Janet Reno on Wrongful Convictions

 By Candace Marra

Although Janet Reno, former U.S. Attorney General, has often been told that her concern for the wrongfully convicted is just another “bleeding-heart liberal” cause, she truly believes this is a problem we should all be concerned about, as it has an adverse effect on all of us.  Listening to her speak, I thought Ms. Reno was quite knowledgeable about the problem and the seriousness of it.  She herself was involved in the re-investigation of a murder case in which police tunnel vision had resulted in the wrongful conviction of a man whose six children had been murdered.  She said she would never forget the day she saw that man walk out of court as a free man after 22 years of wrongful incarceration.  That was many years ago, but her concern for the wrongfully convicted has remained constant, and she has identified a number of causes and potential solutions.

Making the Case to the People

Before anything can be done to prevent wrongful convictions, we must convince the people that there is a problem, and that the problem is severe enough that it demands action.  It is not enough to convince the lawyers, prosecutors, and other justice system professionals—we must convince the public.  This is the only way the public will accept whatever reforms are necessary to reverse the growing trend of wrongful convictions.

The public could be most easily convinced if they were shown both the human side and the dollar side of wrongful conviction.  A statistical analysis of the problem of wrongful conviction could help the public see the human side.  This could also help all of us understand just how severe this problem really is.  The public also needs to see an economic analysis of wrongful convictions.  Revealing the monetary costs of wrongful conviction to society as a whole will provide the public with a measurable way that wrongful convictions hurt all of us.  Once the public is convinced that this problem is severe enough that it needs to be addressed, it will be more open to possible reforms.

A Proposal

One of the major causes of wrongful convictions is junk science.  In fact, one of the things we learned throughout the conference is that junk science is involved in just about every wrongful conviction.  To address this problem, we have to find a way to bring science and law together.  Unfortunately, many lawyers are unfamiliar with forensic science and terminology, and they do not want to be bothered with it.  As a result, they are ill-equipped to identify junk science. 

When Ms. Reno mentioned this, I couldn’t help thinking about the Scott Peterson case and the junk science used by Dr. Cheng and Dr. Devore.  The case hinged so much on the bodies washing up from where Scott fished, and on Conner being 33 weeks old, and junk science was used to establish both.

One way to address this problem would be to create an institute of forensic scientists who would be committed to this mission of bringing science and law together.  The role of this institute would be to see to it that science is being properly applied in court.  These scientists could analyze the methods being employed in court, and tell whether they are truly scientific.  For example, they could tell whether bite-mark matching or hair analysis is truly scientific.  They could tell if fingerprint matching is being done correctly.  At the same time, the institute could serve as a clearinghouse for new developments in forensic science.

The institute could also hire psychologists whose job would be to identify tunnel vision when it is happening.  Although Ms. Reno didn’t mention it, psychologists could also be used to analyze interrogations to determine whether a confession is reliable and voluntary.

The institute could work with prosecutors to prevent wrongful convictions.  Ms. Reno said that she was reticent about becoming a prosecutor for a number of years because she was so concerned about wrongful conviction, until she realized that prosecutors can be very significant factors in preventing wrongful conviction.  The institute could develop a checklist for prosecutors to sign off on.  This checklist could include various items pertaining to discovery issues, eyewitness issues, mental illness, and other information pertinent to each case.  Its purpose would be to create a perfect record and an easy reference to the case information and how each aspect was handled.  This would make it easy to identify problems with the way an investigation was conducted.

Many prosecutors have balked at this idea, mostly because they often have such heavy caseloads and already feel overwhelmed with the amount of paperwork they have.  However, Ms. Reno pointed out that prosecutors often write little notes sporadically through the file, and a checklist such as this would result in more organization and less work in the end, since the prosecutor or anyone else would be able to refer to one place each time he/she needs information, rather than having to search all through the file. And it does not have to lead to any additional work at all, if appropriate software can be developed to create an automated system for completing this checklist.

Other Specific Issues

Some of the issues fall outside the scope of such an institute.  One issue is incorrect eye-witness identification.  This is another leading cause of wrongful convictions.  The most important step that can be taken in preventing incorrect eye-witness identification is to employ a double-blind methodology for identifying the perpetrator in a police line-up. 

The most common current procedure is a line up of potential suspects for the victim or witness to choose from.  The witness then chooses  the one he or she believes to be the perpetrator, or says it is none of them.  In a double blind method, the officer doing the line-up does not know which person is the suspect.  This is called a blind administrator.  This prevents the possibility that the officer will inadvertently sway the witness towards a particular subject. 

In addition, in a double blind method, the subjects are shown to the witness one at a time, rather than all in a row.  He or she then indicates whether each one is or is not the suspect, on an individual basis.  This is important because when the subjects are lined up in a row, the witness is much more likely to identify the wrong person, because he or she will often choose the one that looks most similar to the perpetrator, whereas when the witness only sees the subjects one by one, he or she is more likely to judge on the basis of an exact match.

Another important issue, which needs to be remedied as soon as possible, is a lack of resources for defense attorneys.  Many states simply do not provide defense attorneys with the resources they need to put up a good defense, yet prosecutors have unlimited resources at their disposal.  This is very serious and must be remedied. 

Each case involving a wrongful conviction needs to be analyzed so that the cause can be properly determined.  We also need to differentiate between the cases in which the person was exonerated as a result of being proven innocent, or on the basis of a technicality.  This will make the statistics as accurate as possible.

In order for a jury to be properly educated, the people at large should be educated, as well as the lawyers, detectives, and prosecutors.  If the process is done correctly before it reaches a jury, the jury will be much more likely to reach the correct verdict.

Finally, the first thing we should do if we ever find ourselves the suspect in a criminal investigation, to protect ourselves from being wrongfully convicted, is to GET A LAWYER!