PENALTY

Fourteen cases involved forensic evidence, including a number with
unreliable and unvalidated forensics. Ten of the cases involved hair
comparisons, two involved fibre comparisons and nine involved
blood typing. Two involved bite mark comparisons; perhaps most
well known is the case of Ray Krone, who was convicted based on
little other than a flawed bite-mark comparison.
The death penalty cases were not so different from many other DNA
exoneree cases that similarly involved murders, and in which false
confessions and informant testimony and flawed forensic evidence
played a central role. Of the first 250 DNA exonerees, 40 had falsely
confessed. I examined each of those cases in detail and found that in
all but two cases, the innocent person was said to have confessed in
detail. Those false confessions were all seemingly powerful because
they were contaminated. While many of the interrogations were
partially recorded, none was recorded in its entirety. The confessions
were concentrated in the murder cases. Of the 40 false confessions
that I studied, 25 involved rape and murder, 3 murder only, and 12
rape only.
EXONERATION: AN UPHILL BATTLE
Once evidence is contaminated early in a criminal investigation,
post-trial procedures—like appeals and the post-appeal habeas corpus
remedies that we have in the United States—may not be of much
help. It is a myth that appellate judges will correct factual errors: An
appellate court “knows no more than the jury and the trial judge” and
has a more limited role, partially because the appellate judge is “obliged
to accept the jury’s verdict” and focuses on more limited questions of
law rather than the reliability of facts. 6 An appellate judge, who was
not present at the original trial, is highly reluctant to second-guess the
jury’s decision to convict. No more than 1 or 2 per cent of cases are
ever reversed. Of course, the vast majority of criminal cases involve plea
bargains, in which the right to an appeal or post-conviction review is
usually waived. Even when an appeal can be brought, rules setting strict
time limits have traditionally prevented a convict from raising new evidence
of innocence (although some of those rules have been relaxed,
6 Jerome Frank and Barbara Frank, Not Guilty (Garden City, NY, Doubleday, 1957).
particularly by state statutes that permit post-conviction DNA testing),
and claims of innocence remain very difficult to make.
Once the appeal is over, an indigent inmate lacks the constitutional right
to a state-provided attorney. Every jurisdiction in the United States offers
some type of review after the appeal is complete, usually called post-conviction
or habeas review. This additional level of review may permit, in
theory, litigation of claims that could not have been raised during the
initial appeal. However, non-death-row inmates typically do not have
lawyers to help them navigate the incredibly complex procedural barriers
that limit the chances of success during such reviews.
The death-row DNA exonerees typically followed a long road from
trial to exoneration. Four of them had two trials; two had three trials.
Each time they were convicted again, until they finally obtained DNA
testing and were exonerated. The picture was not much different for the
full group of DNA exonerees, including those who were not sentenced
to death, except that among the non-death-row prisoners, even fewer
received any relief prior to obtaining DNA testing. Non-death-row
exonerees often did not obtain lawyers after their appeal and could not
get any help filing habeas petitions. They rarely challenged the faulty
evidence that caused their wrongful convictions, and when they did try,
they failed. The figure that follows illustrates the degree to which the
first 250 DNA exonerees (those who had judges write decisions in their
cases) tried to challenge the evidence presented at their trials during
appeal or post-conviction review, and how few obtained conviction
reversals before they were successfully exonerated using DNA testing.
Post-conviction challenges to evidence by the
first 250 DNA exonerees
We now know that these people were innocent, but they did not have
any luck raising claims of innocence either: Every DNA exoneree who
tried to raise such a claim failed. These appeals and post-conviction
challenges took time; the road to exoneration took an average of 15
years. Of the 18 death-row DNA exonerees, 8 earned reversals on
appeal or post-conviction. This high reversal rate is consistent with
other studies of post-conviction litigation by death row inmates,
although these cases were mostly litigated before the passage of the
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