 2002).
10. See The Innocence Network Home Page, at http://www.innocencenetwork.org (last visited Nov. 8, 2007) (on file with the Columbia Law Review).
11. Cf. James S. Liebman, The New Death Penalty Debate: What's DNA Got to Do with It?, 33 Colum. Hum. Rts. L. Rev. 527, 534-41 (2002) (arguing DNA exonerations have been "central feature" of "catalyzing narrative" that has helped shift public opinion against death penalty based on distrust of criminal adjudication's accuracy);
12. infra note 136 (noting increasing belief that innocence cases justify opposing death penalty).
13. For example, The Exonerated, a play based on the stories of six DNA exonerees, has toured internationally and is now a Court TV movie. See Court TV, The Exonerated, at http://www.courttv.com/movie/exonerated/main.html (last visited Nov. 8, 2007) (on file with the Columbia Law Review). John Grisham's recent book, his first nonfiction work, tells the story of two DNA exonerees' wrongful convictions.
14. See John Grisham, The Innocent Man: Murder and Injustice in a Small Town 62 (2006) (discussing local investigators' adoption of "knee-jerk theory" that led to wrongful convictions of Ron Williamson and Dennis Fritz). For additional books detailing accounts of wrongful capital convictions, see infra note 139. The syndicated ABC series In Justice depicted the casework of a fictionalized Innocence Project. See ABC, In Justice: About the Show, at http://abc.go. com/primetime/injustice/about.html (last visited Nov. 8, 2007) (on file with the Columbia Law Review). PBS also produced a documentary on DNA exonerations, focusing on the wrongful conviction of Ronald Cotton.
15. See Frondine: What Jennifer Saw (PBS television broadcast Feb. 25, 1997) (transcript on file with the Columbia Law Review).
16. See, e.g., Governor's Comm'n on Capital Punishment, State of Ill., Report of the Governor's Commission on Capital Punishment i-iii, 1, 187-200 (2002), available at http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/ complete_report.pdf (on file with the Columbia Law Review) (describing reasons for Illinois moratorium on executions, noting that "DNA evidence continues to reveal evidence of . . . wrongful convictions," and recommending reforms).
17. See The Innocence Project, Fix the System: National View, at http://www. innocenceproject.org/fix/National-View2.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review) [hereinafter Innocence Project, Fix] (summarizing efforts to improve access to DNA tests in states); infra Part III.A (describing reform efforts and reform proposals).
18. See Innocence Project, Fix, supra note 9;
19. infra Part III.A (describing reform efforts and reform proposals).
20. See Innocence Protection Act of 2004, Pub. L. No. 108-405, § 411, 118 Stat. 2278, 2278-80 (codified at 18 U.S.C. § 3600 (Supp. 2004)) (describing conditions under which court "shall order DNA testing of specific evidence" upon motion of defendant);
21. DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, 114 Stat. 2726, 2726-37 (codified at 42 U.S.C. §§ 14135-14135e (2000)) (providing for federal grants to state and local governments for DNA testing programs).
22. See infra notes 82, 85, 93 and accompanying text (referring to different social science studies of causes of wrongful convictions).
23. Criminal justice scholars increasingly examine the implications of wrongful convictions for our criminal system's accuracy. See, e.g., Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 Cal. L. Rev. 1585, 1590-91, 1644 (2005) (describing impact of wrongful convictions on criminal trials and investigations);
24. Brandon L. Garrett, Aggregation in Criminal Law, 95 Cal. L. Rev. 383, 449-50 (2007) [hereinafter Garrett, Aggregation] (exploring systemic reform efforts in courts and innocence commissions aiming to remedy wrongful convictions);
25. Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Conviction Law, 2005 Wis. L. Rev. 35, 82-85, 99-110 [hereinafter Garrett, Federal Wrongful Conviction Law] (describing possible transformative effect of wrongful conviction cases on underlying criminal procedure rules);
26. Daniel S. Medwed, Innocence Lost . . . and Found: An Introduction to The Faces of Wrongful Conviction Symposium Issue, 37 Golden Gate U. L. Rev. 1, 1 (2006) (introducing symposium);
27. Richard A. Rosen, Reflections on Innocence, 2006 Wis. L. Rev. 237, 237 [hereinafter Rosen, Reflections] (introducing symposium and discussing "Criminal Justice in the Age of Innocence");
28. infra notes 255, 261 (presenting other scholarship on implications of wrongful convictions for criminal justice system).
29. The lone study to date of exonerations includes non-DNA cases and examines the characteristics of 340 cases from 1989 through 2003. See Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 523-24, 525 n.7, 551-53 (2005) [hereinafter Gross et al., Exonerations] (explaining selection of 340 cases and summarizing conclusions about them). The Gross study provides a landmark examination of the characteristics of exonerations, such as race of the exoneree, crime of conviction, rates of exoneration, and mental illness of the exoneree, but perhaps most importantly, it constructs and examines the category of exonerations beyond DNA cases. Other works, like the Gross study, examine general characteristics of types of exonerated individuals and include non-DNA cases.
30. See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 57 (1987) (providing influential examination of characteristics of erroneous capital convictions);
31. Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 901-07 (2004) (surveying past studies of false confession cases, consolidating their findings, and offering analysis of "causal role of false confession in wrongful conviction cases," including non-DNA cases). In contrast, this study examines only postconviction DNA exonerations. This study analyzes not only general characteristics of the cases, but also how they were handled by the criminal system through trial and appeals.
32. Clarence Page, The 200th Reason to Test DNA, Chi. Trib., Apr. 25, 2007, at 23. Each of the 200 cases is described in Appendix A. While in practice with Cochran Neufeld & Scheck, LLP from 2002-2004, the author had the privilege to represent four exonerees included in this study with respect to subsequent civil wrongful conviction actions, but not with respect to the criminal appeals analyzed here. None of the specifics of those four civil cases are discussed in this Article.
33. See 126 S. Ct. 2516, 2533 (2006) (Scalia, J., concurring) ("The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt").
34. Use of a matched comparison group is a technique accepted in scientific research when a randomized control group is not available, as is the case here, because one could not practically (or ethically) conduct experiments observing randomly selected actually innocent and guilty defendants during real criminal trials through appeals. See, e.g., Ronet Bachman & Russell K. Schutt, The Practice of Research in Criminology and Criminal Justice 180 (3d ed. 2007) ("[U]sually the best alternative to an experimental design is a quasi-experimental design . . . [in which] the comparison group is predetermined to be comparable to the treatment group in critical ways . . . .");
35. Richard A. Leo, Rethinking the Study of Miscarriages of Justice, 21 J. Contemp. Crim. Just. 201, 217 (2005) (calling for use of matched comparison sample methodology to study the problem of wrongful convictions, due to impossibility of obtaining randomized sample).
36. Exonerees typically had more than one type of evidence supporting their convictions, so these figures add up to more than 100%.
37. Herrera v. Collins, 506 U.S. 390, 420 (1993) (O'Connor, J., concurring).
38. See infra Part II.B.3.a (comparing reversal rates in innocence cases with those in criminal cases generally). Capital cases are excluded because they have very high reversal rates in contrast to criminal cases in general. See infra note 168 and accompanying text (discussing high reversal rates in capital cases).
39. See infra notes 195-198 and accompanying text (discussing cases where courts denied claims based on conclusions that evidence of guilt outweighed trial court errors). Several of those cases collected in this study were cited in the Innocence Network's amicus brief to the Supreme Court regarding innocence and harmless error.
40. Brief of Innocence Network as Amicus Curiae in Support of Petitioner at 14-16, Fry v. Pliler, 127 S. Ct. 763 (2007) (No. 06-5247), 2007 WL 173682 (presenting cases of Dennis Brown, Frederick Daye, Larry Holdren, and Leonard McSherry).
41. See infra part II.C.1 (discussing how DNA is not available in many cases).
42. For analysis of the problems inherent in studying the frequency of false convictions where they remain "hidden from view," see Samuel R. Gross & Barbara O'Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases 1 (Univ. Mich. Law Sch. Pub. Law and Legal Theory Working Paper Series, Paper No. 93, 2007) (on file with the Columbia Law Review).
43. Scholars have done so for discrete groups of convicts. See id. at 15 (examining capital exonerations, including those in non-DNA cases, and estimating at least 2.3% exoneration rate between 1973 and 1989);
44. D. Michael Risinger, Convicting the Innocent: An Empirically Justified Wrongful Conviction Rate 14-15 (Sept. 16, 2006), at http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=931454 [hereinafter Risinger, Convicting the Innocent] (on file with the Columbia Law Review) (examining capital rape-murder exonerations and estimating range of 3.3% to 5% for wrongful conviction rate in 1980s).
45. See Rob Warden, Ctr. on Wrongful Convictions, Nw. Univ. Law Sch., The Rape That Wasn't: The First DNA Exoneration in Illinois, at http://www.law. northwestern.edu/depts/clinic/wrongful/exonerations/Dotson.htm (last modified June 26, 2006) (on file with the Columbia Law Review) (discussing exoneration of Gary Dotson).
46. The Gross study found a steady increase in the number of DNA exonerations, "from one or two a year in 1989 to 1991, to an average of six a year from 1992 through 1995, to an average of twenty a year since 2000." See Gross et al., Exonerations, supra note 14, at 527.
47. See supra note 3 (discussing Innocence Project's running tally of persons exonerated by postconviction DNA testing).
48. Using the short tandem repeat (STR) test on thirteen distinct and independent regions of the DNA molecule (loci), DNA is capable of uniquely identifying a person's genetic profile with random match probabilities that can be greater than one out of all humans who have ever lived. In other words, the probability that another person matches a given profile may be more than even one in a trillion, many more than the 50-125 billion humans who have ever lived. See John M. Butler, Forensic DNA Typing: Biology, Technology, and Genetics of STR Markers 7, 498-500, 510-13 (2d ed. 2005); 4
49. David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony § 31:35 (2005) ("The combination of all STRs used in CODIS yields frequencies of occurrence of about 1 in 575 trillion Caucasians and 1 in 900 trillion African Americans."); Nat'l Comm'n on the Future of DNA Evidence, Nat'l Inst, of Justice, The Future of Forensic DNA Testing 19 (2000), available at http://www.ncjrs.gov/pdffiles1/nij/183697. pdf (on file with the Columbia Law Review) (noting that statistical probability of thirteen loci STR-DNA match between two unrelated persons in Caucasian American population has been conservatively estimated at one in 575 trillion).
50. See I. Findlay et al., DNA Fingerprinting from Single Cells, 389 Nature 555, 555 (1997) (referring to "system for determining STR profiles from single cells using six forensic STR markers"). Testing is more commonly performed on as few as 50-100 cells.
51. Jeremy Travis Sc Christopher Asplen, U.S. Dep't of Justice, Nat'l Inst, of Justice, Postconviction DNA Testing: Recommendations for Handling Requests xiv-xv (1999), available at http://www.ncjrs.gov/pdffiles1/nij/177626.pdf (on file with Columbia Law Review).
52. See infra note 109 and accompanying text (discussing three wrongful convictions due to DNA error).
53. See Maurice Possley, Steve Mills & Flynn McRoberts, Scandal Touches Even Elite Labs: Flawed Work, Resistance to Scrutiny Seen Across U.S., Chi. Trib., Oct. 21, 2004, at C1;
54. see also Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 725 (2007) (referring to "series of scandals that have already besieged DNA typing").
55. See, e.g., Michael J. Saks & Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science, 309 Science 892, 893 (2005) (describing how DNA typing serves as "model for the traditional forensic sciences" where, unlike other forms of forensic science, DNA "offer [s] data-based, probabilistic assessments of the meaning of evidentiary 'matches'");
56. see also supra note 28 (describing high degree of accuracy in DNA testing).33. In this context, "exonerated" means that either a court vacated the conviction or an executive action, such as a pardon, invalidated the conviction. This list excludes, however, cases in which DNA evidence undermined the conviction and led to a vacatur or pardon, but was not substantially probative of innocence. The list also excludes cases in which DNA evidence substantially undermined the conviction and convincingly demonstrated innocence but no vacatur or pardon has as yet been forthcoming. This list of DNA exonerations appears complete and accurate.
57. See Appendix A below for a complete list. The Innocence Project at Cardozo Law School ("Innocence Project"), founded by Peter Neufeld and Barry Scheck, maintains an authoritative list on its website. See supra note 3 (citing Innocence Project's running list of DNA exonerations). The list here was cross-checked against two separate lists. The first was assembled by Professor Samuel Gross as part of his study. This list in turn relied upon both the Innocence Project's list, and two others that were also cross-checked: Ctr. on Wrongful Convictions, Nw. Univ. Law Sch., The Exonerated: Exonerations in All States, at http://www.law.north western.edu/depts/clinic/wrongful/exonerations/ States.htm (last modified Jan. 22, 2003) (on file with the Columbia Law Review) (listing exonerations by state),
58. and the Death Penalty Info. Ctr., The Innocence List, at http://www.deathpenaltyinfo.org/article.php? scid=6&did=110 (last updated on May 22, 2007) (on file with the Columbia Law Review). The list was also cross-checked against a list prepared by the law firm Winston & Strawn, LLP, which has assembled and shared with me a database of documents relating to the cases of DNA exonerees. The Innocence Project's list has been complete and accurate as measured against those other lists. The Innocence Project secured or helped to secure many of the 208 DNA exonerations to date, and has consulted on many others secured by postconviction attorneys or other innocence projects that are part of a larger Innocence Network. News searches did not locate any additional postconviction DNA exonerations. Finally, this list of the first 200 postconviction DNA exonerees does not include the case of Harold Buntin, who was formally exonerated by court order in 2005. This order was never entered or distributed due to a court clerical error. As a result, the exoneration did not come to light and Buntin was not released until April 2007, as reported on April 24, 2007, just a day after the study period ended with Jerry Miller's postconviction DNA exoneration, which was reported as the 200th.
59. See Tim Evans, "I Never Should Have Been in Jail," Indianapolis Star, Apr. 24, 2007, at Al.
60. See People v. Bullock, 507 N.E.2d 44, 45-46 (Ill. App. Ct. 1987) (describing identification of Bullock).
61. Demographic information regarding Bullock is available at Ctr. on Wrongful Convictions, Nw. Univ. Law Sch., The Illinois Exonerated: Ronnie Bullock: Convicted of Rape on the Strength of Mistaken Identification by Two Little Girls, at http://www.law.northwestern.edu/depts/clinic/wrongful/ exonerations/Bullock_IL.htm (last modified May 18, 2006) (on file with the Columbia Law Review).
62. See Bullock, 507 N.E.2d at 45.
63. See U.S. ex rel. Bullock v. Roth, No. 91-C-0680, 1991 WL 127582, at *1-*2 (N.D. Ill. July 5, 1991) (discussing procedural posture of Bullock's postconviction petitions).
64. See Jeffrey Bils, Accusers Finally Agree: He's Innocent, Chi. Trib., Nov. 24, 1994, at 1.
65. See Edgar Pardons Man Freed from Prison in 1994 by DNA Testing, St. Louis Post-Dispatch, Mar. 28, 1998, at 11.
66. The Innocence Project website provided descriptions that filled in some missing data and provided a useful source to check against news reports and details from reported judicial decisions. Maddy Delone at the Innocence Project provided the race of approximately thirty exonerees whose race was not described in any public source.
67. Examples include an eyewitness identification (by the victim or a witness), forensic evidence (blood serology, DNA, fingerprint, hair comparison), physical evidence, non-eyewitness testimony (inculpatory comments short of a confession, informant and jailhouse informant testimony, codefendant testimony), and confessions.41. See Matthew R. Durose & Patrick A. Langan, U.S. Dep't of Justice, Bureau of Justice Statistics, Felony Sentences in State Courts, 2002, at 6 tbl.5 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ fssc02.pdf (on file with the Columbia Law Review) [hereinafter Durose & Langan, Felony Sentences] (examining survey data from 300 counties selected to be nationally representative and reaching several conclusions: 63% of rape convicts were White and 45% of murder convicts were White; only 8% of rape and murder convicts were under twenty years old, and rape convicts were 33% Black and 4% Other). In contrast to that 37% figure (33% Black and 4% Other), in the innocence group, 73% of rape convicts were minorities (91 Black, 11 Hispanic, and 38 White). While the BJS reported 55% of murder convicts as non-White, in the innocence group 65% of murder and rape-murder convicts were minorities (30 Black, 5 Hispanic, 1 Asian, 19 White). Thus, as scholars suggest, disproportionate conviction of minorities alone does not explain their proportion among those exonerated.
68. See Gross et al., Exonerations, supra note 14, at 547-48;
69. Karen F. Parker, Mari A. Dewees, & Michael L. Radelet, Racial Bias and the Conviction of the Innocent, in Wrongly Convicted: Perspectives on Failed Justice 114, 114-28 (Saundra D. Westervelt & John A. Humphrey eds., 2001). In contrast, the BJS study of seventy-five large urban counties found more racial disparities than the 300 county study. The seventy-five county study found that 85% of felony defendants in murder cases were minorities and 68% of felony rape defendants were minorities.
70. See Thomas H. Cohen & Brian A. Reaves, U.S. Dep't of Justice, Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2002, at 4 tbl.3 (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/fdluc02.pdf (on file with the Columbia Law Review) [hereinafter Cohen & Reaves, 2002 BJS Study]. Furthermore, 121 out of the 200 exonerees (61%) were convicted in one of the seventy-five largest counties in the United States by population. Eighty-seven, or 62% of those convicted of rape, were convicted in one of the seventy-five largest counties. That number exceeds the degree to which felonies occur in those counties; according to the BJS, half of felonies and 36% of forcible rapes occurred in those seventy-five counties. Id. at 1. Thus, some part of the racial disparity may be due to geography, though the racial disparity among exonerees is greater than that reported in the seventy-five large urban counties. In addition, much of the innocence group concentration in the largest counties is due to high numbers of exonerations in New York City and Chicago. See infra note 45 and accompanying text.
71. See Durose & Langan, Felony Sentences, supra note 41, at 6 tbl.5 (offering statistics on convictions of minorities for rape).
72. See infra Parts II.A.2 and III.D.
73. See Gross et al., Exonerations, supra note 14, at 541 (analyzing similar list but including non-DNA exonerations, and noting that though list corresponds in part to population and size of death rows, New York and Illinois both have established innocence projects and were first two states to provide right to postconviction DNA testing). The states with the highest numbers of exonerations do not match the states with the highest capital reversal rates.
74. See James Liebman, Jeffrey Fagan, Valerie West, & Jonathan Lloyd, Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 Tex. L. Rev. 1839, 1857 fig.2 (2000) [hereinafter Liebman et al., Capital Attrition] (graphing percentage of exonerations against percentage of death sentences carried out in various states).
75. As noted supra note 41, 121 out of the 200 (61%) were convicted in one of the seventy-five largest counties in the United States by population.
76. By "written decisions" this study refers to decisions available on Lexis-Nexis or Westlaw that provided a reason for the decision, regardless whether they were characterized as "reported" or "unreported. " Decisions were excluded if they did not provide a reason for a disposition. Many postconviction decisions are unpublished, and judges often rule on pro se petitions and face difficulties in deciphering claims. See Victor E. Flango, Nat'l Ctr. for State Courts, Habeas Corpus in State and Federal Courts 45-60 (1994), available at http://www.ncsconline.org/WC/Publications/ KIS_StaFedHabCorpSt FedCts.pdf#search=%22habeas%20tudy%22 (on file with the Columbia Law Review) [hereinafter Flango, 1994 NCSC Study] ("[P]etitioner claims are difficult to classify because most habeas corpus petitions are raised without counsel and claims raised are not always clear."). Similarly, published decisions often report only claims perceived to have merit or to be worthy of discussion.
77. See Flango, 1994 NCSC Study, supra note 46, at 45-59;
78. Roger A. Hanson & Henry W.K. Daley, U.S. Dep't of Justice, Bureau of Justice Statistics, Federal Habeas Corpus Review: Challenging State Court Criminal Convictions 17 (1995), available at http://www. ojp.usdoj.gov/bjs/pub/ pdf/fhcrcscc.pdf (on file with the Columbia Law Review) [hereinafter Hanson & Daley, 1995 BJS Study] (providing statistics concerning outcome of sample of habeas corpus petitions filed in eighteen federal districts in 1992);
79. Nancy J. King, Fred L. Cheesman II & Brian J. Ostrom, Nat'l Ctr. for State Courts, Final Technical Report: Habeas Litigation in U.S. District Courts 27-31, 45-51 (2007), available at http://law.vanderbilt.edu/article-search/ article-detail/download.aspx?id=1639 (on file with the Columbia Law Review) [hereinafter King et al., 2007 NCSC Study] (providing empirical analysis of sampled habeas corpus petitions filed by state prisoners from 2001-2005);
80. Paul H. Robinson, U.S. Dep't of Justice, An Empirical Study of Federal Habeas Corpus Review of State Court Judgments 7 (1979) (offering "rough profile of those persons filing petitions in federal court complaining of unlawful state custody");
81. John Scalia, U.S. Dep't of Justice, Bureau of Justice Statistics, Prisoner Petitions Filed in U.S. District Courts, 2000, with Trends, 1980-2000, at 2 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ppfusd.00.pdf (on file with the Columbia Law Review) [hereinafter Scalia, 2000 BJS Study] (providing statistics concerning petitions filed in U.S. district courts by federal and state inmates from 1980-2000);
82. Richard Faust, Tina J. Rubenstein & Larry W. Yackle, The Great Writ in Action: Empirical Light on the Federal Habeas Corpus Debate, 18 N.Y.U. Rev. L. & Soc. Change 637, 677-80 (1991) (providing empirical data on habeas corpus petitions filed between 1973-1975 and between 1979-1981 in Southern District of New York);
83. Daniel J. Meltzer, Habeas Corpus Jurisdiction: The Limits of Models, 66 S. Cal. L. Rev. 2507, 2528-31 (1993) (providing secondary research on habeas corpus petitions filed in select years between 1965 and 1992).
84. Wesdaw and Lexis-Nexis searches were run for each exoneree's name in the state in which they were convicted. Information from news articles regarding the year of their convictions and crimes of convictions was used to rule out prisoners with the same name. When possible from judicial descriptions of procedural history, information was added regarding rulings made by other courts in unreported decisions.
85. See infra notes 155-156 and accompanying text (explaining coding of criminal procedure claims raised by exonerees).
86. A work in progress examines the trial transcripts in the cases of those exonerated by postconviction DNA testing to assess which claims were raised during trials. See infra note 99. The process of locating and assembling those trial transcripts has not been completed, however, and the sources reviewed here that enabled determination of what types of physical or testimonial evidence were introduced at trial were not adequate to enable one to identify all legal claims asserted in motions made at trial or in pretrial proceedings.
87. For cases in which there was more than one DNA test, Part II includes decisions rendered after the initial DNA testing, i.e., any testing that occurred before the DNA testing that resulted in an exoneration through a vacatur or pardon.
88. As discussed infra Part H.B.3.a, only the noncapital cases were matched, because for capital cases, James Liebman's study already provides comprehensive data for comparison, with data regarding every capital case from the mid-1970s to 1995. These data also provide another reason to treat capital cases separately: More than two-thirds received reversals. To study reversal rates, one must isolate capital cases, given their uniquely high reversal rates. See Liebman, et al., Capital Attrition, supra note 44, at 1846-50.
89. The first case meeting those detailed criteria was accepted. A check was later conducted to see if the conviction in that matched case was reversed. As with any matched comparison group, judgment calls had to be made in selecting similar cases. However, those decisions were made according to a common protocol and before checking to see whether each case received a reversal. Since these random cases lacked news media coverage, only the number of reversals they received and the claims they raised during appeals were examined. It was not possible to obtain much demographic data or other information about their convictions.
90. See People v. Holland, 520 N.E.2d 270, 271-72 (Ill. 1987) (describing procedural posture of Holland's case and presenting information about his conviction and appeal). The Westlaw search used to identify him was in the Illinois cases database for "(CONVICT! /P RAPE & DA(1987))" because the first reported decision in the Bullock case was in 1987.
91. Id. at 272-79 (discussing claims of physical coercion); id. at 287 (Simon, J., dissenting) (internal quotations omitted) (noting trial court's conclusions about police's treatment of Holland).
92. Id. at 278-81.
93. See Holland v. Illinois, 493 U.S. 474, 487 (1990) (holding that Holland did not have valid Sixth Amendment claim).
94. See Holland v. McGinnis, 963 F.2d 1044, 1050 (7th Cir. 1992).
95. See United States ex rel. Holland, No. 90 Civ. 4359 (N.D. Ill. May 22, 1997) (Order by Hon. Marvin E. Aspen Denying Petitioner's Motion for DNA Testing). An entry of this order, though not the order itself, is available through PACER's online docket for the Northern District of Illinois.
96. See Public Access to Court Electronic Records: PACER Web Links, U.S. District Courts: Illinois Northern District Court, at https://ecf.ilnd.uscourts. gov/cgi-bin/login.pl (last visited Nov. 8, 2007) (docket on file with the Columbia Law Review). Information about Holland's death was made available via telephone interview.
97. See Telephone Interview by Michelle E. Morris with Derek Schnapp, Manager, Ill. Corrs. Media Relations Dep't, in Springfield, Ill. (Jun. 1, 2007) (confirming that Holland passed away while in custody of Logan Correctional Center in Lincoln, Illinois). Thanks to Michelle Moriss for her research, including contacting Illinois Corrections.
98. While 8 out of the 158 exonerees' cases involved acquaintance identifications, 18 out of 65 cases with eyewitnesses in the matched comparison group involved acquaintance identifications, typically where the rape victim was not a stranger to the perpetrator. Such acquaintance cases usually involve consent defenses but not defenses as to lack of identity. Furthermore, 5 additional cases in the matched comparison group involved stranger cases in which identity was not contested, but rather the defense was consent. The matched comparison group contains about the same proportion of guilty pleas, 6 out of 121, while the innocence group contains 9 out of 200.
99. News searches included Westnews searches for "DNA and guilt and confirm!" and "DNA and testing and guilt," after 1989.
100. See infra Part II.C.1 (discussing Innocence Project's work).
101. Sixteen individuals who were inculpated by DNA and received a letter survey from the Innocence Project regarding their willingness to participate in research efforts gave permission to have their records made available for this study as long as there was no identifying information linked to their results. Thus, only aggregate information from those cases is discussed below.
102. Indeed, in several cases included in the group, defense lawyers questioned DNA evidence and called for an independent test. See, e.g., Keith O'Brien, Till Death Do Us Part, NewCity, Feb. 2, 1998, available at http://weeklywire.com/ww/02-02-98/chicago_ cover.html (on file with the Columbia Law Review) (describing questions raised regarding DNA testing in Willie Enoch case).
103. This is because at least until recently, in approximately 60% of the cases in which the Innocence Project requested testing, the results inculpated. See Barry C. Scheck, Barry Scheck Lectures on Wrongful Convictions, 54 Drake L. Rev. 597, 601 (2006).
104. Since fewer news stories exist for this group, information regarding causes of the trial convictions was available only in cases with written decisions and even then, such information was spotty.
105. Scheck, supra note 65, at 601. The case of Roger Coleman, the sole postexecution DNA inculpation, provides an example where the convict convinced some lawyers and supporters of his innocence.
106. See John Tucker, May God Have Mercy: A True Story of Crime and Punishment 336 (1998).
107. The set of postconviction DNA exonerations does not include those cases in which DNA exonerated pretrial or during trial. Again, the innocence group, consisting of convicts, also cannot capture cases that did not result in a conviction, either because the prosecution ceased or because of an acquittal. See supra note 33 (discussing composition of innocence group);
108. cf. Daniel Givelber, Lost Innocence: Speculation and Data About the Acquitted, 42 Am. Crim. L. Rev. 1167, 1198-99 (2004) ("If it is at least as likely that the acquitted are innocent as that they are guilty, we need to rethink both our treatment of acquittals as irrelevant to subsequent evidentiary and punishment issues and our assumptions about the extent of the problem of wrongful convictions.").
109. The three exceptions listed in Table 1 as "Other" are S. Cowans, who was convicted of attempted murder, A. Beaver, who was convicted of robbery, and J. Ochoa, who was convicted of armed robbery and carjacking.
110. See Cohen & Reaves, 2002 BJS Study, supra note 41, at 27 tbl.28 (presenting statistics on conviction types of felony defendants).
111. For example, Marcellius Bradford earlier confessed and then pleaded guilty to rape and murder and was sentenced to twelve years in prison; he also agreed to testify against O. Saunders, C. Ollins, and L. Ollins. In 1991, John Dixon pleaded guilty to rape and kidnapping after the victim identified him. Though he later claimed the plea was not voluntary and requested DNA testing, he was sentenced to forty-five years in prison and was released in 2001 after DNA testing. See Mary P. Gallagher, Why DNA Testing Isn't a Panacea, N.J. L.J., Dec. 10, 2001, at 1, 1, 14. Chris Ochoa pleaded guilty to murder after a coerced confession, serving twelve years before DNA exonerated him.
112. See Innocence Project, Know the Cases: Christopher Ochoa, at http://www.innocenceproject.org/Content/230.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review). The others who pleaded guilty were Anthony Gray, Eugene Henton, James Ochoa, Jerry Townsend, David Vasquez, and Arthur Whitfield. Bradford, Gray, Chris Ochoa, Townsend, and Vasquez had falsely confessed. Only two, Dixon and Henton, were convicted of rape; the others were convicted of rape-murder or murder.
113. An NCSC study of 382 felony trials in 2000-2001 conducted a survey that found that defense counsel identified the defendant's claim of innocence as the reason why a plea was refused in about half of the jury trials examined. See Givelber, supra note 68, at 1177 & n.38 (citing and summarizing results of NCSC study).73.
114. Durose & Langan, Felony Sentences, supra note 41, at 8 tbl.9. The study of felony defendants in large urban counties shows a similar figure; there, 51% of the felony murder convictions involved plea bargains, while 90% of the felony rape convictions involved plea bargains.
115. See Cohen & Reaves, 2002 BJS Study, supra note 41, at 24 tbl.23 (presenting statistics on adjudication outcomes for felony defendants in nation's seventy-five largest cities). Table 23 depicts how in the Bureau's 2002 study of convictions in seventy-five large urban counties, 41 % of murder cases and 53% of rape cases were resolved through plea bargaining. However, those statistics include non-felony cases and cases that did not result in conviction, which are not a proper comparison to the cases of these exonerees, which all involved felony convictions. Thus, dividing the 41% of murder cases resolved through plea bargaining by the number of felony convictions reported, in 80% of cases, produces a 51% plea bargain rate for felony murder convictions. Dividing the 53% of rape cases by the 59% of cases in which there were felony convictions produces a 90% plea bargain rate for felony rape convictions.
116. See id.
117. Durose & Langan, Felony Sentences, supra note 41, at 8 tbl.9.
118. The BJS data support this intuition. See supra notes 73-74 and accompanying text. Additional support for the intuition arises from the fact that only a third of those who pursue state postconviction review pleaded guilty.
119. See Flango, 1994 NCSC Study, supra note 46, at 36 (stating that 32% of state habeas petitioners pleaded guilty compared with 24% of federal habeas petitioners).
120. Cf. Fed. Bureau of Investigation, Crime in the United States 2002: Uniform Crime Reports § III, at 222 fig.3.1 (2003), available at http://www.fbi.gov/ucr/cius_02/pdf/02crime3.pdf (on file with the Columbia Law Review) (estimating 2002 clearance rate of 64% for reported murders, 45% for rapes, and 13% for burglaries). Professor Gross has discussed why the additional resources that are invested in murder cases may produce such outcomes.
121. See Samuel R. Gross, Lost Lives: Miscarriages of Justice in Capital Cases, 61 Law & Contemp. Probs. 125, 134-35 (1998) [hereinafter Gross, Lost Lives] (arguing that several factors, including ease of investigating some murders and public pressure to solve murder cases, give incentives to police to "cut corners, to jump to conclusions, and . . . perhaps to manufacture evidence" in weak cases where police nonetheless believe they have identified culprit).
122. See Cohen & Reaves, 2002 BJS Study, supra note 41, at 24 tbl.23 (finding that 80% of murder defendants were convicted of felony at trial or based on guilty pleas, compared with 59% of rape defendants; in rape cases, 26% were not convicted due to dismissal or acquittal and 8% were convicted of misdemeanors).
123. Not discussed here are less common sources of evidence, such as physical objects or clothing connecting a defendant to a crime, or various circumstantial evidence, such as presence in the neighborhood where the crime occurred. Nor does this study examine forensic evidence, such as autopsy evidence, that was intended to prove how a crime occurred or that it occurred, but that was not used to prove identity at trial.
124. Thus, for example, a confession or an eyewitness identification that the court ordered suppressed pre-trial would not be included here. The sections that follow explain what is meant by "eyewitness identification," "forensic evidence," "informant testimony," and "confession."
125. By a constitutional claim "directly" challenging a type of factual evidence, this study means something quite narrow: a legal contention that testimonial or physical evidence introduced at the criminal trial was false or unreliable. Not included in this category are claims regarding prosecutors' mischaracterizations of evidence during closings, nor are rhetorical assertions regarding facts that are not claims or legal contentions. Nor does this category include claims that indirectly relate to facts at trial, such as a claim that trial counsel was ineffective for failing to challenge factual evidence. These claims are discussed next. Few such constitutional claims exist. For eyewitness identifications, the only such constitutional challenge is a claim under Manson v. Brathwaite, 432 U.S. 98, 113 (1977) (adopting totality of circumstances test for admitting eyewitness identifications into evidence). Thus, in Table 3, the first two columns of row 1 refer only to Manson claims. Regarding forensic evidence and informant testimony, the only direct claim is a claim that the evidence was fabricated.
126. See Miller v. Pate, 386 U.S. 1, 7 (1967) (holding that "state criminal conviction obtained by the knowing use of false evidence" is invalid). Regarding confessions, the first two columns refer only to Miranda claims and claims challenging an interrogation as involuntary,
127. see infra notes 130-131, though such claims have been criticized for not making claims of unreliability sufficiently cognizable.
128. See infra note 133. All other claims that sought a new trial based on a legal contention regarding the introduction or prosecutorial use of an eyewitness identification, forensic evidence, an informant's testimony, or a confession, are included in the third and fourth columns. The third and fourth columns, regarding any claim brought to challenge such evidence, reflect the category of what are called "factual claims." The sections that follow list and describe which claims were brought by exonerees and which were granted.
129. The main difference is fewer cases involving forensic evidence, which again may be due to a lack of news reports and a lack of challenges to forensic evidence during the criminal appeals; few of the exonerees challenged forensic evidence introduced during their trials.
130. This result exceeds the findings in Professor Gross's study that 64% of exonerations, including non-DNA exonerations, involved eyewitness error. See Gross et al., Exonerations, supra note 14, at 542. The higher percentage found in this study may be explained by the limitation of the data set to DNA cases, which disproportionately consist of rape cases.
131. See Cathy Maston Sc Patsy Klaus, U.S. Dep't of Justice, Bureau of Justice Statistics, Criminal Victimization in the United States 2005, Statistical Tables tbl.34(b) (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ cvus05.pdf (on file with the Columbia Law Review) (finding that 31.4% of rape and sexual assault cases involved strangerperpetrators). In the acquaintance cases in the innocence group, the misidentifications were due to alleged police coercion or suggestion, mental illness, or desire to obtain award money, but in some cases the cause was unclear. The cases are those of D. Davis, G. Davis, C. Elkins, M. Evans, K. Green, A. Hernandez, M. Williams, and A. Villasana.
132. In contrast, of forty-four rape-murder cases, six were victim identifications and one of the twelve murder cases involved a victim identification; one of the three "other" cases, an attempted murder, also involved a victim identification. The victim eyewitnesses in these murder cases were additional victims who were not killed. The additional rapemurder and murder cases with eyewitnesses involved non-victim identifications.
133. See Innocence Project, 200 Exonerated: Too Many Wrongfully Convicted 20-21, available at http://www.innocenceproject.org/200/ip_200.pdf (last visited Nov. 8, 2007) [hereinafter Innocence Project, 200 Exonerated] (on file with the Columbia Law Review). Data from judicial decisions produced only thirty-two cross-racial eyewitness identifications (20% of the 158 cases involving eyewitness identifications), but very few decisions reported the race of the eyewitness.
134. See Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psychol. Pub. Pol'y & L. 3, 5-13 (2001) (reviewing literature);
135. Andrew E. Taslitz, Wrongly Accused: Is Race a Factor in Convicting the Innocent?, 4 Ohio St. J. Crim. L. 121, 123 (2006) (speculating that race effects at each stage in criminal process may explain disparity in exonerations of minorities);
136. Gary L. Wells & Elizabeth A. Olson, The Other-Race Effect in Eyewitness Identification: What Do We Do About It?, 7 Psychol. Pub. Pol'y & L. 230, 230 (2001) ("Eyewitnesses are less likely to misidentify someone of their own race than they are to misidentify someone of another race.");
137. see also Gross et al., Exonerations, supra note 14, at 548 ("[T]he most obvious explanation for this racial disparity is probably also the most powerful: the perils of cross-racial identification.").
138. Manson v. Brathwaite, 432 U.S. 98, 119 (1977) (Marshall, J., dissenting) (internal quotations omitted) (quoting United States v. Wade, 388 U.S. 218, 228 (1967)).
139. See id. at 113 ("The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment.").
140. Four brought Wade claims regarding the right to counsel at the lineup; two of the four did not also raise a suggestive identification claim. See infra app. A.
141. One suggestive identification claim was ruled harmless error, three were dismissed for procedural reasons, and the others were dismissed as lacking merit.
142. See Wade, 388 U.S. at 236-37 (holding that Sixth Amendment requires counsel's presence at postconviction lineups).
143. See Manson, 432 U.S. at 114;
144. see also supra note 87 and accompanying text (discussing Manson).
145. See Garrett, Federal Wrongful Conviction Law, supra note 13, at 82-85 (discussing how Manson standard focuses on guilt, not on due process);
146. see also Rosen, Reflections, supra note 13, at 250 (noting that science empirically shows that courts are incorrect in their assessments of reliability of certain identification factors);
147. Gary L. Wells, Eyewitness Identification: Systemic Reforms, 2006 Wis. L. Rev. 615, 620-22 (discussing studies of eyewitness false confidence in inaccurate identifications);
148. Gary L. Wells, What Is Wrong with the Manson v. Braithwaite [sic] Test of Eyewitness Identification Accuracy? 2 (2004), at http://www.psychology. iastate.edu/faculty/gwells/Mansonproblem.pdf (on file with the Columbia Law Review) (arguing that psychological studies demonstrate that two-pronged Manson test is flawed).
149. Of the 113 convictions based on forensic evidence, 80 were rape cases, 24 were rape-murder cases, 7 were murder cases, and 2 were "other."
150. For works regarding flawed forensic evidence, see Paul C. Giannelli, The Supreme Court's "Criminal" Daubert Cases, 33 Seton Hall L. Rev. 1071, 1072-73 (2003) (discussing difference between civil and criminal applications of Daubert standard);
151. Michael J. Saks, The Legal and Scientific Evaluation of Forensic Science (Especially Fingerprint Expert Testimony), 33 Seton Hall L. Rev. 1167, 1170-86 (2003) (discussing courts' incorrect applications of Daubert test to forensic evidence).
152. Buutler, supra note 28, at 5.
153. See id. at 439 (discusssing use of STR markers and CODIS database by crime laboratories).
154. The cases were those of J. Richardson and P. Kordonowy (serology and hair).
155. The author is currently examining, as part of a further study, the trial transcripts of each of those wrongfully convicted in part based on forensic expert evidence at trial. As of the time of publication, a preliminary review examined the testimony of forensic experts in sixty-one trial transcripts of the 113 DNA exonerees convicted based on forensic evidence; these transcripts were obtained with the help of Winston & Strawn, LLP. Remarkably, 57%, or thirty-five of these cases, involved improper testimony by forensic experts at trial. Adding to that number twelve more cases involving misconduct beyond just the face of the trial testimony, forty-seven, or 77%, of the trial transcripts reviewed to date involved improper science. Thus, these wrongful convictions were more often than not premised on not just forensic evidence that was not probative, but rather on improper exaggeration of the probative significance of the evidence.100. Improper serology testimony was involved in twenty-two of the forty-one trials of those exonerated by postconviction DNA testing in which transcripts have been located so far and in which there was testimony regarding serological analysis. Most of these cases involved improper testimony failing to account for the phenomenon of "masking." This phenomenon occurs when the blood type of a mixed specimen collected from the victim is consistent with the victim's own type, such that it is not possible to reach any further conclusions about the donor of the specimen without information about the quantity of the donor's contribution to the sample. See Comm. on DNA Tech. in Forensic Sci., Nat'l Research Council, DNA Technology in Forensic Science 158 (1992) ("Conventional serology is further limited, in that analysis of mixed-fluid stains in which two or more contributors are involved can mask an individual donor.").
156. See Barry Scheck, Peter Neufeld & Jim Dwyer, Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 204-18 (2000) [hereinafter Scheck et al., Actual Innocence] (noting that proficiency testing of hair evidence has indicated error rates higher than chance);
157. D. Michael Risinger & Michael J. Saks, Rationality, Research and Leviathan: Law Enforcement-Sponsored Research and the Criminal Process, 2003 Mich. St. L. Rev. 1023, 1048-50 (describing FBI study data and deriving 12.5% error rate for visual hair comparison from that data);
158. Clive A. Stafford Smith & Patrick D. Goodman, Forensic Hair Comparison Analysis: Nineteenth Century Science or Twentieth Century Snake Oil?, 27 Colum. Hum. Rts. L. Rev. 227, 242-45 (1996) (discussing seminal forensic hair experiment's problems with validity).
159. See Fed. Bureau of Investigation, U.S. Dep't of Justice, Proceedings of the International Symposium on Forensic Hair Comparisons 107-10 (1985). The Symposium's Subcommittee on Report Writing, Conclusions, and Court Testimony concluded that there are a limited class of permissible conclusions one can draw based on forensic hair comparisons: (1) The hair "could have come from" the alleged source; (2) the hair "is consistent with having come from" the alleged source; (3) a particular source "qualifies as being the donor" of a particular hair; (4) the hair "could not have originated" from the alleged source; (5) the hair "is not consistent with having come from" the alleged source, or (6) "no conclusion" could be reached. The Subcommittee then noted the possibility of "coincidental match" and called for "[f]urther research" on whether probabilities can be used.
160. Id. at 110.
161. See Jack Money, "Justice Has Been Done": Exonerated Man Eager to Restart Life, Oklahoman, Dec. 4, 2003, at Al (describing Scott's exoneration).
162. Among the sixty-one trial transcripts located to date were thirty-three cases involving hair testimony (i.e., most of the forty-three total cases in which hair comparison testimony was introduced at trial), of which twenty-one cases, or 64%, involved improper testimony. Again, a study in progress will complete the review of this testimony and examine these cases in greater detail. The ubiquity of improper testimony, however, shows that improper testimony by analysts regarding visual hair comparison is not limited to highly publicized repeat misconduct by actors such as Arnold Melnikoff or Joyce Gilchrist, but rather that it is far more pervasive.
163. See Innocence Project, Know the Cases: Paul D. Kordonowy, at http://www. innocenceproject.org/Content/194.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review).
164. Id.
165. State v. Bromgard, 862 P.2d 1140, 1141 (Mont. 1993).
166. See Scheck et al., Actual Innocence, supra note 101, at 165 (discussing use of hair samples in Williamson case);
167. see also Williamson v. Reynolds, 904 F. Supp. 1529, 1558 (E.D. Okla. 1995).109. The three cases are those of G. Alejandro, T. Durham, and J. Sutton. Timothy Durham was convicted chiefly based on a DNA test of raping an eleven-year-old girl; he was convicted and sentenced to 3,000 years in prison, though his defense lawyer elicited testimony at trial from eleven alibi witnesses who said he was in another state the day of the crime. Postconviction DNA retesting excluded Durham, and indicated lab error: "The lab had failed to separate completely the male and female DNA from the semen stain . . . ."
168. See Tania Simoncelli, HR 3214 (The "Advancing Justice Through DNA Technology Act of 2003") and the Tolling of Statutes of Limitations (Nov. 6, 2003), at http://www.aclu.org/privacy/genetic/14995pub20031106.html (on file with the Columbia Law Review). Similarly, Josiah Sutton spent nearly five years in jail for a rape he could not have committed. Sutton's conviction rested almost entirely on the basis of a DNA tests [sic] performed by the Houston Police Crime Laboratory. Re-analysis of the lab report showed that the lab technician had mistakenly reported that Sutton's DNA profile was included in the profile of a semen sample taken from the back of the car, where the rape was committed, when it was not. In addition, she presented the DNA data to the jury in a misleading way that overstated its value . . . .
169. Id. In the case of Gilbert Alejandro, the expert, Fred Zain, claimed a DNA match when in fact Zain had never conducted any testing beyond initial inconclusive testing, and final DNA testing conducted after the trial excluded Alejandro. Innocence Project, Know the Cases: Gilbert Alejandro, at http://www.innocenceproject.org/Content/47.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review).
170. The cases are those of R. Brown, W. Jackson, and R. Krone.
171. See infra notes 161-175 and accompanying text (discussing reasons for reversals among exonerees' cases).
172. See Miller v. Pate, 386 U.S. 1, 7 (1967)
173. (citing Mooney v. Holohan, 294 U.S. 103 (1935), for proposition that conviction knowingly obtained through use of false evidence runs afoul of Fourteenth Amendment);
174. Mooney, 294 U.S. at 112 (holding that due process "is a requirement that cannot be deemed to be satisfied . . . if a State has contrived a conviction . . . through a deliberate deception of court and jury by the presentation of testimony known to be perjured"). Regarding civil rights claims brought concerning fabricated evidence,
175. see Garrett, Federal Wrongful Conviction Law, supra note 13, at 95-99 (describing circumstances under which fabrication of evidence claims typically arise and manner in which courts generally evaluate such claims).
176. See, e.g., Am. Jur. 2d Criminal Law § 1276 (1998) ("[T]he right of an indigent defendant to the appointment of an expert witness at the state's expense generally rests in the discretion of the trial court"). The Supreme Court has ruled that there is a right in capital cases to certain expert assistance, and that right has been extended to some noncapital cases.
177. See Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (holding that when sanity of defendant is "significant factor at trial, the State must . . . assure the defendant access to a competent psychiatrist");
178. Little v. Armontrout, 835 F.2d 1240, 1245 (8th Cir. 1987) (finding that district court committed reversible error in failing to appoint expert in hypnosis to assist defendant at trial);
179. Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Vost-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305, 1339-41 (2004) (exploring variations in state provision for expert assistance). A preliminary review,
180. see supra note 99, has so far uncovered only two trials in which the defendants had a forensic expert.
181. Nine were rape cases, twenty-one were rape-murder cases, and five were murder cases.
182. See Hoffa v. United States, 385 U.S. 293, 311 (1966) (discussing "established safeguards of the Anglo-American legal system [that] leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury"). The Court has also held that defendants have a right to have counsel present when a charged suspect is interrogated; thus, the government cannot actively place informants in or near the cell of a charged suspect for the purpose of obtaining information.
183. Cf. Massiah v. United States, 377 U.S. 201, 203-06 (1964) (overturning conviction based on testimony of officer who overheard incriminating conversation between defendant and cooperating coperpetrator while informant was wearing recording and transmitting device and defendant was free on bail).
184. Steve Mills & Ken Armstrong, Another Death Row Inmate Cleared, Chi. Trib., Jan. 19, 2000, at N1;
185. see also James S. Liebman, The Overproduction of Death, 100 Colum. L. Rev. 2030, 2088-89 n.149 (2000) [hereinafter Liebman, Overproduction of Death] (providing additional examples of jailhouse informants giving false testimony).
186. See Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. Cin. L. Rev. 645, 660-63 (2004) (examining arguments for and against use of jailhouse informants);
187. cf. Ian Weinstein, Regulating the Market for Snitches, 47 Buff. L. Rev. 563, 578 (1999) ("Under the current sentencing regime, cooperation is the only option that significantly alters the most important set of considerations for most defendants-those that relate to the ultimate sentence to be imposed.").
188. For a description of a Massiah claim, see supra note 115.
189. See People v. Jimerson, 652 N.E.2d 278, 282-86 (Ill. 1995) (remanding for new trial "because the State allowed perjured testimony of its witness [Paula Gray] to stand uncorrected");
190. see also Ctr. on Wrongful Convictions, Nw. Univ. Law Sch., Police and Prosecutorial Misconduct Put Verneal Jimerson on Death Row (2004), at http://www.law. northwestern.edu/depts/clinic/wrongful/exonerations/jimerson.htm (on file with the Columbia Law Review) (summarizingJimerson's case).
191. Some brought more than one claim. These claims are explained infra note 155 and Part II.B.2.
192. John Grisham's new book tells the stories of the first two cases. Grisham details Ron Williamson's and Dennis Fritz's wrongful convictions and DNA exonerations. See Grisham, supra note 7. The third case was that of Dana Holland, in which the actual perpetrator was a codefendant found not guilty by the judge.
193. See Ctr. on Wrongful Convictions, Nw. Univ. Law Sch., Dana Holland Exonerated After Serving 10 Years of a 118-Year Sentence for Two Wrongful Convictions (2006), at http://www.law.northwestern. edu/depts/clinic/wrongful/ exonerations/Holland.htm (on file with the Columbia Law Review). Two other exonerees, Alejandro Hernandez and Rolando Cruz, had reversals based on claims regarding unfair prejudice from joinder of their trials; both were innocent, as DNA later showed.
194. See Ctr. on Wrongful Convictions, Nw. Univ. Law Sch., Police Perjury and Jailhouse Snitch Testimony Put Rolando Cruz on Death Row (2005), at http://www. law.northwestem.edu/depts/clinic/wrongful/exonerations/craz.htm (on file with the Columbia Law Review). In one additional case, that of Arthur Mumphrey, it was a codefendant who confessed and testified against Mumphrey in exchange for a reduced sentence. Postconviction DNA testing later inculpated the codefendant along with Mumphrey's brother Charles (who had confessed to police yet was not prosecuted).
195. See Innocence Project, Know the Cases: Arthur Mumphrey, at http://www.innocenceproject.Org/Content/3.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review).
196. See 725 Ill. Comp. Stat. Ann. 5/115-21 (d) (West Supp. 2007) ("The court shall conduct a hearing to determine whether the testimony of the informant is reliable . . . .").
197. See Dodd v. State, 993 P.2d 778, 784 (Okla. Crim. App. 2000) (adopting procedure for jailhouse informant testimony that ensures "complete disclosure");
198. see also Cal. Penal Code § 1127a(b) (West 2004) (requiring courts to instruct jury on in-custody informant testimony);
199. United States v. Villafranca, 260 F.3d 374, 381 (5th Cir. 2001) ("The testimony of a plea-bargaining defendant is admissible if the jury is properly instructed.");
200. State v. Bledsoe, 39 P.3d 38, 44 (Kan. 2002) (noting that trial court "gave a cautionary jury instruction regarding the testimony of an informant");
201. Alexandra Natapoff, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 Golden Gate U. L. Rev. 107, 112-15 (2006) (proposing model statute requiring pretrial evaluations of informant testimony).
202. There are thirteen such cases: S. Avery, K. Bloodsworth, M. Bravo, R. Criner, E. Karage, M. Mitchell, B. Nelson, M. Pendleton, F. Saecker, F. Smith, W. Snyder, C. Washington, and K. Waters. Adding those thirteen cases involving inculpatory remarks to the thirty-one involving confessions results in forty-four cases, or 22% of the 200 exonerations, a figure similar to the 25% figure that the Innocence Project cites. See Innocence Project, False Confessions, at http://www.innocenceproject.org/understand/False-Confessions.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review).125. This study does not include as "convictions supported by confessions" cases in which an exoneree did not confess, but instead was implicated by the false confession of another exoneree. Paula Gray's false confession was central to the prosecution of what have become known as the Ford Heights Four (K. Adams, V. Jimerson, W. Rainge, and D. Williams) but when she later recanted she was herself tried and convicted.
203. See supra note 119 and accompanying text (discussing Ford Heights Four case). Similarly, M. Bradford, R. Danziger, D. Halstead, R. Matthews, L. Ollins, J. Restivo, and O. Saunders were all convicted after other exonerees confessed and also implicated them to the police. These cases are included in the informant/codefendant category. As noted in that section, Jimerson successfully challenged Paula Gray's testimony as fabricated.
204. See People v. Jimerson, 652 N.E.2d 278, 282-86 (Ill. 1995) (granting new trial based on Gray's perjured testimony). Walter Snyder's case raises interesting and close questions, because the police officer claimed that Snyder had not confessed to an act of rape, but had rather stated that the victim had "'raped him.'"
205. See Scheck et al., Actual Innocence, supra note 101, at 60. Snyder explains that he never made any confession and consistently denied any involvement in any such crime, but merely expressed incredulity when police encouraged him to admit that the victim made advances on him.
206. Id. at 79.
207. See People v. Wise, 752 N.Y.S.2d 837, 843 (N.Y. Sup. Ct. 2002) (noting that five "Central Park Jogger" defendants had confessed).
208. Washington v. Murray, 4 F.3d 1285, 1292 (4th Cir. 1993).
209. See Frank Green, $2.25 Million Verdict in False Confession, Richmond TimesDispatch, May 6, 2006, at Al (reporting federal jury's finding that "a state police investigator fabricated [Washington's] confession").
210. See Gross et al., Exonerations, supra note 14, at 544 tbl.3 (finding similar correlation in exonerations, including non-DNA exonerations).
211. Miranda v. Arizona, 384 U.S. 436, 444 (1966). For criticisms of the Court's treatment of false confession claims,
212. see Garrett, Federal Wrongful Conviction Law, supra note 13, at 88-94 (arguing that "criminal law remains hostile to scrutiny of false confessions");
213. Rosen, Reflections, supra note 13, at 244-47 (arguing that "despite language in Miranda condemning secret police interrogations . . . the actual Miranda ruling did little to change the way interrogations are carried out in this country").
214. Schneckloth v. Bustamonte, 412 U.S. 218, 223, 226 (1973);
215. see also Stein v. New York, 346 U.S. 156, 185 (1953) (stating that determination of coerciveness "depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing").
216. T. Hayes raised a Sixth Amendment claim that he should have been permitted to challenge his competence and his confession using expert testimony at trial; R. Williamson raised an ineffective assistance of counsel claim relating to failure to challenge his competency and confession, and Y. Salaam raised a state evidence law claim relating to interrogation of a juvenile without parents present.
217. See Richard A. Leo & Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429, 440-49 (1998) (critiquing inability of current doctrine to prevent or remedy false confessions).
218. See supra note 112 (describing fabrication claims).
219. See Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2005);
220. supra note 4 (discussing Supreme Court's debate regarding legal significance of mounting empirical evidence of wrongful convictions in capital cases);
221. see also O'Connor Questions Death Penalty, N.Y. Times, July 4, 2001, at A9 (quoting Justice O'Connor as saying that "[i]f statistics are any indication, the system may well be allowing some innocent defendants to be executed" (internal quotations omitted)).
222. See Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics 2003, at 147 tbl.2.56, available at http://www.albany.edu/sourcebook/pdf/t256.pdf (on file with the Columbia Law Review) (showing that in 1991, 11% of populace stated possibility of wrongful convictions as reason to oppose death penalty, while in 2003, 25% did so).
223. James S. Liebman, Jeffrey Fagan & Valerie West, A Broken System: Error Rates in Capital Cases, 1973-1995, at 5 (2000) [hereinafter Liebman et al., Broken System].
224. A fifteenth former death row inmate, Curtis McCarty, was exonerated by postconviction DNA testing after the study period closed, in May 2007. Jay F. Marks and Ken Raymond, Ex Death-Row Inmate Freed, Oklahoman, May 12, 2007, at lA.
225. For book length treatments of three of these cases, see Margaret Edds, An Expendable Man: The Near-Execution of Earl Washington, Jr. 6 (2003) (recounting case of Earl Washington, Jr., and calling it "a prototype for many of the things that can go wrong in a capital conviction");
226. Grisham, supra note 7, at 20 (describing how Ron Williamson became wrongly suspected of murder); Tim Junkin, Bloodsworth: The True Story of the First Death Row Inmate Exonerated by DNA 4-5 (2004) (describing murder conviction and death sentence of Kirk Noble Bloodsworth, who was the first person on death row exonerated by DNA).
227. Postconviction DNA exonerations represent only 12% of the 124 cases since 1973 in which capital convictions were reversed based on innocence. See Death Penalty Information Ctr., Innocence and the Death Penalty, at http://www.deathpenaltyinfo.org/article.php?scid=6&did=110 (last visited Nov. 8, 2007) (on file with the Columbia Law Review).
228. Only three of fourteen had more than two main types of evidence introduced at trial (an eyewitness, forensic evidence, an informant, and in one also a confession). The other eleven only had one or two of those types of evidence, and for many the bolstering evidence was fairly weak. Yet the quantity and quality of evidence could be quite great in a case with one type of evidence. For example, in one case a hundred eyewitnesses could have a clear view of the crime. In another case, highly probative DNA test results could be the only forensic evidence.
229. On bite mark comparisons' unreliability, see 4 Faigman et al., supra note 28, § 38:33, at 485 (surveying literature investigating reasons for unreliability in bite mark testimony and predicting that "the future may contain a forensic revamping of bitemark analysis testimony where a positive identification is not allowed, but, rather, only a lesser opinion is admissible");
230. Fernanda Santos, Evidence from Bite Marks, It Turns Out, Is Not So Elementary, N.Y. Times, Jan. 28, 2007, at WK 4 ("In spite of the evolution of other forensic sciences, bite-mark analysis remains an inexact tool.").
231. See Bedau & Radelet, supra note 14, at 57 tbl.6 (noting that 117 of 350 erroneous capital convictions studied involved perjury by prosecution witness);
232. Ctr. on Wrongful Convictions, Nw. Univ. Law Sch., The Snitch System 3 (2004-2005), at www.law. northwestern.edu/wrongfulconvictions/documents/ SnitchSystemBooklet.pdf (on file with Columbia Law Review) (describing informant testimony as leading cause of convictions in cases of death row exonerations, including non-DNA exonerations);
233. see also Gross, Lost Lives, supra note 76, at 138-40 (describing evidence that "witness perjury is a far more common cause of error in murders and other capital cases than in lesser crimes");
234. Liebman, Overproduction of Death, supra note 116, at 2087 n.148 (2000) (describing acquittals following perjury by prosecution witness).
235. The cases are Earl Washington, Ryan Matthews (Matthews was also a juvenile), and Alejandro Hernandez (who was borderline mentally retarded). The Court referred to Earl Washington's case in Atkins. See Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002) ("[W]e cannot ignore the fact that in recent years a disturbing number of inmates on death row have been exonerated. These exonerations have included at least one mentally retarded person[, Earl Washington,] who unwittingly confessed to a crime that he did not commit.").
236. See 720 Ill. Comp. Stat. Ann. 5/9-1 (h-5) (West Supp. 2005).
237. See, e.g., Clay v. United States, 537 U.S. 522, 527 (2003) (discussing direct appeal as of right and certiorari review in context of AEDPA's statute of limitations).
238. See 1 Donald E. Wilkes, Jr., State Postconviction Remedies and Relief Handbook 1-25 (2007 ed.) (discussing procedural progression of state postconviction remedies).
239. See Liebman et al., Broken System, supra note 137, at 21 (describing federal habeas review).
240. See Scalia, 2000 BJS Study, supra note 47, at 1-2 (stating that in year 2000, for every 1,000 inmates in state prisons, 17 filed habeas petitions). Of 441 judicial decisions in the innocence group, 236 were issued during direct appeals, 120 were issued during state postconviction, while 82 were issued during federal habeas corpus.
241. The 2007 NCSC study shows that a significant number of persons who file federal habeas petitions were convicted of homicide or sexual assault and are facing long sentences. According to the study, 28.2% of federal habeas petitioners were convicted of a homicide, and 15.4% were convicted of a sexual assault. See King et al., 2007 NCSC Study, supra note 47, at 19-20. Furthermore, the study found that of those for whom sentencing information was available, 27.7% were serving life sentences and the rest were sentenced to an average of twenty years. Id. at 20.
242. Only 9% (11 out of 121 in the matched comparison group) filed federal habeas petitions, while 15% filed state postconviction appeals; all filed direct appeals. The matched comparison group excludes capital cases; among the exonerees with noncapital cases, 17% filed federal habeas petitions (20), and 31% filed state postconviction appeals (38).
243. This includes all certiorari petitions that were filed by exonerees after state direct appeals and after state postconviction proceedings (none reached the Court following federal habeas corpus petitions).
244. See Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988) (denying relief); infra note 237-238 and accompanying text (discussing Youngblood).
245. According to the NCSC study, about 75% of state courts that dismissed or denied petitions (which they do about 99% of the time) did so summarily without giving any reason (while in contrast nearly 75% of the time federal courts gave reasons). See Flango, 1994 NCSC Study, supra note 46, at 65-67.
246. AU claims included in Table 5 are oudined below in order:
247. A wide variety of state law evidence claims, statutory, common law and those asserted under state constitutions, including any evidentiary claim not asserted under the U.S. Constitution;
248. Claims, under Jackson v. Virginia, 443 U.S. 307, 316 (1979), described infra notes 213-214 and accompanying text, that no reasonable juror could have found guilt beyond a reasonable doubt; this category includes any supplementary state law sufficiency of the evidence standards;
249. Prosecutorial misconduct claims, including any non-Brady claims that prosecutors so inflamed the proceedings that they created an unfair trial, see, e.g., Darden v. Wainwright, 477 U.S. 168, 181 (1986);
250. Ineffective assistance of counsel claims, under Strickland v. Washington, 466 U.S. 668, 687 (1984), which are described further infra notes 196, 221 and accompanying text;
251. Claims that jury instructions violated the Due Process Clause, including because the court impermissibly suggested to the jury that they could find guilt with less than proof beyond a reasonable doubt, misstated elements of the offense, or failed to include a lesser included offense instruction as required by Beck v. Alabama, 447 U.S. 625, 627 (1980), as well as state law claims regarding improper jury instructions, see, e.g., State v. Cromedy, 727 A.2d457, 459 (1999);
252. Suggestive eyewitness identification claims, under due process decisions such as Manson v. Brathwaite, 432 U.S. 98, 114 (1977), which are discussed further supra notes 92 93 and accompanying text;
253. Claims under Brady v. Maryland, 373 U.S. 83, 86 (1963), alleging suppression of material exculpatory evidence, discussed further infra note 197 and accompanying text;
254. Claims of bad faith destruction of exculpatory evidence, under Youngblood, 488 U.S. at 58-59, discussed further infra notes 237-238 and accompanying text;
255. Claims of racially discriminatory jury selection, under Batson v. Kentucky, 476 U.S. 79, 89 (1986), or other constitutional claims concerning jury selection;
256. Claims of a coerced interrogation, under the totality of the circumstances or a violation of Miranda v. Arizona, 384 U.S. 436, 444 (1966), discussed supra notes 130-132 and accompanying text;
257. Claims under a state statute or rule that sufficient newly discovered evidence of innocence should result in the grant of a new trial, see, e.g., N.Y. Crim. Proc. § 440.10(1) (g) (McKinney 2005);
258. Fourth Amendment claims, including lack of probable cause for arrest;
259. Sixth Amendment right to counsel claims;
260. Claims under Bruton v. United States, 391 U.S. 123, 137 (1968), regarding prejudicial joinder of codefendants' cases for trial;
261. Claims, only hypothetically recognized by a plurality in Herrera v. Collins, 506 U.S. 390, 398 (1993), under which a capital convict might secure relief based on a very persuasive showing of actual innocence, discussed further infra text accompanying notes 209-211;
262. Claims regarding the State's knowing use of false or fabricated evidence, discussed supra note 112.
263. Some who received reversals had more than one claim granted.
264. In the matched comparison group, 45% brought state law claims (54), 38% brought Jackson claims (46), 21% brought ineffective assistance claims (26), 21% brought prosecutorial misconduct claims (25), 17% brought jury instruction claims (20), 12% brought Fourth Amendment claims (15), 12% brought coerced confession claims (14), 10% brought suggestive eyewitness identification claims (12), 8% brought jury selection claims (10), 7% brought Brady claims (9), 4% brought destruction of evidence and right tocounsel claims (5), 2% brought Herrera claims (3), 2% brought newly discovered evidence of innocence claims and Schlup gateway claims (3), and 1% brought fabrication of evidence and Bruton claims (1). Table 5 above includes capital cases. While the matched comparison group includes only noncapital cases, the results in the innocence group change very little even if one subtracts from the equation the claims brought by the twelve capital defendants with written decisions (for example, 60% still brought state law evidence claims and only 1% fewer brought ineffective assistance claims).
265. See Flango, 1994 NCSC Study, supra note 46, at 45-59 (discussing types of claims raised).
266. See id. at 62 (charting reversal rates). As the study stated, "[t]he picture in state courts is somewhat different." There, defendants prevailed at slighly higher rates for ineffective assistance of counsel claims, trial court error claims, Eighth Amendment claims, and Fourteenth Amendment claims. Once, however, the oversampling of Texas criminal appeals was accounted for, the rates in state proceedings began to look like those in federal proceedings. In particular, only Eighth Amendment claims received relief from state courts at a rate greater than 2%, and this figure owed much to the unusual case of New York, which issued a series of reversals on questions of excessive bail. Id. at 62-63 & tbl.18.
267. See id. at 65 & tbl.19 ("[S]tate courts, when they give a reason, deny petitioners on the merits or because of procedural default.").
268. Among the entire study group of 200 exonerees, fifteen were tried twice and five were tried three times. Eight of these, however, were excluded. Four of those excluded (R. Alexander, D. Holland, W. Nesmith, A. McGee) were tried two to three times according to news reports, but lacked written decisions. Additionally, four exonerees had retrials due to hungjuries, not reversals (S. Fappiano, D. Gray, E. Lowery, J. Ruffin), and were therefore excluded. Subtracting those eight cases leaves twelve cases out of the 133 with written decisions. An additional case, that of Michael Evans, was not counted as a reversal. The trial judge granted Evans a new trial after his conviction but before sentencing, and he was then retried several months later. See People v. Evans, 399 N.E.2d 1333, 1335 n.1 (Ill. App. Ct. 1979). As no written decisions could be located regarding the initial conviction and its vacatur, and only a later decision revealed that it was reversed on a Brady violation, it was not included.
269. They are P. Gray, L.Jean, V. Jimerson, S. Linscott, J. Watkins, and R. Williamson.
270. The conviction reversal rate is slighdy different from the aggregate reversal rate because some exonerees had more than one conviction vacated. The total number of convictions reversed is twenty convictions vacated out of 142 total convictions with written decisions; 14% were reversed totally. While 133 exonerees had written decisions, 142 convictions had them (several had two or three convictions each that were reversed). Nine with written decisions had more than one conviction for which they sought review: K. Bloodsworth (2) (capital case), R. Cotton (2), R. Cruz (2) (capital case), W. Dedge (2), A. Hernandez (2) (capital case), D. Hunt (2), R. Krone (2) (capital case), W. Rainge (2), and D. Williams (2) (capital case).
271. See Liebman, et al., Broken System, supra note 137, at 5 (discussing reversal rates in capital cases).
272. Here, the full set of 200 exonerees is examined because sentence data were available for all cases in the group, including for those without written decisions.
273. Similarly, nine out of seventeen capital convictions with written decisions received reversals (or 53%).
274. The aggregate figures do not separate the reversal rates at each level of criminal appeal, or what Liebman, Fagan, and West term the " attrition" rate. See Liebman et al., Capital Attrition, supra note 44, at 1850 ("The result of very high rates of serious, reversible error among capital convictions and sentences, and very low rates of capital reconviction and resentencing, is the severe attrition of capital judgments."). Criminal review is like an assembly line with three stages. At each level of review the denominator changes as some drop out either because they win or because they give up and stop pursuing review or because nothing is reported regarding any subsequent review. The attrition rate, a slighdy higher 58%, is calculated as follows: DIRECT APPEAL (5 / 12 convictions = 42%) + STATE POSTCONVICTION ((1 out of 7 convictions = 14%) x (percent left from the original pool = 58%) = 8%) and FEDERAL HABEAS ((one out of 3 convictions = 33%) x (percent left from original pool = 25 %) = 8%) = A TOTAL OF 58%. Subtracting the reversals in capital cases, the innocent appellant's non-capital attrition rate is 10%. The non-capital attrition rate is: DIRECT APPEAL (8 / 121 noncapital cases = 7%) + STATE POSTCONVICTION (0%) + FEDERAL HABEAS ((3 out of 30 cases = 10%) x (percent left from original pool = 25%) = 3%) = A TOTAL OF 10%.
275. See Liebman et al., Broken System, supra note 137, at 124 nn.40-41 (concluding that "[a] t least 68% of the capital judgments that were fully inspected were found seriously flawed at some stage"). The NCSC study, which did not calculate an attrition rate or review all capital sentences, found 3% reversals in state courts and 17% in federal courts in 1990. See Flango, 1994 NCSC Study, supra note 46, at 86 tbl.22.
276. The seven capital reversals were all rape-murder cases. The noncapital rapemurder reversal rate, with four reversed of twenty-one cases, is 19%.
277. Of the decisions in which vacaturs were granted and then upheld on appeal, four were granted in federal habeas petitions, fifteen were granted during the direct appeal, and one was granted during state postconviction. The total attrition rate, including capital and noncapital cases, turns out to be 14%, the same as the reversal rate: DIRECT APPEAL (13 reversed / 133 convictions in cases with written decisions = 10%) + STATE POSTCONVICTION ((1 out of 60 convictions = 2%) x (percent left from the original pool 60/133 = 45%) = 1%) and FEDERAL HABEAS ((4 reversals out of 30 cases = 13%) x (percent left from original pool 30/133 = 23%) = 3%) = A TOTAL OF 14%.
278. Only three exonerees received decisions that cited to the AEDPA's limitations. Only a handful filed federal habeas petitions after the AEDPA's 1996 enactment. The relevant precedents regarding Brady, ineffective assistance of counsel, and harmless error rules, see infra Parts II.B.5 and II.B.6, were in place during the review sought by almost all in the group. Thus, none had courts dismiss claims on nonretroactivity grounds.
279. See, e.g., 28 U.S.C. § 2254 (2000) (stating that AEDPA amendments to statute were effective on April 24, 1996).
280. This point held true for the claims at issue here. See Flango, 1994 NCSC Study, supra note 46, at 62-63 (showing similarly low rate in both federal and state courts for most types of habeas claims). The 1994 NCSC Study showed higher figures for certain claims that are not at issue in the vacaturs examined here (excessive bail, sentencing errors, probation/parole issues, and cruel and unusual punishment claims). See id. at 63 tbl.18. Table 18 of the NCSC Study shows state court reversal rates from 1% to 2% - except regarding bail and sentencing, and finally, excepting Texas death penalty cases, which sustained a series of sentencing and ineffective counsel claims following Supreme Court decisions in the 1980s. Id. at 63 tbl.18. The 2007 NCSC Study examined federal habeas petitions filed no earlier than 2000, after the passage of the AEDPA. That study found that 0.35% of petitions were granted, far lower than the 1% rate observed before AEDPA. See King et al., 2007 NCSC Study, supra note 47, at 58 (finding rate of one in 284 habeas petitions granted post-AEDPA).
281. See Hanson & Daley, 1995 BJS Study, supra note 47, at 11 (providing statistics and concluding that "[a]pproximately two-thirds of the sampled prisoners had been convicted of homicide or other serious, violent crimes").
282. See Liebman et al., Broken System, supra note 137, at 5, 124 nn.40-41 (calculating overall error rate nationally in capital cases at 68%).
283. Beyond reversals on factual claims, judges often also grant a reversal for more than one reason, including both procedural error and a perception that the convict may be innocent; the latter reason may be particularly important when a judge finds a procedural error to be harmful error.
284. See Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Reliably Acquit the Innocent?, 49 Rutgers L. Rev. 1317, 1349-55 (1997) (canvassing rape and murder cases with equivocal evidence and referring to study in which "[a]ll twenty-eight cases of wrongful convictions . . . involve[d] sexual assault or rape").
285. See Bureau of Justice Statistics, U.S. Dep't of Justice, Sourcebook of Criminal Justice Statistics Online: Adjudication Outcome for Felony Defendants in the 75 Largest Counties, By Arrest Charge, United States, 2002, at tbl.5.57.2002 (2002), at http://www.albany.edu/sourcebook/pdf/t5572002.pdf (on file with the Columbia Law Review) (finding 2% of rape defendants acquitted while only 8% percent of rape cases went to trial; finding additional 24% had charges dismissed pretrial while 8% more pleaded guilty to misdemeanors).
286. See id. (finding 4% of murder defendants acquitted where 39% of murder cases went to trial; 13% more were dismissed pretrial; 1% were convicted at trial only of misdemeanor).
287. Two reversals were granted for Brady claims that alleged the state concealed police reports relating to third party guilt (K. Bloodsworth, J. Watkins), one more involved the trial court's decision to bar evidence that another victim of similar attacks identified another person (R. Cotton), and a fourth occurred after the trial court barred evidence of a third party's pattern of similar crimes and confessions (R. Cruz).
288. The eleven include the four reversals relating to eyewitness identifications. These cases involve three state law evidence claims, a reversal for failure to provide a jury instruction explaining the dangers of cross-racial misidentification (M. Cromedy), a state evidentiary violation relating to an eyewitness identification (M. Webb), an improper introduction of prior unsworn statements by an eyewitness (D. Hunt), and a Brady claim regarding hypnotism of the victim in order to elicit an identification (L. Jean). The seven additional reversals included: one state law evidence claim related to a dog scent identification (W. Dedge) ;
289. another related to expert evidence on a bite mark central to the case (R. Krone);
290. prosecutorial misconduct for misrepresenting hair and blood evidence (S. Linscott) ;
291. ineffective assistance of counsel relating to expert issues regarding competence, a confession, and forensic testimony (R. Williamson);
292. a fabrication claim regarding testimony of a cooperating codefendant (V. Jimerson), and two appeals involving ineffectiveness of counsel including failure to move to suppress central physical evidence such as hair evidence (W. Rainge and D. Williams). For just the noncapital cases, that figure is seven of eleven reversals.
293. See Williamson v. Reynolds, 904 F. Supp. 1529, 1546 (E.D. Okla. 1995).
294. See Williamson v. Ward, 110 F.3d 1508, 1520 (10th Cir. 1997) (upholding vacatur, citing limited evidence against defendant).
295. State v. Cotton, 351 S.E.2d 277, 280 (N.C. 1987) (awarding new trial when evidence that trial court excluded pointed toward guilt of another party).
296. None were originally capital sentences.
297. The NCSC study suggests that federal courts reach the merits of a third of claims raised in habeas petitions, dismiss another third for procedural reasons, and dismiss most of the remainder summarily. See Flango, 1994 NCSC Study, supra note 46, at 67 (breaking down rulings by constitutional claim and not by habeas petition);
298. see also Hanson & Daley, 1995 BJS Study, supra note 47, at 17 (stating that 36% of issues raised in habeas petitions were determined on merits).
299. Looking at the total numbers of claims ruled upon, the figures are similarly high. In cases with written decisions, courts reached the merits regarding 792 claims, versus 112 claims in which procedural grounds for dismissal were cited. Similarly, in the matched comparison group, 119 out of 121 exonerees received merits rulings, reaching the merits regarding 447 claims versus 47 claims in which procedural grounds were cited.
300. Procedural default was cited in fifty-one claims and lack of exhaustion in forty-six claims (the AEDPA was cited for only six claims).
301. Similarly, the 1994 NCSC Study found that when state postconviction courts give reasons for denying relief on claims, which they rarely do, they ruled that about a third of claims were procedurally defaulted and the rest lacked merit. See Flango, 1994 NCSC Study, supra note 46, at 65-66.
302. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 72 (1988) (Blackmun, J., dissenting) ("Because semen is a body fluid which could have been tested by available methods to show an immutable characteristic of the assailant, there was a genuine possibility that the results of such testing might have exonerated respondent. The only evidence implicating respondent was the testimony of the victim.");
303. State v. Jean, 311 S.E.2d 266, 274 (N.C. 1984) (Exum, J., dissenting) ("Unlike the majority, I believe the issue of defendant's guilt is close.");
304. State v. Goodman, 763 P.2d 786, 789-90 (Utah 1988) (Stewart, J., dissenting) ("The evidence in this case falls far short of proving that the defendant committed the crime charged. . . . [In addition,] [t]here is no probative evidence at all that the defendant was at the scene of the crime . . . .").
305. See, e.g., People v. Cruz, 643 N.E.2d 636, 688 (111. 1994) (Heiple.J., dissenting) ("After two verdicts of guilty and 11 years after the murder, the defendant now gets a third roll of the dice. The pressure on the prosecutor to negotiate a plea . . . may be irresistible. In any event, justice is the loser.").
306. See, e.g., Herrera v. Collins, 506 U.S. 390, 420 (1993) (O'Connor, J., concurring) (arguing that Constitution offers "unparalleled protections against convicting the innocent").
307. See Chapman v. California, 386 U.S. 18, 24, 26 (1966);
308. Garrett, Federal Wrongful Conviction Law, supra note 13, at 56-63 (discussing Chapman test). The Brecht v. Abramson test, see 507 U.S. 619, 639 (1993), which requires that the state show that error did not substantially influence the jury, applies during federal habeas corpus review, but with fewer exonerees pursuing habeas petitions and only a handful pursuing them after 1993 when Brecht was decided, that more stringent test was never cited in these cases.
309. See, e.g., Brecht, 507 U.S. at 638 (holding that court should assess harmlessness "in light of the record as a whole").
310. Properly applied, harmless error analysis should ask only whether the state can demonstrate that error did not sufficiendy affect the outcome at trial and not, conversely, whether evidence of guilt outweighed the impact of any error. See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) ("The inquiry . . . is . . . whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered-no matter how inescapable the findings to support that verdict might be-would violate the jury-trial guarantee.");
311. Jason M. Solomon, Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error in Criminal Trials, 99 Nw. U. L. Rev. 1053, 1085-98 (2005) (arguing that judges should look at evidence of influence on jury rather than focusing primarily on untainted evidence of guilt).
312. See Strickland v. Washington, 466 U.S. 668, 693-94 (1984) (requiring defendant to show attorney error affected trial outcome in order to earn reversal).
313. See Brady v. Maryland, 373 U.S. 83, 90-91 (1963) (affirming capital sentence where evidence improperly withheld by prosecution would not have reduced defendant's offense below murder in the first degree).
314. Those cases, alphabetically by defendant, are: D. Brown, State v. Brown, No. L82-297, 1983 WL 6945, at *14 (Ohio Ct. App. Sept. 16, 1983);
315. R. Bullock, People v. Bullock, 507 N.E.2d 44, 49 (Ill. App. Ct. 1987);
316. F. Daye, People v. Daye, 223 Cal. Rptr. 569, 580 (Cal. Ct. App. 1986);
317. J. Deskovic, People v. Deskovic, 607 N.Y.S.2d 957, 958 (N.Y. App. Div. 1994) ("There was overwhelming evidence of the defendant's guilt in the form of the defendant's own multiple inculpatory statements, as corroborated by such physical evidence as the victim's autopsy findings.");
318. B. Godschalk, Godschalk v. Montgomery County Dist. Attorney's Office, 177 F. Supp. 2d 366, 367, 369 (E.D. Pa. 2001) (quoting criminal trial court);
319. H. Gonzalez, State v. Gonzalez, 696 N.Y.S.2d 696, 697 (N.Y. App. Div. 1999);
320. Holdren, Holdren v. Legursky, 16 F.3d 57, 63 (4th Cir. 1994);
321. Hunt, State v. Hunt, 457 S.E.2d 276, 293 (N.C. Ct. App. 1994);
322. McSherry, People v. McSherry, 14 Cal. Rptr. 2d 630, 636 (Cal. Ct. App. 1992) (referring to "the unusual circumstances in this case, overwhelmingly identifying appellant as the perpetrator") (depublished);
323. A, Newton, Newton v. Coombe, No. 95-9437, 2001 WL 799846, at *6 (S.D.N.Y. July 13, 2001) (noting evidence of guilt "extremely strong");
324. Pope, Pope v. State, 756 S.W.2d 401, 403 (Tex. App. 1988);
325. A. Robinson, Robinson v. State, No. C14-87-00345-CR, 1989 WL 102335, at *7, *10 (Tex. App. Sept. 7, 1989);
326. Y. Salaam, People v. Salaam, 590 N.Y.S.2d 195, 196 (N.Y. App. Div. 1992).
327. See Holdren, 16 F.3d at 61 ("Although the DNA testing produced results that were opposite to the trial testimony regarding the hairs, we are of opinion that the discrepancy was not prejudicial and was at most harmless error.").
328. See, e.g., Kyles v. Whitley, 514 U.S. 419, 435 (1995) (concluding that Brady violation is premised on "showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict").
329. See, e.g., Miller v. Comm'r, 700 A.2d 1108, 1132 (Conn. 1997) (affirming grant due to "clear and convincing evidence" of actual innocence);
330. People v. Washington, 665 N.E.2d 1330, 1336-37 (111. 1996) (concluding that claim of innocence based on newly discovered evidence raises constitutional issue under state Due Process Clause).
331. For example, New York requires a reasonable probability of a different outcome, and a motion may be made at any time. N.Y. Crim. Proc. Law § 440.10 (McKinney 2005). In contrast, Virginia bars motions for relief due to newly discovered evidence made twentyone days after trial, unless one can satisfy restrictive conditions for filing a writ of actual innocence. Va. Code Ann. § 19.2-327.1 to -327.6 (Supp. 2003);
332. Va. Code Ann. Rule 1:1 (2007) (providing Virginia Supreme Court rule). For an overview of rules across jurisdictions, s
333. ee Brandon L. Garrett, Claiming Innocence, 92 Minn. L. Rev. (forthcoming 2008) (manuscript at app., on file with the Columbia Law Review) [hereinafter Garrett, Claiming Innocence].
334. Three more Jackson claims, three more Brady claims, and two state law newly discovered evidence claims received reversals that were not upheld on appeal.
335. Put differendy, of the eighteen exonerees whose convictions were reversed, only three won on innocence-related claims (i.e., 2% of all exonerees with written decisions and 17% of those who won reversals).
336. While 16% of all exonerees with written decisions raised such claims, perhaps more relevant is that 35% of the sixty who pursued state postconviction appeals brought such claims; Brady claims are raised less often during direct appeals. See supra tbls. 4, 9 (summarizing levels of criminal review pursued by exonerees, noting that sixty pursued state postconviction appeals, and summarizing exonerees' innocence claims, respectively).
337. A number of such cases in which police or prosecutorial suppression of exculpatory evidence have been discussed. These cases involve forensic fraud, suggestion with respect to eyewitnesses, and fabrication. See supra note 181. Again, one reason why relatively few exonerees brought Brady claims is that suppression of exculpatory evidence is difficult to uncover. Absent discovery of the police and prosecution files, even after exoneration potential Brady violations may not come to light. Furthermore, even where police or prosecutors did in fact conceal exculpatory evidence, the Brady materiality and prejudice standard may not be violated.
338. See supra note 202 (discussing various jurisdictions that require reasonable probability of different outcome had newly discovered evidence been introduced at trial); see also Garrett, Claiming Innocence, supra note 202 (manuscript at Part II.C) (reviewing limits and standards imposed on use of DNA testing by various states' DNA statutes);
339. Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 667-86 (2005) (discussing historical and contemporary treatment of newly discovered evidence).
340. Schlup v. Delo, 513 U.S. 298, 326-27 (1995).
341. See Nicholas Berg, Turning a Blind Eye to Innocence: The Legacy of Herrera v. Collins, 42 Am. Crim. L. Rev. 121, 135-37 (2005) (surveying more than 170 cases in which actual innocence claims were asserted and concluding that no court has granted relief solely on basis of such claims).
342. See Herrera v. Collins, 506 U.S. 390, 417 (1993) (assuming arguendo that persuasive demonstration of actual innocence would render execution unconstitutional, but stating that if such claim existed, threshold would be "extraordinarily high").
343. The four others were not facing execution and therefore did not even fall under the limited claim the Court considered in Herrera; their claims were dismissed.
344. See 443 U.S. 307, 324 (1979) (holding that habeas relief is available if petitioner shows that no rational trier of fact "could have found proof of guilt beyond a reasonable doubt" based on evidence presented at trial).
345. Twelve exonerees who did not bring suggestive eyewitness identification claims highlighted the weakness of eyewitness evidence when bringing a sufficiency of the evidence claim. A handful highlighted the weakness of confession or forensics evidence.
346. See Jackson, 443 U.S. at 319 (describing sufficiency of evidence review).
347. See King et al., 2007 NCSC Study, supra note 47, at 29-30 (concluding that 3.9% of noncapital cases and 10.8% of capital cases raised new evidence of innocence claims and none received relief).
348. See, e.g., Jean v. Rice, 945 F.2d 82, 87 (4th Cir. 1991) ("Apart from the identifications, there was little independent corroborating evidence to sustain Jean's conviction . . . .");
349. State v. Hunt, 378 S.E.2d 754, 760 (N.C. 1989) ("Although there were three witnesses who identified defendant as the one they had seen with the victim the morning of her murder, the record reflects doubt about the testimony of each . . . .");
350. State v. Cotton, 351 S.E.2d 277, 280 (N.C. 1987) ("The excluded evidence therefore tended to show that the same person committed all of the similar crimes in the neighborhood in question on that night and that the person was someone other than the defendant.").
351. See Strickland v. Washington, 466 U.S. 668, 696 (1984) ("[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.").
352. Indeed, the decisions for the thirty-three who raised innocence related claims indicated not all actually had new evidence of innocence to offer prior to the DNA testing.
353. See Leonard v. Michigan, 256 F. Supp. 2d 723, 734 (W.D. Mich. 2003) ("There is a reasonable probability that had defense counsel offered any defense to the State's DNAexperts, the trial judge would have found Petitioner not guilty. In light of the lack of evidence against Petitioner, this is the only conclusion that can reasonably be reached.");
354. People v. Tillman, 589 N.E.2d 587, 598 (111. App. Ct. 1992) ("[T]he totality of counsel's deficient performance establishes ineffective assistance of counsel. But for those errors, there was a reasonable probability that the defendant would not have been convicted.");
355. People v. Colas, 619 N.Y.S.2d 702, 706 (N.Y. App. Div. 1994) ("The evidence of defendant's guilt in this case is far from strong.").
356. See, e.g., The Spangenberg Group, State and County Expenditures for Indigent Defense Services in Fiscal Year 2002, at 34-37 (2003), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/ indigentdefexpend2003.pdf (on file with the Columbia Law Review) (showing annual state expenditures on indigent defense);
357. Standing Comm. on Legal Aid and Indigent Defendants, Am. Bar Ass'n, Gideon's Broken Promise: America's Continuing Quest for Equal Justice 7-9 (2004) (citing reports and testimony on "grave inadequacies in the available funds and resources for indigent defense");
358. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1866-70 (1994) (discussing adverse effects of low compensation for indigent defense lawyers).
359. Strickland, 466 U.S. at 689-90.
360. See Flango, 1994 NCSC Study, supra note 46, at 46-47 (providing these data and citing to additional studies finding similarly high percentages of ineffective assistance of counsel claims). The 2007 NCSC Study of federal habeas petitions found that 50.4% of noncapital cases and 81% of capital cases raised ineffective assistance of trial or appellate counsel claims. King et al., 2007 NCSC Study, supra note 47, at 28. In the matched comparison group, 21% raised ineffective assistance of counsel claims, fewer than in the innocence group and the NCSC results.
361. The figure is higher using only the seventy-eight who filed state postconviction petitions that more typically include ineffective assistance of trial counsel claims (41%). Five additional exonerees raised ineffectiveness of appellate counsel.
362. Those are: P. Gray, W. Rainge, D. Williams, and R. Williamson. In other words, 11% of the exonerees who raised ineffective assistance of counsel claims received reversals. This is in contrast to the 1% of state and federal habeas corpus petitioners who raiseineffective assistance of counsel and who receive relief on ineffective assistance claims according to the 1994 NCSC study. See Flango, 1994 NCSC Study, supra note 46, at 63.
363. See Williamson v. Ward, 110 F.3d 1508, 1522 (10th Cir. 1997) (granting Williamson new trial "both on the ground that his counsel was ineffective in failing to pursue a competency determination and on the ground that counsel's failure to conduct pretrial investigation precluded him from properly dealing with the confessions at trial").
364. See People v. Williams, 444 N.E.2d 136, 138, 143 (111. 1982) (reversing after disbarment, citing "unique circumstances under which counsel . . . was operating[,]" including representing three capital defendants before two juries, and also citing failures to move to suppress central evidence including hair evidence);
365. People v. Rainge, 445 N.E.2d 535, 547 (111. App. Ct. 1983) (reversing on similar grounds).
366. U.S. ex rel. Gray v. Dir., Dep't of Corr., 721 F.2d 586, 597 (7th Cir. 1983) (reversing due to conflicted counsel).
367. Strickland v. Washington, 466 U.S. 668, 693-94 (1984);
368. see also Flango, 1994 NCSC Study, supra note 46, at 45-50 (addressing specific claims of ineffectiveness of counsel in study in context of Strickland standard) ;
369. John C. Jeffries, Jr. & William J. Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U. Chi. L. Rev. 679, 681-90 (1990) (discussing Strickland threshold and arguing that "[i]n essence . . . Strickland require [s] habeas lawyers and federal judges and magistrates to work through the equivalent of a law school exam every time a defendant tries to escape procedural default").
370. See Jackson v. Day, No. CIV.A.95-1224, 1996 WL 225021, at *4-*6 (E.D. La. May 2, 1996) (describing Milton Jackson's admissions in the record).
371. Jackson v. Day, 121 F.3d 705 (5th Cir. 1997).
372. See Innocence Project, Know the Cases: Willie Jackson, at http://www.innocenceproject.org/Content/194.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review).
373. The four are M. Bravo, A. Hicks, B. Piszczek, and J. Sutton.
374. For nine additional exonerees, it was not clear from the decisions what alleged ineffectiveness was asserted.
375. See supra notes 197-198 and accompanying text.
376. See Protecting the Innocent: Proposals to Reform the Death Penalty: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 221 (2002) (statement of Prof. Barry Scheck, Co-Dir. of the Innocence Project) ("The vast majority (probably 80%) of felony cases do not involve biological evidence that can be subjected to DNA testing.");
377. Nina Martin, Innocence Lost, S.F. Mag., Nov. 2004, at 78, 105 (noting that "only about 10 percent of criminal cases have any biological evidence-blood, semen, skin-to test"). However, advancements in DNA technology will likely continue to produce new exonerations in cases that currentiy cannot be tested.
378. See Seth F. Kreimer, TruthMachines and Consequences: The Light and Dark Sides of 'Accuracy' in Criminal Justice, 60 N.Y.U. Ann. Surv. Am. L. 655, 658-59 (2005).
379. According to data gathered by Huy Dao of the Innocence Project, about 36% of requests for DNA evidence did not provide usable DNA. However, that figure is based on a still-in-progress survey of all closed Innocence Project cases. Risinger, Convicting the Innocent, supra note 24, at 13;
380. see also Richard A. Rosen, Innocence and Death, 82 N.C. L. Rev. 61, 73 (2003) (observing "that for every defendant who is exonerated because of DNA evidence, there have been certainly hundreds, maybe thousands" whose cases lack physical evidence). Twenty-two states and the District of Columbia currendy have statutory requirements to preserve biological evidence taken from crime scenes. Innocence Project, Preservation of Evidence, at http://www.innocenceproject.org/Content/253.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review).
381. For examples of DNA evidence used to exonerate as well as to locate actual perpetrators, see Cynthia E. Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence Under Innocence Protection Statutes, 42 Am. Crim. L. Rev. 1239, 1267 n.133 (2005).
382. Arizona v. Youngblood, 488 U.S. 51, 57-59 (1988) ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.").
383. See Innocence Project, Know the Cases: Larry Youngblood, at http://www. innocenceproject.org/Content/303.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review).
384. Commonwealth v. Godschalk, 679 A.2d 1295, 1297 (Pa. Super. Ct. 1996).
385. See Garrett, Claiming Innocence, supra note 202 (manuscript at app.).
386. See Kathy Swedlow, Don't Believe Everything You Read: A Review of Modern "Post-Conviction" DNA Testing Statutes, 38 Cal. W. L. Rev. 355 (2002) (reviewing innocence statutes and arguing that their effectiveness is limited by traditional limitations on postconviction relief).
387. See Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. Pa. L. Rev. 547, 554 (2002) ("After trial. . . in the states that have not adopted statutes giving convicted defendants the right to seek DNA testing, the disposition of physical evidence rests largely in the discretion of prosecutors, police officers in evidence rooms, and court clerks." (citation omitted)).
388. It is difficult to separate those exonerees that were represented solely by postconviction attorneys from those that also received assistance from an innocence project. For example, the Innocence Project at Cardozo Law was counsel of record or, alternatively, consulted with postconviction attorneys on most of the exonerees' cases. Other Innocence Network groups similarly represented exonerees but also consulted on additional cases.
389. See The Innocence Project, About the Organization: FAQs, at http://www.innocenceproject.org/Content/103.php (last visited Nov. 8, 2007) (on file with the Columbia Law Review) ("The Innocence Project has a very specific mandate: we accept cases where postconviction DNA testing can yield conclusive proof of innocence. The Innocence Project does not require evidence to be found before we accept a case. In 2006, we received about 200 new requests each month.").
390. See Jones, supra note 236, at 1262-69 (arguing that "integrity of the criminal system" outweighs any "fiscal and administrative burden that preservation [of biological evidence] would impose" as well as any governmental "interest in finality of judgments").
391. Law enforcement can search for a match (a "cold hit") with a DNA sample in the Combined DNA Index System (CODIS), pooling fifty state databanks with the federal databank the FBI created in 1990. See Fed. Bureau of Investigation, CODIS Program: Mission Statement & Background, at http://www.fbi.gov/hq/lab/codis/program.htm (last visited Nov. 8, 2007) (on file with the Columbia Law Review) (defining CODIS program);
392. Fed. Bureau of Investigation, CODIS Program: Participating States, at http://www.fbi. gov/hq/lab/codis/partstates/htm (Aug. 2007) (on file with the Columbia Law Review) (displaying participating states).
393. Innocence Project, 200 Exonerated, supra note 85, at 2-3.
394. For example, only thirteen of the 200 were exonerated by the end of 1993, when more advanced PCR DNA testing was available. Even a few years later, at the end of 1997, only forty-nine had been exonerated. Id. at 2-11.
395. That figure is "at least" seventy-one exonerees because information on how DNA testing was obtained was not available in press reports for all 200 exonerees.
396. There is analysis of these cases in Garrett, Claiming Innocence, supra note 202 (manuscript at 1-15). An example is the case of Leonard McSherry, who, in 1988, before his sentencing, introduced RFLP DNA testing results that excluded him, yet the trial court denied the new trial motion. In 1991, after Dr. Edward Blake conducted more sophisticated PCR testing that again excluded McSherry, the California appellate court concluded that the evidence of guilt was still "overwhelming[ ]." People v. McSherry, 14 Cal. Rptr. 2d 630, 633-36 (Cal. Ct. App. 1992) (depublished). The court emphasized the seeming certainty of the victim's identification and all of the details she offered describing the perpetrator's house, which matched McSherry's, stating that "[i]n these circumstances, the fact that a scientific test establishes appellant was not the source of semen stains on the victim's panties does not undermine the entire structure of the prosecution case, point unerringly to innocence or show that appellant did not commit the charged crimes." Id. at 636. McSherry was released after yet another round of DNA testing in 2001, which excluded him and also resulted in a "cold hit" with a convict in a DNA database. See Daniel Hernandez & Monte Morin, Man Is Cleared in 1 Case, but Jailed in Another, L.A. Times, May 1, 2003, at B1.
397. Those are: S. Avery, R. Criner, W. Dedge, C. Elkins, D. Halstead, A. Hicks, L. Holdren, D. Hunt, J. Kogut, L. McSherry, J. Restivo, and J. Watkins.
398. Even the more recendy enacted postconviction DNA testing statutes typically present obstacles to relief. See Garrett, Claiming Innocence, supra note 202 (manuscript at Part II.C) (cataloguing range of restrictions enacted by statute or created by judicial interpretation, including barriers to access to postconviction DNA testing and relief).
399. See Garrett, Federal Wrongful Conviction Law, supra note 13, at 54 (noting that "wrongful conviction . . . is actionable under civil rights law only if it was the result of official misconduct, and not only coincidence, mistake, or negligence").
400. See id. at 111-13 (arguing that wrongful conviction suits may lead to systematic reform of criminal procedure).
401. See Adele Bernhard, Justice Still Fails: A Review of Recent Efforts to Compensate Individuals Who Have Been Unjusdy Convicted and Later Exonerated, 52 Drake L. Rev. 703, 704-06 (2004) (discussing state adoption of compensation schemes).
402. Schlup v. Delo, 513 U.S. 298, 321 (1995).
403. Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002).
404. Kansas v. Marsh, 126 S. Ct. 2516, 2544 (2006) (Souter, J., dissenting).
405. See Barry Scheck, Closing Remarks, 23 Cardozo L. Rev. 899, 902-03 (2002).
406. Herrera v. Collins, 506 U.S. 390, 399 (1993) (internal quotations omitted) (quoting Patterson v. New York, 432 U.S. 197, 208 (1977)).
407. See, e.g., Ad Hoc Innocence Comm. to Ensure the Integrity of the Criminal Process, ABA Criminal Justice Section, Achieving Justice: Freeing the Innocent, Convicting the Guilty xv-xxix (Paul Giannelli & Myrna Raeder eds., 2006) (offering overview of ABA resolutions on systematic remedies, false confessions, eyewitness identification procedures, forensic evidence, jailhouse informants, defense counsel practices, investigative policies and personnel, prosecution practices, and compensation for wrongfully convicted) ;
408. Bruce W. Behrman & Sherrie L. Davey, Eyewitness Identification in Actual Criminal Cases: An Archival Analysis, 25 Law & Hum. Behav. 475, 480-84 (2001) (providing statistics on suspect identification rates in variety of situations including photographic lineups, field showups, live lineups, delay, same versus cross-racial conditions, weapon presence, and witness type);
409. Drizin & Leo, supra note 14, at 932-43, 997-98 (compiling proven cases of false confessions and advocating for taped confessions as prevention method);
410. Garrett, Federal Wrongful Conviction Law, supra note 13, at 87-88, 93-94, 98-99 (arguing that civil actions for wrongful conviction would encourage measures to prevent use of unreliable eyewitness accounts, coerced confessions, and fabrication of evidence);
411. Amy Klobuchar, Nancy Steblay & Hilary Caligiuri, Improving Eyewitness Identifications: Hennepin County's Blind Sequential Lineup Pilot Project, 4 Cardozo Pub. L. Pol'y & EthicsJ. 381, 411 (2006) (testing blind sequential identification in practice and finding that it results in increased protection for innocent suspects) ;
412. Otto H. MacLin, Laura A. Zimmerman & Roy S. Malpass, PC_Eyewitness and Sequential Superiority Effect: Computer-Based Lineup Administration, 3 Law & Hum. Behav. 303, 317-20 (2005) (discussing the accuracy of sequential identification and computerized identification as compared to simultaneous identification and paper and pencil identification, respectively);
413. Gary L. Wells et al., From the Lab to the Police Station: A Successful Application of Eyewitness Research, 55 Am. Psychologist 581, 581-87 (2000) (describing psychological research on variables affecting eyewitness accounts in light of Department of Justice guidelines).
414. See Darryl Fears, Exonerations Change How Justice System Builds a Prosecution, Wash. Post, May 3, 2007, at A3 (discussing reforms to criminal procedure as response to DNA exonerations) ;
415. Solomon Moore, DNA Exoneration Leads to Change in Legal System, N.Y. Times, Oct. 1, 2007, at Al ("State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence.");
416. see also Garrett, Federal Wrongful Conviction Law, supra note 13, at 45-46 & n.34, 87-88 & n.262 (describing systemic reforms adopted in response to civil wrongful conviction suits brought by exonerees).
417. See Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations 4-6 (2004), available at http://www.state.il.us/defender/CWC- article_with%20Index.final.pdf (on file with the Columbia Law Review) (surveying 238 law enforcement agencies nationwide that adopt videotaping of interrogations) ;
418. Fears, supra note 262, at A3 (noting that more than 500 departments have adopted videotaping of interrogations and twenty states are considering legislation to require it). 264.
419. See D.C. Code Ann. § 5-116.01 (LexisNexis Supp. 2007) (requiring police to record all custodial investigations);
420. l11. Comp. Stat. Ann. 5/103-2.1 (West 2006) (same);
421. Me. Rev. Stat. Ann. tit. 25, § 2803-B (2007) (mandating policy of recording "interviews of suspects in serious crimes");
422. N.M. Stat. §29-1-16 (Supp. 2006) (requiring police to record all custodial investigations); Tex. Code Crim. Proc. Ann. art 38.22, §3 (Vernon Supp. 2007) (rendering unrecorded oral statements inadmissible);
423. Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) ("[A]n unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect's right to due process . . . .");
424. Commonwealth v. DiGiambattista, 813 N.E.2d 516, 535 (Mass. 2004) (allowing defense to point out state's failure to record interrogation and calling unrecorded admissions "less reliable");
425. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) ("[A]ll questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.");
426. State v. Cook, 847 A.2d 530, 547 (N.J. 2004) (" [W] e will establish a committee to study and make recommendations on the use of electronic recordation of custodial interrogations.");
427. In re jerrell C.J., 699 N.W.2d 110, 123 (Wis. 2005) ("[W]e exercise our supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible, and without exception when questioning occurs at a place of detention."). In addition to its eyewitness reform legislation, North Carolina recentiy passed a law requiring recording of interrogations, making it the sixth state to do so by statute. Act of Aug. 23, 2007, 2007 N.C. Sess. Laws 434 (to be codified at N.C. Gen. Stat. § 15A-211) (requiring complete electronic recording of custodial interrogations in homicide cases).
428. See Georgia H.R. 352 (Sub) (Apr. 20, 2007), available at http://www.legis.state.ga.us/legis/2007_08/pdf/hr352.pdf (on file with the Columbia Law Review) (creating commission to study eyewitness identification procedure reform);
429. Act of May 17, 2007, 2007 Md. Laws 590, 590 (to be codified at Md. Code Ann., Pub. Safety § 3-505) (requiring law enforcement agencies to adopt written policies on eyewitness identification); Eyewitness Identification Reform Act, 2007 N.C. Sess. Laws 421 (to be codified at N.C. Gen. Stat. §§ 15A-284.50-53) (requiring reforms in eyewitness identification practices and creating task force to study additional reforms);
430. W. Va. Code Ann. § 62-1E-2 (West, Wesdaw through 2007 Second Ex. Sess.) (requiring reforms in eyewitness identification practices and creating task force to study additional reforms);
431. Vesna Jaksic, States Look at Reforming Lineup Methods, Nat'l LJ., Apr. 20, 2007 at 6, 6 (noting bills introduced in ten states); Nat'l Ass'n Criminal Def. Lawyers, State Legislation: Eyewitness Identification Reform, at http://www.nacdl.org/sl_docs.nsf/freeform/EyeID_legislation (last visited Nov. 8, 2007) (on file with the Columbia Law Review);
432. see also State v. Delgado, 902 A.2d 888, 895-96 (N.J. 2006) (requiring that written or electronic record be made of out-ofcourt eyewitness identifications);
433. Office of the Att'y Gen., NJ. Dep't of Law and Pub. Safety, Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (Apr. 18 2001), available at http://www.state.nj.us/ lps/dcj/agguide/photoid.pdf (on file with Columbia Law Review) (offering New Jersey model policy on conduct of eyewitness identifications);
434. Training & Standards Bureau, Wis. Dep't of Justice, Model Policy and Procedure for Eyewitness Identification (Sept. 12, 2005), available at http://www.doj.state.wi.us/dles/tns/EyewitnessPublic.pdf (on file with the Columbia Law Review) (recommending improved eyewitness identification procedures).
435. See, e.g., Minn. Stat. § 299C.156 (2007) (establishing forensic laboratory advisory board);
436. N.Y. Exec. Law § 995a-b (McKinney 2003) (establishing forensic science commission and requiring accreditation);
437. Okla. Stat. Ann. tit. 74, § 150.37 (West 2007) (requiring accreditation); Tex. Code Crim. Proc. Ann. art. 38.35(d) (Vernon 2005) (requiring accreditation by Texas Department of Public Safety);
438. Va. Code An. §9.1-1101 (2006) (creating separate Department of Forensic Science and oversight committee); Nat'l Ass'n of Criminal Def. Lawyers, State Legislation: Crime Labs and Forensic Evidence Reform: Md. Puts Teeth in Bill to Regulate Crime Labs (May 7, 2007), at http://www.nacdl.org/sl_docs.nsf/ issues/CrimeLab?OpenDocument (on file with the Columbia Law Review) (featuring Associated Press article describing pending Maryland bill and its provision for more rigorous enforcement of crime lab regulations than oversight efforts in other states). The federal government has encouraged reform.
439. See 42 U.S.C. § 3797k(4) (Supp. IV 2007) (requiring that DNA laboratories receiving federal grants create mechanisms for external independent investigations).
440. See, e.g., Paul C. Giannelli, Regulating Crime Laboratories: The Impact of DNA Evidence, 15 J.L. & Pol'y 59, 72-76, 87-89 (2007) (discussing proficiency testing, accreditation of crime laboratories, and other avenues of reform);
441. Henry C. Lee, Forensic Science and the Law, 25 Conn. L. Rev. 1117, 1124 (1993) ("Perhaps the most important issue in forensic science is the establishment of professional standards.").
442. See Garrett, Aggregation, supra note 13, at 440-41 (discussing self-regulation and internal case review by prosecutors as ways to remedy systemic problems). Perhaps the most remarkable recent example has been the Dallas County prosecutor's creation of aninhouse innocence project to review hundreds of old cases. See Sylvia Moreno, New Prosecutor Revisits Justice in Dallas, Wash. Post, Mar. 5, 2007, at A4.
443. See supra notes 122-123 and accompanying text (discussing fact that few states protect defendants from the unreliability of jailhouse informants' testimony).
444. Bloodsworth v. State, 512 A.2d 1056, 1063 (Md. 1986).
445. State v. Cromedy, 727 A.2d 457, 458-59 (N.J. 1999).
446. Cf. supra note 90 and accompanying text (stating that no exoneree received relief on suggestive eyewitness identification claim).
447. See Richard A. Leo et al., Bringing Reliability Back in: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 520-35 (arguing for recording of custodial interrogations of suspects, use of hearings to assess reliability of confessions before trial, and new standard for judges to use in assessing reliability of confessions).
448. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 37-45 (1997) (discussing "defense attorneys' incentive to skew their investment in the direction of more constitutional litigation and less litigation about the facts").
449. See supra note 220 and accompanying text (describing underfunding).
450. See Stuntz, supra note 274, at 45 (describing how criminal procedure displaces "attorney investigation and litigation of the merits").
451. See, e.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003) (finding that "[c]ounsel's decision not to expand their investigation . . . fell short of the professional standards that prevailed" in state at that time).
452. Garrett, Aggregation, supra note 12, at 435-40 (describing development and models for innocence commissions in United States and United Kingdom, as well as alternative models for institutional reform).
453. See Teague v. Lane, 489 U.S. 288, 313 (1989) (plurality opinion) ("[O]ur cases have moved in the direction of reaffirming the relevance of the likely accuracy of convictions in determining the available scope of habeas review.");
454. Murray v. Carrier, 477 U.S. 478, 495 (1986) ("[Principles of comity and finality . . . 'must yield to the imperative of correcting a fundamentally unjust incarceration.'" (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982))).
455. Cf. supra notes 200-202 (discussing how federal courts will sometimes examine new evidence of innocence under, for example, Brady claims).
456. See Jordan Steiker, Innocence and Federal Habeas, 41 UCLA L. Rev. 303, 363 (1993) (citing Stone v. Powell, 428 U.S. 465, 491 n.31 (1976)).
457. See supra note 220 and accompanying text (discussing provision of indigent defense).
458. See Parker, Dewees & Radelet, supra note 41, at 127;
459. see also Gross et al., Exonerations, supra note 14, at 548 ("[O]ne of the strongest findings of systematic studies of eyewitness evidence is that white Americans are much more likely to mistake one black person for another than to do the same for members of their own race.").
460. The two cases are those of Larry Holdren, cited supra notes 198-199, and Darryl Hunt, where the panel found the DNA evidence "simply not sufficiendy exculpatory to warrant a new trial." Hunt v. McDade, No. 98-6808, 2000 WL 219755, at *3 (4th Cir. Feb. 25, 2000) (unpublished opinion).
461. See Garrett, Federal Wrongful Conviction Law, supra note 13, at 110 (discussing implications of "[t]he [e]nd of [e]xoneration").
462. This data is further developed in Garrett, Claiming Innocence, supra note 202 (manuscript at 19-20). The reasons why the prisoners were wrongly convicted despite the availability of DNA at the time of the criminal trial include forensic fraud, advances in DNA technology since the time of trial, conviction despite DNA exclusion, the failure of defense counsel to request DNA testing, and the court's decision to deny the DNA request.
463. Kuhlmann v. Wilson, 477 U.S. 436, 452 (1986).
464. See supra note 13 (offering academic perspectives).
465. See supra notes 258-269 and accompanying text (discussing reforms that would develop more accurate factual records).
466. See supra Part I.A regarding methodology. This summary chart includes nine selected result columns and totals from a larger study database.
467. Abbreviations for Claims: AI (Herrera Actual Innocence), BR (Brady), BU (Bruton), CC (Coerced Confession), CE (Cumulative Error), CS (Improper Capital Sentencing Instructions), CU (Cruel and Unusual), DE (Willfull Destruction of Material Evidence), DP (Due Process Claim of Fundamental Unfairness at Trial), DJ (Double Jeopardy), DNA (Motion for DNA Testing), EV (State Law Evidence Claim), FA (Fourth Amendment (Search, Seizure, Arrest, etc.)), FAB (Fabrication of Evidence, IAAC (Ineffective Assistance of Appellate Counsel), IAC (Ineffective Assistance of Counsel), JC (Jackson Claim Regarding Insufficient Evidence for Reasonable Doubt), JI (Jury Instructions), JM (Jury Misconduct), JS (Jury Selection), MF (Miranda or Edwards Claim), NDE (State Court Newly Discovered Evidence Claim), PM (Prosecutorial Misconduct), PP (Pre-trial Publicity), RC (Sixth Amendment Right to Counsel), SC (Sentencing-Noncapital), SEI (Suggestive Eyewitness Identification), SCH (Schlup Claim to Excuse Defaultl), WD (Wade Counsel at Lineup Claim), O (Other). State law evidentiary claims were not broken down, due to high levels of variation, while federal constitutional claims were itemized. See supra note 155 (describing these claims).
468. Eighteen, or half of those with written decisions, raised Jackson claims, and none received relief. Five raised actual innocence claims and one a state newly discovered evidence claim; 17% of those with written decisions raised such claims and none received relief. Four raised Brady claims and none received any relief. Twelve statements were made by judges regarding guilt, three noting "overwhelming" evidence of guilt. One statement was made in the group regarding perceived innocence; as one might expect, fewer statements were made regarding innocence.
469. Of the thirty-six in the DNA confirmation group with written decisions, twentyfour raised state law evidentiary claims (67%), twenty raised ineffective assistance of counsel claims (56%), eighteen raised challenges to jury instructions (50%), eighteen raised Jackson claims (50%), thirteen raised prosecutorial misconduct claims (36%), thirteen raised suggestive eyewitness identifications claims (36%), twelve raised challenges to jury selection (33%), five raised coerced confession claims (14%), five raised Herrera actual innocence claims (14%), four raised Brady claims (11%), four raised Schlup claims and destruction of evidence claims (11%), and one raised fabrication of evidence and double jeopardy claims (3%). Comparing these numbers to the innocent in Table 4 shows that for many claims, the guilty were far more litigious.
470. The group included far more procedural default rulings and also more dissents: the higher proportion of capital cases likely explains these higher numbers. Courts dismissed fifty-five claims for procedural default reasons, indicating a high degree of procedural noncompliance. Twelve in the group, or 33% of the thirty-six with written decisions, received a dissent, indicating greater division among judges.
471. See Liebman et al., supra note 137, at 5, 124 nn.40-41 (finding 68% reversal rate nationally in capital cases).