Mea Culpa

I have added a big time addendum to Update On the Surprising Case of The Despicable Claude Jones. If you haven't read that post, you should probably go there, read it and continue directly to the addendum added there. For anyone who has already read that post, I'll make it easy and post the addendum immediately below.

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ADDENDUM
Normally I spend at least a week working on a case, on and off, before I post on it. That's good since it allows me time to consider and weigh all the evidence. Last night, I posted the update regarding Claude Howard Jones as soon as I realized the DNA testing returned negative for Jones. I guess I was more concerned about the timeliness of my post than the thoroughness.

I did not, for example, account at all for some of the information provided in the Innocence Project timeline, the very timeline I linked to in the post. More specifically, I did not adjust my scoring to account for new information (at least new to me) that on the day of the shooting Claude Jones had been with Danny Dixon, Timothy Jordan, AND Terry Hardin. I hadn't uncovered that tidbit in my previous research, though I should have captured part of it earlier from the Attorney General's Media Advisory.

I believe I also gave insufficient weight to the seemingly well-established fact that Jones, Dixon, and Jordan participated in other robberies together.

Finally, I noticed in a new comment to my original post on Jones that Jordan's recantation consisted of saying that Dixon told him Jones confessed to him, rather than Jones confessing directly to Jordan That may or may not be true. If anyone can source Jordan's recantation so we can all read it directly, that would be great.

After considering and weighing everything I now know, here's what I believe happened that day.

Claude Howard Jones met with Danny Dixon, Timothy Jordan, and Terry Hardin (Jordan's girlfriend) at the home of Jordan's father. At least two of them decided to perform a robbery. Using Timothy Jordan's .357 revolver, which Terry Hardin had purchased for him as a gift, and Danny Dixon's pickup, at least two of them robbed the liquor store in Point Blank, Texas, and one of them shot and killed Allen Hilzendager.

A witness saw the pickup truck and that allowed police to arrest Dixon and Jordan. They did not initially arrest Jones. Dixon refused to cooperate but Jordan worked a deal with the cops and the DA. He claimed he only planned the robbery and provided the gun, but that Dixon and Jones were the two who actually committed the robbery. Not only that, Jones confessed to him that he did the shooting.

The state of Texas had a problem. The law does not allow a conviction based  solely on the uncorroborated testimony of an accomplice. Jordan's story would have to be corroborated with something. The eyewitness testimony was troublesome, since neither of the eyewitnesses could actually identify Jones. The State could and did use Terry Hardin to buttress the eyewitness testimony, but she might have also fallen into the accomplice category. (I'm guessing she also struck a deal with the police.)

The State did, however, have that tiny 1" hair segment, and darned if the forensic lab didn't identify that segment as being consistent with Jones but nobody else. It was, as we now know, a bunch of crap, but it was the critical piece necessary to corroborate their purchased testimony.

Dixon, who refused to cooperate, got 60 years. Jones, who was fingered by Jordan and  Jordan's girlfriend Terry Hardin, got the needle. Jordan got off with ten years for that murder and another robbery combined. Hardin, best I can tell, walked.

When Jordan later recanted, Texas convicted him of aggravated perjury, not because they object to perjury (since they purchase perjured testimony by the crate) but because he made them look bad. They  also wanted to send a message to anyone who might think about recanting in the future. Texas was certainly not bothered that they might have needled the wrong man.

So this case completely and totally sucks. For the pro-death penalty folks who will never concede Texas might have made a mistake, they simply look foolish when they claim to be 100% confident that Jones was the shooter or driver. They simply can't know.  For the anti-death penalty folks who hope to find solid proof of an innocent person wrongfully convicted, they may not want to hitch their horse to this wagon.

I'm more comfortable scoring this case (and all such cases) as uncertain, as probabilities rather than certainties. I'm more comfortable changing my scoring as appropriate when new evidence comes my way. I fault myself in this case for researching too poorly and posting too quickly. I have revised my scorecard for a second time, and include it to the right. Based on everything I think I know now, I score Claude Howard Jones at 48.

Update On The Surprising Case of The Despicable Claude Jones

Previously, I described The Surprising Case of The Despicable Claude Jones. The case hinged in large part on the State's identification of a 1" hair segment as belonging to Despicable Claude. The mitochondrial DNA from that 1" hair segment has now been tested, the results are in, and [insert drum roll here] the hair segment did not come from the now executed Claude Jones. It came from the store owner who was murdered.

Imagine that. It seems as if the State's expert was absolutely confident  during his trial testimony that the hair segment did not belong to the store owner. Interesting.

Well, Texas still has its accomplice testimony, except for the troublesome issue that accomplice recanted his testimony and affirmed he only said what the State wanted him to say because they put the screws to him.

Okay so maybe the accomplice testimony wasn't that hot. But Texas still has their two eyewitnesses who never actually claimed they saw Despicable Claude

So Texas will continue to profess their absolute confidence that Claude Jones was the shooter no matter how much of their evidence falls apart. If they get tired of professing their absolute conficence in their conviction, they can fall back on the implicit suggestion that Claude Howared Jones was a despicable person and only got what he deserved anyway. What they can't do any longer is claim that Despicable Claude really got a fair trial before they strapped him down and shot him full of lethal chemicals.

Allow me to review the case quickly, assuming I'm even possible of a quick review. In November 1989, some despicable person (not necessarily Despicable Claude) entered Zell's liquor store in Point Blank, Texas. (Only Texas would have a city named Point Blank.) That person asked the owner, Allen Hilzendager, to retrieve a bottle for him. As Hilzendager turned to get the bottle, the shooter shot Hilzenager three times with a .357 Magnum revolver. The shooter took $900 from the cash register and fled in a getaway vehicle waiting outside.

Leaon and Wendy Goodson were across the street that night. They could not identify the shooter. The were confident however, that the man was of medium height, middle age, had a pot belly, and was wearing a gray sweatshirt.

Texas then had Terry Hardin testify that, while she was not at the crime scene that night, she knew Claude Jones, and the description kinda, sorta fit him. Hardin also testified that Jones had been wearing a gray sweatshirt that day. Hardin then conceded the description could also describe The Despicable Danny Dixon, the other man sentenced for the crime. But the Goodsons must have seen Despicable Claude and not Despicable Dan because Despicable Dan had only a small pot belly while Despicable Claude had a large pot belly. (Such is the substance of proof beyond a reasonable doubt in Texas.)

Enter Stephen Robertson, a forensics examiner employed by the Texas Department of Public Safety. He testified that a 1" hair segment found at the scene was consistent with Despicable Claude but absolutely inconsistent with the victim, Despicable Dan, or any of the other thirteen people who might have been in the store that day. He then explained to the jury what that all meant.

[W]e take a hair that we want -- that we’re worried about and we compare that hair to this person's hair. If that hair falls within the range of characteristics that the person has, then that could be the person's hair or it could be another person that has similar hair characteristics. Technology has not advanced where we can tell you this hair came from that person. Can't do that. We can tell you that this hair matches the person in all characteristics and could be his. ... [I]t’s impossible to put a percentage or a statistical study on these variations because each hair in your head varies a little bit. How do you put a number on something that varies like that? . . . So I can’t tell you, you know, this hair occurs in 10 percent of the population. Nobody can tell you something like that.

So the hair sample was consistent with Despicable Claude, and not with the store owner, and not with anyone else who had been in the store that day. Couple that with the rock solid eyewitness testimony and you've got yourself proof beyond all doubt.

Unfortunately, with the DNA results now in, we know for sure what the jury should have suspected from the beginning. Forensic Examiner Stephen Robertson was blowing forensic smoke up their backsides. But that's okay because Claude Howard Jones was in fact a despicable person who, among other despicable things, killed another inmate by dousing him with lighter fluid and setting him on fire.

Despicable Dan, by comparison, merely shot a young girl between the eyes and buried her in a cemetary. So let's talk a moment about Despicable Dan. He was also convicted of the crime. His pickup truck, or a pickup truck kinda like his pickup truck, was seen by one witness outside the liquor store that night. In fact, it was the pickup truck that led police to Despicable Dan. Dan refused to cooperate and got 60 years.

We now get to the person who actually admitted to being involved in the killing, Timothy Mark Jordan. One reason we might believe Jordan is that it was his .357 revolver that fired the bullets that killed liquor store clerk Allen Hilzendager. Jordan is facing the needle and finds that unnerving. But he's a pro and he knows how the game works. He knows that if he gives the Texas police someone else's head on a platter, they'll take his death penalty off the table, theyl'll charge him with a lesser crime, they'll give him reduced time, and they'll even provide punch and cookies.

But Jordan doesn't want to sell out Despicable Dan, because they're buds. Instead, he sells out Despicable Claude, who is just some run of the mill slup and not at all a good bud like Dan. So he tells the police that Despicable Claude confessed to him that he committed the robbery and killed the clerk, and he so testified during Claude's trial.

For his perfidy, Texas charges Jordan with capital murder and a separate robbery in another county, but  they allow him to plea both charges down to a 10-year sentence for a lesser offense.

Three years after Claude was executed, however, Jordon recanted. He explained that it was Dixon who confessed to the killing, not Jones.

To send a message to all those purchased witnesses who might change their story later, Texas charged, tried, and convicted Jordan of aggravated perjury for telling differing stories to grand and trial jurors.

So the State of Texas has neither hair evidence nor accomplice testimony to put Claude Howard Jones at the crime scene, much less to put the gun in his hand. All they have is a bizarre, compound, pass-the-baton eyewitness identification that hinges on whether Despicable Dan's pot belly was substantially smaller than Despicable Dan's.

Holy crap!

I said in my previous post that if the hair sample turned out to belong to someone other than  Despicable Claude, then I was going to revise my Actual Innocence Scorecard and give him an actual innocence score of 100.  I recant that claim. The revised scorecard is attached. I elevated his score from 52 to 82.

Note:

For a more coherent timeline of events, see the timeline prepared by the Innocence Project.

ADDENDUM
Normally I spend at least a week working on a case, on and off, before I post on it. That's good since it allows me time to consider and weigh all the evidence. Last night, I posted the update regarding Claude Howard Jones as soon as I realized the DNA testing returned negative for Jones. I guess I was more concerned about the timeliness of my post than the thoroughness.

I did not, for example, account at all for some of the information provided in the Innocence Project timeline, the very timeline I linked to in the post. More specifically, I did not adjust my scoring to account for new information (at least new to me) that on the day of the shooting Claude Jones had been with Danny Dixon, Timothy Jordan, AND Terry Hardin. I hadn't uncovered that tidbit in my previous research, though I should have captured part of it earlier from the Attorney General's Media Advisory.

I believe I also gave insufficient weight to the seemingly well-established fact that Jones, Dixon, and Jordan participated in other robberies together.

Finally, I noticed in a new comment to my original post on Jones that Jordan's recantation consisted of saying that Dixon told him Jones confessed to him, rather than Jones confessing directly to Jordan That may or may not be true. If anyone can source Jordans' recantation so we can all read it directly, that would be great.

After considering and weighing everything I know now, here's what I believe happened that day.

Claude Howard Jones met with Danny Dixon, Timothy Jordan, and Terry Hardin (Jordan's girlfriend) at the home of Jordan's father. At least two of them decided to perform a robbery. Using Timothy Jordan's .357 revolver, which Hardin had purchased for him as a gift, and Danny Dixon's pickup, at least two of them robbed the liquor store in Point Blank, Texas, and one of them shot and killed Allen Hilzendager.

A witness saw the pickup truck, and that allowed police to arrest Dixon and Jordan. They did not initially arrest Jones. Dixon refused to cooperate but Jordan worked a deal with the cops and the DA. He claimed he only planned the robbery and provided the gun, but that Dixon and Jones were the two who actually committed the robbery. Not only that, Jones confessed to him that he did the shooting.

The state of Texas had a problem. The law does not allow a conviction based  solely on the uncorroborated testimony of an accomplice. Jordan's story would have to be corroborated with something. The eyewitness testimony was troublesome, since neither of the eyewitnesses could actually identify Jones. The State could and did use Terry Hardin to buttress the eyewitness testimony, but she might have also fallen into the accomplice category. (I'm guessing she also struck a deal with the police.)

The State did, however, have that tiny 1" hair segment, and darned if the forensic lab didn't identify that segment as being consistent with Jones but nobody else. It was, as we now know, a bunch of crap, but it was the critical piece necessary to corroborate their purchased testimony.

Dixon, who refused to cooperate, got 60 years. Jones, who was fingered by Jordan and  Jordan's girlfriend Terry Hardin, got the needle. Jordan got off with ten years for that murder and another robbery combined. Hardin, best I can tell, walked.

When Jordan later recanted, Texas convicted him of aggravated perjury, not because they object to perjury (since they purchase perjured testimony by the crate) but because he made them look bad. They  also wanted to send a message to anyone who might think about recanting in the future. Texas was certainly not bothered that they might have needled the wrong man.

So this case completely and totally sucks. For the pro-death penalty folks who will never concede Texas might have made a mistake, they simply look foolish when they claim to be 100% confident that Jones was the shooter or driver. They simply can't know.  For the anti-death penalty folks who hope to find solid proof of an innocent person wrongfully convicted, they may not want to hitch their horse to this wagon.

I'm more comfortable scoring this case (and all such cases) as uncertain, as probabilities rather than certainties. I'm more comfortable changing my scoring as appropriate when new evidence comes my way. I fault myself in this case for researching too poorly and posting too quickly. I have revised my scorecard for a second time, and include it to the right. Based on everything I think I know now, I score Claude Howard Jones at 48.

A Solemn Moment

Not much to say. Just listen to the music as one case after another appears on the screen. It's why I write and why I try to help.

The Unindicted Co-Ejaculator

When the State learns that the DNA from the rape (and perhaps murder) victim did not match their prisoner, they don't release their prisoner. That would make them look foolish. Instead they hypothesize that their prisoner was simply one of two people who raped (and perhaps killed) the woman. This happens so often, in fact, that it has a name: the unindicted co-ejaculator.

I'm only wishing I made this up. If I made it up, I could claim credit for the clever name. If I made it up, we would have many fewer people wrongfully behind bars. But I didn't make it up. If you type in "unindicted co-ejaculator" into Google, you'll get 884 hits, plus an ad for RightHealth.com. ("Relax. Take a deep breath. We have the answers you seek.") You might not get exactly 884 hits, but I did. I also got a few tips about some horrific things that can happen to men.

Frontline just did a show called "The Confessions." You can see it online here. You should watch it. Be forewarned, spoilers to follow.

The case of the Norfolk Four is the granddaddy grandprogenitor of all unindicted co-ejaculator cases. Let me count the ways.

A Virginia woman is raped and killed on a naval base. Defendant #1 is arrested almost immediately because someone thought he had a thing for the vicitm. (What Defendant #1 actually had was a newlywed wife who had just been diagnosed with ovarian cancer. She would die of that cancer while he was still languishing in prison.)

Defendant #1 confesses after lots of hours of intense interrogation by "The Guy Who Was Really Good At Extracting Confessions," herein after referred to simply as The Confessionator.

The day after the murder, the police see the autopsy report. It doesn't match the confession, Defendant #1 apparently forgot to confess that he had stabbed her rather than choked her to death. No problem. The Confessionator convices Defendant #1 to amend his confession.

A few weeks after the murder, the DNA comes back. It doesn't match the confession. Defendant #1 apparently forgot to tell the police there had been an unindicted co-ejaculator. No problem. The Confessionator convices Defendant #1 to provide the name of his accomplice.

The named accompliced soon becomes Defendant #2. After lots of hours of intense interrogation by The Confessionator, Defendant #2 confesses. They take DNA samples, but the DNA doesn't match. Defendant #2 apparently forgot to mention the name of the other unindicted co-ejaculator. No problem. The Confessionator convices Defendant #2 to provide the name of not one, but two additional accomplices.

Defendant's #3 and #4 both confess, but darned if their DNA doesn't match either. (I'm not making this up.) No problem. The Confessionator convinces Defendant #4 to give the names of three additional accomplices. (I swear I'm not making this up.) Those three accomplices soon become Defendants #5 through #7, and (you guessed it) none of their DNA matched the crime scene DNA.

Not only that, Defendant #7 had a airtight, and I mean airtight, alibi. He was a few states away at the time of the crime, and seemingly everybody in that state could place him there.

Now here's where it starts to get a little strange.

It turns out the police had not, for whatever reason (I certainly can't think of one), run the crime scene DNA through the system to see if it matched anyone already in the system. I guess they figured it was easier to daisy chain confessions than it was to ask the computer to check the DNA against the DNA database. But somehow, I can't recall how, they suddenly had a DNA match with Defendant #8, already in prison for raping and attacking women near the scene of the naval base crime.

Defendant #8 confesses but claims he acted alone. No problem. They send in The Confessionator. But  the Confessionator is no longer dealing with a bunch of innocent rubes. The Confessionator is now dealing with a real criminal who has seen this crap before. Defendant #8 refuses to budge. He raped her, killed her, and did it alone. Period.

The police can't link Defendant #8 to the other Defendants. Now way, no how. No problem. The State revises its theory of the crime. Defendants #1 through #7 were hanging out in the parking lot, planning the gang rape and murder of the woman. She wouldn't let them in, even though she knew the neighbor. So  when soon-to-be Defendants #1 through #7 have a chance encounter with soon-to-be Defendant #8, they ask him if he will join them in their plan to gang rape and murder the woman. Not wanting to be rude to strangers, he agrees to help. Not only that, he will be able to convince her to open the door, even though she doesn't know him from Adam #1.

Now the new theory may sound like crap to you, but it sounded like proof beyond a reasonable to Jury #1 who put Defendant #3 away for 8 years for rape. And it sounded like proof beyond a reasonable doubt to Jury #2 who put Defendant #4 away for life. After that, no more juries were required. To save themselves from the death penalty, Defendants #1 and #2 pled guilty, Defendants #5 through #7 walked (because they had never confessed), and Defendant #8 claims to this day that he acted alone.

The police, The Confessionator, the district attorney, the governor, and the attorney general claim to this day that all the confessions are valid.

That leaves Frontline with the following tagline: "How could four men confess to a brutal crime that they didn't commit? Inside the incredible saga of the Norfolk Four -- a case that cracks open the justice system to reveal almost anything that goes wrong when innocent people get convicted." 

Change that last part to "when innocent people get arrested" and I'm there.

On The Rate of Wrongful Conviction: Chapter 10.6

It's been almost two months since I last posted on the rate of wrongful conviction. It looks as if my last post on the subject was just before I started writing The Trial of Cameron Todd Willingham, so I guess that explains a good part of the delay. I need to finish the chapters here, polish them up, and get them published. I want to have that monograph complete by the end of this month, so I need to get typing.

Now for my standard introduction for anyone new to this blog.

As I have mentioned many 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 9.5: The Inmate Number
Chapter 10.1: A Skeptical Juror Number
Chapter 11.1: A Skeptical Juror Number
Chapter 11.4: The Common Man Number

Unfortunately, the chapter numbering goes backwards a wee bit. My error once again. (I almost typed a lame excuse, but I'll just get on with it.) I write this post assuming people have read Chapter 11.1, my estimate based on judge-jury agreement data. In the monograph, I'll have to restructure everything.

Chapter 10.6
The Spencer Number

I was inspired to pursue this quantification effort by a paper entitled "Estimating the Accuracy of Jury Verdicts."  It was written in April of 2006 and modified one year later by Bruce Spencer.

Bruce D. Spencer is a Professor of Statistics at Northwestern University. That's interesting in that Northwestern University is the home of David Protess and the Medill Innocence Project. Those folks have actually helped free innocent people from wrongful imprisonment, and for that I tip my hat. Their name may ring a bell to those of you who have read my posts on the Hank Skinner case.

I consider Bruce Spencer to be the father progenitor of modern day wrongful conviction estimation. It's a title for which many strive but only one can hold. Everyone before Spencer guessed, surveyed other people who guessed, surveyed people behind bars, divided exonerations by convictions, or just gave up. Spencer did none of these things. He realized that the rate of wrongful conviction was just one piece of valuable information that could be gleaned from judge-jury agreement data.

Despite the lofty title I just bestowed upon him, and despite the shocking implications of his paper, Spencer's work regarding the rate of wrongful convictions has generally been overlooked by both press and public. I believe there are two reasons for that. Reason number one: Spencer's an egghead and he writes accordingly. First we'll look at the Urban Dictionary for its definition of an egghead.

1. A person who is considered intellectually gifted in the field of academics. "Egghead" is usually used as college-speak to describe a brainiac.

2. A person's whose head is shaped like an egg. Most people however, will use this word interchangeably as a pun. It has also been known that people whose heads are shaped like an egg are usually large at the top, which explains the larger brain-size.

Next, we'll look at just two contiguous sentences from Spencer's paper:

In Section III, an estimator of jury accuracy is developed that has three components of error, survey error from estimating the agreement rate, specification error arising because differential accuracy between judge and jury is not observed and the dependence between judge and jury verdicts is not known, and identification error arising because we cannot distinguish correct agreement from incorrect agreement. The specification error will be one sided, leading to overestimates of jury accuracy, provided that two conditions hold: (i) errors in the judge’s and jury’s verdicts for a case are either statistically independent or positively dependent, and (ii) the judges’ verdicts are no less accurate on average than the juries’, even though for individual cases the judge’s verdict may be incorrect when the jury’s verdict is correct.

There you go.

The second reason that Spencer's work hasn't received the attention I think it deserves is because Bruce D. Spencer is a Professor of Statistics and he doesn't trust the randomness or sample size of  his source data any further than he can throw it. Every time he provides a shocking number, he leads it or follows it with a warning that his numbers should not be used by Joe Q. Public. Below, I provide examples of the caution he sprinkles liberally throughout his paper.

The jury verdict was estimated to be accurate in no more than 87% of the NCSC cases (which, however, should not be regarded as a representative sample with respect to jury accuracy).

Caveat: the NCSC cases were not chosen with equal probabilities as a random sample, and the estimates of accuracy should not be generalized to the full caseload in the four jurisdictions let alone to other jurisdictions.

The analysis suggests, subject to limits of sample size and possible modeling error, ...

The unequal sampling rates imply that the results for the NCSC sample cases should be weighted if they are to generalize to the full caseload in the four jurisdictions. No such weighting is employed in the present analysis, and the statistical inferences do not extend outside the cases in the NCSC study.

In light of these limitations, the empirical estimates from the data analysis must be interpreted with great caution and in no event should be generalized beyond the NCSC study.

The estimates are no basis for action other than future studies.

Assuming you can work through the writing and the math (and there is some substantial math), you'll go through a series of "Wow! Never mind" moments. But if you finally get through it (after about a couple dozen tries in which you still can't work all the way through the stupid math and that makes you kinda discouraged so you just say "screw it") you might be inspired to try something on your own.

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Here's where Spencer started.

The table summarizes the results of 290 criminal jury trials surveyed by the National Center for State Courts (NCSC) during the period 2000-2001. In each of the trials, the judge recorded the verdict he or she would have rendered had it been a bench trial. The table shows that the judge and jury agreed Guilty was the proper verdict in 64.1% of the trials. In 12.8% of the trials, the judge and jury agreed that Not Guilty was the proper verdict. Overall, the judge and jury agreed in 76.9% of the cases. They disagreed only 23.1% of the time.

The table gave Spencer three independent inputs. There are four squares, four pieces of information, but only three of them are independent. The fourth one, whichever you choose, must be set such that the sum of the four squares equals 100%.

Spencer needed to solve for five output values: The rate of wrongful conviction for both judge and jury, the rate of "wrongful acquittal" for both judge and jury, and the fraction of defendants who were actually innocent or actually guilty. Spencer couldn't solve for five variables when he had only three inputs. He couldn't do it and nobody else can. It's not Spencer's fault. It's just mathematically impossible. Spencer needed more input, and the NCSC study had more to give.

In addition to providing judge-jury results for 290 trials, the judges and jurors  were asked to rate the evidence between 1 (evidence strongly favored prosecution) and 7 (evidence strongly favored defense.)  Including that strength-of-evidence information in his analysis, Spencer arrived at the following results,which I have simplified for ease of understanding.
  

The table shows that the jury convicts a factually innocent person in 5.4% of the trials, and the judge (based on his or her vote) would convict an actually innocent person in 10.5% of the trials. Those are not, however, quite the numbers we are looking for. We want to know the number of wrongful convictions per conviction, not per trial. To arrive at that number from the table, we would divide the percentage of wrongful convictions by the percentage of convictions. In the case of the jury, that's .054 / .689 = .078 = 7.8%. The corresponding number for judges is 12.9%.

Another shocking number from the table is the probability of an actually innocent person being convicted. Spencer's analysis indicates that 27% of the defendants are actually innocent of the crime for which they are charged. If those innocents face a jury, they have a 20% chance of being convicted. ( .054 / .27 = .20 ) That's bad enough. If those innocents instead elect for a bench trial, they have a 39% chance of being convicted. ( .105 / .27 = .39 )

Similarly, you can calculate the rate of "wrongful acquittal" from the table. I put the term in parenthesis because it is not necessarily an error to acquit a person who is actually guilty. If the State did not prove its case beyond a reasonable doubt, then the error would be in voting guilty. When I use the term "wrongful acquittal" with the quotes, I am indicating only that the person was acquitted despite being factually guilty, not that the jury necessarily made an error.

The "wrongful acquittal" rate for the jury, based on Spencer's analysis of the NCSC judge-jury agreement data, is 30.5%. ( .095 / .311 = .305 ) Whereas the judge is almost twice as likely to convict an innocent person, the judge is only one-third as likely to acquit a guilty person. ( .022 / .187 = .118 = 11.8% )

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There are so many numbers floating around, and so many numbers that could be made to float, that we need a way to simplify everything. That's why each chapter in this monograph is defined by a single number, the rate of wrongful conviction for jury and bench trials combined. That rate can then be multiplied by the number of people incarcerated to determine the number of people wrongfully incarcerated.

To arrive at that single number, we need to account for the number of jury trials compared to the number of bench trials. I have summarized those calculations in the three tables below. One table is for the juries, one for the judges, and one for jury and bench trials combined. Each table contains three estimates. Spencer actually provided estimates for a variety calculation assumptions, but recommended only two be considered valid. Those are labeled 3a and 3b. I've also included the results from my own judge-jury agreement analysis, which I present in Chapter 11.1.

There's a whole lot of data there, so you'll have to click on the image to enlarge it and view it. Don't be intimidated. I've marked up the figure to allow you to quickly home in on what's important.

The numbers in bold are the basic results from the judge-jury analyses.

The numbers underlined (near the upper left) are state court conviction data for 2004 from the Sourcebook for Criminal Justice Statistics Online. They are, of course, identical for each of the three analyses within each table. I'm merely seeing what would happen if I applied the results from the judge-jury agreement analyses to real world data.

The other numbers are merely Excel level calculations. The wrongful conviction and wrongful acquittal rates are inside the heavily outlined boxes in the bottom table. Spencer has estimated two different wrongful conviction rates. I took the average of his two results to use as the chapter number.

I'm ecstatic to see that my calculated wrongful conviction rate matches that of Professor Bruce D. Spencer to the first decimal point, assuming I choose to accept his second analysis as correct. The match is interesting since we used two different sets of input data, and two dramatically different approaches for defining and solving our equations. I'm quite frankly stunned.

Spencer and I don't agree near as well when it comes to the rate of wrongful acquittal. My calculated rate is nearly 50% higher than his. However, since acquittals are far fewer than are convictions, in absolute numbers, both Professor Spencer and I are once again in near agreement. (Notice how I've elevated him once again from Spencer to Professor Spencer now that I see he agrees with me.)

The number "n" along the right hand side of the tables is the ratio of guilty men set free to innocent men convicted. In all cases, it's close to unity. In no case is it close to ten. Ten is the number made famous by the long dead English jurist William Blackstone who proclaimed that it is "better that ten guilty persons escape than that one innocent suffer."

My choice of using "n" as the symbol for that value comes from a clever and fascinating article by Alexander Volokh entitled "n Guilty Men." Volokh therein presents an amazing and comprehensive history of various pronouncements of what a proper value of "n" should be, ranging from a high of infinity to a low of 0.1.

Any suggestion, however, that we can better protect the innocent among us (or ourselves for that matter) only by allowing more guilty people to escape is based on a false premise. There is nothing in the mathematics that says it must be so.

We could, if we wished, improve our law enforcement system to identify and convict a higher percentage of those who are in fact guilty and not even bring to trial those who are in fact innocent. An state induced wrongful eyewitness identification, for example, can allow both the escape of a guilty person and the conviction of an innocent. Application of improved arson science could spare thousands of innocents and let not a single guilty person go free, since no crime may have been committed.

We need to learn the lesson so frequently reinforced upon those who attempt to excel at business: poor quality is extremely costly and can be deadly.

[Note to self. The closing paragraph really sucks. Need to fix it. Also, need to discuss actual innocence versus legal innocence.]