One more thought about the WSJ editorial. Just as troubling as the argument that there is insufficient data that wrongful convictions are a problem is the assertion, slipped into the WSJ piece, that “trial errors” have little or no causal connection to a just or unjust outcome of a criminal trial — as if jurors’ determinations of guilt can be divorced from how the evidence is presented (or excluded) at a trial.
The WSJ editorial states that:
The [innocence] mythmakers also directly conflate trial error rates with wrongful conviction rates. Studies showing astonishingly high error rates in capital trials have very little to do with the question of the rate at which innocent people are being convicted. I can’t remember a single trial over which I have presided — including dozens of homicides — in which, looking back, I didn’t make at least one error in ruling on objections. It is a giant leap from an erroneous trial ruling to reversible error, and another giant leap from reversible error to actual innocence.
The author is correct that, these days, there is a disconnect between an erroneous trial ruling and reversible error, but that’s only because, these days, what our justice system is willing to dismiss as “harmless” covers a shocking breadth of mistakes and misconduct by judges, prosecutors and defense lawyers, and the whole harmless error analysis itself is flawed by artificially examining errors in isolation, without acknowledging that one mistaken ruling can change the landscape of a trial.
As for the connection between the strictly circumscribed set of errors we deem “reversible” and actual innocence, the author seems to miss the point, that we reverse convictions with these errors because we no longer have confidence that the verdict has a legitimate foundation — in other words, in these cases we think that guilt has not been proven beyond a reasonable doubt, leaving open a real possibility that the defendant is actually innocent.
The author has apparent confidence in the outcomes of the cases over which he presided. But the recollections of a single trial judge about the lack of connection between his erroneous rulings and wrongful convictions hardly constitutes reliable data that proves that the status quo works just fine. I imagine that that the judges who presided over the trials of the now 200 exonerees were also quite confident in the correctness of the outcomes in those cases, but that’s not terribly reassuring.
Think, for example, of the case of exoneree Kirk Bloodsworth, who was sentenced to two life terms in prison based on the positive identifications of five eyewitnesses and served eight years in prison before he was proven innocent by DNA evidence. At his first trial, he unsuccessfully tried to present testimony from an expert in the field of eyewitness perception and memory to testify about some of the factors that make eyewitness identifications unreliable. On appeal, the reviewing court said that the trial court’s ruling excluding this critical testimony wasn’t even error — much less harmless error.
Thus, in the Bloodsworth case, a legal ruling that wasn’t even deemed erroneous by an appellate court (though it almost certainly was erroneous under any fair application of expert law — but that’s an entirely separate story), demonstrably helped to produce a wrongful conviction. Given that even such “correct” rulings can lead to miscarriages of justice, its not a giant leap to suggest that erroneous rulings can have this effect and its even less of a leap to attribute miscarriages of justice to reversible errors. In today’s judicial system, where the standard of reversible error is so high, and where judges make serious errors in a significant percentage of trials, the outcomes of the proceedings infected by these serious error are also likely to be erroneous a significant portion of the time.
Certainly its a lot more of stretch to say, as the WSJ editorial does, that in a system where errors by judges are common (as even the author admits), jurors rarely if ever get it wrong when they are forced to decide the fundamental question put to them – guilty or not guilty – based on a flawed presentation of the evidence. That’s contrary to common sense and human nature, as the DNA exonerations have demonstrated.