Posted 12/23/17

ACCIDENTALLY ON PURPOSE

A remarkable registry challenges conventional wisdom about
the causes of wrongful conviction

     By Julius (Jay) Wachtel. “Your Lying Eyes,” one of this blog’s very first posts, related the stories of three victims of crime. Each was done in not by a crook but by the State. Lousy policing and indifferent prosecution in North Carolina, Rhode Island and California had led to the mistaken arrest and wrongful conviction of Ronald Cotton, an innocent man who wound up doing eleven years for rapes he did not commit, and Scott Hornoff and David Allen Jones, who were exonerated after serving six and nine years respectively for murder.

    One could argue that their endings were more-or-less happy. After all, both Hornoff (a police detective) and Jones had been on track to do life. It’s harder to rejoice about the outcome for many other exonerees. For example, consider Craig Coley, whose November 2017 pardon by California Governor Jerry Brown took thirty-nine years to come to pass. And it’s well-nigh impossible to celebrate the ultimate redemption of Cameron Todd Willingham, whom Texas executed in 2004 for setting a house fire that experts now agree was accidental.

     Miscarriages of justice are definitely not going away. According to the National Registry of Exonerations, which tracks such things back to 1989, there have been 681 exonerations during the past five years, including eight-eight in 2013, 135 in 2014, 165 in 2015, 169 in 2016 and 124 so far in 2017. Exonerations are coded as to one or more of six causes: mistaken witness ID, false confession, perjury or false accusation (someone other than the defendant lied), false or misleading forensic evidence, official misconduct (govt. officer significantly abused their authority), and inadequate legal defense.

     Except for Willingham, whose official rehabilitation seems unlikely (can you expect Texas to apologize for a wrongful execution?) each of the others mentioned above appears in the Registry. It attributes the conviction of Cotton to mistaken witness ID; of Jones to a false confession; and of Coley to misleading biological evidence. But ex-cop Hornoff’s case is one of three in 2003, when eighty-one exonerations were recorded, for which no cause is reported. (There have been sixty-nine such cases since 2013, about ten percent of the total.)

     Apparently there are causal factors that the registry doesn’t measure. To help fill the gap we offer our favorite: confirmation bias. In “Guilty Until Proven Innocent” we defined it as the tendency to “interpret events in a way that affirms one’s predilections and beliefs.” When making decisions fallible humans are always shoving aside niggling inconsistencies and seizing on solutions that reflect their biases, predilections and beliefs. Naturally, in policing the consequences of taking shortcuts can be disastrous. Here’s an extract from our earlier account about Hornoff:

    On August 12, 1989, Warwick, Rhode Island police discovered the body of Vicki Cushman, a single 29-year old woman in her ransacked apartment. She had been choked and her skull was crushed. On a table detectives found an unmailed letter she wrote begging her lover to come back. It was addressed to Scott Hornoff, a married Warwick cop. Hornoff was interviewed. He at first denied the affair, then an hour later admitted it.  Detectives believed him and for three years looked elsewhere. Then the Attorney General, worried that Warwick PD was shielding its own, ordered State investigators to take over.  They immediately pounced on Hornoff.  Their springboard?  Nothing was taken; the killing was clearly a case of rage. Only one person in Warwick had a known motive: Hornoff, who didn’t want his wife to find out about the affair.  And he had initially lied.  Case closed!

Although several witnesses placed Hornoff elsewhere at the time of the killing, his lie apparently doomed him with jurors. He’d still be locked up except that the killer had a conscience. Incredible as it may seem, the real perpetrator eventually turned himself in and confessed.

Click here for the complete collection of wrongful conviction essays

     Wait a minute. Didn’t forensics promise a future free of wrongful conviction? As it turns out, physical evidence is often lacking, and even when it’s present it may not be collected or properly handled. Cotton, Jones and Coley would have never been convicted had officials realized that the materials they gathered actually carried the perpetrators’ DNA. On the other hand, inexpert application of forensic techniques can make things worse – much worse as the Willingham imbroglio illustrates. Indeed, according to the Registry, thirty-six of the 124 wrongful convictions recorded in 2007 (a full twenty-nine percent) are partly or wholly attributable to forensic goofs. It’s not just subjective techniques such as handwriting examination and dog-scent evidence that can cause problems. Sophisticated methods including ballistics, serology and even DNA have also been blamed for “identifying” the wrong person. We recently discussed a move by the Department of Justice to prevent such blunders by regularizing the work of Federal forensic scientists (click here and here). Unfortunately, it seems that politics may have doomed this effort. (For an authoritative assessment of the state of the forensic art check out the National Research Council’s landmark 2009 report, “Strengthening Forensic Science in the United States: A Path Forward.”).

     What can be done to combat miscarriages of justice? We must recognize that some cops, lab employees and prosecutors are careless, take dangerous shortcuts and habitually seize on convenient solutions. And that agencies have fostered such tendencies by emphasizing and rewarding numerical productivity. “What counts” must not simply be “what’s counted.” As our blog has repeatedly warned, one cannot champion crude measures such as number of arrests and expect that employees will exercise good judgment in the field – or the lab.

     Still, we’ve always assumed that mistakes which underlie wrongful convictions are usually errors in judgment. But according to the Registry, more than half the blunders this year cross the line into something more. So far in 2017, official misconduct – meaning, on purpose – figures as a cause or contributor for seventy-nine of 124 wrongful convictions. That’s a full sixty-four percent. (Perjury/false accusation trailed just behind with seventy-seven exonerations. Inadequate legal defense was a factor in forty-nine, false or misleading forensic evidence in thirty-six, mistaken witness identification in thirty-two and false confessions in twenty-six.)

     For a stunning example of how far policing can fall look up this year’s alphabetically first victim of official misconduct: Roberto Almodovar, whose wrongful conviction is attributed to witness coercion by Chicago detective Reynaldo Guevara. According to the Registry, and to a recent, eye-popping article in the Chicago Sun-Times, this was only the latest in a long string of episodes of alleged “bullying” by Guevara. So far his handiwork has resulted in seven exonerations and, in 2009, a stunning $20 million civil award to one of the victims. (By the way, Guevara recently took the Fifth, and by that we don’t mean booze.)

     Sad to say, this isn’t the first time that a Chicago detective has come under fire for such things. In 2010 the Feds convicted one-time Chicago police commander Jon Burge “for falsely denying in an earlier civil suit that in the 1980s he and his officers extracted confessions through beatings, electric shocks and suffocation.”

     And it’s not just the cops. Check out People do Forensics” and “Better Late Than Never”:

    The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000….The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison, the groups said under an agreement with the government to release results after the review of the first 200 convictions.

     Well, there’s no need to bully readers: our point’s been made. Many miscarriages of justice aren’t “accidents”: they’re the product of willful misconduct. Yet regardless of the justification for using shortcuts – whether it’s to assure that offenders are punished, or something more self-serving such as pleasing superiors and gaining recognition – taking the low road is simply wrong. As a quick glance through the Registry reveals, in criminal justice it’s also apparently quite common. And until that is openly acknowledged, innocents will suffer while the guilty remain free to continue their predations.

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Why do Cops Lie?     People do Forensics     Guilty Until Proven Innocent     Better Late Than Never

Wrongful and Indefensible     The Tip of the Iceberg     One Size Doesn’t Fit All     No End in Sight

The Witches of West Memphis     False Confessions     DOJ to Texas     Baby Steps     Never Say Die

NAS to CSI     Would You Bet     House of Cards     Can We Outlaw Wrongful Convictions?

The Usual Suspects     Labs Under the Gun     Your Lying Eyes

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Quantity and Quality



Posted 3/19/17

GUILTY UNTIL PROVEN INNOCENT

Pressures to solve notorious crimes can lead to tragic miscarriages of justice

     By Julius (Jay) Wachtel.  “Confirmation bias” denotes the tendency to seek out information and interpret events in a way that affirms one’s predilections and beliefs. A notorious example of how such biases can affect the criminal justice process is the case of David Camm. In September 2000, four months after Camm retired as an Indiana trooper, his wife and two children were shot to death. Camm alerted 911 after allegedly finding their bodies when he returned home from an evening out. He was arrested and convicted for the killings and served thirteen years, going through three trials before being ultimately acquitted. At his last trial, in 2013, a defense witness, Dr. Kim Rossmo, an expert on cognitive bias in criminal investigations, blamed factors including confirmation bias and “groupthink” for leading detectives and prosecutors to overlook contradictory evidence, ignore DNA and rely on a deeply flawed interpretation of bloodstain evidence in their rush to judgment.

     An appeals court reversed the first verdict, ruling that introducing evidence of Camm’s extramarital affairs was unduly prejudicial. Before the second trial DNA that authorities said they had sent in (but did not) was finally tested. It was found to match Charles Boney, an ex-con who had done time for armed robbery. Boney had also left his palmprint at the crime scene. He wound up testifying against Camm, to the effect that he provided the murder weapon but waited outside the home while Camm executed his family. A forensic “expert” testified that victim bloodstains on Camm’s shirt had been produced by spatter, and three prisoners insisted that Camm confessed to the killings.

     Camm was again convicted (Boney would be separately tried and convicted. He drew life without parole.) But this conviction was also reversed, as Boney had been allowed to testify, without corroboration, that Camm admitted molesting his daughter.

     Camm’s third trial, held in 2013, brought in a wholly new perspective. A defense expert testified that Boney’s DNA was found on the clothes and under the fingernails of Camm’s wife, thus putting the lie to his claim that he “waited outside.” Dr. Rossmo and another expert, who testified at length, criticized the investigation as haphazard and hopelessly biased from the start. Most importantly, the self-styled “serologist” who testified about blood spatter on Camm’s clothes was thoroughly discredited. Real experts, hired by the defense, testified about the profound ambiguities and uncertainties of blood spatter analysis and said that the traces of victim blood found on Camm’s clothes were likely produced by accidental transfer when he found the bodies.

     Camm was acquitted. His lawsuit against the county was settled in 2016 for $450,000. Camm’s litigation against D.A.’s and State police investigators continues.

     David Camm’s saga drew extensive coverage in the broadcast media, including 48 Hours and WDRB TV, and has several extensive writeups online (click here for the Wikipedia page and here for Murderpedia.) His travails are also cited in a forensic science text and were the subject of two nonfiction works (click here and here). And if that’s not enough, a novel that closely tracks the case is supposedly in the works.


     When actionable leads are lacking detectives may have little choice but to assemble a list of possible evildoers. As we suggested in “The Usual Suspects”, getting arrested increases one’s risk of being accused of offending in the future. And when the new crimes are particularly grave – say, a string of unsolved rapes – pressures to bring a culprit to justice can rope in anyone who seems to fit the bill.

     That’s the situation that Luis Lorenzo Vargas faced in 1999 when Los Angeles Police proudly announced the arrest of “The Teardrop Rapist.” Suspect of at least thirty-nine sexual assaults between 1995 and 2013, the rapist (he reportedly had a pair of teardrop tattoos under his left eye) stalked central city streets during the early morning hours and threatened victims with a gun or knife before dragging them away.

Click here for the complete collection of wrongful conviction essays

     Vargas lived in the area where the rapes occurred and physically resembled the perpetrator down to a teardrop tattoo under the left eye (Vargas, though, only had one.) His past was also highly damning, as he had served three years in prison for the 1992 rape of a girlfriend. Detectives investigating three sexual assaults between February and July 1998 attributed to the Teardrop Rapist showed the victims a photospread that included Vargas. Each victim would ultimately identify him as her assailant, although with qualifications and what now seems considerable uncertainty.

     Police arrested Vargas in July 1998. He was tried eleven months later. Each accuser positively identified him in court, and Vargas was convicted. What the prosecution didn’t disclose was that despite his arrest the rapes continued.

     Vargas steadfastly denied his guilt and drew 55 years. He thereafter continued to maintain his innocence, placing parole out of reach. Finally, in 2012, thirteen years into his term, the California Innocence Project secured a court order to have the rape kit from one of the three victims submitted for DNA analysis (physical evidence was not available for the others.)

     DNA testing excluded Vargas. But they matched several other assaults attributed to the Teardrop Rapist. Prosecutors recommended that Vargas be exonerated and a judge concurred. Vargas was released on November 23, 2015 after serving more than sixteen years. Meanwhile the “real” Teardrop Rapist remains unidentified.


     External and self-induced pressures to solve heinous crimes can lead even the best intentioned investigators to set aside doubts and interpret information in a light most favorable to a prompt resolution. Camm and Vargas were likely suspects who bobbed up in a sea of complexities that might have taken a very long time to untangle. But the criminal justice system doesn’t have centuries.

     Of course, no good cop would knowingly arrest and no good prosecutor would knowingly seek to convict the wrong person. Yet workplace pressures can play havoc with evidentiary practices. Camm was done in by misleading forensic testimony procured by police and prosecutors from a pretend expert. Vargas fell to the perils of eyewitness identification. When showing photospreads, investigators can slip and suggest, through word and gesture, just who the “real” suspect is. After undoubtedly many “thank you’s” and words of support, three victims who were once not so certain positively identified an innocent man in court.

     DNA helped rescue Camm and was key to Vargas’s redemption. Now consider all the miscarriages of justice where there was no DNA. For more on that, click here.

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RELATED POSTS

Why do Cops Lie?     Accidentally on Purpose     Ideology Trumps Reason     Is a Case Ever Too Cold?

Better Late Than Never (II)     State of the Art…Not!     Rush to Judgment II

What if There’s No DNA?     Forensics Under the Gun     CSI They’re Not     The Usual Suspects

Your Lying Eyes

 


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