Miscarriages of Justice: Actual Innocence, Forensic Evidence, and the Law

Miscarriages of Justice

Actual Innocence, Forensic Evidence, and the Law

Brent E. Turvey

Craig M. Cooley

Table of Contents

Cover image

Title page

Copyright

Preface

Foreword

About the Authors

About the Contributors

Section 1. Miscarriages of Justice: Nature and Frequency

Chapter 1. Miscarriages of Justice: An Introduction

The Role of the Criminal Justice System

Miscarriages of Justice

Miscarriages: A Typology

Historical Perspectives

Causal Factors

Conclusion

Chapter 2. Wrongful Conviction Rates

Early Research

Contemporary Research

Correlates and Causes

Conclusion

Section 2. Miscarriages of Justice: Investigative Causes

Chapter 3. Police Corruption

Duty of Care

Breaking the Law to Uphold It

Noble Cause Corruption

Patrol Officers

Criminal Investigators

Chapter 4. Eyewitness Identification: Uncertainty, Error, and Miscarriages of Justice

A History of Unreliability

Memory

Specific Problems with Eyewitness Memory

New Jersey and the Henderson Case

Conclusion

Chapter 5. Police Interrogations and False Confessions

What Is a False Confession?

False Confession Typology

Confession Law

Law Enforcement Interrogation and The Reid Technique

False Confessions, Inevitability, and Blame

Chapter 6. Criminal Informants and Wrongful Convictions

Informants as an Investigative Tool

Types of Informants

Informants and Wrongful Convictions

Incompetent or Corruptible

Suggested Reforms

Section 3. Miscarriages of Justice: Forensic Causes

Chapter 7. Forensic Science, The CSI Effect, and Wrongful Convictions

The CSI Effect

Forensic Science Under Scrutiny

Conclusion

Chapter 8. Forensic Fraud and Misconduct

Cultural Conflicts

Scientific Misconduct

Differentiating Fraud and Negligence

False Testimony

Forensic Fraud

Conclusion

Chapter 9. Bitemark Evidence and Miscarriages of Justice

Introduction

Professional Status of Those Practicing Bitemark Comparison

Bitemark Analysis: The Evidence, Methods, and Assumptions

A Brief Legal Discussion

Descriptions of Bitemark Exonerations and Erroneous Incarcerations

Descriptions of Wrongful Arrests Based on Bitemark Evidence

Section 4. Miscarriages of Justice: Legal Causes

Chapter 10. Ineffective Assistance of Counsel

The Right to Effective Counsel

Criminal Defense Attorneys: Structure and Function

The Presumption of Innocence

Ineffective Assistance of Counsel

Pretrial Effectiveness Issues

Effectiveness Issues at Trial

Chapter 11. Prosecutorial Misconduct

Criminal Prosecutors: Structure and Function

Prosecutorial Misconduct: Numbers and Origins

Misconduct with Law Enforcement

Pretrial Misconduct

Ethical Issues during Trial

Incentivized Misconduct

Section 5. Miscarriages of Justice: Remedies

Chapter 12. Forensic Reform

The Legal Community: A Unique Perspective

Forensic Science and Miscarriages of Justice

The NAS Report

Forensic Reform

Conclusion

Chapter 13. Miscarriages of Justice: Prevention and Management

The Professional Obligation to Reform

Preventative Reforms

Postconviction Efforts

Conclusion

Glossary

Index

Copyright

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Preface

Identifying Miscarriages of Justice

...the U.S. indigent defense systems—which provide representation to those who cannot afford it—are in financial crisis, plagued by crushing caseloads and insufficient resources. And this year’s forced budget reductions, due largely to sequestration, are further undermining this critical work.

Eric Holder (2013)

Attorney General

United States of America

Miscarriages of justice are most commonly told as stories through the eyes of defense attorneys and their clients. This is no mistake. The defendant experiences a miscarriage of justice in the most personal, painful, and profound way—as a series of wrecking balls, shattering the foundations of his or her life in successive blows. Very often careers, homes, friends, family, and all other supporting resources are beaten from the defendant until only the most faithful remain. If there is a criminal conviction, things are much worse (see Figure 1). If the conviction occurs in the context of a capital case, the consequences are not just brutal and isolating; they are enhanced by living with the constant threat of the death penalty.¹

Defense attorneys witnesses this obliteration with a front row seat. Sometimes they do all they can and it isn’t enough, sometimes they are deprived of sufficient resources to mount even the most basic defense, sometimes the deck is stacked against them by the police, the prosecution, and the courts, and sometimes they are professionally negligent and even complicit in the miscarriage. Consequently, on one hand, a defense attorney might be competent and experienced enough to know when these things are happening, and on the other hand, he or she might not.

Figure 1   Damien Echols pictured at the time of his arrest in 1993 (left). Upon his release from death row (along with co-defendants Jason Baldwin and Jesse Misskelley), Echols wrote a compelling memoir of his experiences that he titled Life After Death (2013; right). The only one of the so-called West Memphis Three to receive the death penalty, Echols spent much of his time in solitary confinement. One of the authors (Turvey) worked for the West Memphis Three defense during postconviction, testifying about the investigative and forensic shortcomings evident in the prosecution’s case. See Chapter 5 for a discussion of the case.

Both the defendant and the defense attorney can become compelled, as a result of their experiences, to tell the story—often through books, films, and interviews with the media. Ultimately, they are uniquely capable of doing so: they have personally observed and felt the impact of the miscarriage, and they also have access to case material. The miscarriage is, inevitably, their story to tell.

However, this also means that the literature currently associated with miscarriages of justice is dominated by the perspectives of criminal defendants and defense attorneys. Their narratives are intended for the general public or specifically for those operating within the legal community.² The language is therefore almost invariably a mix of true crime and legalese. Although these voices are necessary and valuable, they represent a very specific set of agenda-driven viewpoints. To inform a broader array of criminal justice students and professionals, a more professionally inclusive approach to the subject is called for.

Figure 2   U.S. Attorney General Eric Holder speaking before the American Bar Association in San Francisco (August, 2013). Mr. Holder has played a high-profile role in identifying and addressing miscarriages of justice during his tenure. In 2009, he dismissed the case against former Senator Ted Stevens due to egregious FBI and prosecutorial misconduct (see discussion in Chapter 11). In 2013, he spoke publicly about the underfunding of indigent defense in relation to government budget reductions and how this has harmed the cause of justice.

The purpose of this textbook is to move beyond the law review, casebook, and true crime publications that comprise the miscarriage literature. While informative, they are not designed for teaching students in a classroom setting. This text is written specifically for use at the undergraduate level in journalism, sociology, criminology, and criminal justice programs to introduce college students to the miscarriage phenomenon in a structured fashion. The language is more broadly accessible than can be found in legal texts, and the coverage is multidisciplinary.

The reality is that miscarriages of justice are a regular occurrence in the criminal justice system, which is characterized by government agencies that are understaffed, underfunded, and undertrained across the board. This is especially true of the indigent defense system, in what Eric Holder, Attorney General for the United States (see Figure 2), has referred to as a shameful state of affairs (Holder, 2013)—so much so that defendant poverty can conspire to create legal guilt as a foregone conclusion in some regions of the United States—if not also to ensure lengthier prison stays.

Criminal justice students and professionals therefore have a need to be made aware of the miscarriage problem as a threshold issue. They need to know what a miscarriage of justice looks like, how to recognize its many forms, and what their duty of care might be in terms of prevention. They also need to appreciate that identifying miscarriages, and ensuring legal remedy, is an important function of the system that must be honored by all criminal justice professionals.

This text ultimately presents the issue of miscarriages as a systemic and multidisciplinary criminal justice issue. It provides perspectives from within the professional CJ community, and it serves as warning to future professionals about the dangers and consequences of apathy, incompetence, and neglect. Consequently, it can be used by any CJ educator to introduce any group of CJ students to the problem.

It is our hope that they will do so faithfully in service of justice.

Brent E. Turvey,  and Craig M. Cooley

References

Echols D. Life After Death. New York, NY: Plume; 2013.

Holder E. Defendants’ legal rights undermined by budget cuts,.  The Washington Post. 2013  Op-Ed, August 22.: http://www.washingtonpost.com/opinions/eric-holder-defendants-legal-rights-undermined-by-budget-cuts/2013/08/22/efccbec8-06bc-11e3-9259-e2aafe5a5f84_story.html.

Scheck B., Neufeld P., Dwyer J. Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongly Convicted. New York, NY: Doubleday; 2000.

¹ For a revealing memoir detailing the experiences of a death row inmate who has since been released from prison, see Life After Death, by Damien Echols (2013). One of the authors (Turvey) served as a defense expert in that case during postconviction, discussed in Chapter 5, Police Interrogations and False Confessions.

² A well-known example is the groundbreaking work Actual Innocence by Scheck, Neufeld, and Dwyer (2000), which details the stories of ten men wrongfully convicted and then exonerated by DNA with the help of the Innocence Project in New York.

Foreword

Wrongful Convictions: Understanding Causes and Consequence

As of this writing, there have been over 1200 exonerations of the wrongfully convicted in the United States. That number climbs every week. These miscarriages of justice are undeniable, and serve as proof of the flaws in our criminal justice system that cannot be ignored. However, as this text demonstrates, they can be identified and corrected.

My first experience with wrongful convictions came when I began working on state postconviction appeals for people on death row in Florida (when someone is convicted of capital murder, most states automatically assign the case to an appellate public defender of some kind for a required appellate review). The idea that any of the convicts sitting on death row could actually be innocent never entered my mind—until some attorneys in my office exonerated one of them. From these early experiences working capital appeals, through my time representing men sentenced to death in federal habeas corpus (the last round of criminal appeals), I came to believe that several of my clients could be innocent.

This was not the result of wishful thinking on my part, but rather it came as the natural result of thorough review. The more I dug into their cases, the more I saw shoddy police work, shoddy defense work with no investigation, inconsistencies in witness statements, dubious work and testimony from prosecution criminalists (forensic scientists), and alleged facts and eventual theories that didn’t quite add up. I kept asking myself how this could happen. More importantly, I wondered whether anything could be done to prevent it.

During this time, I also learned that the wrongfully convicted (while actually innocent) come from all walks of life. However, they each share a similar horrific experience. They have been swept up into a broken system where a multitude of factors combined to result in their incarceration. This is difficult to appreciate from the outside looking in. Ultimately, I came to see that it is not only innocent defendants who suffer when a miscarriage of justice occurs, but also their families and friends, to say nothing of the victims of these crimes who are left without genuine closure. As a result of my experiences, I came to believe that understanding and exposing the many causes and consequences of wrongful convictions is probably the best way to prevent them from happening in the future.

The causes of wrongful convictions are well known within the legal community. They include things like eyewitness misidentification, false confessions, ineffective assistance of counsel, and faulty forensic science. They are not usually isolated to single cases—they are usually systematic, as the professionals within the system who cause or allow the problem will work on many cases throughout a career. In other words, when there is one, there is going to be more than one.

Only by studying the cases and underlying causes can further miscarriages be revealed, along with realistic systemic solutions. What is known is that people make mistakes on a lot of levels. Evidence is not collected which prevents a complete understanding of a crime. Perhaps a witness is not interviewed or investigators dismiss as irrelevant evidence that conflicts with their theory of the case. Defense attorneys fail to conduct their own independent evaluation of the evidence or dismiss pleas from a client claiming innocence. The court system denies requests for additional funds for investigative aids or experts to challenge dubious results from an overworked crime lab. These events combine and conspire on cases every day across the United States, creating a heavy barrier to the truth. As a consequence, it can take years to pull back the layers of bias and error that keep an innocent defendant behind bars.

Fortunately, diligent criminal justice professionals and new technologies continue to shed light on miscarriages of justice. The answers are not only found by the defense attorneys who challenge these cases at trial and throughout various levels of appeals, but also by law enforcement, crime scene analysts, prosecutors, judges, and investigators. As more people are found innocent based on a wide variety of newly discovered evidence or constitutional violations, it shows the vigilance of the professionals that are involved. It also shows that CJ professionals, their efforts, and the evidence must always be in order to help ensure that the innocent are not convicted—because wrongful convictions keep happening.

Vigilance against miscarriages of justice is not only the mandate of those working at innocence projects, but also of a growing number of state and federal organizations interested in preventing them before they occur. Such efforts focus on improving the system. Restructuring how eyewitness identification procedures are done by police officers may curb the high frequency of eyewitness misidentifications. Recording both the entire interrogation and confession of a suspect will decrease the likelihood of a false confession. Placing broad requirements on disclosure of bench notes, interview reports, witness reports, and similar investigative documents will decrease the occurrence of police and prosecutorial misconduct while also improving the quality of defense provided. These measures and many more discussed within this text can help stem the tide of wrongful convictions and help identify those already suffering such fates.

As the director of an innocence project, I work with students every day at different levels of education. Many undergrad students are fascinated by how the criminal justice system works but see very little practical discussion of what goes on, aside from what they see on television or in movies. Additionally, very few undergraduate courses involve discussions of the rising tide of wrongful convictions, and how there are numerous opportunities to fix the problem. Such discussions are desperately needed.

By reading this text, students will begin to see the complexities of the miscarriage issue. They will also realize that you don’t need to be a lawyer to help correct the justice system. They will learn that it is often the work of people who aren’t attorneys bringing injustices to light, and helping to fix them as well. This understanding will help guide them as they become criminal justice professionals themselves, and make the criminal justice system all the better for it.

I hope you understand that while mistakes happen, they also can be fixed.

Tiffany Murphy, J.D.,     Director of the Oklahoma Innocence Project

About the Authors

Craig M. Cooley, J.D

Craig M. Cooley served as a staff attorney with the Innocence Project in New York City for five years, where he represented indigent inmates from across the United States trying to prove their innocence with DNA testing. Mr. Cooley obtained DNA testing for several of his clients that ultimately exonerated ten innocent prisoners. Prior to joining the Innocence Project, Mr. Cooley served as an Assistant Federal Defender in Las Vegas, Nevada, where he represented Nevada death row inmates pursing federal habeas relief.

Prior to attending law school, Mr. Cooley received his graduate degree in forensic science from the University of New Haven and his undergraduate degree from the University of Pittsburgh. During law school, Mr. Cooley served as an investigator with the Office of the State Appellate Defenders, Death Penalty Trial Assistance Division in Chicago, Illinois, where he provided assistance on several cases affected by Governor George Ryan’s 2003 pardons and commutations.

A graduate of Northwestern School of Law, Mr. Cooley has served as an adjunct professor of law at St. John’s School of Law, Hofstra School of Law, and Cardozo School of Law. His scholarship includes articles in Stanford Law & Policy Review, Indiana Law Journal, George Mason University Civil Rights Law Journal, New England Law Review, and other law journals and reviews.

Mr. Cooley is currently a criminal defense attorney in private practice, with offices in North Carolina and Pennsylvania. He can be reached at craig.m.cooley@gmail.com.

Brent E. Turvey, Ph.D

Brent E. Turvey received a B.S. in psychology, with an emphasis on forensic psychology, and an additional B.S. in history from Portland State University. He went on to receive his M.S. in forensic science from the University of New Haven. He also earned his Ph.D. in criminology from Bond University.

Since 1996, as a forensic scientist and criminal profiler, Dr. Turvey has consulted with many organizations, attorneys, and law enforcement agencies in the United States, Australia, Scotland, China, Canada, Barbados, Singapore, Korea, and Mexico on a range of rapes, homicides, and serial/multiple rape death cases. In August of 2002, he was invited by the Chinese People’s Police Security University (CPPSU) in Beijing to lecture before groups of detectives at the Beijing, Wuhan, Hanzou, and Shanghai police bureaus. In 2005, he was invited back to China to lecture at the CPPSU and to the police in Beijing and Xian—after the translation of the second edition of his text into Chinese for the university. In 2007, he was invited to lecture at the First Behavioral Sciences Conference at the Home Team (Police) Academy in Singapore, where he also provided training to their behavioral science unit. In 2010, he examined a series of sexual homicides for the solicitor–general of the Crown Office and Procurator Fiscal Service in Edinburgh, Scotland.

In 2013, Dr. Turvey became the sponsor for the Criminal Profiling and Behavioral Analysis Unit of the Forensic Laboratory in cd. Juarez in Chihuahua, Mexico. That same year, he also traveled to Guatemala City, Guatemala, and Bogota, Colombia, at the request of these respective governments. He did so to lecture on the subjects of forensic science and behavioral evidence analysis, and also to begin the process of certifying law enforcement profilers in various government agencies.

Dr. Turvey has been court qualified as an expert in the areas of criminal profiling, victimology, crime scene investigation, sex crimes investigation, false reports, crime scene analysis, forensic science, and crime reconstruction in many courts and jurisdictions (state and federal) around the United States, in both civil and criminal matters—most often in capital murder cases.

Dr. Turvey has published in numerous peer-reviewed journals and is the author of Criminal Profiling: An Introduction to Behavioral Evidence Analysis, first, second, third, and fourth editions (1999, 2002, 2008, 2011) and Forensic Fraud (2013). He is also a coauthor of Rape Investigation Handbook, first and second editions (2004, 2011), Ethical Justice (2012), Crime Reconstruction, first and second editions (2007, 2011), Forensic Victimology (2009), and Forensic Criminology (2010)—all with Academic/Elsevier Science.

Dr. Turvey is currently a board member of the International Association of Forensic Criminologists/Academy of Behavioral Profiling; a full partner, forensic scientist, criminal profiler, and instructor with Forensic Solutions, LLC; and an Adjunct Professor of Sociology Justice Studies at Oklahoma City University. He can be contacted via email at bturvey@forensic-science.com.

About the Contributors

C. Michael Bowers, D.D.S., J.D

C. Michael Bowers is the author of Forensic Dental Evidence: An Investigator’s Handbook, first and second editions. He is a practicing general dentist and forensic dental consultant who over a period of 27 years has assisted in numerous homicide cases for prosecution and defense counsels in the U.S. and abroad. Dr. Bowers is an Associate Clinical Professor at Herman Ostrow School of Dentistry at USC and is the Deputy Medical Examiner for Ventura County, CA.

Stan Crowder, Ph.D

Stan Crowder is a retired U.S. Army Military Police Colonel, and holds a Ph.D., an M.B.A., and a B.S. During his military career, Dr. Crowder served in numerous positions including MP Commander, Chief of Investigations for the Inspector General of Georgia, Counter-drug Commander, Battalion Commander, and Chief of Personnel. He served seven years as a civilian police officer. He teaches at Kennesaw State University, Kennesaw, Georgia, USA, where he has been teaching since 1999 and was selected as the 2007 recipient of the Betty Siegel teaching award. He is also a coauthor of the textbook Ethical Justice (2012).

Dr. Crowder is currently the president of the International Association of Forensic Criminologists/Academy of Behavioral Profiling. He can be contacted at scrowder@kennesaw.edu.

Michael McGrath, M.D

Michael McGrath, M.D., is a Board Certified Forensic Psychiatrist, licensed in the state of New York. He is a Clinical Associate Professor in the Department of Psychiatry, University of Rochester School of Medicine and Dentistry, Rochester, New York, and Medical Director and Chair, Department of Behavioral Health, Unity Health System, Rochester, New York.

Dr. McGrath divides his time among administrative, clinical, research, and teaching activities. His areas of expertise include forensic psychiatry and criminal profiling. He has lectured on three continents, and is a founding member and past president of the International Association of Forensic Criminologists/Academy of Behavioral Profiling. He can be contacted at mmcgrath@profiling.org.

Ronald Miller, M.S

Ron Miller holds a bachelor of forensic science from the University of California at Berkeley, where he studied under Dr. Paul L. Kirk and Dr. John I. Thornton. He also holds a master in public service and a master in clinical mental health, and he is a licensed marriage and family therapist. He loved working the street as a police officer and as a crime scene investigator, detective, and EOD team member in the 1970s and 1980s in the San Francisco Bay Area. He left law enforcement due to a vision disorder, and it was then that he sought his graduate education.

Mr. Miller found himself continuing to work in the judicial arena doing mental health evaluations and treatment for the courts and critical incident debriefings for public safety and industry. Eventually, he shifted his focus to felony investigations, specializing in homicides, death penalty mitigation investigations, and postconviction appellate work in state and federal courts as a licensed private investigator in the Pacific Northwest. He can be contacted at rjmiller@behavioralforensics.com.

Section 1

Miscarriages of Justice: Nature and Frequency

Outline

Chapter 1. Miscarriages of Justice

Chapter 2. Wrongful Conviction Rates

Chapter 1

Miscarriages of Justice

An Introduction

Brent E. Turvey¹,  and Craig M. Cooley

Abstract

This text is written as a lighthouse for those in the criminal justice system and for those studying to become part of it. It will make readers aware of the essential responsibilities that must be serviced in the cause of justice—the required professional route through what can be treacherous weather and water. However, it will do so through the lens of consequence, by examining what happens when those who are employed to serve fail in their respective duties.

It is not enough that readers will come to understand the nature and extent of failures in the criminal justice system and how they can lead to miscarriages of justice. They will also learn how such failures are both preventable and correctable. It is believed that this knowledge will result in more capable professionals and better professional decision making.

Keywords

criminal justice system; detention; failure to investigate and arrest; failure to prosecute; false arrest; ineffective assistance of counsel (IAC); miscarriage of justice; presumption of innocence; wrongful acquittal; wrongful conviction; wrongful detention; wrongful prosecution; wrongful sentencing

The criminal justice system in the United States rests on the principle that the accused is innocent until proven guilty. This is referred to as the presumption of innocence, which requires the state to prove a defendant’s guilt beyond a reasonable doubt. As explained in Coffin v. United States (1895): The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.²

The presumption of innocence is founded on the belief that it is worse to convict the innocent than to let the guilty go free (e.g., In re Winship, 1970). In other words, convicting the innocent is viewed by the law, and by society, as an unacceptable price to pay for justice. As explained in Schlup v. Delo (1995), concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system.

To make this point, professors often ask their criminal justice students this question: Which is worse: for one innocent man to be convicted or for ten guilty men to go free? It is a question that is intended to help students confront their personal preferences and belief systems, as well as the extent to which they align with those required by criminal justice practitioners. It is also a helpful discussion starter—revealing threshold assumptions and attitudes.

However, the interesting reality is that when the innocent are convicted, those responsible almost always remain free to commit more crime. Therefore, convicting the innocent all but ensures protection for the factually guilty. The follow-up question then becomes whether it is ever acceptable to protect those responsible for crime. These questions are the perfect place to start our work.

This text is written as a lighthouse for those in the criminal justice system and for those studying to become part of it. It will make readers aware of the essential responsibilities that must be serviced in the cause of justice—the required professional route through what can be treacherous weather and water. However, it will do so through the lens of consequence, by examining what happens when those who are employed to serve fail in their respective duties.

It is not enough that readers will come to understand the nature and extent of failures in the criminal justice system and how they can lead to miscarriages of justice. They will also learn how such failures are both preventable and correctable. It is believed that this knowledge will result in more capable professionals and better professional decision making.

The Role of the Criminal Justice System

The criminal justice system in the United States is the network of government and private agencies intended to identify and manage criminal suspects, defendants, and convicted offenders. The modern criminal justice system consists of the following major interrelated and interdependent pillars: academia, law enforcement, forensic services, the judiciary, and corrections. Their unifying purpose is to facilitate legal justice. Legal justice is achieved by forging the rights of individuals with the government’s corresponding duty to ensure and protect those rights (Crowder and Turvey, 2013).

Another way of understanding the role of the criminal justice system is as that of an impartial arbiter. Ideally, its representatives step in when there is a dispute, dispassionately determine who did what, establish whether the law has been broken and by whom, and then determine a fair punishment. Simply put, the primary function of the criminal justice system is to convict the guilty and free the innocent (United States v. Nobles, 1975).

This function is designed to be accomplished at different stages by separate parts of the justice system working at their respective tasks. Law enforcement is meant to investigate the facts and make arrests only when there is probable cause; forensic examiners are meant to analyze evidence and explain its strengths in court based on scientific proofs; prosecutors are meant to seek truth and justice; defense attorneys are meant to defend their clients; and judges are meant to impartially explain and render the law to preserve the rights of all parties. None of them can do their job competently until properly educated and trained.

All of this is to say that the role of the criminal justice system is to facilitate legal justice and to avoid miscarriages while doing so.

Miscarriages of Justice

Despite its intended role, the criminal justice system is not always fair and impartial. As we will explore in this text, there are those working within it who act unjustly. Consequently, a criminal defendant can become a victim of bias, corruption, ignorance, error, and even indifference (as well as the resulting shrunken budgets). When this happens, it is referred to as a miscarriage of justice.

However, the literature has been narrow in its treatment of miscarriages. As discussed in Naughton (2005), defining a miscarriage of justice tends to be a matter of law, applied retroactively (p.165):

One of the defining features of the study of miscarriages of justice is that whatever allegations of wrongful criminal conviction there may be, a miscarriage of justice cannot be said to have occurred unless, and until, the appeal courts quash a criminal conviction. For instance, the Birmingham Six (Mullin 1986)—perhaps one of the most notable cases in recent times—had two unsuccessful appeals before they successfully overturned their criminal convictions and were officially acknowledged as miscarriage-of-justice victims. This renders the study of miscarriages of justice inherently legalistic and retrospective. ‘Legalistic,’ as miscarriages of justice are wholly determined by the rules and procedures of the appeal courts—if those rules and procedures change, then the way in which miscarriages of justice are defined and quantified will also change. ‘Retrospective,’ as there is no way of knowing about how many wrongful convictions will be overturned in the future or how many are in the process of being overturned. They remain ‘alleged’ miscarriages of justice until they pass the test and achieve a successful appeal.

This discussion is useful, but its author ignores the reality that miscarriages of justice take many forms—and that they do not always involve a courtroom.

A more inclusive perspective can be found in Forst (2011, p. 1210):

The scholarly literature on miscarriages of justice has focused primarily on wrongful convictions, and with good reason: the presumption of innocence is a bedrock principle in our system of criminal justice. But miscarriages occur on both plates of the justice goddess’s balance scale. They begin at the point of community failures to report serious crimes and police failures to respond to the ones that are reported. They include wrongful arrests and convictions, as well as wrongful dismissals and acquittals. Miscarriages of justice often continue beyond conviction, through sentencing, correctional treatment, and eventually, to failures to support the successful reintegration of offenders back to the community.

The authors have had their own experiences regarding the variety of harms that can result when the justice system breaks down. These align more with the broad view taken by Forst than with those offered elsewhere. For the purposes of this text, therefore, we will define a miscarriage of justice as a major failure on the part of the justice system that harms defendants or society. This definition may seem overly inclusive, and it should. A discussion of specific miscarriage types is warranted.

Miscarriages: A Typology

Miscarriages of justice come in a variety of forms. All of them relate to legal consequences, but they need not result in harm done by the court (which is only one branch of the criminal justice system). The most common miscarriages include:

1. Wrongful detention

2. False arrest

3. Failure to investigate and arrest

4. Failure to prosecute

5. Wrongful or malicious prosecution

6. Ineffective assistance of counsel

7. Wrongful acquittal

8. Wrongful conviction

9. Wrongful sentencing

Wrongful detention occurs when an individual is taken into law enforcement custody in violation of agency policy, individual civil rights, or the law. Usually, this occurs when law enforcement has reasonable suspicion to believe that an individual has committed a crime. However, law enforcement may also hold material witnesses who are considered a flight risk to ensure their cooperation and testimony before a grand jury. Detention has been generally defined as being held by law enforcement for more than 20 minutes, whether or not law enforcement understands that the clock is ticking (see the discussion in United States v. Sharpe, 1985). The suspect may be subsequently released from custody without facing courtroom consequences or even being arrested for specific charges. To be clear, criminal suspects need not be formally arrested to be detained.

The harm suffered from wrongful detention can be extensive, and increases with duration. This includes damage to personal health, loss to reputation, loss of income, loss of housing, and even damage to personal and professional relationships. When someone is absent from his or her life, that person’s responsibilities suffer. This to say nothing of the physical and emotional harm that can be incurred while in police custody.

False arrest occurs when a criminal suspect is taken in to law enforcement custody for specific charges and probable cause is absent or has been fabricated, or there is a violation of agency policy, individual civil rights, or the law. Wrongful arrest can cause significant personal harm and injury, even when release is relatively fast. This can include physical harm suffered during the apprehension process, harm to possessions and property, and any resulting emotional trauma. As this would imply, false arrest may also involve some form of wrongful detention, however brief. Therefore, the same potential harms also apply and compound.

CASE EXAMPLE 1-1:

STEPHEN SLEVIN

In August 2005, 58-year-old Stephen Slevin was arrested near Las Cruces, New Mexico (see Figure 1-1). He was charged with driving while intoxicated and receiving a stolen vehicle and then taken into police custody. Because of a lifelong history of mental illness, he was isolated from the general population. He then began a nightmare that lasted almost two years. As reported in Mears (2012):

Albuquerque civil rights attorney Matthew Coyte said his client then began to deteriorate while in isolation.

They threw him in solitary and then ignored him, said Coyte. He disappeared into delirium, and his mental illness was made worse by being isolated from human contact and a lack of medical care.

Slevin’s lawsuit alleged he became malnourished, lost significant weight, developed bedsores, fungus and dental problems and was not aware of his situation or surroundings.

FIGURE 1-1   In August 2005, 58-year-old Stephen Slevin was wrongfully arrested and detained near Las Cruces, New Mexico, for driving while intoxicated. His intake photo (left) is a stark contrast to the photos taken during his 22-month incarceration which documented both physical and mental deterioration. One of these photos is shown here (right).

He was transferred to another state facility for two weeks, where he was given a psychiatric evaluation and then sent back to the Dona Ana County Detention Center, where he was again placed in solitary confinement. Coyte said Slevin did receive a brief competency hearing a year into his imprisonment, but the case against the man never proceeded.

After 22 months as a pre-trial detainee, Slevin was released and the charges dismissed. He then filed suit, claiming his rights of due process were violated since he was not given a hearing before being placed in solitary confinement.

Photos taken before and after his confinement show dramatic appearance changes. The plaintiff said things were so bad he was forced to pull his own tooth while in custody, and that his pleas for help were dismissed.

In pre-trial motions, the county denied that there was lack of medical care. For most of the other allegations, officials either denied them or said they were without knowledge or information sufficient to form a belief" of the veracity of the claims.

The defendants also said Slevin waited too late to file his suit, and that as government employees, county officials deserved immunity from liability, believing they acted in good faith as to Slevin’s treatment in custody.

To be clear, the charges against Mr. Slevin were ultimately dropped for lack of evidence, he was released from police custody, and no further efforts at prosecution were pursued. He then filed a civil rights lawsuit against Dona Ana County in order to be made whole with respect to the physical and emotional injuries that he suffered as a result of his wrongful arrest and detention.

In January 2012, Slevin’s lawsuit prevailed. A federal jury ruled in his favor and awarded him $22 million in damages. However, the county commissioners appealed the award and kept the case in court for another year. In March 2013, Slevin agreed to accept a $15.5 million settlement, and the county dropped its appeal. Despite the reduction, this case resulted in one of the largest federal civil rights settlements in history to an inmate (Duke, 2013).

Failure to investigate and arrest occurs when law enforcement gives someone who is suspected of a crime a pass, despite the reasonable belief that a crime has been committed and that the suspect is responsible. When law enforcement allows a suspected criminal to avoid investigation, ignoring obvious misdeeds for whatever reason, further harm and victims may result. Common examples include failure to investigate and arrest corrupt law enforcement employees, failure to investigate and arrest aggressors in cases of reported domestic violence (despite mandatory arrest laws), and failure to investigate and arrest those who are known to have falsely reported sexual assault. This particular form of miscarriage not only protects criminals, but also emboldens criminal propensity by failing to provide any real consequences for it.

Failure to prosecute occurs when the office of the prosecutor refuses to bring charges against a suspect who is factually guilty of a crime, despite evidence found in relation to probable cause as established by an investigation or an indictment by a grand jury. Much like the failure to investigate and arrest, this failure to prosecute allows the factually guilty to remain free, increasing the likelihood of future harm and additional victims. It can also erode public confidence in the criminal justice system as a whole, suggesting the corruption of prosecutors by virtue of partiality.

CASE EXAMPLE 1-2:

OFFICER JOSEPH HARVEY, PHILADELPHIA POLICE DEPARTMENT

In cases that involve corrupt law enforcement employees, local law enforcement and prosecutors may seek to avoid prosecution of one of their own. They may do so to avoid related embarrassment or liability. One common mechanism is to let court deadlines lapse, as occurred in the case against Officer Joseph Harvey of the Philadelphia Police Department. As reported in Roebuck (2013):

A sluggish state prosecution spared ex-Philadelphia police officer Joseph Harvey the first time he was accused of sexually assaulting a woman while on the job. Now the feds are taking a second crack at the case.

FBI agents arrested Harvey, 39, Wednesday morning on one count of depriving his accuser of her civil rights—more than a year after a judge threw out state charges of official oppression and indecent exposure and blasted the District Attorney’s Office for taking too long to bring the case to trial.

And in a new wrinkle Wednesday, federal prosecutors accused one of Harvey’s former colleagues—Sean Cahill, 34—of lying to protect him.

In 2009, a 21-year-old woman accused Harvey, a seven-year veteran of the police force, of ordering her to strip naked and watch him masturbate while he and other members of the 24th District raided an abandoned Kensington house.

She and a friend were in a second-floor bedroom at the time, high on heroin and about to have sex, the woman testified at a 2011 hearing in Common Pleas Court. When he finished, Harvey threw six dollars in her direction and told her to buy herself some cigarettes, she said....

But the case against the former officer seemed to sputter from the start, despite the woman’s accusation and a semen sample taken from her pants that investigators say they linked to Harvey.

First, a judge declared a mistrial in the case after an assistant district attorney improperly referenced the pants, which had not been introduced into evidence. He later reversed his decision.

Then, state prosecutors missed their seven-month window to bring their case against Harvey.

In an opinion dismissing the charges last year, Common Pleas Court Judge Barbara A. McDermott blasted their tardiness despite an extensive investigation resulting in solid physical evidence.... There is simply no excuse for the Commonwealth’s failure to resolve this matter before now, she wrote.

The District Attorney’s Office has appealed that decision, most recently to the Pennsylvania Supreme Court.

It is not uncommon for federal agents to investigate and bring federal charges against law enforcement employees—especially when it involves those who have, for whatever reason, avoided investigation or prosecution at the state level. Arguably, this is among the most important functions that federal agents can serve—to weed out corruption that would otherwise be swept under the rug by local authorities.

Wrongful prosecution refers to an effort to convict a criminal defendant when probable cause is absent or has been fabricated, or there is a violation of agency policy, individual civil rights, or the law. Such efforts may be the result of incompetence, error, ignorance, or malice. In these cases, the prosecutor will have filed specific charges against a criminal defendant in court. However, a conviction need not result for harm to be incurred.

Malicious prosecution is a more egregious form of wrongful prosecution. It refers to an effort to convict a criminal defendant when probable cause is absent or has been fabricated, or in violation of agency policy, individual civil rights, or the law. Wrongful prosecutions become malicious, however, when justice is not the motive of the prosecutors (see generally Black, 1990). This typically occurs when a criminal defendant is prosecuted for personal or political reasons.

Ineffective assistance of counsel (IAC) occurs when an attorney fails to adequately represent his or her client, the criminal defendant, to the point where the right to due process has been violated and a fair trial has been denied. Additionally, inadequate and incompetent representation must also have arguably changed the outcome of related court proceedings. As explained in Strickland v. Washington (1984):

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or setting aside of a death sentence requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.... The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.

As we will learn, IAC can be argued from a broad range of defense attorney errors, negligence, misconduct, and even a lack of adequate resources.

Wrongful acquittals occur when the factually guilty are legally acquitted or exonerated by the court. This happens when the state has failed to understand, investigate, and present key evidence. It also can occur when a jury fails to comprehend key evidence owing to their inattention, evidentiary complexity, or prosecutorial inability. Less commonly, it can occur when a judge makes a technical error. For example, consider Evans v. Michigan (2013), in which the U.S. Supreme Court held that the Double Jeopardy Clause bars retrial following a court-directed acquittal, even if the acquittal was in error.³

A wrongful conviction is a particular type of miscarriage in which a criminal defendant is found legally guilty in court despite being factually innocent of the crime—whatever the underlying causes or motives. This is the most common form of miscarriage dealt with in the literature, to the point where the terms wrongful conviction and miscarriage of justice are treated as synonyms. As we have learned, this is misleading.

Wrongful sentencing occurs when a criminal defendant receives a punishment from the court that is improper given the known, initially suppressed, or initially uninvestigated facts and evidence related to a criminal conviction. This can occur when sentencing is improperly excessive, when it is beneath mandatory minimums, or when plea agreements are violated or ignored. In high-profile cases, it can even involve the imposition of the death penalty when it is not warranted or is otherwise unlawful. This often happens in cases involving mentally ill or mentally disabled defendants, as the United States Supreme Court has ruled such executions to be a violation of the U.S. Constitution.⁴

As this information suggests, miscarriages of justice do not always hinge on the factual innocence of the defendant. Rather, they are often determined by the misconduct of government agents, attorneys, and the judiciary. Although a defendant’s factual innocence undeniably