Innocence found: Searching for a fix on false convictions

Authorities work to go beyond blame, work together

Published: Saturday, June 9 2012 12:00 p.m. MDT

Debra Brown gets emotional as her daughter, Alana Williams, discusses what it was like growing up without her. Williams was 11 when her mother went to prison.

Laura Seitz, Deseret News

Judge Michael DiReda of Utah's Second District is convinced that Debra Brown didn't do it. He found her "factually innocent" in May 2011, after she served 17 years in prison. Attorney General Mark Shurtleff is convinced she did do it.

In dispute is the cold-blooded murder of Brown's former employer, shot in his sleep near Logan in 1993. Today, Brown is free, reunited with her children and grandchildren. While the Attorney General is not seeking to put her back behind bars, he is asking the Utah Supreme Court to overturn the finding of innocence, arguing that the trial judge erred in his ruling (see related Reply Brief PDF at left).

Since the 1989 advent of DNA analysis, 290 convicted Americans have been exonerated through biological evidence, according to the Innocence Project, the national clearing house for investigating and pursuing innocence claims. The most recent DNA exoneree is a Colorado man released this month.

But few cases actually have DNA evidence available. Most convictions are based on circumstantial evidence and eye witnesses. Proving errors in such cases is difficult, as they often come down to disputed reconstructions of fading memories.

False convictions are a particular concern for those lacking economic resources, according to Daniel Medwed at the University of Utah law school.

"Poor people lack the financial resources to mount a vigorous and thorough defense," Medwed said. "All too often, indigent defendants are represented by public defenders who themselves are underfunded and overworked."

In the absence of DNA, no one knows how many innocents are mistakenly languishing in prison. If the false conviction rate is .027 percent, as U.S. Supreme Court Justice Antonin Scalia suggested in 2006, most experts on all sides would view this as regrettable but inevitable. But if the rate is closer to 3.3 percent or 5 percent, as Michael Risinger of Seton Hall University has suggested, most would agree a civilized system would demand strong correctives.

Combatting 'urban myths'

With real numbers elusive, people imagine reality through stories. Even innocence advocates admit such stories are often distorted and counterproductive.

Joshua Marquis, district attorney of Clatsop County, Ore., is a feisty, outspoken and widely quoted defender of the law enforcement and prosecutors, whom he sees as unfairly maligned by news media and reform advocates.

Exhibit A for Marquis is an acclaimed off-Broadway play, "The Exonerated," which features actors playing six "exonerated" death row convicts. The play ran for two years in the early 2000s, became a made-for-TV movie with Mimi Rogers and has since toured college campuses around the country.

In Marquis' view, the errors in the play typify public misunderstanding and distrust cultivated by activists and sympathetic news media.

Marquis points out that at least three of the six convicts were never exonerated at all. One of these, Robert Earl Hayes, had his conviction overturned over a procedural error and was acquitted at retrial. But he was quickly rearrested and convicted for a different rape-murder with facts strikingly similar to his earlier conviction.

In a law review article, Marquis documented the active role played by another of the six "exonerees" in killing two Florida police officers in cold blood at a highway rest stop. Marquis notes that Sunny Jacobs was, in fact, never exonerated for her part in the killings. After her conviction was vacated for procedural errors, she avoided a new trial by pleading guilty to two second-degree murder charges in a complex plea that allowed her to walk with time served.

"For a human endeavor we have an awfully good track record," Marquis said. "That doesn't mean everything is great, but I do get frustrated with the urban myths promulgated by the Innocence Project and found in news media and television shows."

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