On The Rate of Wrongful Conviction: Chapter 0.027

In my spare time, I'm preparing a compilation of essays on various estimates of our country's wrongful conviction rate.  As I draft them, I'll publish them here. When I'm done with all of them, I will compile them into a single document and make it available on Scribd for free, and on Amazon for a minimal cost.

The chapters will be numbered according to the predicted wrongful conviction rate, in percent. I will begin with the lowest estimate and work my way up to the highest. Keep in mind that we have a lot of people incarcerated, around 2.5 million. That means a wrongful conviction rate of only 1%, if applicable to all those incarcerated, means we have wrongfully imprisoned 25,000 people. A wrongful conviction rate of 10% means we have wrongfully imprisoned a quarter of a million people.

It should be interesting to see what the various studies have to say. Let's get started.

CHAPTER 0.027
THE SCALIA NUMBER

Joshua Marquis is the district attorney of Clatsop County, the county residing on the mouth of the Columbia River, at the northwest corner of Oregon. His article “The Innocent and the Shammed” appeared in the January 26, 2006 issue of The New York Times. He therein presented his estimate of our country’s wrongful conviction rate.

In the Winter 2005 Journal of Criminal Law and Criminology, a group led by Samuel Gross, a law professor at the University of Michigan, published an exhaustive study of exonerations around the country from 1989 to 2003 in cases ranging from robbery to capital murder. They were able to document only 340 inmates who were eventually freed. (They counted cases where defendants were retried after an initial conviction and subsequently found not guilty as "exonerations.") Yet, despite the relatively small number his research came up with, Mr. Gross says he is certain that far more innocents languish undiscovered in prison.

So, let's give the professor the benefit of the doubt: let's assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren't involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent -- or, to put it another way, a success rate of 99.973 percent.

<<>>

Five months later, Justice Antonin Scalia published a concurring opinion in the case of Kansas v. Marsh. Scalia chided those who dissented, led by Justice David Souter, for suggesting that innocent people may have already been executed in the United States.

It should be noted at the outset that the dissent does not discuss a single case -- not one -- in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.

Souter’s dissent, however, did mention the study by Samuel Gross, mentioned above. Scalia dismissed that study by quoting directly from The New York Times article.

Of course, even with its distorted concept of what constitutes “exoneration,” the claims of the Gross article are fairly modest: Between 1989 and 2003, the authors identify 340 “exonerations” nationwide -- not just for capital cases, mind you, nor even just for murder convictions, but for various felonies. Joshua Marquis, a district attorney in Oregon, recently responded to this article as follows:

“[L]et’s give the professor the benefit of the doubt: let’s assume that he understated the number of innocents by roughly a factor of 10, that instead of 340 there were 4,000 people in prison who weren’t involved in the crime in any way. During that same 15 years, there were more than 15 million felony convictions across the country. That would make the error rate .027 percent—or, to put it another way, a success rate of 99.973 percent.”

Scalia then adopts the 0.027% error rate as fact.

The proof of the pudding, of course, is that as far as anyone can determine (and many are looking), none of cases included in the .027% error rate for American verdicts involved a capital defendant erroneously executed.

Ironically, Scalia had earlier in his opinion berated Souter and the other dissenters for parroting news articles without critical review.

Of course even in identifying exonerees, the dissent is willing to accept anybody’s say-so. It engages in no critical review, but merely parrots articles or reports that support its attack on the American criminal justice system.

<<>>

Joshua Marquis made an elementary but critical mistake in his calculation. He divided his estimate of all those who might be exonerated by his estimate of all felony convictions. He should have instead divided by all felony convictions in which exoneration is reasonably possible.

Most felony convictions, for example, are for crimes such as burglary, assault, and drugs. Such crimes are frequently devoid of DNA evidence and typically result in sentences of less than ten years. Since DNA is the most powerful evidence of actual innocence, and since the average time from conviction to exoneration is ten years, people convicted of the lesser felonies are seldom exonerated, for reasons having nothing to do with guilt or innocence.

Rape and murder cases, on the other hand, constitute less than two percent of all felony convictions but represent ninety-six percent of all known exonerations. (See Samuel Gross’ rebuttal to Scalia’s opinion “Souter Passant, Scalia Rampant: Combat in the Marsh.”)

If Joshua Marquis were to correct his calculation from

(10 x 340) / (15,000,000)

to

(10 x 340) / (15,000,000 x 0.02 / 0.96)

as I believe he should, then his estimate would rise to 1.1%.

Marquis’ corrected estimate would still, however, depend entirely on the arbitrary multiplier he selected in the numerator. He simply assumed the Gross study had identified 10% of all the people wrongfully convicted. Had he assumed instead that the Gross study had identified all 100% of those wrongfully convicted, his corrected estimate would be 0.11%.

On the other hand, had Joshua Marquis assumed the Gross study identified only 1% of the factually innocent, a number which seems as reasonable to me as 10%, then his corrected estimate would indicate we wrongfully convict, by trial or plea bargain, 11% of all those people we charge with felonies.

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Despite multiplying some numbers together and then dividing by another, the Scalia number is no more than a guess by a single prosecutor, a guess soon adopted by a supreme court justice who demonstrates no aptitude for the simplest of applied mathematics.

Texas Death Penalty on Trial: Judge Fine Sets a Date

I wrote of Judge Kevin Fine first in Now For Another Cosmic Moment after he granted a hearing to the defense team for John Green. The defense team had argued their client should not be subject to the death penalty because the death penalty was unconstitutional. Judge Fine, admitting to his concern that Texas had probably already executed innocent people, scheduled a hearing. Texas appealed and lost.

Now I learn from My Fox Houston that Judge Kevin Fine has scheduled the hearing for November 8 and expects that the hearing might last two weeks. The article was only four paragraphs long. I like the last one best.

Prosecutors say they are not opposed to a hearing [that] looks at the constitutionality of the death penalty law, but object to any hearing that would look at whether Texas has executed an innocent person.

The prosecutors were previously opposed to looking into the constitutionality of the death penalty, but apparently changed their opinion after the appellate court ruled against them. And I will bet dollars to doughnut holes that the prosecutors deeply and sincerely object to any hearing that would consider whether Texas has executed an innocent person.

Particularly so if that person is Cameron Todd Willingham or Shaka Sankofa (both of whom I have yet to write about), or Johnny Frank Garrett, or David Wayne Spence, or Robert Nelson Drew, or Carlos DeLuna, or Odell Barnes, or a long list of others I intend to document in this blog.

Certainly had Tim Cole not died on death row before Texas could execute him, certainly had he not succumbed of asthma before Texas could plunge lethal chemicals into his arm, certainly then the prosecution would object to discussing his case as well.

Sandrine Ageorges Skinner Interviewed on The Independent Show

There is an 11 minute interview with Sandrine Ageorges-Skinner now available at a web site called The Independent Show.

As usual, she is amazingly composed, articulate, and well-spoken.

There was an uncomfortable moment for me when the interviewer tried to list the countries with a higher capital punishment rate than the U.S.  He mentioned China "of course" and Iran, and then he stalled. I'll guess North Korea is up there too.

That's not a good crowd to be hanging with, so to speak.

Hank Skinner and Codeine

The nearly 844 pages of the Hank Skinner's post-conviction evidentiary hearing is chock full of interesting tidbits. I'll mention a few of them here, and save others for later.

(Translation: I haven't posted in a couple days because I'm trying to finish the second book. I need a quick post to tide me over until I put up the second part of my response to Lynn Switzer's position paper explaining why she refuses to release the DNA. Her position is presented here. The first part of my response is here. The next part of my response is still rattling around in my head.)

INTERESTING ITEM #1:

Hank Skinner never confessed to killing Twila, Elwin, or Randy. I'm not saying he never confessed publicly. We all know that. I'm talking about behind the scenes, when alone with his attorney. Even when things were at their bleakest and Hank was at his weakest, he maintained his innocence. I take you now to where his court-appointed trial attorney, Harold "Fiscal Foibles" Comer was being questioned by his appellate attorney about that very issue:

Q Mr. Comer, did Mr. Skinner at all times while you represented him maintain his innocence?
 

A Yes, he did. He did maintain his innocence.
 

Q And did he maintain his innocence with you, and I'm asking about in confidential communications did he ever indicate to you that he was guilty of the crimes?
 

A No, he didn't.

Remember this brief testimonial exchange when Comer and others leave the impression they have some inside knowledge of Hank Skinner's guilt or innocence, that there is some deep, dark secret out there they can't share with us because of attorney/client privilege.

INTERESTING ITEM #2

This one has to do with Hank's ingestion of codeine that night. Hank has given various accounts of how he might have ingested it, but I've come to believe that Hank has little clear recall of the events that evening. That was, after all, his defense: he was unconscious / stuperous / incapacitated / delirious due to a potentially fatal level of alcohol and codeine in his blood. The lab tests back up the very high levels of those substances.

With that in mind, consider the following testimony, again taken from the questioning of Harold "Ed Woods" Comer. This was his response to a question about whether he read a letter Hank sent to him about being allergic to codeine. There will be a pop quiz at the end, so read the rambling response carefully. There is significant content buried within.

Well, as you say, he's a prolific letter writer, and when I say I didn't read them all, I would read over them or give them what attention I could with the time that I had, but I found that Mr. Skinner's letters would have a multitude of irrelevant or insignificant matters, but then he might have a gem right in the middle such as maybe perhaps this that I overlooked, because I don't recall, even though this letter is here, of having read it to the extent that it would cause me to think that it would be important to have Dr. Lowry or the toxicologist review the effects of an allergic reaction to Codeine, and I probably assumed, well, an allergic reaction, that could take many forms, unknown, and then the process was -- Let me answer your question. Number one, I may have not read it. Number two, if I did read it I wasn't sure that him having an allergic reaction would have anything significant to do with our defense of the case, so in either event I didn't -- as I recall, I didn't advise Dr. Lowry that he might be allergic to Codeine. I know on the first page it seems he wanted to attack the lab report because it said that he had Codeine and he said he didn't have Codeine, that he was allergic to Codeine, and of course, Codeine was -- an ingestion of Codeine that was shown by the state lab was part of -- a significant part of Dr. Lowry's opinion that that amount of Codeine, together with alcohol, could result and probably did result in Mr. Skinner not being able to have the physical coordination to commit the acts, so either I didn't read it or I read it and didn't give it any particular significance and I simply -- since I had, maybe not at that point (inaudible) and we had Dr. Lowry's testimony relating to Codeine ingestion would have caused him to not be able to participate in the crime.

Here's the quiz: What portion of that rambling response is exculpatory? In other words, what portion of that response supports Hank's claim of innocence? Take a moment. Take two if you wish.

Okay, here's my takeaway:

I know on the first page it seems he wanted to attack the lab report because it said that he had Codeine and he said he didn't have Codeine, that he was allergic to Codeine, ...

That's a big deal. Others have claimed (and I left open the possibility) that Hank ingested the codeine after killing Twila, Elwin, and Randy. He could have done that, so the theory goes, to make it seem as if he had been too incapacitated to have killed three people.  However ...

I no longer consider that a possibility. If Hank Skinner ingested codeine after the murders to provide himself a pharmaceutical alibi, he would not have been surprised to learn they found codeine in his blood, and he certainly would not have wanted his attorney to challenge the test.

Post Script:

This tiny exercise of finding a nugget of information in a single rambling paragraph, after being tipped off that something is there to be found, provides a small sense of what it's like to pour through hundreds of documents, some of them thousands of pages long, seeking nuggets of truth without knowing any are there to be found. I can't imagine how anyone would be interested in forensic data mining.

An Unexpected Touch of Sympathy for Ronnie Lee Gardner

Early this morning, at twenty minutes past midnight, Ronnie Lee Gardner was executed by a Utah firing squad. Plenty of other sources will provide details of the execution. I'll pass. Instead, I'll write of the crime itself, present a (nearly frivolous) Actual Innocence Scorecard, and let slip a surprising reaction to this case.

From Wikipedia, we learn a little.

Gardner murdered bartender Melvyn Otterstrom in 1984; during his trial for this crime in 1985, he attempted escape, killing attorney Michael Burdell in the process.

I wanted more. It would be difficult to find out much about the crime itself, however, by searching Google or Bing or any of the standard search engines. Those searches lead to a sea of articles about the execution itself. I wanted to know about the crime itself.

I searched instead using Google Scholar. Appellate decisions sometimes provide a good factual summary of the case. (Google Scholar is another free service. Go to Google, select "more" from the top left menu, select "Scholar" from the dropdown menu, click the "Legal opinions and journals" button.) In my search the first hit was Gardner v. Galetka. That's an adverse ruling on one of Gardner's appeals. It informed me that I should check Gardner v. Holden for a good recitation of the crime details. Gardner v. Holden was the third hit in my search. I opened it and viola: details of the crime. I present them below.

The facts developed at the trial and at the hearing on the petition for post-conviction relief are as follows: On April 2, 1985, Ronnie Lee Gardner was transported from the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City for a pretrial hearing on a second degree murder charge. As Gardner and his guards entered the courthouse basement, a woman handed Gardner a gun. The guards exchanged gunfire with Gardner, shot him through the lung, and then retreated from the area. In attempting to escape, Gardner entered the archives room, where he saw two attorneys, Robert Macri and Michael Burdell, hiding behind the door. Gardner pointed the gun at Macri and cocked the hammer of the gun. Burdell exclaimed, "Oh, my God!" Turning, Gardner shot and killed Burdell.

Gardner then forced prison officer Richard Thomas, who was also in the basement, to conduct him out of the archives room to a stairwell leading to the second floor. As Gardner crossed the lobby, he shot and seriously wounded Nick Kirk, a uniformed bailiff. Gardner climbed the stairs to the next floor, where he took hostage Wilburn Miller, a vending machine serviceman. As Gardner exited the building, Miller broke free and escaped. Outside, Gardner threw down his gun and surrendered to waiting police officers.

Gardner's attorneys, brothers Andrew and James Valdez of Salt Lake Legal Defenders Association, were to meet Gardner that day at 9:00 a.m. for the pretrial hearing. Andrew Valdez was walking toward the courthouse when he saw Gardner go down to the ground. As Andrew ran across the street, he could see that Gardner was bleeding from the chest. Andrew spoke with Gardner and then left. James Valdez arrived at the courthouse soon after. He immediately approached Gardner and asked him if he was all right; Gardner responded that he was in pain.

Gardner was later transported to the University Hospital. Wayne Jorgensen, a prison officer assigned to guard Gardner at the hospital, testified at trial that Gardner told him he shot Burdell because he thought Burdell looked as if he would jump on him. According to Jorgensen, Gardner also declared that he would have killed anyone who tried to stop him from escaping.

Both Andrew and James Valdez represented Gardner at trial. The thrust of the defense was that Gardner was in such pain and physical distress after he was wounded that his shooting Burdell was only a reaction and therefore the killing was unintentional. In preparation for trial, defense counsel spoke with the emergency room doctors who treated Gardner. The doctors told counsel that Gardner was not in shock when he came into the emergency room, did not have excessive bleeding, was lucid and demanding, and was aware of the situation.

Robert Macri testified at trial that after Gardner shot Burdell, Macri ran around the door and closed it behind him as a shield. However, at the preliminary hearing, Macri testified that he could not remember how the door shut. After the preliminary hearing but before trial, unknown to either the prosecution or defense counsel, Macri underwent hypnosis to help him remember how the door shut. Macri could not recall that detail while under hypnosis but asserted that while driving to California some months later, he suddenly recalled that he had shut the door. In all other respects, Macri's testimony at the preliminary hearing and at trial were the same. It was at the post-conviction proceeding while Gardner appeal was pending that defense counsel first became aware that Macri had been hypnotized prior to trial.

At trial, Gardner took the stand and testified on direct examination that he had been convicted of various crimes, including crimes of violence. Defense counsel elicited this information, according to the testimony at the habeas hearing, because he believed that the prosecution would use those convictions to impeach Gardner and he wanted to "steal the prosecution's thunder."

Then I searched for information regarding Gardner's crime against Melvin Otterstrom, I came across an excellent six-page article by Amy Donaldson from The Deseret News: Crime and Punishment For Ronnie Lee Gardner. I encourage you to read her entire article. I quote below just her version of the shooting itself.

On April 2, 1985, [Gardner] was walking into the old 3rd District Court in Salt Lake City about 8:45 a.m. when a woman either pressed a gun into his hands or he retrieved a gun that she had taped to a drinking fountain. Those details vary, depending on whom you ask. Immediately, an officer yelled, "Run! He's got a gun!"

While one officer ran out of the building, another opened fire on Gardner, hitting him in the shoulder. He ducked into a records room, where he reportedly said, "They hit me! They got me! I've been hit bad!"

Gardner pointed the gun at attorney Bob Macri, who stood next to his friend and colleague Michael Burdell. Macri testified that he thought it was an April Fools' joke as Gardner first pointed the gun at him and then moved it to Burdell.

As Macri ducked and ran out, Gardner shot Burdell in the eye, killing him.

"As I went out the door, the gun went off," Macri testified in 1985. "I left screaming, 'Police! Help! Murder!' I lost control at that point, I think."

While Gardner continued to insist that some details of that day were hazy, he did have to pull back the hammer on the revolver to shoot Burdell. He fired twice at the lawyer, who was in the basement doing pro-bono work for his church.

Gardner ran out of that room and into Salt Lake County sheriff's bailiff Nick Kirk. Kirk had heard about the shooting and ran down five flights of stairs to "protect his judge" — James Sawaya. When Gardner saw him, he shot him in the stomach, sending Kirk to the floor. He walked past him and into the stairwell Kirk had just exited. He then ascended to the second floor of the courthouse. He aimed the gun at a man filling a candy machine and asked for a ride. As the two navigated the hallway leading to the doors, the man jumped out an open window, leaving Gardner bloodied and alone with one bullet remaining in his gun.

Gardner surrendered to police on the lawn of the courthouse after dropping the gun and yelling that he was unarmed.

There is no question that Johnnie Lee Gardner murdered Michael Burdell. I scored him at zero. I include my Actual Innocence Scorecard to the right of this paragraph. It was almost a frivolous exercise, but not quite, I hope.

My little exercise reminded me once again that the members of our law enforcement community face risk routinely as they try to protect us from those who would do us harm. I don't want to lose sight of the noble work they do, even as I fault them when I believe they may have wrongfully prosecuted, convicted, and even executed an innocent person.

My exercise reminded me also that matters are never as simple as they seem. I have no doubt that Johnnie Lee Gardner was a murderer. I won't dispute the value of his execution or add to the debate about the propriety of the firing squad. I find it all very sad though: two lives cut short.

Michael Burdell's life ended in the archive room of the courthouse that day as he was working pro bono to help his church. It ended when Johnnie Lee Gardner shot him in the eye, for no good reason.

Johnnie Lee Gardner's life ended much earlier, I argue, due to reasons too complex for me to comprehend. As I completed his Actual Innocence Scorecard, I found myself doing something I had not previously done. I made excuses for him when filling out the Assessment portion. Amy Donaldson's article, it turns out, provided far more than the details of the shooting. She told of Gardner's early life, and of his final acceptance of what had happened to him, who he had become, and what he had done. Her writing caused me to assess the case against Gardner as follows.

No one disputes Ronnie Lee Gardner murdered Michael Burdell. As time passed, even Gardner gave up on his excuses that he was in too much pain at the time to be responsible for the shooting, or that the victims had threatened him.

It seems though that Gardner never had a decent chance at life. Found undernourished, wandering the streets in a diaper, at age 2. Child welfare workers found his home life so distressing, they filed a "failure to care" petition against his mother, a rare move at the time. Gardner, though, was left in the care of his mother, who had taken to wearing his step-father's belt around her neck as a visual warning to her children. Sexually abused for the first time at age 5 by an older sister and her teenage friend. Introduced to sniffing glue and huffing gas at age 6. Addicted to drugs by the time he was 10. Permitted by his parents to sniff glue and drink alcohol. Place in a mental hospital, though he was not mentally ill. By age 11, he'd been in detention 12 times. Sexually molested and trained in the ways of crime by the two male "role models" in those institutions.

I'll leave it to you to decide if Ronnie Lee Gardner had a fair chance at life. I'll leave it to you to decide if you could have done any better.