New Podcast: ​“Unrequited Innocence” with Rob Warden and John Seasly

At least 166 wrong­ful­ly con­vict­ed death-row pris­on­ers have been exon­er­at­ed since the death penal­ty was rein­sti­tut­ed in the United States in 1973. That num­ber, how­ev­er, may only scratch the sur­face in assess­ing the degree to which inno­cent men and women are being sent to U.S. death rows. 

In the lat­est episode of Discussions with DPIC, Rob Warden (pic­tured, left) and John Seasly (pic­tured, right) speak with DPIC Managing Director Anne Holsinger about a body of death-penal­ty cas­es in which pris­on­ers have not been exon­er­at­ed, despite strong evi­dence of inno­cence. Warden, the Executive Director Emeritus of the Center on Wrongful Convictions and a co-founder of both the National Registry of Exonerations and Injustice Watch, and Seasly, a reporter at Injustice Watch, talk about their path-set­ting law review arti­cle and pro­file series, ​“Unrequited Innocence,” high­light­ing devel­op­ments in 24 cas­es involv­ing 25 death-sen­tenced defen­dants whose cas­es present ​“com­pelling evi­dence of inno­cence.” In the pod­cast, they dis­cuss why they chose to focus on unre­dressed wrong­ful con­vic­tions, the pat­terns and themes that emerged in their research, and the reme­dies that they recommend. 

The series was inspired by Warden’s work on wrong­ful con­vic­tions and began with a query to 67 law school-based inno­cence projects across the coun­try to iden­ti­fy cas­es in which the legal process has failed to exon­er­ate inno­cent death-row pris­on­ers. Warden and Seasly nar­rowed the list of cas­es that were sub­mit­ted, focus­ing their research on cas­es in which new evi­dence of inno­cence came to light after the tri­al. They say the 24 cas­es they includ­ed are ​“by no means an exhaus­tive list,” but mere­ly a snap­shot of wrong­ful death sen­tences that have not been ful­ly acknowl­edged and redressed by the legal system. 

Citing a 2014 study that con­ser­v­a­tive­ly esti­mat­ed a 4.1% error rate in cap­i­tal con­vic­tions, Warden and Seasly say hun­dreds of inno­cent peo­ple are like­ly still on U.S. death rows. Warden said he believes the 4.1% rate is an under­es­ti­mate, point­ing to the more than 6% error rate in Illinois (303 death sen­tences pri­or to abo­li­tion, 21 exon­er­a­tions), which has ​“a par­tic­u­lar­ly active pro bono legal com­mu­ni­ty and jour­nal­ists who have looked into these cas­es in great depth.” Warden says “[i]f that same effort exist­ed in every state, I think that the results else­where would be as stun­ning as the ones in Illinois are, and per­haps even more so.” 

Seasly high­light­ed the case of Kevin Cooper as a par­tic­u­lar­ly com­pelling exam­ple of an inno­cent defen­dant hav­ing been con­demned to die. ​“Very lit­tle foren­sic evi­dence … places [Cooper] at the scene,” he said. ​“Ten appel­late judges signed a 100-page dis­sent in which they laid out the evi­dence that they believe the police framed Kevin Cooper.… It’s obvi­ous­ly a huge claim to make that a police depart­ment framed an inno­cent per­son, but when that’s com­ing from an appel­late judge, that car­ries a lot of weight.” 

Regarding the pat­terns they found in their research, Warden and Seasly not­ed that the cas­es often have lit­tle in the way of phys­i­cal evi­dence impli­cat­ing the defen­dant and fre­quent­ly involve false tes­ti­mo­ny from jail­house infor­mants. Warden not­ed that the juries’ desire to con­vict seems to be influ­enced by the sever­i­ty of the crime: ​“The worse the crime at issue, the low­er the stan­dard of proof,” he said. ​“It’s absolute­ly stun­ning what juries can be per­suad­ed to believe when you’ve had a real­ly hor­rif­ic crime.” Seasly explained that cas­es typ­i­cal­ly exhib­it­ed a con­stel­la­tion of prob­lems: ​“It’s usu­al­ly nev­er just one exam­ple of a pat­tern, but rather sev­er­al of these things togeth­er, and often­times it hap­pens in a case where there’s weak to no foren­sic evi­dence that places the defen­dant at the scene. In those cas­es, often­times a jail­house infor­mant or incor­rect foren­sic inter­pre­ta­tions will occur at the tri­al that help bol­ster the state’s case.” 

Warren and Seasly rec­om­mend­ed some pol­i­cy reforms to improve the reli­a­bil­i­ty of con­vic­tions, includ­ing the use of two juries — one to deter­mine guilt and anoth­er to deter­mine the sen­tence. ​“There have been repeat­ed stud­ies that have shown that juries that are death-qual­i­fied are also over­ly con­vic­tion prone,” Warden said. They also sug­gest a ban on jail­house infor­mant tes­ti­mo­ny, explain­ing that ​“jail­house infor­mant tes­ti­mo­ny has proved so inher­ent­ly unre­li­able … that it sim­ply ought not be admitted.” 

Seasly con­clud­ed with a warn­ing about the soci­etal impact of wrong­ful cap­i­tal con­vic­tions. ​“If an inno­cent per­son is in jail for mur­der, that means a mur­der­er is not in jail for that same crime,” he said. ​“And yet the sys­tem is much more designed to pro­tect itself and shield itself from crit­i­cism than it is in actu­al­ly obtain­ing jus­tice in light of new evi­dence or in light of rev­e­la­tions that some­one might be innocent.”