by Jon B. Gould. New York: New York University Press, 2008. 320pp. Cloth. $39.00. ISBN: 9780814731796.
Reviewed by Priscilla H. M. Zotti, Department of Political Science, The United States Naval Academy. Email: zotti [at] usna.edu.
THE INNOCENCE COMMISSION recounts the creation of Virginia’s Innocence Commission and the search for justice in a dozen cases involving wrongful convictions. The book is both a primer and how-to for those activists wishing to create such an entity and a discussion of larger issues of resulting errors in the criminal justice system.
The book is divided into five sections. Chapter One provides a history of wrongful convictions and the development of the responses by states, and in particular Virginia. Chapter Two discusses the creation of the Innocence Commission of Virginia (ICVA). The main focal point of the book lies in Chapters Three and Four which describe the likely source of wrongful convictions and the state response. Gould explains the main sources of wrongful convictions and the remedies that states can and do provide. Finally, Chapter Five updates research on wrongful convictions and sets out a strategy for ongoing criminal justice reform. Author Jon B. Gould gives currency to the problem, providing the reader with both an agenda and strategy for future reform.
The book begins with the predicate that the system of criminal justice should be able to accurately distinguish between the accused that is innocent and one that is guilty. Furthermore, there is a difference between factual innocence and legal innocence which is difficult for many to grasp. The issue is not only one that is personal for the individual accused and convicted wrongfully. As a societal issue, it undermines our sense of justice; it costs the taxpayers in terms of compensation and post-conviction litigation. At the heart is the very legitimacy of the criminal justice system. Are we willing to say that a system run by humans will inevitably have mistakes, or is it reasonable to place as many safeguards in the system as practically possible? If the cost to prevent such problems is a reasonable solution, such as videotaping confessions, in the long run most of these measures are embraced by law enforcement and are seen as a practical and logical step. The justice system is fraught with safeguards and technicalities that seemingly prevent most of the egregious errors. Still, considering the possibility of error and ways in which to alter it are responsible ways of running any complex decision making system.
Errors inevitably occur, and all systems become better ones by learning what causes the errors and how best to prevent them. Structural engineers study failure and why buildings collapse or are structurally compromised. Medical review boards consider medical mistakes [*417] and factors that contributed to them. Transportation experts look to understand why accidents occur and what can be done to prevent them in the future. Gould argues that the criminal justice system should take a cue from these other professional entities and embrace the retrospective that these commissions and boards provide.
One of the themes Gould echoes early on is the position of Barry Scheck and Peter Neufeld, the authors of ACTUAL INNOCENCE. States should stop wasting resources opposing exoneration claims and invest in preventive measures to minimize wrongful convictions. The investment in preventative justice gleans information that is useful in understanding the problem more fully. How do wrongful convictions occur? What measures are feasible to put in place both to lessen the volume of wrongful convictions and increase safeguards for future litigants?
The author finds the Virginia experience useful in discussing the larger issues of wrongful convictions and remedies and reforms to the criminal justice system. This portion of the book will likely be of less interest to scholars who want to understand the ramifications of DNA in the legal system, the death penalty or broader issues of justice and fairness. Nevertheless, the lessons learned in creating the ICVA are valuable to policymakers, activists and lawyers on both sides of the docket. Still some policymakers struggle with the idea of review or innocence commissions since the system has a host of safeguards already in place.
The book first describes the history of wrongful convictions. Whereas a generation ago Americans would find it incredulous that innocent individuals were convicted, a 2001 Harris Poll found that 94 percent of American believe that innocent defendants are sometimes convicted and even executed by the state. The most common components of erroneous convictions center on eye witness testimony, false confessions, and prosecutorial excess and faulty circumstantial evidence. Most of the known wrongful convictions occur in rape and murder cases, a small percentage of the criminal case load. The number of errors is quite small when considering the volume of cases handled annually. However, the development of DNA as an investigative tool and the introduction of its findings into the criminal justice system have illuminated the problem of wrongful convictions. DNA is used regularly both to include and exclude suspects. As of 2005 there had been more than 340 exonerations nationwide utilizing DNA evidence.
Gould then discusses a dozen wrongful conviction cases from Virginia. He gleans from each of them one or more of the nine primary factors identified by the ICVA that contribute to wrongful convictions: mistaken identification and eyewitness testimony, identification procedures such as photo arrays and lineups that are skewed and suggestive, “tunnel vision” by law enforcement early on in an investigation, outdated laboratory testing techniques, ineffective legal assistance, failure of prosecutors to disclose exculpatory evidence, defendants with mental defects, inconsistent statements by the defendant, and finally a lack of a review process post conviction. Gould discusses each of these factors briefly and indicates reforms that can be put into place, some [*418] more easily than others. While each of these receives brief treatment, it is fascinating to contemplate what small changes could do to the error rate in convictions.
Nationally three quarters of documented wrongful convictions were based on, in part, mistaken identifications by supposed eye witnesses. For example, eyewitness misidentification is a leading contributor to wrongful conviction in rape cases. Particularly cross-racial identification is a problem, accounting for half of rape exonerations, despite the fact that rape of white women by black men account for less than ten percent of reported cases. Multiple person line ups as opposed to single person “show ups,” as well double blind procedures where police who are conducting a photo array or lineup do not know the identity of the suspect, are easily instituted procedures that could reduce the influence, subtle or not, on eyewitness identification. Consider the impact of the following: Witnesses are told that the suspect may or may not be in the photo array or lineup; they are not obligated to make an identification; the officer in charge may or may not know the identity of the suspect; and all eyewitness procedures are recorded. These changes are tremendously effective in reducing the misidentification by witnesses.
Gould underscores the synergistic effect of a variety of professionals who have realized that safeguards against wrongful convictions are a necessary part of the criminal justice system. He considers the Ryan Commission recommendations in Illinois, the American Bar Association, the ICVA and other criminal justice reforms. There appears to be a growing climate for reform. The most popular recommendation – electronically recording custodial interrogations, is a good example. By 2005, more than 300 police and sheriff offices in 43 states record full custodial interviews in a variety of felony arrests. Furthermore, police departments support the practice.
Innocence Commissions are likely to go the way of the MIRANDA warnings. Initially the reaction to MIRANDA v. ARIZONA was one of shock and backlash. The courts in 1966 appeared to some to be coddling criminals and handcuffing police. Police chiefs denounced MIRANDA as unworkable, but by 2000 in DICKERSON v. UNITED STATES, MIRANDA was viewed as an essential and symbolic safeguard, which professionalized the police rather than than providing a windfall to the accused. While the idea of safeguards to wrongful convictions may seem excessive to some, they may become standard procedure in the near future. Particularly with regard to the death penalty, these safeguards promise to serve justice and fairness when the cost of punishment is severe and irreversible.
Gould argues that states should provide this resource and not depend on private assistance. States should institutionalize post-conviction review – much like they do in Canada and the United Kingdom. This is not just a legal issue, but a societal and moral one.
It is perhaps unrealistic to say that the system MUST be error free but it is equally unrealistic to argue that errors do not occur and the system should not engage in post conviction review. [*419]
Sadly, it is unlikely that wrongful convictions will cease to occur. However, it is possible to reduce the rate of errors and the likelihood that questionable evidence or tactics will be used in prosecutions. THE INNOCENCE COMMISSION provides the reader with both the practical advice of creating and establishing reform as well as a very interesting discussion of errors and workable solutions to minimize them.
Scheck, Barry, Peter Nuefeld, and Jim Dwyer. 2000. ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED. New York: Doubleday.
MIRANDA v. ARIZONA, 384 U.S. 436 (1966).
DICKERSON v. UNITED STATES, 530 U.S. 428 (2000).
© Copyright 2008 by the author, Priscilla H. M. Zotti.