Post by happyhaddock on May 28, 2006 14:19:09 GMT -5
Unpopularity brings wrongful convictions
Character of defendants makes accusations, rush to judgment more likely
ARNOLD H. LOEWY
Special to the Observer
In recent years, we have witnessed a disturbing number of instances in which convicted defendants have been conclusively proven to be innocent, frequently after spending years in prison, and in some cases even after having spent time on death row. North Carolina has not been immune from such occurrences as the wrongful convictions of Darryl Hunt (for murder), Ronald Cotten (rape) and Terrence Garner (robbery) so vividly attest. By examining the current Duke lacrosse controversy, we can understand how some of these wrongful convictions occur.
I take no position on the guilt or innocence of any particular individual. Unlike some others in the community, I prefer to wait until the evidence is all in before making that call. But one thing is clear. These are unpopular defendants. If these folks are guilty of the kind of arrogant, boorish, racist and sexist behavior reported by the news media, they deserve to be unpopular. Nevertheless, unpopularity is a pretty good harbinger of a wrongful conviction.
This is not to say that unpopular people don't commit crimes. They do. But they also get accused of crimes they don't commit, and their unpopularity tends to lead to a rush to judgment and an ultimate conviction.
One of the best known historical cases, known as the "Scottsboro Case," involved nine black teenagers almost certainly wrongly accused of raping two white women on a train headed for Scottsboro, Ala.
Let us imagine that the Duke lacrosse case had arisen in an era before DNA evidence was developed. We have a young mother trying to work her way through college accusing three reputedly obnoxious young men of rape. The public communications among their group, and the general demeanor and reputation of their group, certainly suggests their capability of committing the alleged offenses. My guess is that a jury would think that they were probably guilty.
Of course, that is not supposed to be enough. Juries are supposed to be convinced of guilt beyond a reasonable doubt.
Indeed, some think that defense attorneys play this reasonable doubt card with disturbing frequency, thereby freeing lots of guilty people. Without question, this has happened.
But I am not convinced that juries always, or even usually, take reasonable doubt seriously.
When a person is killed, a woman is (or is believed to be) raped, or a child is (or is believed to be) molested, I'm not sure that a jury that believes the defendant probably did it is likely to give him the benefit of a reasonable doubt. We say that it is better that 10 guilty people go free than one innocent person be convicted, but I am not sure we really believe it when as a juror, we would have to let a probably guilty murderer, rapist or child molester walk the streets.
Indeed, I am convinced that a fairly large number of people have been convicted of heinous crimes because they just seemed guilty, rather than that the evidence proved them guilty beyond a reasonable doubt.
Jeffrey McDonald and Michael Peterson are two fairly prominent cases that some believe fall into this category. One might hope that most of these people were in fact guilty, but we really have no way of knowing.
What can we do to prevent this?
For one thing, we should be wary of identification evidence, particularly cross-racial stranger identification. In the lacrosse case, for example, originally all 46 white lacrosse players were tested for DNA, evidently because the victim was certain only of the race of her alleged attackers.
Now that none of the players' DNA has been found in or on her, she is reported to have made an identification. How sure can we be of that identification? Is it not possible that her rapists (assuming the rape happened) were non-lacrosse players who happened to be present at the party? Certainly in other cases -- the aforementioned Cotten and Garner, among others -- eyewitness misidentification has led to wrongful convictions.
Of course, it is my fondest hope that these defendants will not be wrongly convicted (I'd like them to be either rightly convicted if guilty or rightly acquitted if innocent).
But we must recognize that wrongful convictions do happen. Because they do, we need to seriously rethink some of our procedures. We should not, for example, deny parole to people who refuse to apologize for a crime they claim to have not committed. Jeffrey McDonald, for example, could have long since been paroled if only he would apologize for a crime that he says he didn't commit.
Finally, since we now know that we convict innocent people, we should think very long and very hard about retaining the death penalty.
Arnold H. Loewy is Graham Kenan Professor of Law at UNC School of Law. Write him at ahloewy@email.unc.edu or UNC School of Law, Chapel Hill, N.C. 27599-3380.
Character of defendants makes accusations, rush to judgment more likely
ARNOLD H. LOEWY
Special to the Observer
In recent years, we have witnessed a disturbing number of instances in which convicted defendants have been conclusively proven to be innocent, frequently after spending years in prison, and in some cases even after having spent time on death row. North Carolina has not been immune from such occurrences as the wrongful convictions of Darryl Hunt (for murder), Ronald Cotten (rape) and Terrence Garner (robbery) so vividly attest. By examining the current Duke lacrosse controversy, we can understand how some of these wrongful convictions occur.
I take no position on the guilt or innocence of any particular individual. Unlike some others in the community, I prefer to wait until the evidence is all in before making that call. But one thing is clear. These are unpopular defendants. If these folks are guilty of the kind of arrogant, boorish, racist and sexist behavior reported by the news media, they deserve to be unpopular. Nevertheless, unpopularity is a pretty good harbinger of a wrongful conviction.
This is not to say that unpopular people don't commit crimes. They do. But they also get accused of crimes they don't commit, and their unpopularity tends to lead to a rush to judgment and an ultimate conviction.
One of the best known historical cases, known as the "Scottsboro Case," involved nine black teenagers almost certainly wrongly accused of raping two white women on a train headed for Scottsboro, Ala.
Let us imagine that the Duke lacrosse case had arisen in an era before DNA evidence was developed. We have a young mother trying to work her way through college accusing three reputedly obnoxious young men of rape. The public communications among their group, and the general demeanor and reputation of their group, certainly suggests their capability of committing the alleged offenses. My guess is that a jury would think that they were probably guilty.
Of course, that is not supposed to be enough. Juries are supposed to be convinced of guilt beyond a reasonable doubt.
Indeed, some think that defense attorneys play this reasonable doubt card with disturbing frequency, thereby freeing lots of guilty people. Without question, this has happened.
But I am not convinced that juries always, or even usually, take reasonable doubt seriously.
When a person is killed, a woman is (or is believed to be) raped, or a child is (or is believed to be) molested, I'm not sure that a jury that believes the defendant probably did it is likely to give him the benefit of a reasonable doubt. We say that it is better that 10 guilty people go free than one innocent person be convicted, but I am not sure we really believe it when as a juror, we would have to let a probably guilty murderer, rapist or child molester walk the streets.
Indeed, I am convinced that a fairly large number of people have been convicted of heinous crimes because they just seemed guilty, rather than that the evidence proved them guilty beyond a reasonable doubt.
Jeffrey McDonald and Michael Peterson are two fairly prominent cases that some believe fall into this category. One might hope that most of these people were in fact guilty, but we really have no way of knowing.
What can we do to prevent this?
For one thing, we should be wary of identification evidence, particularly cross-racial stranger identification. In the lacrosse case, for example, originally all 46 white lacrosse players were tested for DNA, evidently because the victim was certain only of the race of her alleged attackers.
Now that none of the players' DNA has been found in or on her, she is reported to have made an identification. How sure can we be of that identification? Is it not possible that her rapists (assuming the rape happened) were non-lacrosse players who happened to be present at the party? Certainly in other cases -- the aforementioned Cotten and Garner, among others -- eyewitness misidentification has led to wrongful convictions.
Of course, it is my fondest hope that these defendants will not be wrongly convicted (I'd like them to be either rightly convicted if guilty or rightly acquitted if innocent).
But we must recognize that wrongful convictions do happen. Because they do, we need to seriously rethink some of our procedures. We should not, for example, deny parole to people who refuse to apologize for a crime they claim to have not committed. Jeffrey McDonald, for example, could have long since been paroled if only he would apologize for a crime that he says he didn't commit.
Finally, since we now know that we convict innocent people, we should think very long and very hard about retaining the death penalty.
Arnold H. Loewy is Graham Kenan Professor of Law at UNC School of Law. Write him at ahloewy@email.unc.edu or UNC School of Law, Chapel Hill, N.C. 27599-3380.