“Unrequited Innocence” with Rob Warden and John Seasly

Anne Holsinger 0:01

Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. In this episode, I’ll be speaking with Rob Warden and John Seasly, the authors of a law review article and profile series on unrequited innocence, which addressed the numerous cases of people with strong evidence of innocence, who nonetheless have not been formally exonerated. Rob Warden is the Executive Director Emeritus of the Center on Wrongful Convictions and a co-founder of the National Registry of Exonerations and Injustice Watch, an investigative journalism project focused on criminal justice reform. John Seasly is a reporter at Injustice Watch. Thank you both for joining us today.

John Seasly 0:40

Thanks for having us.

Anne Holsinger 0:41

Wrongful convictions are a pervasive problem in the criminal justice system and are especially troubling in capital cases where an innocent person could be executed. DPIC has identified at least 166 cases since the death penalty resumed in the US in the 1970s, in which people who were wrongfully convicted and sentenced to death were later exonerated. But the question of innocence and the death penalty goes far beyond just exonerations. Would you please explain your concept of unrequited innocence and why you decided to write about it?

Rob Warden 1:08

Well, those 166 cases that you refer to, during that same period of time, we had about 1500 executions. That means that for every 10 executions, we had one exoneration, which seems to be just an unconscionable level of inaccuracy. And once more, that 166 that you’re referring to was not the universe — these are the ones that have been identified. There are other people such as the 24 cases that we wrote about, or the 25 defendants in 24 cases we wrote about, where there is persuasive evidence of actual innocence, but there has not been adequate relief. Some of them have been removed from death row, some remain on death row, some took pleas of convenience to get out, and we just thought that that was worth delving into.

Anne Holsinger 1:08

So your report, as you said, examines 24 cases involving 25 defendants who are sentenced to death but have not been fully exonerated, despite having what you described as compelling evidence of innocence.

Rob Warden 1:39

Correct.

Anne Holsinger 1:48

You’ve been featuring these stories in your newsletter and on the Injustice Watch website. How did you select the cases that you included?

Rob Warden 2:22

Well, I am also a co-founder of the Innocence Network, and so I queried all of our members — there are 67 law school-based innocence projects around the country — and I just asked them all to identify cases. The ones that we finally selected for inclusion in this report were probably about half of those that were identified. We think that some of the others are meritorious, but one of the things that we were looking for was new evidence or at least evidence of actual innocence that came to light after the trial. So we eliminated some cases because they didn’t contain that kind of evidence. But these 24 cases are by no means an exhaustive list.

Anne Holsinger 3:08

So, from your discussions with the Innocence Network, do you have a sense of how many more cases of unrequited innocence are still out there?

John Seasly 3:16

Yes. So, there was a study done in 2014 that looked at how many people may be on death row who have not been fully exonerated, and the authors are very explicit in claiming that they tried to make the number as conservative as possible, and their conclusion was that about 4.1% of all people sentenced to death are innocent. At the time, there had been 138 people exonerated and their figure would mean that at the time, 340 people were sentenced to death who were innocent. So, we’re talking about hundreds of people since the 1970s, who are innocent and have been sentenced to death.

Rob Warden 3:57

And I might add that I believe this 4% estimate is actually quite low. If you look at the state of Illinois, between reinstating the death penalty in 1977 and finally abolishing it legislatively in 2011, 303 individuals were sentenced to death. Of those, 21 have now been released based on substantial evidence of actual innocence. That is an error rate in excess of 6%, and I am confident that there are a number of other Illinois cases where the defendants were innocent that have not been identified and have not been exonerated. So, the error rate could easily be 8%. Illinois has of course, had a particularly active pro bono legal community and journalists who have looked into these cases in great depth. If 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.

Anne Holsinger 5:08

Those are really striking numbers. So, your series profiles 25 defendants, one of whom is Larry Swearingen, whose case was the subject of a recent episode of Discussions with DPIC, so our listeners may already be familiar with him. But would you share one or two other stories that you found especially compelling?

John Seasly 5:26

Yes. One that I found particularly compelling was the case of Kevin Cooper, who was sentenced to death in California for, accused of murdering three members of a family and a young child who was a friend of one of the children. There was very little forensic evidence that places him at the scene. And, in fact, on his appeal, dissenting with the majority opinion, 10 appellate judges signed a 100-page dissent in which they laid out the evidence that they believe the police framed Kevin Cooper. The author of the appeal said as much himself in a speech that he gave at New York University. This is 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. So, that was a case that was very interesting to me, and that there seems to be a growing number of support for, at least on Twitter and among celebrities. Kim Kardashian has met with Kevin Cooper and is actively campaigning for his innocence. So, we’ll see what happens with that case.

Anne Holsinger 6:42

Thank you. The cases that you feature provide a terrifying picture of the legal system’s inability or unwillingness to address the issue of innocence. When you looked at these cases, did you see any patterns or themes both with respect to wrongful convictions and death sentences, as well as regarding the efforts to stonewall or prevent exonerations?

Rob Warden 7:01

You know, I could say in general, that the worse the crime at issue, the lower the standard of proof. It’s just absolutely stunning what juries can be persuaded to believe when you’ve had a really horrific crime and multiple murders of innocent victims. But we’ve also seen patterns here of racial discrimination, and, of course, the use of in-custody informants, in the vernacular, ‘snitches’, who have often testified that the defendants confessed to them in jail or prison. For the most part, these confessions, or alleged confessions, prove unreliable. We’ve also seen serious police misconduct and, in some cases, prosecutorial misconduct, and all of these things tend to occur in concert over and over again, in many of these cases.

John Seasly 8:05

Yeah, it’s usually never just one example of a pattern, but rather several of these things together. Oftentimes it happens in a case where there is weak to no forensic evidence that places the defendant at the scene, and in those cases, oftentimes, a jailhouse informant, or incorrect forensic interpretations, will occur at the trial that help bolster the state’s case.

Anne Holsinger 8:33

So, what do you think these cases tell us about the administration of the death penalty across the US and the ability or inability of courts to redress errors?

Rob Warden 8:42

Well, it’s a pretty miserable situation when you look at it in sum. The appellate courts are bound by law to interpret cases, to view the evidence in these cases in the light most favorable to the prosecution. If that’s going to be the case, what we ought to do is turn it around and tell juries, in no uncertain terms, that they must view the evidence in the light most favorable to the accused. I think that might result in fewer wrongful convictions, and of course, you could expect a great resistance to that from prosecutors, because while in effect, reasonable doubt means essentially the same thing, reasonable doubt is sort of in the eye of the beholder and can very easily be overcome. Frankly, when you look at a lot of these convictions, you just marvel at how any rational trier of fact possibly could have construed this evidence of guilt beyond a reasonable doubt. And this happens so often in the capital justice system that if we’ve learned anything, it’s that we should not rely on the judgments made by this system to take lives.

Anne Holsinger 10:00

Your law review article offers several remedies for reducing the number of wrongful convictions and one of the ones that you suggest is having two juries in capital cases — one that would determine guilt and another to determine the penalty. Could you explain to our listeners why you believe that this would reduce the risk of wrongful convictions?

Rob Warden 10:20

Well, yes, there have been repeated studies that have shown that juries that are death-qualified are also overly conviction-prone. Obviously, you would need to death-qualify a jury to impose a death sentence, you can’t have a member of that jury saying categorically under no circumstances would he or she vote to impose the death penalty, but we ought to have a separate jury, a more objective jury, that could be impaneled for the trial stage, then discharge that jury for the guilt/innocence phase and impanel a new jury that is death-qualified.

Anne Holsinger 10:57

Do you think that there would be any benefit to educating jurors about causes of wrongful convictions or the prevalence of racial bias or other aspects of the criminal justice system before they serve?

John Seasly 11:09

I think providing accurate statistical information on the reasons why this happens wouldn’t result in more inaccurate outcomes. To go into a trial, having a better assessment of why wrongful convictions happen is only going to make you more skeptical of certain forensic interpretations and more willing to understand that bias could play a role in trials, especially if you are a member of an all white jury who is deciding on whether or not to convict someone who is a black person, or other cases in which there’s implicit bias at play.

Anne Holsinger 11:53

One of your other recommendations for reform is that you suggest an outright ban on testimony by jailhouse informants, which is among the leading causes of wrongful convictions. Why a categorical ban on jailhouse informant testimony?

Rob Warden 12:06

Well, there might be an exception if the authorities can send somebody into the cell wearing a wire and get an audio recorded confession, or even better yet a video recorded confession, but short of that, we know that jailhouse informant testimony has proved so inherently unreliable, that the chance that it’s accurate is so sufficiently small it simply ought not be admitted. Now, obviously, that carries some risk that there are people who are guilty who would go free if this kind of evidence were excluded, but in fact, if a person is guilty, the testimony of a jailhouse snitch is so ancillary, that the conviction can rest on other, much more reliable evidence, and should rest on reliable evidence. And one of the serious problems that happens on appeal, when an appellate court starts looking at this evidence, and all of the evidence evaporates except perhaps this jailhouse snitch testimony, the appellate court can always say, well, maybe the trier of fact, that being the jury, believes the jailhouse snitch? Well, maybe so, but that carries with it a very high risk of imposition of a wrongful death sentence and perhaps a wrongful execution.

John Seasly 13:33

Yeah, jailhouse informants are so incentivized to provide a confession testimony and so many of the cases that we looked at had jailhouse informants who later recanted because they weren’t given the thing that they said they were offered by a prosecution. And when you look at the fact that they have such a huge motivation to offer false testimony, it really undermines anything that they could say. There was one case, Walter Ogrod’s, that’s undergoing DNA testing right now in Philadelphia, where a jailhouse informant was helping the prosecution who was known as the Monsignor, because he’d heard more confessions than a priest and the prosecution didn’t put him on trial because they worried that he had a lot of baggage, so they put his acolyte on trial, who essentially said the things that he would have said otherwise. But, you know, you have these people for whom the trade off is that they think they’re going to get out of jail sooner, or that they’re going to get special treatment sooner, if they provide false testimony, and you see the dangers of allowing this type of testimony to come up at trial.

Anne Holsinger 14:51

Several of the cases in your series also involve prisoners who accepted plea deals that you described as coercive. These prisoners are forced to choose between their immediate freedom and their integrity, or their chance of ever being fully exonerated. You observe that prosecutors’ willingness to offer and accept such pleas is a tacit acknowledgment that the defendants pose no danger to society. Why do you think prosecutors often insist on these types of deals which they know create financial and psychological hardships for the prisoner?

Rob Warden 15:21

Well, for one thing, it shields them from embarrassment and, at least the governments they work for, from potential damages. So, monitary damages later. So that’s one issue here. But then why, you might ask, would a person who is innocent be willing to take such a plea? And the answer to that is simple. That basically, plea bargaining is a modern form of torture. So here, your case has been reversed, a new trial has been ordered, there’s very little chance that the prosecution could prevail, but there is always some chance after all, they convicted you once. The prosecutor on the other hand is then saying, ‘all right, I have here in my left hand the key to your cell, all you have to do is take what is known as an Alford plea, which is a technical guilty plea without action, just simply acknowledging that the evidence might be sufficient to convict you, and you walk out the door today. Or you can sit here for a couple of years and we’ll put you on trial again and maybe we’ll even convict you again — so just take your choice. Here’s the key to your cell. You can walk out today or you can sit here for another couple of years and hope that you can prevail at retrial.’ It’s fairly easy to see why people take those deals.

John Seasly 16:41

One of the things I thought was interesting in researching this project was the fact that, if an innocent person is in jail for murder, that means a murderer is not in jail for that same crime. 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 may be innocent.

Anne Holsinger 17:10

This year three men with strong innocence claims, two of whom are featured in your series, have been scheduled for execution. One, Larry Swearingen, has already been executed, James Dailey received a stay of execution in Florida, and Rodney Reed faces a November 20th execution date. With the public’s growing awareness of wrongful convictions, why do you think we’re still seeing so many cases like these?

Rob Warden 17:34

Well, part of the problem is the system’s unwillingness to acknowledge its mistakes, and it goes to great lengths to avoid that. As long as we have this system that many people call broken, I disagree with that term, I think broken implies that it once was not broken, it’s dysfunctional and always has been dysfunctional and it produces a very high level of wrongful results. We’re going to just see them going on as long as we maintain this system without more safeguards to protect the innocent.

Anne Holsinger 18:10

Is there anything else that you would like to add?

John Seasly 18:13

I would just say that people can keep reading these series as they come out on the Injustice Watch website, injusticewatch.org. We’ll be releasing three a week for the next five weeks and nine of the stories are already up there. You can also read the article in the Northwestern Journal of Law and Social Policy if you’re interested.

Anne Holsinger 18:33

Thank you so much for joining us today.

John Seasly 18:35

Yeah, thanks for reaching out. I really appreciate it.

Anne Holsinger 18:38

Absolutely. And for our listeners, to read the Unrequited Innocence series, visit injusticewatch.org. You can also find links to the series and the law review article that the authors mentioned in the description of this podcast. To learn more about the death penalty visit deathpenaltyinfo.org, and to make sure you never miss an episode of Discussions with DPIC, subscribe with your podcast app of choice.