Friday, August 27, 2010

Convictions Talk, Reason Walks

One way to reduce the number of wrongful convictions is to reduce the number of convictions. We have 5% of the world's population and 25% of the world's prisoners. Assuming we could struggle by with  as many prioners per capita as the rest of the world, we could reduce our wrongful conviction numbers by 80%. Instead of having around 200,000 people wrongfully imprisoned, we would have "only" 40,000 people wrongfully imprisoned.

I don't claim to have all the solutions. I do, however, want to talk about the magnitude of the numbers. They are appalling and a national embarrassment. I also want to listen to what others have to say. Consider if you will, this 7 minute video by someone who has put some thought into the matter.

The Well-Orchestrated Trail and Execution of David Wayne Stoker

In my search for the 54 innocent people I calculate Texas has executed, I recently reviewed the case of David Wayne Stoker. Stoker was charged and tried for murder based almost exclusively on evidence and testimony provided by “low-life scum drug dealer” Cary Todd. I adopt Todd’s unofficial title of “low-life scum drug dealer” from the prosecutor’s description of him during trial.

Though the prosecution considered Cary Todd to be a “low-life scum drug dealer”, they nonetheless paid him with cash and time-off for his role in convicting David Wayne Stoker. The prosecution then lied to the jury about doing so.

Even though I have yet to describe the details of the case, I hope that you already have some doubt that David Wayne Stoker was guilty as charged, and some doubt as well that he was properly killed by the people of Texas.


During his six years as governor, George W. Bush presided over 152 executions. Regarding them he said: “I take every death penalty case seriously and review each case carefully ... Each case is major because each case is life or death.” He explained that for each case, he received a brief from his legal counsel and reviewed the arguments made by the prosecution and defense raising "any doubts or problems or questions.” He described his approach as “fail-safe.”

Below, I will describe Stoker’s case to you as it was described to then Governor Bush. Though Bush did not find the description provided to be inadequate, I do. I will therefore annotate freely.

Allow me to begin by presenting page 1 of the 3-page summary Bush received regarding the impending execution of David Wayne Stoker. As always, click on it to enlarge.


Right away, there are matters of interest to discuss. Note that the summary was prepared by Alberto R. Gonzales. For such fine work as this life-or-death summary, George Bush would later select Alberto Gonzales to be the Attorney General for all these United States. Gonzales served after John Ashcroft stepped down, resigned amid several controversies and allegations of perjury before Congress, and was replaced by Harriet Miers.

As Governor Bush's chief counsel, Gonzales reviewed all clemency requests. During Bush's six years in office, during the six years in which Bush's "fail-safe" plan was in effect, 152 people were executed by Texas while only one case was overturned.

Note now the date of the summary: June 16, 1997.

Note now the subject: Scheduled Execution of David Wayne Stoker #892 on Monday, June 16, 1997, at 6 P.M.

The Gonzales summary is dated on the same day as the execution. It gets worse though. Stephen Latimer, the person who represented Stoker in his clemency appeal, claimed he received a call from Gonzales' office about a week to ten days before the execution, advising him that there would be no reprieve. If that is correct, then the decision to go ahead with the execution was made a week to ten days before Bush could have possibly seen Gonzales' summary. It casts considerable doubt over Bush's claim that he carefully reviewed each case before execution. It's not likely Bush's "fail-safe" plan was either seriously implemented or particularly effective.


Time to move on to the details of the "BRIEF SUMMARY OF THE FACTS".
David Wayne Stoker was convicted of capital murder for the murder of 50-year-old convenience story clerk, David Manrrique, while in the course of committing a robbery. Stoker was convicted on October 26, 1987, and sentenced to death the next day in the 242nd Judicial District Court of Hale County.
So far, so good.
On November 9, 1986, sometime between approximately 5:30 a.m. and 5:50 a.m., Mr. Manrrique was shot on the top of his head and twice in the chest with a .22 caliber Ruger.
Actually, the victim was shot once in the head and twice in the back. It's a minor quibble. Let's proceed.
When Ms. Gracie Sanchez, the assistant manager, arrived at approximately 5:50 a.m., she noticed customers waiting to be served. Ms. Sanchez went into the store and found both cash registers opened with $96.00 missing. Ms. Sanchez also noticed the back door was left open and found Mr. Manrrique's body lying face down in a pool of blood.
Another quibble. Gracie Sanchez noticed the cash register drawers were opened, but did not determine that $96 were missing. Instead, she called the store manager. The manager audited the receipts and estimated that $96 had been taken.
Ms. Sanchez immediately called both the police and her store manager to report what she had discovered. Medical personnel arrived on the scene quickly and administered first aid when they discovered that Mr. Manrrique was still alive, albeit with a very weak pulse. Mr. Manrrique was rushed to the hospital. After several efforts to resuscitate him failed, he was pronounced dead at 7:08 a.m., approximately one hour after receiving emergency medical attention. According to the autopsy, his death was the result of multiple gunshot wounds. Police records reflect there were no fingerprints at the scene. Only three spent shell casings were found on the premises.
Close enough. I think Gonzales should have mentioned that two bullets were retrieved from the body, but I'll not press that point.
According to trial testimony, twenty-seven-year-old David Wayne Stoker admitted to at least two people that he had killed the clerk at the convenience store.
Now I have a problem with Gonzales' summary. While it's true that two people did testify at trial that Stoker confessed to them, the witnesses and testimony were of dubious quality. Consider first Debbie Thompson.

While it's easy to cast aspersions, during my research I saw Debbie Thompson referred to as someone who would trade sex for methamphetamine. More specifically, I saw her described as a "methamphetamine whore." Perhaps it was only coincidence that at the time of her trial testimony, Debbie was living with a methamphetamine pusher, Cary Todd. That must have been a bit awkward for the prosecution since Cary Todd was the person most likely to have shot and killed David Manrrique.

Debbie's living arrangement was also awkward since she was at that time married to another man. In fact, she was married to Ronnie Thompson, the other person to whom Stoker allegedly confessed. Ronnie now claims that Stoker never confessed to him, that he signed a statement written by wife Debbie only because she told him that David Wayne Stoker had raped her. By the time of the trial, Ronnie no longer believed his beloved to be truthful, perhaps because she had shacked up with “low-life scum drug dealer” Cary Todd. When he tried to recant just before providing his testimony, the prosecutor threatened him with perjury based on his earlier statements. From Ronnie's perspective, the only way to avoid being convicted of perjury was to commit perjury.

I suggest these issues reflecting on the credibility of two crucial witnesses should have been mentioned in Gonzales' summary memo to George Bush, else the "fail-safe" system might fail.
However, Stoker maintains his innocence and argues that, with the choice of weapons in his possession, he would never have used an old and unreliable weapon if he were planning to murder someone.
Hahahaha! Nice job summarizing Stoker's defense. Only in Gonzales' summary did I ever see anyone offer this defense. It is merely a case of damning with faint inculpatory praise.
Stoker readily admits to drug use and sales, but disputes that those who testified against him were credible witnesses.
Perhaps Gonzales could have discussed here the nature of Debbie Thompson's conflict of interest and Ronnie Thompson's claim his testimony was coerced by the state. Perhaps that would have resulted in a more balanced summary than simply stating that Stoker "disputes" their testimony.
The prosecution's main witness was a police informant who purchased drugs from Stoker.
Gonzales elected to refer to Cary Todd merely as a "police informant" rather than as a "low-life scum drug pusher," as did the prosecution. Gonzales also failed to mention that Todd was the person who provided the murder weapon to the police. The .22 caliber Ruger Todd provided was consistent with the two bullets removed from the body, and was the weapon that fired the three shell casings found beside the body. Todd explained, however, that he had been given the gun by Stoker.
That purchase provided evidence that resulted in a thirty-year sentence for delivery of methamphetamines which he [Todd] is serving concurrently with his present incarceration.
Gonzales would have the reader believe that Cary Todd voluntarily walked into a police station, gave them a murder weapon, explained that he had the murder weapon only because the real killer had given it to him, confessed that he knew the murderer only because he bought large quantities of meth from him, and was then shocked to receive a 33-year sentence for his good-Samaritan effort.

A astute reader might note also that the sentence was being served concurrently, not consecutively. In other words, the sentence added no additional time to his confinement. What the reader can't possibly know, based only upon the writing of Alberto Gonzales, is that Cary Todd had drug and weapons charges dropped against him in another jurisdiction on the same day he testified, but only after he testified. The jury was unaware of this tit-for-tat because prosecution witnesses swore under oath it never happened and proof of the deal was found only after Stoker's conviction.

The jury was unaware also that Cary Todd was awarded $1000 for assisting the police, given as part of the crime-stoppers program. The prosecution witnesses lied about this fact as well. And, by the way, Debbie Thompson claimed half of the $1000 reward for corroborating the claims of the man she was sleeping with in exchange for meth.

Even though Gonzales made it sound as if Cary Todd should be believed because he was doing hard time, Cary Todd in fact managed to avoid a capital murder charge, to have drug and weapons charges dropped in another jurisdiction, to receive no incremental time for the drug charges in the local jurisdiction, and to be rewarded $1000 in crime-stoppers money, simply for being the primary witness against David Stoker, who could not otherwise be tied to the crime. Good one, Alberto.
One court opinion states that the evidence is solely circumstantial.
In fact, one federal appellate judge concluded that Todd was just as likely the murderer.
Nonetheless, experts did determine that the .22 Ruger admitted into evidence, seen in Stoker's possession by his own bother within the weeks following the murder, was actually the murder weapon.
This was the closing line in Alberto's "brief summary of the facts", and it was a doozie. Two people actually testified they saw Stoker with the weapon sometime after the murder. One was in fact Stoker's brother, Danny Stoker to be precise. Danny Stoker testified his brother only had the gun because Cary Todd had given it to him, asking him to fix the trigger.

Wayne Reed also testified he saw Stoker with the gun after the shooting. Wayne testified further that Cary Todd told him he had "set [Stoker] up to take the big fall."

On the other hand, two witnesses (presumably Danny Stoker and Wayne Reed) testified they saw Cary Todd with the gun just before the shooting.

So there you have it: Alberto's Gonzales' "brief summary of the facts" annotated with my more extensive summary of the facts. You can decide for yourself which would be more valuable to an allegedly "fail-safe" system preventing innocent people from execution.

I have prepared an Actual Innocence Scorecard for David Wayne Stoker. I score him at 73. I think its more likely that he did not kill David Manrrique than he did. Where most others are certain, one way or another, I claim only a probability based on imperfect knowledge. Of this much, however, I am confident: the totality of the evidence in this case, not just that presented to the jury, did not merit a guilty verdict for capital murder.

Wednesday, August 25, 2010

On The Rate of Wrongful Conviction: Chapter 9.5

As I have mentioned 11 times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda Number
Chapter 1.9: The Judge Number
Chapter 2.3: The Gross Number
Chapter 3.3: The Risinger Number
Chapter 5.4: The Defense Number
Chapter 8.4: A Skeptical Juror Number

This post presents my estimate for the wrongful conviction rate associated with  those who have plea-bargained their way behind bars. Because plea bargains account for 94% of all convictions, and because no other estimate attempts to quantify the wrongful rate of plea bargains, this chapter is important to anyone attempting to understand our overall wrongful conviction rate.

Chapter 9.5
The Inmate Number

There is one segment of our society that, as a group, actually knows our country’s rate of wrongful convictions. That segment consists of the 2.5 million people we have behind bars. We may find them to be the most disreputable segment of our society, but perhaps we might learn something if we bothered to ask them.

In 1978 and ’79, the RAND Corporation bothered to ask. They surveyed 2190 jail and prison inmates from California, Michigan, and Texas. Participation was voluntary and conducted independently of jail and prison officials. Each participating inmate filled out an extensive questionnaire requiring approximately 50 minutes to complete. They were paid $5 for their participation. They answered questions regarding their demographics, current conviction, and criminal history. Though the surveys were intended to collect data on career criminals for policy review and recommendations, two questions from the questionnaire are useful for those attempting to calculate wrongful conviction rates.
"What charge(s) were you convicted of that you are serving time for now? (Check all that apply)"

“For these convictions, what crimes, if any, do you think you really did? (Check all that apply)."
Each question was followed by a list of 15 offenses and an “Other” option. Significantly, the last question included a “Did no crime” option. Those who truthfully selected that option claim to have been wrongfully convicted.

Tony Poveda, whom you may remember from “Chapter 1.4: The Poveda Number”, summarized the results for the prisoners surveyed, but not for the jail inmates. I present his tabular summary below.

The numbers are revealing in several regards. First, they immediately contradict the myth that, based on claims of inmates, there are no guilty people in prison. Most inmates readily acknowledge their guilt. Almost 95% of those convicted of drug possession concede they were properly convicted.

The second revelation is that the inmate claims of innocence are heavily dependent on the nature of the crimes. While 90% of those convicted of burglary concede their guilt, only 62% of those accused of rape do so.

The third revelation is that the inmate number for wrongful conviction far exceeds those guessed at by police, prosecutors, judges, and defense attorneys. The inmate number substantially exceeds those numbers calculated by those who divide exonerations by convictions. For the astute among you, however, for those of you who pay attention to chapter numbering, the inmate number is lower than four estimates to follow.

The salient question is whether the inmates responded truthfully and accurately. Most people will automatically assume the inmates were not truthful. While society accepted without question their guilty pleas, since 94% of them were convicted based on plea bargains, society is loath to believe their claims of innocence. The societal assumptions, however, are based on nothing more than bias and an unquestioned sense of omniscience. No evidence or analysis is brought forth to explain or defend the different standards for accepting claims of guilt and innocence.

Those who conducted the inmate survey, however, applied precautions common to professional pollsters. Whether conducting presidential tracking polls, taking a census of the entire U.S. population, evaluating customer opinion of a new razor, or asking inmates if they are in fact guilty, professional pollsters use multiple techniques to determine whether or not they are being given reliable data.

One technique for detecting untruthful and inaccurate answers is asking for essentially the same information in different fashions at different points in the questionnaire. Another is to re-interview the same group of people at a later date, to see if they are persistent in their responses. The RAND folks applied both techniques during their inmate survey. They also cross-checked the inmate responses, where possible, against prison records.

After assessing the accuracy of the inmates’ response, the researchers concluded that “83 percent of respondents tracked the questionnaire with a high degree of accuracy and completeness, and were very consistent in their answers.” Also, though the researchers expected the inmates to suppress unfavorable information, they discovered just the opposite: “We found evidence that respondents usually reveal more arrests and convictions in questionnaires or interviews than can be found in official records.”

One explanation for the inmate accuracy, at least as assessed by the researchers, is that the inmates are being truthful for pragmatic rather than lofty reasons. Most inmates are eligible for parole, and I presume most inmates prefer to be released early rather than serve their full term. Maintaining innocence is a pretty good way to insure that you won’t be paroled.

Parole boards consider complete acceptance of responsibility to be a critical issue in rehabilitation. In their belief regarding the power and necessity of confession, parole boards think in the same fashion as many religions, as Alcoholics Anonymous, and as many psychologists. Those who deny their guilt are unrepentant, uncured, and likely to repeat their crimes.

Tom Hutchinson, spokesman for the U.S. Parole Commission, explains that an expression of remorse is a requirement for parole. "It gets dicey when a person expresses innocence -- you can't accept responsibility for it when it's something you say you never did."

Calvin Johnson was convicted of rape by the people of Georgia. In his book Exit To Freedom, he writes:
I am innocent. I have filed appeals at every level, and as always I am denied. The parole board sends smiling representatives who give me hope, but during my hearings they ask me over and over again, "What can you tell us about the crime?" Each time I go up, I am denied parole, and rather than shortening the period between hearings, they lengthen it. Everyone urges me to join the Sex Offenders Program, but membership requires a detailed admission of my crimes.
After 16 years in prison, Calvin Johnson became the first man in Georgia freed by DNA evidence.

Arthur Whitfield, convicted of rape by the people of Virginia, was denied parole 14 times during his 23-year incarceration. He was eventually freed after DNA testing conclusively excluded him as the rapist.

Kevin Green, convicted by the people of California for the murder of his unborn child, was denied parole 4 times, in part because he would not admit his guilt. He was eventually freed after DNA proved another man beat Kevin’s wife so severely that she prematurely delivered a nearly-full-term, stillborn child.

Thomas Doswell, convicted of rape by the people of Pennsylvania, was denied parole 4 times over 18 years, in part because he would not admit his guilt. He was eventually freed after DNA testing conclusively excluded him as the rapist. Doswell, incidentally, was picked from a photo lineup by two witnesses after the Pittsburgh police added the letter “R” for “rapist” to the bottom of his photo.

Inmates absolutely understand the risk of maintaining their innocence. Though the results were officially confidential, each questionnaire included an identifier to allow RAND to conduct follow-up surveys by matching the inmate to the identifier. I doubt many inmates who declared themselves innocent on the survey shared that claim with the parole board. I wonder if some inmates refused to declare themselves innocent for fear that the parole board would learn of the specific results.

Not only did the confidential nature of the survey remove the penalty for declaring innocence, it also removed any substantive benefit for doing so. If the confidentiality were maintained, no penalty or benefit would accrue from denying guilt. The confidential nature of the survey seems to be a necessary, if not a sufficient condition for truthful results.

Further evidence that inmates’ self-reports are accurate will be presented in several of the remaining four chapters. For now, we need to look more closely at the results.

I re-categorized the inmate data slightly, to allow comparison with later estimates, and I weighted the results by total state-court convictions for year 2000. I present the results below.

The number at the lower right, 9.5%, is the wrongful conviction rate based on prisoner self-reported claims of actual innocence. Assuming the inmate self-reports to be accurate, that number properly accounts for the range of crimes shown. It also accounts for the type of conviction, whether it be by jury trial, bench trial, or plea bargain.

Assuming results from California, Texas, and Michigan can be extrapolated to other states, the 9.5% number is the most comprehensive, all-inclusive number discussed to so far. If it is correct, one need only multiply it by the total number of people incarcerated to obtain an accurate accounting of all people wrongfully behind bars in our country.

No other number discussed so far, and no other number remaining to be discussed, provides a quantitative assessment of the wrongful conviction rate for those who plea-bargained their way behind bars. Since 94% of those behind bars are there as a result of a plea bargain, as shown in the table above, any number not accounting for wrongful guilty pleas cannot properly be applied to our entire prison and jail population.

Assuming that 9.5% number is applicable to the 2.5 million people we now have incarcerated, it means we are now holding 237,500 of our fellow Americans behind bars, despite their innocence.

The title of the post and the draft chapter number has been adjusted to reflect my most current calculation of a 9.5% wrongful conviction rate based on inmate self-reporting.

Tuesday, August 24, 2010

Eating Dogs and Bargaining Pleas

In the movie Hombre, Paul Newman played John Russell, a man raised by Apaches. Because of his blue eyes and fair skin, his fellow stagecoach travelers were unaware and naturally insensitive to his Apache upbringing. They talked of Apaches, and of Apaches eating dogs. Audra Favor, the prim and proper wife of an unscrupulous Indian agent, made her disdain known through grimace and words.
Audra Favor: I can't imagine eating a dog and not thinking anything of it.
John Russell: You even been hungry, lady? Not just ready for supper. Hungry enough so that your belly swells?
Audra Favor: I wouldn't care how hungry I got. I know I wouldn't eat one of those camp dogs.
John Russell: You'd eat it. You'd fight for the bones, too.
For those of you convinced you would never plead guilty to a crime you didn’t commit, I suggest you reconsider. Not only might you plead guilty, you might figuratively fight for the bones.

Assume for the remainder of this post that you are under arrest for armed robbery of a bank. Assume also, if you wish, that you are innocent. That last assumption will have virtually no impact on the outcome, other than to increase your sense of injustice and increase the time you may spend in prison. But assume you are innocent.

Assume also I’m your court appointed attorney. I’ll help you through this best I can. I concede I don’t know too much about your case, and that we haven’t talked except that one time just before your arraignment, but I hope you’ll cut me some slack; I have 149 other cases also demanding my attention.

I realize you’ve been in jail for a few weeks now, five to be accurate, and you want out. I’m trying to make that happen. I submitted a motion to have your bail reduced, but it was denied. It’s still at $200,000. If you can’t somehow come up with the $24,000 non-refundable fee to the bail bondsman, you’ll simply have to wait it out here. Sorry.

If you insist on going to trial, and that is certainly your right, the trial might not occur for a while. Yes, you have a right to a speedy trial, but the courts have been rather generous in their interpretation of the Sixth Amendment. The definition of a speedy trial varies from state-to-state, but here the trial must begin within 180 days of the arraignment. So I guess we’re looking at four or five months, unless we agree to a postponement, and there are reasons we might want to do that. Did I mention that I have another 149 cases demanding my attention?

So what’s going to happen now is the DA is going to come in and talk to you about the possibility of avoiding the trial completely by pleading guilty. We’ll try to get the best deal she has to offer, then you can decide whether or not you want to plead guilty for a substantial reduction in sentence.  I’ll be right here, sitting close by, and I’ll quietly explain to you what’s going on. We won’t be recorded, and she won’t be able to hear us speak to one another if we keep our voices down. So let’s get this show on the road.

DA: You’ve been charged with violation of USC 2113(a). Given that you have no criminal record, that carries a base sentence of 33 to 41 months. Since you used a gun, even though no shots were fired and no one was hurt, that bumps the range up to 78 to 97 months. Those numbers are based on the federal sentencing guidelines, and there’s not much I can do about them. I'm going to be honest with you. If we go to trial, I’ll be asking for the maximum, but it will be up the judge to make the final decision on that. I assure you, though, they tend to sentence near the upper limit. So let’s just say you’re looking at 97 months if you go to trial. That’s eight years.

You: But I didn’t do anything.

DA: The evidence says otherwise.

You: What evidence?

DA: That’s not what I’m here to discuss.

Me: If we go to trial, they’ll have to provide us all the evidence they have beforehand. We call that discovery. But they have no legal obligation to provide any discovery material before discussing a plea bargain. I know it doesn’t sound fair, but that’s the way the system works. Even if she tells you about evidence they may have, she doesn’t have to be truthful. The courts have ruled that she can lie about the evidence she has in order to secure a confession. That’s what’s going on here. They want you to confess to robbing the bank, and if you do so, they’ll give you a break.

You: But I didn’t rob the bank. I keep telling you that.

Me: It doesn’t matter what I think. What matters is whether we can convince a jury. Conviction rates for robbery cases are around 75%. Keep in mind that you have no alibi, so I wouldn’t put too much stock in the jury voting to acquit.

You: But I’m innocent!

DA: Here’s what I’m offering. If you plead guilty to robbery, we’ll forget that it was a bank and ask the judge to give you the minimum. That will cut the sentence down to 63 months. That’s almost three years off. With time off for good behaviour, you could be out in half that, say 32 months.

You: I don’t care. I want a trial. I want a jury to hear my side of the story. I’ll never confess to a crime I didn’t commit. Never!

DA: Counselor, have you explained the facts of life to your client?

Me: There are several problems with proclaiming your innocence. First if you take the stand to proclaim your innocence to the jury, the DA can use your criminal past to impeach your testimony. You don’t have a record so that is no concern here, though it is for most my clients.

You: I’m not like all your other clients. I’m innocent.

Me. Yes, yes. I understand. Consider this: if you testify and are found guilty, the judge can increase your sentence on the assumption that you perjured yourself based solely on the jury’s guilty verdict. None of them believed you, so you must have been lying. Like it or not, that’s not only allowed, it’s called for explicitly in the sentencing guidelines. It’s considered an obstruction of justice enhancement to the sentence, and they frequently apply it. In this case, that would add 24 months to the maximum she was talking about. That would mean you’re looking at 121 months, more than ten years. If we go to trial, and that is completely up to you, I will advise that you not testify for several reasons, not the least of which is the sentencing enhancement.

You: But that’s not fair. I have a constitutional right to testify.

Me: Yes you do, but she has a congressional act that tells her the judge can add to the sentence just as I described, and she’s experienced enough to know it happens frequently. This has nothing to do with fairness or innocence, or truth or fact. This is our justice system. You are bargaining from a weak position. The only thing you have to trade are your constitutional protections, such as they are.

You: That’s not right. I’m innocent. I didn’t do it. I’m not going to confess to a crime I didn’t commit, ever.

Me: That brings up the third point you need to know. If you are found guilty and you refuse to convincingly acknowledge your guilt while in prison, it is extremely unlikely you will be paroled. They will deem you to be unrepentant and not rehabilitated. You will serve the full time.

You: But that’s not fair!

DA: Let me see if I can make your decision easier. If you elect to go to trial, and that is of course your constitutional right, I feel I’ll have no choice other than to show that you, not your accomplice, who by the way is being much more cooperative, that you played an aggravating role in the robbery, that you were the primary planner and leader. I’ll also prove to the jury that your actions had the effect of physically restraining the bank employees and clientele. Assuming I’m successful, and in this case I’m confident I will be, especially after my discussions with your accomplice, those two enhancements will add 24 and 30 months, respectively. That will bring your total to 151 months, assuming no enhancement for perjuring yourself on the stand. That’s twelve and a half years, assuming no perjury enhancement. And unless you’re later willing to admit your guilt, you’ll probably serve the full sentence. I’m sure counsel has explained that to you.

You: But I’m innocent!

DA: Did I mention your accomplice is willing to testify against you if I set him free right now? That doesn’t seem like the kind of thing a friend would do, but you know people. Don’t worry, though. I’m not going to let him out without serving some time, a few months at least.

You: Can she do that? Can she let someone off for testifying against someone else? Isn’t that like bribery? Wouldn’t it be like her paying him for his testimony?

Me: The courts don’t see it that way. As long as she has some evidence to corroborate his testimony, and it doesn’t take much, then she can trade sentencing for testimony as she wishes.

You: But that’s not right!

DA: Now, on the other hand, if you’ll plead guilty here, right now, before I leave this room, I’ll be willing to reduce the charge to simple robbery. We’ll forget the fact that it was a bank, that you used a gun, that you were the leader, and that you restrained people during the commission of a felony. I’ll also ask the judge to give you the minimum. That means you’re looking at 33 months, you’ll be out in 16 months. Take it or leave it. I don’t care one way or the other.

Me: Trust me, she cares. She wants a conviction and she wants it easy. She has only so much time in a year, and any one trial can consume a substantial portion of that time. She wants a conviction so badly, she’ll plead out 95% of her cases this year, just as she did last year, and just as she will next year. It’s one of the few advantages you have, knowing how badly she wants you to plead. Hang out a little longer, she’ll sweeten the pot a little more.

You: But I’m innocent!

DA: And if you plead guilty, the sentencing guidelines call for another 6 month reduction. That’s almost automatic. I can also make a motion to the judge that you be granted an additional further reduction for assisting this investigation by notifying us on a timely basis that you intend to plead guilty. And I’ll do that for you. I’ll make that motion, but only if you decide in a timely fashion, like now, like before I leave. That will reduce the sentence to 24 months. You’ll be out in 12 months, one year instead of twelve and a half. It’s the best I can do.

You: I don’t know what to do.

Me: Take the deal.

You: But that’s a year for a crime I didn’t commit. If I go to trial, they might free me. You think they will believe me?

Me: Odds are if you go to trial, you’ll go to prison. Seventy-five percent chance. I’ll try my best, but I can’t promise anything. Did I mention I have 149 other cases?

You: I don’t know what to do.

DA: This might not be a good time, but I should let your counsel know I plan to ask for a six-month continuance. He thinks he has a heavy workload, but he should see my desk. I’m sure the judge will understand that there’s only so much we can do with the staff they give us, and I know the judge’s docket is pretty packed anyway, so we’ll just have to see how that goes. The point is, I guess, that if you plead guilty, you could be walking free before your trial would otherwise start.

You: I don’t know what to do.

DA: Did I mention that if you go to trial and are convicted, you also face a $75,000 fine?

Thursday, August 19, 2010

Cory Maye Now In Print

The Skeptical Juror and The Trial of Cory Maye is now available from Amazon in print format as well as Kindle format.

I am unabashedly proud of this book. It presents as an alternate scenario the possibility that the police conspired to convict a factually innocent man of capital murder via false testimony.

As the story is woven between a fictional jury deliberation of the case and the actual trial testimony, the book provides readers the opportunity to see if they can detect the tell-tale fudges, obfuscations, and outright falsehoods in the testimony before the testimony is deliberated by the fictional jury.

After all the actual trial testimony is deliberated by the fictional jury, read on to see how The Skeptical Juror pieced together the events that led up to the tragic shooting of Officer Ronald Jones and wrongful death sentence imposed on Cory Maye.

If you should purchase and read this book, we would appreciate your honest comments on Amazon.

Wednesday, August 18, 2010

The War on Ephemera and Cardboard Furnishings

I think Byron Case is wrongfully convicted. The State of Missouri believes otherwise. They believe his case is resolved. I believe otherwise. In the near term at least, probably even the medium term, they will prevail. Beyond that, we'll just have to see.

In the meantime, Byron occasionally breaks free of his mental confinement by writing. He has his own blog, The Pariah's Syntax, subtitled Unbound Notes From An Innocent Man. His posts are understandably infrequent, given that he has no access to a computer. He must relay his work through parties on the other side of the proudly lethal electric fence that surrounds the Crossroads Correctional Institute.

If you wish to get a sense of life in prison from someone lucid and inside, you could do worse than visit his site every now and then. It's not about overt brutalization. It's more about a mundane loss of freedom, one in which prisoner control is more important than cruelty or kindness.

On ocassion, I will reproduce one of Byron's posts here as a reminder to myself of work to be done. Now is a particularly good time for me to do so, to rely on Byron's writing, since I am remiss in my own. (It seems my plan to calculate wrongful conviction rates based on judge-jury agreement data has become consuming.) To buy myself some time, I now present another behind-the-bars essay penciled by Byron Case.This one is titled ... 

On one side you find the prison guards. Their job is to ensure the safety and security of the institution by enforcing policy. On the opposite side are the inmates, whose efforts at living in relative comfort while serving their sentences are frequently at odds with those policies. The struggle is endless; the battles are a never-ending back-and-forth.

The guards perform routine random cell searches, with every inmate here at Crossroads guaranteed a minimum of two chances to have their footlockers and loose property rifled through — once by the day shift, once by the evening. Depending on the guards' moods, the search experience can be measured on a scale that runs from relief, as when it's brief and nothing's left horribly out of place, and a nightmare, as when the guards leave the place looking like they turned it upside-down and shook it. Certain guards are notorious for preferring the invert-and-agitate method. They are not exactly liked.

It's the "nuisance contraband" that is most often found and confiscated in these random searches: empty cracker boxes, excess newspapers, improvised ashtrays. Last week, a huge poster of a basketball player was pulled down from a neighbor's wall; the week before, someone was forced to part with an empty 5-gallon sealing compound bucket. From some cells come more impressive items, often handmade.

One man in my wing is a craft-master. He makes hardcover address books, rocking-chair picture frames, and dreamcatchers, among other things. The dreamcatchers are his most popular creation, which he makes from the thread of clothing scraps and what I suspect are melted plastic coathangers. His methods are proprietary. The results look like something you'd be able to buy from a catalog. Naturally, the guards know what he's up to and visit him frequently, big plastic trash bag in hand. No matter how many times they take his supplies and half-finished projects, he does not abandon his hobby. It's hard not to admire that dedication a little.

Across from me there used to reside a waifish slip of a man who welcomed the occasional, ahem, gentlemen caller into his cell. "Melissa," he called himself. Asked to step out for a search of his cell one afternoon, he waited patiently while two guards picked through his things. No more than a few minutes later, one of the two came out with a wad of something fuschia in his gloved hand, which he tossed into the trash bag. Melissa lost it. Whatever they'd taken was obviously a prized possession, something he cared enough about to face off with the guards over. "Nuh-uh," he shouted again and again. "That's mine." Heads turned; the commotion was impossible to ignore. He stood arguing with them for over twenty minutes, apparently never able to finagle the return of the confiscated item. It was several hours later when I overheard what the fuss had been about: the guards had taken his last pair of thong underwear.

Being no angel, I've certainly had my share of things confiscated; though, nothing so precious as a handcrafted object nor salacious as a pair of exotic smallclothes. For awhile, cardboard, wood glue, and paint were easily gotten, and I availed myself of that fact. With enough of these three components I could build small shelving units and miniature cabinets — some with cutout designs in the doors — that looked like they might've been part of the actual design of the place, to the untrained eye. Space being at a premium here, a cubby in which to store cassette tapes or toiletries came in handy. Best of all, the guards didn't seem to care these constructs were contraband made out of illicitly obtained supplies; they left them alone. Some were able to keep their shelves for a couple of years. Then, all at once, they disappeared, a sudden adherence to the letter of policy enacted. The sources for the supplies vanished at around the same time. No one I know has dared dabble in cardboard carpentry since.

A few other things I've lost in searches, some of which I was sorry to lose:
  • One three-dimensional paper Mini Cooper (yellow)
  • One decorative wax paper votive shade (German street carnival scene)
  • Seven wire twist-ties (black)
  • Two highlighter markers (one yellow, one blue)
  • Two packages ramen soup (beef flavor) that were later returned with an apology
  • Five decorative pencils cups (made from oatmeal canisters)
  • My expectations of personal privacy

Monday, August 16, 2010

Update on The Despicable Claude Jones

You may recall my post about The Despicable Claude Jones. He was certainly despicable, and he was absolutely executed, but he may have been innocent of the crime for which he was mainlined.

Despicable Jones was charged with killing a convenience store employee during a robbery. He was convicted based on the testimony of Timothy Jordan, Danny Dixon, and a 1" hair segment.

Timothy Jordan turned out to be the owner of the murder weapon. He also sold his testimony to Texas for time off. He later recanted his testimony. "I took a deal because I was scared, and I testified as to what they told me to say." Well that and the time off.

Danny Dixon is the only one of the three who admitted to being there. He was the one who threw the murder weapon in the Trinity River and helped the police find it there. He didn't get time off so much as more time to breathe. Instead of being needled for capital murder, he was sentenced to 60 years.

That leaves the 1" hair segment. Police found it on the scene. At first, the 1"-hair-segment experts said it was too small to test, but later decided it was just fine. They swore under oath that the 1" hair segment matched Mr. Despicable but neither of the other two sweethearts who were pointing the finger at Jones.

We'll see.

It turns out Texas made the mistake of not destroying the evidence immediately. That 1" hair segment has surfaced and a judge has declared that Texas must allow it to be tested for DNA matching with Jones, Dixon, Jordan, and gosh knows who else. If that 1" hair segment doesn't belong to Despicable, then it's clear he was wrongfully convicted on the basis of alleged accomplice testimony only. (That's not allowed in Texas. That's why they usually buy testimony from two or more snitches, or change their mind about the viability of a 1" hair sample as evidence.)

A failure to DNA match the 1" hair segment to Despicable Jones also leaves open the distinct possibility of  him being factually innocent of this specific crime for which he was plunged. It's possible he was never there, just as he claimed.

Texas, of course, tried to stop the hair from being tested. They did so to save money, or put the case to rest, or for the kids, or to end world hunger, or because it's just what they do and they can't help themselves anymore.

Now we just get to wait for the test results to see if Texas juiced Claude Jones for the wrong crime. I make my prediction right here and now: no DNA match.

If Texas thought the 1" hair sample matched Jones before trial, they would never have hesitated to use it against him. They had to look long and hard at that sample, under just the right light, with their tongue twisted 30 degrees clockwise, before they said "Yeah, I see it, kinda for sure. It's a match."

So that there is not confusion, I repeat my prediction.  No DNA match.

Thursday, August 12, 2010

What's Up With Johnny Frank Garrett?

This blog has experienced an unusually large amount of traffic lately, mostly due to people clicking on the link I placed in the Wikipedia article on Johnny Frank Garrett. The link has been there a while. The interest is more recent.

While certainly pleased by the increased traffic, I'm puzzled by the sudden interest in Johnny Frank. For a while, I assumed it was because few people could resist checking out any post that had "and Bubbles the Clairvoyant" in the title. I've since dismissed that brilliant title as the cause of the increased traffic.

It now occurs to me that people are becoming interested in Johnny Frank's case because of the hearing Judge Fine will hold regarding the constitutionality of the Texas death penalty. He is likely to declare the Texas death penalty law unconstitutional if the defense can satisfy him that Texas has already executed innocent people. I couple that with the fact that, so far, I have scored Johnny Frank Garret as more likely to be innocent than any other person I have scored. As a reminder, I present the complete list below.

Charles Anthony Boyd, 1 

By my decimal accounting, that is 8 innocent people executed by Texas. I still have a long way to go in my search for the 54, but 8 innocent people executed is already a disturbing number. But back to the mystery of the Johnny Frank Garrett traffic.

I decided that, if my Judge Fine hypothesis is correct, most of the traffic will be coming from Texas. I check and find that Texans are responsible for 11% of the page views. While that's a disproportionately large percentage from Texas, the fine folks from Illinois are responsible for a whopping 17%. That means more than a quarter of the traffic on this blog has been originating recently from either Texas or Illinois. While that is interesting, it doesn't confirm or disprove my Judge Fine hypothesis.

I then checked the traffic for the other people I have scored most likely to be factually innocent but dead at the end of a Texas needle. While there was some modest foot traffic for Robert Nelson Drew, there was none to speak of for David Wayne Spence or Carlos DeLuna.

When I couple all that with the fact that Judge Fine's hearing is still 3 months away, I conclude that my Judge Fine hypothesis is unlikely to be correct.

So, if it's not the clever title, and it's not Judge Fine's hearing, what is it that is causing the recent Johnny Frank Garrett traffic on this site. Perhaps some of those readers who have been visiting to read about Garrett will post a comment so that this tangled mystery may be solved.

Monday, August 9, 2010

On The Rate of Wrongful Conviction: Chapter 5.4

As I have mentioned eight times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda Number
Chapter 1.9: The Judge Number
Chapter 2.3: The Gross Number
Chapter 3.3: The Risinger Number

This post will be the last based on the Ramsey survey, the last based on a guess. After this post, we will move beyond those who survey and those who divide exonerations by convictions. Beginning with the next chapter, we will move into the more interesting world of judge-jury agreement.

Chapter 5.4
The Defense Number

The Ramsey Ohio survey study introduced in Chapter 0.8 was so comprehensive that it allows me to determine four separate wrongful conviction estimates: one each for prosecutors, police, judges, and defense attorneys. The prosecutors were the most conservative in their estimate, guessing that the wrongful conviction rate for the country is 0.8%.  The police were the next more conservative group, guessing that the wrongful conviction rate for the country is 1.3%. Then came the judges at 1.9%. Now it’s time to look at the defense attorneys.

Ramsey received responses from 216 defense attorneys. Their responses are categorized below.

Actually, 17 of the 22 public defenders I recorded in the 21% - 25% category estimated the rate was greater than 25%. I included them in the 21% - 25% category purely for convenience in plotting the results. It will cause the result to be slightly conservative, slightly low.

I'll define the Defense Number for the wrongful conviction rate in the same manner I defined the Prosecutor, Police, and Judge Numbers: I’ll determine the median guess at the wrongful conviction rate using a plot. That plot is presented below. Based on the plot, I claim the single best number to represent the wrongful conviction rate estimated by the Ohio private and public defense attorneys responding to the Ramsey survey is 5.4%.

Consider the significance of the Defense Number. If it is applicable to all 2.5 million people we have incarcerated, it suggests that even defense attorneys believe we have 125,000 people wrongfully incarcerated in this country today. As it turns out, the defense attorneys will have guessed more accurately than any of the other groups surveyed by Ramsey.


As mentioned in the earlier chapter dealing with the Ramsey survey, I noted that Ramsey was clever enough to ask for separate guesses of the wrongful conviction rate: one for the country as a whole and one for the respondent’s jurisdiction. It’s interesting to compare the two.

For the defense attorneys, the national median guess was 5.4%, as just reported. For that same group of attorneys, the median guess for their jurisdiction was 4.1%. On average, the defense attorneys believed the wrongful conviction rate in their jurisdiction was somewhat more than 75% that of the national average. This makes the defense attorneys the least delusion of the four groups, at least when considering the wrongful conviction rate in their jurisdiction relative to the nation as a whole.

For comparison, the numbers for the judges are 1.9% and 0.56%; that ratio is slightly less than 30%. The numbers for police are 1.3% and 0.2%; that ratio is slightly more than 15%. The numbers for prosecutors are 0.8% and 0.2%; that ratio is exactly 25%.


Ramsey was also clever enough to ask his respondents their opinion of an acceptable wrongful conviction rate. Slightly more than half the judges and police felt the acceptable rate was zero. Slightly fewer than half the prosecutors felt the acceptable rate was zero. Fifty-two percent of the defense attorneys thought the acceptable rate was zero. With respect to this median value, the four groups are in agreement.

Good for all of them. While no one is arguing a zero rate is achievable, it’s good that half of all police, prosecutors, and judges feel a wrongful conviction is an unacceptable circumstance. Perhaps they would be willing to help free some of the 20 to 125 thousand people they believe are now wrongfully imprisoned.

At the other extreme, one prosecutor, four judges and five defense attorneys thought 5% would be an acceptable wrongful conviction rate.

Three police respondents also thought 5% was an acceptably-low wrongful conviction rate. Four police respondents thought 10% would be acceptable. Two of them thought 15% would be okay. Astoundingly, one police respondent thought that a wrongful conviction rate of 20% was not too high.

Sunday, August 8, 2010

Smoke 'Em if You Got 'Em

I think Byron Case is wrongfully convicted. The State of Missouri believes otherwise. They feel the case is resolved. I believe otherwise. In the near term at least, probably even the medium term, they will prevail. Beyond that, we'll just have to see.

In the meantime, Byron occasionally breaks free of his mental confinement by writing. He has his own blog, The Pariah's Syntax, subtitled Unbound Notes From An Innocent Man. His posts are understandably infrequent, given that he has no access to a computer. He must relay his work through parties on the other side of the proudly lethal electric fence that surrounds the Crossroads Correctional Institute.

If you wish to get a sense of life in prison from someone lucid and inside, you could do worse than visit his site every now and then. It's not about overt brutalization. It's more about a mundane loss of freedom, one in which prisoner control is more important than cruelty or kindness.

Perhaps on ocassion, I will reproduce one of Byron's posts here as a reminder to myself of work to be done. After noting that Byron doesn't smoke, I'll begin with ...

What I'm about to describe to you is disgusting. As with many of the world's stomach-turning stories — the one about the boy and the sherbet container of frozen chicken fat, the one about the woman's devastating encounter with an airplane lavatory, the one about Orson Welles and the scandalized buffet-counter employee — the information I am about to share with you is also 100% true.

You have heard about the value of tobacco products in prison. You may know, for example, that a pack of cigarettes is considered a fair trade for a book of twenty stamps or a shot of trashbag hooch. You may also know that greater numbers of packs will buy even more impressive things: a cell with a better view, maybe someone named Peaches with whom to share that cell.

What might come as a surprise to you is that there are areas in prison where tobacco is prohibited. These are segregation units, where inmates are confined with even fewer privileges than normal, as a result of a conduct violation. It's prison for the already imprisoned; residents call it the Hole. The prohibitive policies of the institutions do little to curb the tobacco trade in these places, frequent cell raids and strip-searches be damned.

How? Well, this is where it gets unpleasant. I'm talking here about butt tobacco.

Packed tightly into numerous little balls, wrapped snug in the fingers of contraband plastic or latex gloves, then swallowed or, uh, otherwise introduced into one's innermost nooks, thousands of pounds of tobacco is muled, like so much marijuana through US border crossings, into segregation units of prisons across the country. [Source: Arbitrary Statistic Generation Department.]

The idea of passing a bit of smokeable material through a stretch of one's digestive tract might offend some individuals' senses of what's fundamentally right or wrong. Smokers on the outside, particularly, will surely be revolted by the thought of this. Not that it makes it less offensive, but those little balloons are packaged with care, double- and triple-wrapped. It's in the best interests of those at both ends of the supply chain (so to speak). Not even the most addicted smoker wants to fire up a cigarette that reeks of untended nursing home.

Just the same, I know this happens all the time. In the Hole, desperate individuals will pay $5 for just enough tobacco to fill up a standard-sized sugar packet, which is the going rate, and make it last a couple of days. Either they don't care, or simply don't give consideration to the way it reached them. They just roll a pinch of it up in a page torn from their Bible's book of Revelation, light it with a double-A battery and some wire, and breathe deeply. And if, by some chance, there wafts up a whiff of campground outhouse as they take that first puff, there might be a moment's grumbling, but nobody asks for their money back. Refunds are probably a real pain in the ass.

Thursday, August 5, 2010

On The Rate of Wrongful Conviction: Chapter 3.3

As I have mentioned eight times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda Number
Chapter 1.9: The Judge Number
Chapter 2.3: The Gross Number

Now, for the last time, we come in beneath the 5% barrier. Hang in there while reading this longish post. There's good stuff at the bottom.

Chapter 3.3
The Risinger Number

In his paper “Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate”, Michael Risinger claims to be the first person to determine a wrongful conviction rate by dividing a number of exonerations by an appropriate number of convictions.
To a great extent, those who believe that our criminal justice system rarely convicts the factually innocent and those who believe such miscarriages are rife have generally talked past each other for want of any empirically justified factual innocence wrongful conviction rate. This article remedies at least a part of this problem by establishing the first such empirically justified wrongful conviction rate ever for a significant universe of real world serious crimes: capital rape-murders in the 1980s.
Risinger then points out in a footnote that he wasn’t actually the first, having lagged Professor Ledewitz by 19 years.
Prof. Ledewitz recounted that he had examined the first hundred cases of execution under the restored death penalty and found four convicts (identified by name) whom he regarded as having “significant claims of innocence.” Again, the methodology is exceedingly soft, but the 4% resultant is not very different from that arrived at in this study.
Risinger also seems to be unaware or have lost track of Marty Rosenbaum’s 1991 paper “Inevitable Error: Wrongful New York State Homicide Convictions, 1965-1988”, the basis for Chapter 1.0 of this work.

Furthermore, Risinger seems to be unaware of or have lost track of Tony Poveda’s 2001 paper “Estimating Wrongful Convictions,” the basis for Chapter 1.4 of this work.

Finally, Risinger seems dismissive of the work of those who derive wrongful convictions rates from judge-jury agreement data, such as Professor Bruce Spencer of Northwestern University whose work will be discussed soon in Chapter 10.0.

So according to my counting, Risinger’s paper is no less than the fifth paper attempting to define an empirically-based wrongful conviction rate. Risinger’s paper is the first I have seen, however, to clearly describe his work as finding a proper numerator and denominator.
Using DNA exonerations for capital rape-murders from 1982 through 1989 as a numerator, and a 407-member sample of the 2235 capital sentences imposed during this period, this article shows that 21.45%, or around 479 of those, were cases of capital rape-murder. Data supplied by the Innocence Project of Cardozo Law School and newly developed for this article show that only two-thirds of those cases would be expected to yield usable DNA for analysis. Combining these figures and dividing the numerator by the resulting denominator, a minimum factually wrongful conviction rate for capital rape-murder in the 1980s emerges: 3.3%.
Unlike Samuel Gross, just discussed in Chapter 2.3, Risinger limits his analysis to rape-murder capital cases in which DNA turned out to be available post-conviction. Risinger also used a narrower range of years than did Gross, and together these differences presumably account for the difference in their estimates.

For his numerator, Risinger used the 11 DNA exonerations for that time frame reduced by one-half of an exoneration to account for the possibility that one in twenty of those people exonerated might be factually guilty.  For his denominator, Risinger used the 2235 capital sentences for that same time frame, multiplied by 21.45% to account for the fraction which were rape-murder convictions, multiplied by 2/3 to account for the fraction which had usable DNA for analysis. His math presumably looked something like:

(11 - 0.5) / (2235 x .2145 x .667) = 0.0328 = 3.3%

Risinger declared that number to be the lower limit for wrongful murder-rape capital cases, suspecting that DNA data had not been examined in all cases where it was available, but had been examined in at least 50% of those cases where it was available. He offered no data to back up those assumptions. He simply used them to argue the actual rate is closer to 5%:
It would be quite surprising, perhaps even shocking, if capital post-conviction counsel had failed to request DNA testing in anything close to half the 319 capital rape-murder cases in the reference set. Additionally, even in these cases, it is likely that the requests, if not universally made, would be skewed toward being made in the otherwise more factually questionable cases. So I believe we can conclude without much doubt that the ceiling is not double the floor (which would give a maximum ceiling figure for actual innocence of 6.4%), but is in fact substantially less. I believe it is fair to put a reasonable maximum under these circumstances at around 5%.
Risinger then discussed the possible extension of his number to crimes other than capital rape-murder cases.  For this he used words rather than a numerator and a denominator, and Ronald Allen called him on it in “Deadly Dilemmas.”
Michael Risinger's study examines error rates in capital rape-murder trials between 1982 and 1989. Risinger concludes that the error rate of false convictions ranges conservatively somewhere between 3.3% and 5%. The numerator comes from fairly convincing DNA exonerations in the set of capital rape-murder cases during the period, and the denominator is the set of capital rape-murder convictions during the same period. Risinger then considers extrapolating this error range to rapes, capital murders, and non-capital murders "manifesting particular callousness or brutality analogous to capitally sentenced murders," finding "no good reason for believing" that the rates would be much different.

But there are powerful reasons to think that the error rates might be different. Risinger's entire sample involved trials, yet most criminal charges are resolved by pleas. … Thus, an accurate error rate for capital rape-murder cases should reflect that data. Risinger makes the striking claim that the rates of error in plea-bargained cases could be as high as errors at trial. Such an unsubstantiated and highly improbable proposition stands in stark contrast to the commendably empirical cast to his article. Unless the frequency of false confessions is as high as the frequency of false convictions (and that appears implausible on its face), the error rate at trial cannot simply be hypothesized as the error rate of pleas.
“[Y]et most criminal charges are resolved by pleas.”  There’s the rub. Approximately 95% of all convictions result from plea bargains, not trials. That’s why so many prosecutors claim to have a 95% conviction rate. It has almost nothing to do with their performance before a jury.

So while the 95% plea bargain percentage works out fine for prosecutors, it is troublesome for those empiricists who estimate wrongful conviction rates from a small subset (DNA exonerations) of a small subset (capital rape-murder trials) of all convictions (most of which were plea bargains.) The plea bargain issue is of such magnitude that it places justice and injustice in the hands of prosecutors far more so than  in the hands of jurors. If there is a significant wrongful conviction rate in this country, it is due almost entirely to the failings of prosecutors.

Just as Michael Risinger dismisses the problem with a verbal slight of hand, so does Ronald Allen. Michael Risinger finds “no good reason for believing” the wrongful conviction rate of plea bargains would be much different than that of jury trials. Ronald Allen declares such a proposition “implausible on its face.”

Since Michael Risinger and Ronald Allen seem to be squabbling, and since the wrongful conviction rate for this country cannot be understood without understanding the wrongful conviction rate associated with plea bargains, I therefore hope, later in this work, to remedy “at least a part of this problem by establishing the first such empirically justified wrongful conviction rate ever for a significant universe of real world” plea bargains.

For now, I suggest the two combatants consider the instances of mass exonerations as evidence that innocent people are easily and frequently persuaded to confess and/or plead guilty to crimes they did not commit. Consider first the case of the Central Park 5.

The Central Park Jogger case involved the brutal assault, rape, and near murder of Trisha Meili. On April 19, 1989, the 28-year-old Meili was jogging through Central Park at night. She was attacked and left for dead, discovered 4 hours later suffering massive blood loss, internal bleeding, severe hypothermia, multiple lacerations, and a skull fracture so severe one eye was displaced from its socket. She was not expected to live, but she did. Today she still suffers from some loss of vision and balance, but has made a career as a motivational speaker.

After being arrested and interrogated, 5 black youths confessed to the crime, 4 of them confessed a second time while being recorded, each implicated the others, then all recanted. Though their confessions contradicted the forensics and the other confessions, and though DNA taken from the victim was from a single male other than any of those who had confessed, all 5 youths were convicted by juries, based primarily on their confessions.

In 2002, after the statute of limitations had expired, an inmate serving a life sentence for rape confessed to the crime, and he had the DNA to back it up. He was soon linked to 8 other rapes in a seven-month-period prior to the Central Park rape, including one in Central Park just two days earlier.

The 5 youths were all exonerated, though they had each already served their sentence. Despite Ronald Allen’s claim that it is "implausible on its face" that people would confess in substantial numbers to crimes they did not commit, all 5 confessed under conditions appellate courts found acceptable, conditions police defend as appropriate to this day.

If 5 false confessions in a single case are insufficiently plausible, consider the Tulia 42. Tulia is a small town in Texas not far from Amarillo. In 1999, authorities rounded up 46 citizens, 40 of whom happened to be black. Those 40 were represented approximately one-third of Tulia’s black male population. From Wikipedia:
All charges were based on the word of undercover officer Tom Coleman, a so called "gypsy cop" who made his living traveling through impoverished rural Texas offering to work undercover cheaply for short periods of time for under-funded police departments. Coleman claimed to have made over one hundred drug buys in the small town. He never recorded any of the sales, but claimed to have written painstaking notes on his leg under his shorts and upper arm under his shirt sleeve when nobody was looking.

During the roundup, no large sums of money, illegal drugs, drug paraphernalia, or illegal weapons were found. The accused drug dealers showed no signs of having any income associated with selling drugs. The drugs Coleman claimed to have bought from the accused did not have the fingerprints of the accused on them or their baggies. No independent witnesses could corroborate Coleman's claims. In his testimony, Coleman gave inaccurate descriptions of the "dealers" he had allegedly bought cocaine from. One suspect had his charges dropped when he was able to prove he had been at work during the times he had supposedly sold Coleman cocaine. Another produced bank and phone records indicating she was in Oklahoma City, Oklahoma at the time of her alleged crime. Many of the accused, however, seeing the long sentences dealt by all-White juries in earlier cases, pleaded guilty in return for lighter sentences, despite their proclaimed innocence. The remaining defendants were convicted solely on the basis of Coleman's testimony. John Cornyn, the state attorney general [and now a US Senator], awarded "Lawman of the Year" to Coleman.

Amarillo civil rights attorney Jeff Blackburn began investigating the Tulia defendants' cases along with civil rights organizations and a handful of attorneys from firms around the country. Eventually the case became a cause célèbre, and money was raised to legally challenge the cases. Many had already served several years in prison before this process gained momentum. By 2004, Blackburn and his team had freed most of the "Tulia 46" and a $6,000,000 collective settlement was reached to avoid further litigation in civil court.
More specifically, and more to the point being made herein, twelve of those arrested faced jury trials, were convicted and received sentences of 20 to 99 years. Thirty pleaded guilty out of fear of what jurors would do. As implausible as it may seem to Ronald Allen that anyone would plead guilty to a crime they didn’t commit, it seems that 30 out of 46 apparently did so in Tulia. That’s a 65% wrongful plea bargain conviction rate.
Ronald Allen might consider also the Dallas Sheetrock Scandal. At least 80 low-income, Mexican-American defendants were charged with possession of crack cocaine, based on the claims of a confidential informant paid $200,000 for his service to the community. Many of the defendants pleaded guilty before the cocaine was finally tested. It turns out that, by some strange coincidence, the cocaine in each case was not cocaine at all; it was gypsum powder, the primary constituent in sheetrock wallboard. Defense attorneys claimed prosecutors threatened to substantially increase the prison sentence being offered in return for a guilty plea if the defendant demanded the “cocaine” be tested.

In Hearne, Texas, the district attorney offered to drop charges pending against an informant if that informant would produce information leading to 20 drug arrests. The informant went above and beyond, providing information leading to the arrest of 28 people, all black, all for small-time drug sales. It all came unglued when one person refused to plead guilty and insisted on a trial. The district attorney dropped charges against that person and the other 16 who had not yet pleaded guilty. With respect to the 11 who had already taken a plea, the DA said “I don’t doubt one minute their guilt in dealing drugs.” The DA apparently finds it implausible that anyone would plead guilty to a crime they did not commit. Assuming the 11 who pled guilty were in fact innocent, as we have every reason to suspect, that’s 11 false pleas out of 11 convictions, a 100% false plea bargain conviction rate.

Out in Los Angeles, matters are no better. In September 1999, the Rampart Scandal exploded. From Wikipedia:
More than 70 police officers in [an anti-gang unit] were implicated in misconduct, making it one of the most widespread cases of documented police misconduct in United States history. The convicted offenses include unprovoked shootings, unprovoked beatings, planting of evidence, framing of suspects, stealing and dealing narcotics, bank robbery, perjury, and covering up evidence of these activities. … As a result of the probe into falsified evidence and police perjury, 106 prior criminal convictions were overturned.
Other estimates place the number of trumped up cases as high as 150. The great majority of those framed were young Hispanic men who ended up pleading guilty to false felony gun or drug charges.

I am not arguing that these cases of mass exoneration are representative of the criminal justice system. I hope they are rare exceptions. I do argue, however, they provide evidence that out of any select group of people, many can be compelled to confess or plead guilty to crimes they did not commit, as implausible as that may seem.

In summary, Michael Risinger calculated a wrongful conviction rate of 3.3% for capital rape-murder convictions. He then suggested that this rate might be applicable to other types of crimes, and perhaps even to plea bargains. Ronald Allen took scholastic umbrage and declared Risinger’s extension “implausible on its face.” I took blogger umbrage at Allen’s response. I offered Allen, my lastnamesake, examples of wrongful plea bargain convictions in an effort to convince him they are plausible. I made the bold claim that I will, in this work, become the first person to provide an empirically-based estimate of the rate of wrongful plea bargain convictions.

1. “Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate,” by D. Michael Risinger was published in The Journal of Criminal Law & Criminology, Volume 97, Number 3, in 2007; Copyright © 2007 by Northwestern University School of Law

2. At the time “Innocents Convicted” was published, D. Michael Risinger was a Professor of Law at Seton Hall University School of Law. Since 2008, he has been the John J. Gibbons Professor of Law at Seton Hall University School of Law.

3. “An Essay Concerning Judicial Resignation and Non-Cooperation in the Presence of Evil,” by Bruce Ledewitz, 27 Duquesne Law Review 1(1988).

4. When I write of Ronald Allen, I refer to both Ronald J. Allen and Larry Laudan.

5. “Deadly Dilemmas,” by Ronald J. Allen and Larry Laudan, 41 Texas Tech Law Review 65 (2008).

6. At the time “Deadly Dilemmas” was published, Ronald J. Allen was the John Henry Wigmore Professor at Northwestern University School of Law, a position he still holds today.

7. At the time “Deadly Dilemmas” was published, Larry Laudan was Senior Investigator and the Instituto de Investigaciones Filosóficas, Universidad Nacional Autónoma de México.

8. Just as I thought Samuel Gross’s 2.3% number is far too low, I believe Michael Risinger’s number is far too low. I will make my case in Chapter 12.6.