Wednesday, May 14, 2014

The Extent of Framing the Innocent in Texas

This is the eleventh post in the series Framing the Guilty, Framing the Innocent. For ease of navigation among the posts, use the Table of Contents.

In this post, I will calculate how many innocent people have been framed and executed by the State and People of Texas. It might be interesting. Stay tuned.

I'll begin not in Texas, but Virginia. I'll begin not with a prisoner, but with a serologist. Mary Jane Burton worked for Virginia's Department of Forensic Science from 1973 to 1987. (She died in 1999.) As a serologist, she determined blood type and other identifying information from biological samples. DNA identification was never a part of her job. Even by the end of her career, DNA technology was still in its infancy.

Burton had a habit of taping cotton swab heads and textile clippings to the worksheets in her case notebooks. She used the swabs and clippings while testifying to show the jury the exact piece of evidence she tested. While Virginia routinely destroyed biological evidence from old cases, Mary Burton's swabs and clippings remained tucked away well preserved in her notebooks.

Advancements in DNA technology, coupled with Virginia's routine destruction of its DNA evidence, eventually led to the discovery of Mary Burton's treasure trove of well-preserved, well-documented DNA samples. The first person to be exonerated by Burton's diligence was Marvin Anderson. He had spent 15 years in prison for a rape he did not commit. The next to be freed was Julius Earl Ruffin. He had spent 21 years behind bars for a rape he did not commit. Then came Arthur Lee Whitfield (22 years), Phillip Thurman (20 years), and Willie Davidson (12 years).

After a long and inexcusable delay, the five exonerations led to a thorough review of all the DNA evidence that Burton had so carefully preserved. The results of that review were finally published just recently by the Urban Institute, working under contract to the U.S. Department of Justice. Their thrilling report, Post Conviction DNA Testing and Wrongful Conviction, has not been as widely read as The Hunger Games or Fifty Shades of Grey, so I'll summarize the results for you, right here and now.
A total of 715 convictions were reviewed based on Burton's samples and other case evidence. (293 homicides, 375 sexual assaults, and 47 sexual assault homicides)
For 465 of the convictions, Burton's samples provided no additional insight into actual guilt or innocence. 
For 194 of the convictions, Burton's samples substantiated the guilty verdict. (For my analysis, these are the confirmed guilty.)
In 18 of the convictions, Burton's data provided exculpatory evidence, but the evidence was insufficient to support exoneration. 
In 38 of the convictions. Burton's samples provided exculpatory evidence that supported exoneration. (For my analysis, these are the confirmed innocent.)
Using the Urban Institute results, it is now easy to calculate a rate of wrongful conviction. I'll ignore the cases in which the review provided no additional insight into actual guilt or innocence. I'll also ignore the convictions that suggested innocence but did not firmly establish it. That leaves me with 236 convictions in which the Urban Institute confirmed guilt (194 cases) or discovered innocence (38 cases). The rate of wrongful conviction is 38 cases of wrongful conviction divided by 236 cases of confirmed guilt or innocence. That equals 0.161. That is 16.1%.

Holy Cow!

Even I'm shocked, at least I was when I first performed this calculation. I had previously argued that our rate of wrongful conviction is around 11%. (See for example On the Rate of Wrongful Conviction: Chapter 10.6 and On the Rate of Wrongful Conviction: Chapter 11.1) Most everyone else who attempts to determine the rate of wrongful conviction concludes that the number is somewhere between zero and 3%. A few venture as high as 5%. My 11% number stuck out like a sore thumb, and now I discover that I may have been too kind to our justice system.

Holy Cow!

I hereby admit that I started with the Virginia DNA database because I wanted to soften you up. To further prepare you for the number of innocent people framed and executed by Texas, I'm now going to calculate a rate of wrongful conviction for capital murder for all states other than Texas. Whatever you may think of our capital punishment system, it provides a handy basis for estimating a wrongful conviction rate.

Every capital murder conviction in this country is reviewed over and over again for a decade, or two, or three. Prosecutors and appellate attorneys and innocence projects and lay citizens attempt to persuade appellate judges and the public that the convicted party is truly guilty or actually innocent. Eventually, some of the convictions are irrevocably resolved by either an execution or an exoneration. It is the irrevocably resolved cases that provide a solid basis for estimating a rate of wrongful conviction.

Here are the inputs for my calculation:
According to the Death Penalty Information Center, there have been 1001 executions in all states other than Texas since 1976 when the Supreme Court lifted its ban on the death penalty. 
According to the Death Penalty Information Center, there have been 125 exonerations of death row prisoners in all states other than Texas since 1976 when the Supreme Court lifted its ban on the death penalty.
I'll be quick. As a country, excluding Texas, we have reviewed 1126 death sentences carefully enough to make an irrevocable decision about actual guilt or innocence. In 1001 of those cases, we confirmed the jury verdict and we executed the prisoner. In 125 of those cases, we determined that the jury got it wrong and we exonerated the prisoner. The rate of wrongful conviction is therefore equal to 125 cases of wrongful conviction divided by 1126 convictions irrevocably resolved. That equals 0.111. That equals 11.1%.

That's bad. That's really, really bad. It is substantially lower than the 16% rate calculated from the Urban Institute report, but it is still really bad. I believe I know why it is lower. The data from the Urban Institute are more heavily populated with cases of sexual assault. My previous work in this area has convinced me that juries wrongfully convict in rape cases substantially more frequently than they do in murder cases. (As an aside, juries wrongfully convict most frequently in child molestation cases, and least frequently in drug cases.) Whatever the reason for the disparity, I'll use the 11.1% number as I continue to calculate how many innocent Texans have been framed and executed.

I'll now calculate the exoneration rate for Texas, again using data from the Death Penalty Information Center. Texas has executed 515 prisoners since 1976. On the other hand, Texas has exonerated only 12 of its death row inmates.

That's right. You did the math correctly in your head. Even though Texas has performed a third of all the executions nationwide, it has exonerated less than 9% of those saved from the needle. By comparison to the rest of the country, Texas is execution happy and exoneration resistant.

Texans and pro-death-penalty advocates may claim that the numbers only prove that Texas is better than the rest of the country at getting it right, that Texas makes fewer errors, that Texas has a lower rate of wrongful conviction. I suspect that's not the case. I'm going to instead assume the following:
1. The jury members in Texas are neither brighter nor dimmer than their fellow jury members across the country. They are just people suddenly asked to make sense out of a complicated, obfuscated, tragic mess. (I'm fairly confident that this assumption is reasonable.) 
2. The police, prosecutors, medical examiners, and forensic specialists in Texas are no better or worse at framing defendants. They are no better or worse with respect to fabricating inculpatory evidence or withholding exculpatory evidence. (I'm less confident with this assumption.) 
3. The Texas Court of Criminal Appeals is the agency primarily responsible for the low rate of exonerations in Texas. They allow cases to stand even when based on a confession extracted by a viable threat of torture. They forgive police for planting evidence and fabricating dying declarations, prosecutors for withholding evidence, medical examiners for prosecution friendly times-of-death, and serologists for cheap magic tricks in lieu of science. (I'm really confident of this assumption.)
Using those three assumptions and the 11.1% wrongful conviction rate for the rest of the country, I can now calculate how many Texas death row inmates should have been exonerated rather than executed. Out of 527 death penalty cases irrevocably resolved in Texas, 11.1% of them,  58 of them, should have been exonerations. Only 12 of them were exonerated. 46 of them were instead executed when they should have been exonerated.

To be clear, to be absolutely clear, I am indeed suggesting that Texas may have executed 46 innocent people. I can't identify all of them by name, but I can identify many of them. A few of the people likely innocent but certainly executed by the State and People of Texas are:
Preston Hughes
Cameron Todd Willingham 
Frances Elaine Newton
Johnny Frank Garrett

Lamont Reese
David Wayne Spence
Kia Levoy Johnson
Robert Nelson Drew
Carlos DeLuna
Richard Wayne Jones
Ruben Cantu
Davis Losada
Jesse Romero
David Wayne Stoker
Now for the final part of my post: the determination of how many of the innocent people executed by Texas were framed. I'll concede that I cannot make that determination without identifying and researching each case of wrongful execution in Texas. I will, however, make this observation. No one is ever accidentally, unintentionally, inadvertently convicted of a capital murder he did not commit. There is always someone working for the State to help things along.