Overturning Wrongful Convictions

Duke law students are getting first-hand experience with the criminal justice system through a nationwide network of similar law-school-based projects. They examine disturbing evidence of the innocent being convicted and jailed, particularly in capital cases.

Teacher-san: Crutcher in the center of class

On Valentine's Day in 1976, Henry Baker (not his real name) was passing by the convenience store near his home on the outskirts of a small eastern North Carolina town when he noticed an usual amount of activity. Baker, a local mechanic who had just celebrated his thirty-eighth birthday with his family the evening before, was a regular customer. As it turned out, the owner of the convenience store had been shot in the chest at close range. By his own account, before he knew what to make of it all, Henry Baker was the prime suspect in the killing.

At trial, a sheriff's deputy introduced damning physical evidence--a spent shotgun shell found in Baker's car. A single eyewitness said that the perpetrator used a sawed-off shotgun. A local physician testified that the autopsy confirmed that the victim had been killed with a shotgun.

Baker was found guilty and was automatically sentenced to death only hours before the North Carolina Supreme Court handed down a decision overturning the state law that made the death penalty mandatory in first-degree murder cases. Though he avoided the death sentence, he has now spent twenty-six years in prison. He was eligible for parole, after serving twenty years, but it has not been granted. At sixty-four, Baker has gone partially blind because, he claims, a long-term assignment to a work detail that involved powerful chemicals damaged his eyesight. His seven children, who live all across the Southeast, don't really know their father anymore, especially the daughter who was an infant when Baker was convicted. All these years, Baker has maintained his innocence and has been a well-mannered prisoner. He is now in a minimum-security facility on the North Carolina coast.

Two Duke law students went to the prison with James Coleman, law professor and senior associate law school dean, to visit Baker one scorching day in April of last year and hear his story first-hand. Some months before, Baker had written to the Innocence Project, a relatively new collaborative effort between Duke's law school and the University of North Carolina's schools of law and journalism. This pro-bono, student-driven initiative accepts queries from convicted felons imprisoned in North Carolina who assert their innocence (rather than taking issue with any legal or procedural error) and have at least three years left in their prison terms.

Kendra Montgomery-Blinn, student director of the Innocence Project last year and a third-year law student this fall, is one of only a handful of Duke law students who are considering careers in the criminal justice system. (Most of her peers are planning careers in civil or corporate practice.) Montgomery-Blinn has been working on Henry Baker's case since her first year at Duke and visited him on that hot April afternoon last year.

"We asked him to tell us what happened, wanting to see if his story was consistent with the transcripts, his letters, and the appellate documents. It was very consistent. He even told us things that had hurt his case." Over the years, Baker had written to the NAACP, the American Civil Liberties Union, and others. "We were the first ones who responded," says Montgomery-Blinn.

The Innocence Project gives Duke law students who volunteer what may be their only first-hand experience with the criminal justice system. Beyond that, it is part of a nationwide network of similar law-school-based projects that have been steadily adding to the growing evidence of a disturbing prevalence of wrongful convictions in U.S. courts, particularly in capital cases.

In the most comprehensive study of U.S. death-penalty cases to date, released two years ago, criminologists and lawyers at Columbia University found that two out of every three capital sentences they reviewed were overturned on appeal due to errors or inappropriate conduct at trial. The findings included the presence of incompetent defense, exculpatory evidence suppressed by police and prosecutors, misinformed jurors, and biased judges.

While the Columbia study focused on flaws in the system leading to wrongful convictions, the increasing use of DNA evidence to overturn guilty verdicts has brought a much higher visibility to the potential number of actually innocent prisoners who are incarcerated. Since forensic DNA testing became possible in the late 1980s, an increasing number of cases involving biological evidence have been reopened (when physical materials can still be retrieved for testing). Some 100 people in the United States have been set free after being exonerated by DNA testing, according to data from the Innocence Project at Yeshiva University's Cardozo Law School, the first such project in the country. Established in 1992 by law professor Barry Scheck and criminal attorney Peter Neufeld, Cardozo's clinical-law program has represented or assisted scores of inmates whose convictions have been reversed or overturned based on a range of problems in the system.

As word of the Cardozo project spread throughout the nation's prisons, the volume of letters coming into the New York City-based law school led Scheck and Neufeld to organize a conference in 1998 on wrongful convictions. They also put out a call for help at the gathering. Law students from Duke and Carolina attended, along with Coleman, associate dean for academic affairs Theresa Newman J.D. '88, and UNC law professor Rich Rosen, who, in a highly publicized 1995 case, had introduced DNA evidence to overturn the ten-year-old rape conviction of a Burlington, North Carolina, man. The group came home from the conference ready to assist in cases of potential innocence in North Carolina.

The Cardozo connection also led to a Duke course on wrongful convictions conducted via satellite link with several other law schools around the country. In the first year, Cardozo supplied the case materials and lectures. Today, the course is offered the old-fashioned way: team-taught by Coleman, who currently chairs the American Bar Association's committee overseeing the ABA's call for a moratorium on the death penalty; Theresa Newman; and Pete Weitzel, executive director of the North Carolina Center for Actual Innocence, a nonprofit that is now a liaison between the Innocence Projects at Duke and UNC. The course helps create interest in the Innocence Project, leading to a number of students volunteering to conduct the initial case reviews.

Says Weitzel, "In North Carolina, we made the decision not to limit ourselves to cases involving only DNA testing or capital cases, which some other centers have done. Cardozo started with DNA-related cases and has been able to cherry-pick the most promising on a national basis. In North Carolina, with some diligence, we might have come up with four or five DNA cases that we could pursue, but what DNA investigations illustrate is just how wrong the system can be in normal circumstances, whether you have the conclusive proof--the silver bullet of DNA--or not."

Teacher-san: Crutcher in the center of class
Teacher-san: Crutcher in the center of class

 On guard with research: Innocence Project student director Montgomery-Blinn, left, and law professor Coleman


Weitzel, former managing editor of The Miami Herald, also involved the UNC School of Journalism and Mass Communications in the project through a course he team-teaches to train investigative reporters. Bringing journalism students into the investigative work follows a precedent set at Northwestern University, where students from the Medill School of Journalism work with the Center for Wrongful Convictions. That program has been involved in overturning nine death-row cases, prompting Illinois governor George H. Ryan in January 2001 to suspend executions in the state until the system can be fixed to prevent wrongful convictions. In May, Maryland governor Parris N. Glendening imposed a similar moratorium on state-sponsored executions. In North Carolina, a notable number of the largest local governments have petitioned the legislature to enact a statewide moratorium on executions. The anti-death penalty movement here, largely fueled by a coalition of the state's faith communities, has raised the specter of wrongful convictions as a key component of its platform.

According to Duke law student John Guild, as the program has gotten up and running and word of its existence has begun to spread among inmates, the number of letters coming into the North Carolina Center for Actual Innocence has increased three-fold, to some fifty to seventy-five per week. "Our initial screening eliminates some 60 to 70 percent of them," he says. Those inmates who clear that first stage are sent a questionnaire and asked to submit copies of any materials that might help verify their claim. From this pool, another 90 percent of the cases will be rejected. Ultimately, a panel of faculty and students examine the most compelling cases submitted and debate the feasibility of proving a wrongful conviction. Once a case is accepted, a faculty member, a Center officer, or a local attorney working pro bono will take on the investigation, assigning student volunteers as staff for the effort.

Among the fifteen to twenty cases that make it to the stage of full investigation in a given year, Henry Baker's case, many believe, may offer the best first shot at proving a wrongful conviction for the nascent Duke project. At UNC, another case being investigated by journalism students has also taken a positive turn.

"Of all the ingredients we studied in class that can be part of a wrongful conviction, Henry Baker's case seems to have them all," says Montgomery-Blinn, who is spending the summer before her final year of law school working in a local district attorney's office to understand the criminal justice system from the prosecutorial side. At the same time, she continues her work on the Baker investigation. She says the case is so riddled with anomalies that it would make a great book, one that she'd like to write if Baker's conviction is eventually overturned.

Jim Coleman says he believes it is very likely that Henry Baker is telling the truth about what happened to him--namely, he was framed by a corrupt county sheriff's department for the killing of the convenience-store operator. Not long after Baker's trial, the sheriff himself was convicted for involvement in a prostitution ring. The sheriff may have had reason to protect the real murderer, who, Baker claims, went around town boasting that he killed the store operator himself.

Such speculation is not nearly as persuasive as what the Duke investigating team has found relating to the victim's autopsy report. After twice reviewing the autopsy materials, North Carolina's current medical examiner has confirmed that the victim was shot not once, but twice--once in the chest and once in the back--by a handgun, not a shotgun. The words "shotgun wound" appear three times on the cover sheet of the autopsy report. But that finding, the state medical examiner said, is contradicted by information in subsequent pages of the report detailing the size and shape of the wounds and the nature of the lead that was removed from the victim's body. The spent shotgun shell found in Baker's car would thus be irrelevant to the case. While the medical examiner of the county in question has died, the physician who actually conducted the victim's autopsy and wrote the references to a "shotgun wound" in the report has been located by the investigating team in another part of North Carolina. He recently admitted in writing that references to the shotgun wound were obviously erroneous.

The single eyewitness in the Baker case is also being sought by the Duke team. Investigators have reason to believe that the witness changed his testimony at trial, contradicting an earlier story in which he said there were indeed two shots fired, not one. Coleman says this points up the most common factor in wrongful convictions, namely, the tendency to rely on the testimony of a single eyewitness. "Overall, if the state did thorough investigations and kept an open mind about suspects, we'd not be in this situation," Coleman argues, "but there is more often a rush to convict, rather than an effort to see justice done."

Or as Barry Scheck put it in an interview with PBS's Frontline program in 1997, "What these cases are telling us, something that we already knew from other studies, is that mistaken identification is the single greatest cause of the conviction of the innocent. It's true today. It's always been true. DNA testing is showing us, with a great deal of scientific certainty, that it's an even greater problem than we suspected."

In the Baker case, why would the witness lie? "Maybe the sheriff's department convinced him to do so since he was the only evidence they had," Coleman speculates.

Among the other players in the case, the court-appointed attorney who represented Baker has told the investigative team that he was always convinced of Baker's innocence and was shocked when his client was convicted. Yet, Coleman says, the attorney apparently did not do a very good job attacking the contradictions between the testimony and the autopsy report, or in closely questioning the eyewitness.

Seventy to 75 percent of people in prison today went to trial with a court-appointed attorney, according to Coleman. "In most court districts in North Carolina, these attorneys are not public defenders," he says. "Instead, they are attorneys who take the cases because they are just starting in practice and need the work or they don't have other work because they are not very good at what they do." The pay is too low for successful attorneys to take on such cases. "Judges are satisfied to appoint a lawyer who is breathing, not necessarily one who has appropriate experience," he says.

In Baker's case, the difficulty did not stop with his attorney. It was pure luck that the investigative team managed to find the summary of Baker's court transcript. It had been misfiled in the local clerk of court's office. "When the clerk's office files records, they are not always thinking about whether someone might need to get that file later or how they will find it--that a case might need to be reopened," says Coleman. The urge to dispatch justice efficiently and find closure for the victim's family is enormous.

Says Pete Weitzel, "There is a societal presumption that police and prosecutors don't bring a case forward without compelling evidence. The motives of the police are not questioned. We want to have faith in our law enforcement. It's important to our sense of security." In the Baker case, he says, "A man is arrested because he has a shotgun shell in his car. Now forensic experts say it wasn't a shotgun but a [handgun] bullet. Normally, all the evidence would be kept by a police department, but it wasn't. You can only hope that the court-appointed attorney takes possession of all the information he could get in a case like this, that he got copies of all the evidence. But that goes back to the quality of the court attorney and the amount of money the court allows for processing information."

And court-appointed attorneys rarely hire an investigator, Weitzel says. "It takes more time, costs more money, requires court approval, and the judge doesn't want to pay for it. In fact, if the court-appointed attorney taps too deeply into the court budget, then the attorney may not be invited back to work for the court again."

Moreover, interviews for jury selection and the closing arguments in a trial are not necessarily included in court records. "The Constitution requires that the defendant have a lawyer and a means for appeal," Coleman says, "but unless requested by the prosecutor or defense attorney, court reporters do not always prepare transcripts of closing arguments. Unfortunately, there apparently was no such request in the Baker case."

In fact, appellate courts generally don't receive the complete trial record when they hear an appeal. It therefore becomes nearly impossible for the appellate court to judge the quality of the defense, what was said or not said on behalf of the defendant. "How can you judge an attorney's strategy when you don't have their opening or closing remarks?" asks Weitzel.

Wrongful convictions with far fewer questionable factors than Henry Baker's case have become increasingly common, Coleman says, because courts that are overwhelmed with the volume of cases begin to ignore the manner in which they are prosecuted and defended. "We have tolerated a system that takes shortcuts, police and prosecutors who cut corners, and judges who tolerate that."

Even when there is biological evidence, it cannot always be trusted. "Some forensic scientists have been known to 'dry-lab' evidence, actually creating evidence or writing up reports on tests that were never conducted on blood, hair fiber, or DNA," says Theresa Newman, the associate dean. "These circumstances arise when the test requested may exceed a lab technician's competence, but that person wants to keep his or her job."

While a number of costly procedural reforms are being proposed, the bottom line is a strong deterrent to change, particularly when state budgets are severely strapped. Coleman argues that we nevertheless need to invest in training more professional police and prosecutors--or, as he puts it, "people who don't approach it like a game."

A number of other measures may remedy future cases, but what about the wrongfully convicted who remain in prison? Last year, Cardozo's Peter Neufeld told an interviewer from the University of California-Berkeley that, while DNA evidence has "shaken the foundations of eyewitness testimony" and has created more willingness among police to implement reforms in that particular arena, the request to revisit closed cases still meets with enormous resistance. While hospitals are constantly auditing their practices, personnel, and standards, or the National Transportation Safety Board investigates "if a plane falls from the sky or a train is derailed," Neufeld says, "you can't believe how difficult, if not impossible, it is to get the law-enforcement apparatus to go back and do those kinds of audits. They just won't do it."

Coleman contends that the people who run the system have largely managed not to participate in the debate. "They have dismissed complaints about wrongful convictions by saying that those who complain are just against the death penalty. But for every innocent person who is in prison, there is a guilty person out on the street. We are not protecting the public with these verdicts."

Law student John Guild agrees. "It doesn't matter what your political persuasion is--liberal, conservative, pro-law enforcement, or if you're primarily concerned with the poor and downtrodden of society. Who wants someone who is innocent to stay in prison while the guilty person goes free?"

In the case of Henry Baker, no ruling in his favor at this point can retrieve the years he's spent in prison. "I was stunned to realize that this man has been in prison longer than I've been alive," says Montgomery-Blinn. As a result of her work with the Innocence Project and her acquaintance with Baker, she's still trying to decide which side of the system she'll work in--criminal defense or prosecution. "It may seem odd," she says, "but I figure if I work with the prosecution, I could do it well. It will be a matter of prevention of a case like this."

Eubanks '76 is a frequent contributor to the magazine.

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