Friday, August 17, 2018





Excerpted from: Samuel R. Gross, What We Think, What We Know and What We Think We Know about False Convictions, 14 Ohio State Journal of Criminal Law 753 (Spring, 2017)(FULL ARTICLE)


“When one man dies it is a tragedy. When thousands die it's statistics.” Joseph Stalin, 1945


samuelgrossIn 1974, Edward Carter, a 19-year-old African American, was convicted of the rape of a pregnant woman in a men's room on the campus of Wayne State University in Detroit. He was sentenced to life in prison. Carter's conviction rested entirely on a cross-racial identification by the white victim. In fact, at the time of the crime, Carter was in custody for theft; he told his defense attorney but she did nothing to prove his ironclad alibi. Nor did she check and find out that his blood type did not match the semen left by the rapist.

About 30 years later, Carter sought DNA testing through a Michigan innocence project. A search revealed that the biological evidence that was collected at the time of the crime had been destroyed, but a police officer who was involved in the search became curious. He found fingerprints from the crime scene that did not match Carter's fingerprints and--acting on his own--sent them to the FBI's Automated Fingerprint Identification System. The prints were matched to a convicted sex offender who was in prison for similar rapes committed at about the time of the Wayne State rape and in the same area.

Based on this new evidence--plus records that showed that he was in custody at the time of the crime, and had the wrong blood type--Carter was exonerated and freed on April 14, 2010, after more than 35 years in prison for a crime he did not commit.

Edward Carter's case may sound familiar. Exonerations have become common--about three a week in the United States in 2015--and most involve rape or murder. But it's unlikely that you ever heard of this one. Many exonerations are well known locally and some make headlines across the country, but many others are hidden from view. Edward Carter's exoneration received no public attention whatsoever in 2010, and barely any in the years since.

The National Registry of Exonerations collects and disseminates information on all known exonerations in the United States since 1989, a total of 1,900 as of October 2016. Some are for comparatively minor crimes. Wassillie Gregory, for example, was arrested in Bethel, Alaska, in July, 2014, by a police officer who wrote in his report that Gregory was “clearly intoxicated” and that “I kindly tried to assist Gregory into my cruiser for protective custody when he pulled away and clawed at me with his hand.” Two days later, without a defense lawyer, Gregory pled guilty to “harassment.” He was exonerated 10 months later because a surveillance video showed the officer handcuffing Gregory and then repeatedly slamming him onto the pavement.

Most exonerations in the Registry, however, are for vicious crimes of violence in which innocent victims were killed or brutalized. Many victims who survived were traumatized again, years later, when they learned that the criminal who had attacked them had not been caught and punished after all, and that they themselves may have played a role in destroying the life of an innocent person. In many cases, the real criminals went on to rape or kill other victims, while the innocent defendants remained in prison.

Some of the stories have villains; many do not. Few have happy endings.

In 1985, a white female student was abducted and raped by an African American man at Texas Tech University in Lubbock, Texas. Two weeks later the victim was shown six photographs of young African American men. Five were black and white side views; one was a color frontal shot of Timothy Cole, a 26-year-old veteran who was studying at Texas Tech and who became a suspect because he talked to a detective near the scene of the abduction. The victim picked Cole's picture, identified him at a live lineup the next day, and testified against him at trial. Cole's brother and several friends also testified and swore that Cole was studying at home at the time of the crime. Cole was convicted in 1986 and sentenced to 25 years in prison. His appeal was denied.

In 1995, Jerry Wayne Johnson, a Texas prisoner serving a 99-year sentence for two rapes, wrote to Lubbock County police and prosecutors that he had committed the rape for which Cole had been convicted. His letters were ignored. In 1999 Cole, who was severely asthmatic, died in prison. In 2000, Johnson wrote another letter confessing to Cole's crime, this one to a supervising judge. It was summarily rejected. Eight years later, DNA tests obtained by the Innocence Project of Texas proved that Johnson committed the 1985 rape in Lubbock and that Cole had been innocent. Cole was exonerated in an extraordinary posthumous court hearing in 2009, and pardoned by the governor of Texas in 2010.

At least fifteen innocent defendants have been exonerated after death since 1989, even though it is highly unusual to reconsider the guilt of defendants who are dead. Many others left prison alive with disabling injuries or diseases. Some died within a year or two of release. Others returned to prison for new crimes that they did commit. Almost all irretrievably lost large portions of their lives--their youth, the childhood of their children, the last years of their parents' lives, their careers, their marriages.

The worst part is that these are the fortunate few. We know of thousands of exonerations in the United States in the past 27 years but there is no doubt that hundreds of thousands of innocent defendants were convicted in that period, and almost all will never be known.

This article focuses on numbers and patterns of false convictions and exonerations, on statistics. But each case in this long list is a story--and with few exceptions every story is a heartbreaking tragedy.

* * *

One reason that nearly half of exonerees are black is that African Americans, as a group, commit crimes at higher rates than whites. As a result, African Americans are more likely to be prosecuted and convicted--including innocent African Americans. This explains most but not all of the disparity in murder exonerations, some of the disparity in rape exonerations and none of the disparity in drug possession exonerations.

A second reason is that evidence used in prosecutions with black defendants is more error-prone than evidence in similar cases with white defendants. A version of this problem--the unreliability of cross-racial eyewitness identification--is a likely explanation for much of the extraordinary number of sexual assault exonerations with black defendants and white victims, but it cannot explain the entire racial disparity in rape exonerations.

A third reason is that blacks are likely to live in high crime neighborhoods that are heavily policed, and are more likely to have criminal records. This high level of attention may be legitimate and may explain some of the disparity in drug possession exonerations, but it's difficult, if not impossible to distinguish from illegitimate racial profiling which has long been a staple of drug policing, and a problem throughout the criminal system.

Finally, some of the racial disparity in arresting, prosecuting and convicting innocent defendants for all crimes is caused by racial prejudice, from unconscious bias to explicit racism.


Thomas & Mabel Long Professor of Law, University of Michigan Law School.

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