By Hans Sherrer
Vol. 2, Issue 1
April 26, 2000
Justice Denied is the first regularly published magazine to focus on the pervasive problem of wrongful convictions in the United States. A few courageous people, however, have preceded Justice Denied by writing books and articles disclosing the prevalence and tragedy of wrongful convictions . I think these pioneers deserve to be recognized; they laid the foundation for understanding how wrongful convictions occur.
Published during the last 100 years, the following 21 books and articles explore various aspects of wrongful convictions. They are presented in chronological order. Though diverse, these publications share a common theme -- wrongful convictions are not an infrequent aberration of an otherwise good system, but are symptomatic of a never-ending plague infecting the core of the law enforcement system.
To my knowledge, the first publication in the U. S. that documented cases of wrongful conviction was a 550-page report in the early 1900s by Nashville attorney, K. T. McConnico. The document detailed cases of innocent people executed prior to 1901. Relying partly on Mr. McConnico's research, a Memphis merchant named Duke Bowers prepared a 97-page memorandum in 1915 titled, Life Imprisonment vs. The Death Penalty. The documents by Mr. Bowers and Mr. McConnico were instrumental in influencing the Tennessee legislature to abolish the death penalty for murder in 1915.
Although there is at least one known copy of Life Imprisonment vs. The Death Penalty, there are apparently no known copies of Mr. McConnico's document in existence. Neither is its exact year of publication known, although it is prominently referenced in Mr. Bowers's 1915 memorandum.
Mr. Bowers and Mr. McConnico picked a fertile topic for their passion. There is evidence that the practice of executing innocent people began in 1608, when George Kendall not only became the first person executed in Colonial America, but he was an innocent man wrongly convicted and sentenced to death for political reasons.
The first book published in the U.S. that dealt exclusively with the conviction of the innocent was Yale Law Professor Edwin Borchard's 1932 book Convicting the Innocent. Its information is still relevant -- today, people continue to be wrongly convicted by the same methods involved in the 65 cases presented in the book. Remarkably, 20% of these cases involved innocent people convicted of crimes that never occurred.
Eight years later, Convicting the Innocent was published in the Rocky Mountain Law Review. Max Hirschberg, a German criminal defense lawyer who emigrated to the U.S. in the 1930s, wrote the 1940 article. Mr. Hirschberg's article is significant because it examined the problem of wrongful convictions from a European perspective. Beginning with Lesurques's wrongful conviction and execution in 1796, Mr. Hirschberg demonstrated that, for centuries, people in Europe have been wrongly convicted by the same methods as in the U.S. The article describes 26 cases of wrongful conviction, including three men exonerated by the efforts of the author, two who were sentenced to death. Mr. Hirschberg refers to German lawyer Erich Sello's 1911 book, The Mistakes of the Penal Jurisdiction and its Causes, which relates 153 German cases of innocent people convicted in potentially capital cases and sentenced to death or life imprisonment. Mr. Hirschberg also relied on an 1897 book, Miscarriages of Justice and their Causes, by two Frenchmen, Maurice Lailler and Henri Vonoven, that relates numerous cases of innocent people convicted in France, some of whom were executed. At the time this article is written, neither Sello's book, nor Lailler and Vonoven's book, have been translated into English.
The second book I know that dealt with cases of wrongful conviction was published in 1952. Perry Mason buffs might be surprised to learn the author was Erle Stanley Gardner. The Court of Last Resort related 13 cases of wrongful conviction. Mr. Gardner, a lawyer before he became a detective writer, founded a loose coalition of lawyers and investigators in the late 1940s called The Court of Last Resort. This organization operated until the early 1960s and helped innocent people who were imprisoned and had nowhere else to turn for help.
Five years later, Judge Jerome Frank's book, Not Guilty, was published. The 1957 book was written from the perspective of a well-known judge who was often at odds with views espoused by his legal contemporaries. The book cited 34 cases of wrongful conviction.
Another five years passed before Sarah Ehrman's magazine article, For Whom the Chair Waits , appeared in a 1962 issue of Federal Probation. She related the stories of five innocent men who were waiting on death row for their date with the executioner.
Investigative reporter Edward Radin's 1964 book, The Innocents, highlighted 80 cases of wrongful conviction. Mr. Radin looked at 300 such cases, and the ones he chose to include in the book were representative of the different ways such injustices occur. A significant revelation in Mr. Radin's book was a judge's estimate that 5% of all U.S. convictions are of innocent people. It is worth noting that the judge interviewed by Mr. Radin was afraid that if people found out how unreliable the "justice" system is at separating the innocent from the guilty, the public would lose confidence in the "system's" legitimacy.
Nine years later Wrongful Imprisonment was published. This 1973 book was written by two people in the Britain, Ruth Brandon and Christie Davies, and it related 70 British cases of wrongful imprisonment that occurred between 1950 and 1970. The authors opined that the cases they examined comprised only "the tip of a much larger iceberg" of wrongful convictions.
Although it didn't deal exclusively with the subject, Professor Elizabeth Loftus' 1979 book, Eyewitness Testimony cited several cases involving a wrongful conviction. Her book is still important and relevant because of its wealth of information about how easily faulty eyewitness testimony can contribute to a false conviction.
Arye Rattner's 1983 Ph.D. dissertation, Convicting the Innocent: When Justice Goes Wrong has been often cited because it contains the estimate that 14,000 people are wrongly convicted every year. Significantly, if Mr. Rattner's 1983 estimate is adjusted for the growth in the criminal prosecution system, it indicates there are now over 50,000 wrongful convictions every year.
Guilty Until Proved Innocent: Wrongful Conviction and Public Policy was a 1986 article published in the journal Crime & Delinquency. Co-authors C. Ronald Huff, Arye Rattner and Edward Sagarin examined data related to several hundred cases of wrongful conviction.
In 1987, the Stanford Law Review published the most significant document in the nearly 100 years the prevalence of wrongful convictions has been written about in this country. Written by Hugo Adam Bedau and Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases documented 350 20th- century cases of a wrongful conviction in a potentially capital case. The article's 158 pages included 23 cases involving the execution of an innocent person.
The article was considered authoritative enough for the U. S. Supreme Court to cite it in Herrera v. Collins, 506 U. S. 390 (1993). Ironically, the decision in that case opened the floodgates for the executions of innocent people we are witnessing today. In Herrera, the Court ruled that absolute innocence of a crime is not a Constitutional bar to being executed. The Court reasoned that the due process clause requires only that an accused person receive a "fair trial." Therefore, if an innocent person is convicted after a "fair trial," his innocence is a mere error of fact and not a constitutional issue.
Chief Justice Rehnquist wrote in the majority opinion that federal courts "sit to ensure that individuals are not imprisoned in violation of the constitution, not to correct errors of fact." He also wrote that "a claim of actual innocence is not itself a constitutional claim." Dissenting from the Court's decision, Justice Harry Blackmun castigated his fellow justices for endorsing what he called the "simple murder" of innocent people by the state.
In 1988, Convicted but Innocent was published in the journal Law and Human Behavior. Written by Arye Rattner, the article analyzed data related to 205 cases of wrongful conviction.
Martin Yant's book, Presumed Guilty, was published in 1991. In my opinion, Mr. Yant's book is perhaps the most readable work dealing with wrongful convictions. The book's easy-to-read style in no way detracts from its wealth of information related to how wrongful convictions are produced by police, prosecutors, "defense" lawyers and judges. It is worth noting that Mr. Yant cites an estimate that 20% of all rape accusations are false. This estimate was revealed as conservative by a 1997 FBI study of 12,000 rape cases, which found that 25% of all accusations are false. Continuing research shows the actual percentage of false accusations may be closer one third. That is, the rape may have occurred, but the wrong man is accused.
In Spite of Innocence, a book-length treatment of Hugo Adam Bedau and Michael L. Radelet's 1987 Stanford Law Review article, was published in 1992, and reissued in 1996. The book's appendix expands on their 1987 article and lists about 420 cases of wrongful conviction in potentially capital cases.
Psychologist Gisli H. Gudjonsson's 1992 book, The Psychology of Interrogations, Confessions and Testimony, related several dozen cases of wrongful conviction caused by false confessions. The author began his career as a police investigator, and he learned firsthand the danger of false confessions and how easily they are induced. He found that with almost no effort he was able to obtain a false confession from an innocent man -- for a crime that he later found out never occurred.
The 1992 wrongful conviction of Richard Lapointe inspired Convicting the Innocent. The 1996 book is an anthology focusing on how a false confession is used to procure a wrongful conviction. In the essay he contributed to the book, sociologist Richard Ofshe estimated that 60% of the general public can be expected to falsely confess to murder if subjected to the psychological pressure of normal police questioning techniques. Professor Ofshe's estimate is substantiated by the 70% of American POWs in China during the Korean War who were induced, by psychological techniques, to falsely confess to war crimes or otherwise collaborate with the Chinese.
Professor Ofshe's estimate is also backed by the research conducted by Professor Stanley Milgram at Yale University in the 1960s. His experiments revealed 67% of Americans are inordinately susceptible to the psychological suggestions of authority figures to act in extreme ways they ordinarily wouldn't.
Another book published in 1996 was Convicted but Innocent: Wrongful Conviction and Public Policy. This book cites 42 cases of wrongful conviction, and was written by C. Ronald Huff, Arye Rattner and Edward Sagarin.
Mean Justice, a 1999 book by Edward Humes, focused on the 1993 false conviction of Pat Dunn for his wife's 1992 murder. In an appendix, Mr. Humes lists 102 people wrongly prosecuted in Kern County, California, from 1982 to 1998. Fifty-six of these people were wrongly convicted, including Mr. Dunn. Mr. Humes was awarded a Pulitzer Prize in 1996, and his credibility as a researcher helped his book attract national attention.
At the beginning of this year Actual Innocence was published. The book was written by Barry Scheck and Peter Neufeld, the most well-known proponents of vindicating innocent people by DNA testing, with the assistance of Jim Dwyer. The book has been reviewed in many major newspapers and magazines because of its authors' notoriety as lawyers for O. J. Simpson.
These books and articles, published over a span of 85 years, carry a central theme -- under the best of circumstances, the protections shielding the innocent from being wrongly convicted are weak and insufficient. Those precarious protections have been shunted aside over the last three decades in reverse ratio to the enormous growth of the U.S. law enforcement system. The recent expansion of police power is reflected in the 1000% growth during the past 30 years in the number of people incarcerated.
As the law enforcement system has grown by magnitudes of bureaucratic complexity, its meager internal precautions against wrongful convictions have completely broken down. The pages of Justice Denied duly report this breakdown, along with its human impact of untold pain and anguish to the innocent victims of the system, whose lives and dreams are demolished, whose family life is often destroyed, and who suffer financial bankruptcy in trying to defend themselves against a false accusation.
The U. S. Supreme Court sets the tone for the attitude adopted by state and federal courts when deciding issues. The 1993 Herrera decision symbolized the clear signal the Court has been sending to every U.S. state and federal court -- innocence is a mere detail that is no bar to punishment, including execution. Considering the Supreme Court's lack of concern for innocence, it isn't surprising that on March 3, 2000, Freddie Lee Wright was executed several hours after an Alabama Supreme Court justice characterized him as an innocent man.
The truth may be unpleasant to face, but the current judicial process functions as little more than a cog in a massive system that processes the wrongfully accused in a manner appropriate to pigs entering a sausage factory. This is perhaps no more alarmingly demonstrated than by the over six million Americans who are under the control of the law enforcement system at any given time. People who are imprisoned, or on probation or parole, include almost 5% of the adult males in this country. Based on an analysis of the known information, my own estimate, which I believe conservative, is that over one and one quarter million of these six million people are legally innocent.
This helps illustrate that the proliferation of books, articles, and news stories related to wrongful convictions since the early 1980s has not occurred in isolation from reality. All across America, innocent men, women, and even children are being prosecuted, convicted and imprisoned at an alarming rate. More tragically, court decisions show that innocent people are being executed with the full knowledge and approval of the highest U.S. judges, with ever increasing frequency.
Justice Denied Magazine was not founded in a vacuum, but in response to the systemic breakdown of state and federal courts to even appear to function as fair, impartial adjudicatory bodies of innocence or guilt. This breakdown has directly contributed to the out-of-control epidemic of wrongful convictions occurring in this country.
The literary and research efforts of the men and women I've mentioned, as well as of many other deserving, unnamed people, provide Justice Denied with a solid historical, factual and theoretical foundation.
Building upon these pioneering efforts, Justice Denied Magazine is generating a body of irrefutable evidence that wrongful convictions are not an isolated phenomena in this country -- they are enough of an everyday occurrence to support a regularly published magazine.
This is not meant as an exhaustive bibliography. There are many unlisted books and articles in magazines, journals, and law reviews related in some manner to wrongful convictions. Justice Denied has a link on its website listing several hundred books, articles, documentaries and movies related to wrongful convictions.
Life Imprisonment vs. the Death Penalty, Duke Bowers, 1915. Available in the New York Public Library. This document along with Mr. K. T. McConnico's report was influential in persuading the Tennessee legislature to abolish the death penalty in 1915.
Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice, Edwin M. Borchard, Yale, University Press New Haven, Connecticut, 1932. (Cites 65 cases of wrongful conviction.)
Convicting the Innocent , Max Hirschberg, 13 Rocky Mountain Law Review 20, December, 1940. (Cites 26 cases of wrongful conviction, 2 in the U. S. and 24 in Europe, primarily in Germany.)
The Mistakes of the Penal Jurisdiction and its Causes (untranslated title: Die Irrtuemer In Der Strafjustiz Und Ihre Ursachen), Erich Sello, 1911. (Cites 153 cases of innocent people, primarily in Germany, sentenced to death or life imprisonment.)
Miscarriages of justice and their causes (untranslated title, Les erreurs judiciaires et leurs causes), Lailler and Vonoven, 1897. (Cites cases of innocent people convicted in France, some of whom where executed.)
The Court of Last Resort, Erle Stanley Gardner, William Sloane, New York, 1952. (Cites 13 cases of wrongful conviction.)
Not Guilty, Jerome Frank and Barbara Frank, Doubleday, Garden City, NY, 1957. (Cites 34 cases of wrongful conviction.)
For Whom the Chair Waits , Sarah Ehrmann, Federal Probation, March 1962, pp. 14-25. (Cites five cases of men wrongfully convicted who were sentenced to death and waiting on death row.)
The Innocents, Edward. D. Radin, William Morrow, NY, 1964. (Cites 80 cases of wrongful conviction out of 300 such cases the author looked at.)
Wrongful Imprisonment: Mistaken convictions and their consequences, Ruth Brandon and Christie Davies, Archon Books, Hamden, CT, 1973 & Allen & Unwin, London, 1973. (Cites 70 cases of wrongful imprisonment. 52 of the cases resulted in pardons and 18 of the convictions were set aside. The quotation is on page 20.)
Eyewitness Testimony, Elizabeth Loftus, Harvard University Press, Cambridge, MA, 1996 ed. with new preface. (C)1979.
Convicting the Innocent: When Justice Goes Wrong , Arye Rattner, Ohio State University, Columbus, OH, Ph.D. dissertation, 1983, AAT 8400279. (Public Administration, Ohio State University).
Guilty Until Proved Innocent: Wrongful Conviction and Public Policy , C. Ronald Huff, Arye Rattner, and Edward Sagarin, Crime & Delinquency, Vol. 32, No. 4, Oct. 1986, pp. 518-544. (Analyzed several hundred cases of wrongful conviction.)
Miscarriages of Justice in Potentially Capital Cases , Hugo Adam Bedau & Michael L. Radelet, Stanford Law Review, November, 1987, Vol. 40, pp. 21-179. (Cites 350 cases of wrongful conviction. 326 were homicide and 24 were rape convictions.)
Convicted but Innocent: Wrongful Conviction and the Criminal Justice System , Arye Rattner, Law and Human Behavior, Vol. 12, No. 3, Sept. 1988, pp. 283-294. (Analyzed 205 cases of wrongful conviction.)
Presumed Guilty: When Innocent People Are Wrongly Convicted, Martin Yant, Prometheus Books, Buffalo, NY, 1991.
In Spite of Innocence: Erroneous Convictions in Capitol Cases, Michael L Radelet, Hugo Adam Bedau, and Constance E. Putnam, Northeastern University Press, Boston, 1996 pb edition with new forward (C) 1992. (Cites approximately. 420 cases of wrongful conviction.)
The Psychology of Interrogations, Confessions and Testimony, Gisli H. Gudjonsson, John Wiley & Sons, London, 1992. (Cites several dozen contemporary cases of wrongful conviction caused by false confessions. In exploring the history of false confessions, the author relates a 1660 British case in which three members of a family were publicly executed after one of them falsely confessed and implicated the others in the murder of a man who turned up alive two years later. (p. 235))
Convicting the Innocent: The Story of a Murder, a False Confession, and the Struggle to Free a "Wrong Man," edited by Donald S. Connery, Brookline Books, Cambridge, MA, 1996. In addition to the essay he contributed to this book, Professor Ofshe has written several outstanding articles related to how false confessions contribute to wrongful convictions.
Convicted But Innocent: Wrongful conviction and Public Policy, C. Ronald Huff, Arye Rattner, and Edward Sagarin, SAGE, Thousand Oaks, CA, 1996, ISBN: 0-8039-5953-2. (Cites 42 cases of wrongful conviction.)
Mean Justice: A Town's Terror, A Prosecutor's Power, A Betrayal of Innocence, Edward Humes, Simon & Schuster, NY, 1999. (Cites 56 cases of wrongful conviction in an Appendix.)
Actual Innocence: Five Days to Execution and Other Dispatches From the Wrongly Convicted, Barry Scheck, Peter Neufeld, Jim Dwyer, Doubleday, NY, 2000. (Analyzes 62 cases of wrongful conviction in Appendix 2, 26 involving prosecutorial misconduct and 31 involving police misconduct.)