On February 28, 1997, nurse June Siler was waiting at a bus stop near Michael Reese Hospital at 1:30 a.m. when a young man approached wearing dark clothes, a stocking cap, and black Velcro shoes. "How long have you been waiting for the bus?" he asked, and then he grabbed her from behind and slashed her in the throat and face with a box cutter. She staggered into the Michael Reese emergency room, was later operated on at Northwestern Memorial, and survived.
The following night, 41-year-old Robert Wilson attracted police attention by standing at the same stop at 7:50 p.m. Wilson didn’t have the Velcro shoes, but he was wearing dark clothing and a coat similar to the one Siler had described, and when police searched him they found a pocket knife and a gun. At the police station, detectives took a Polaroid shot of Wilson, mixed it with photos of five other men, and showed the array to Siler at the hospital. Wilson’s was the only Polaroid photo in the group, and he was the only man wearing clothes similar to the man who’d done the slashing. Siler identified Wilson as her attacker, and did it again, with certainty, at trial.
She’d fingered the wrong man.
Unknown to her, just about at the time that she was viewing Wilson’s photo, Jerryco Wagner, 21-years-old and mentally ill, approached Manual Guzman at a bus stop not far from Michael Reese. "How long have you been waiting for the bus?" Wagner asked, and then he grabbed Guzman from behind and stabbed him in the neck. Over the course of two weeks, Wagner stabbed six people, all within a mile and a half of Siler’s bus stop, before being caught. When he was arrested he was wearing a pair of black Velcro shoes.
|"I feel blessed; it's one of the happiest days
of my life. I'm free from the penitentiary. I
can't ask for anything better," Wilson, 51,
said after his 2006 release.
(Photo/Center on Wrongful Convictions)
In the wake of a federal judge’s decision in 2006 to grant Wilson a new trial, Chicago Tribune reporter Maurice Possley tracked down Siler for her reaction. She grew angry, not at the judge, but at police and prosecutors. Siler told Possley that at the time of the photo array, she could tell Wilson’s Polaroid was the only shot that had been taken recently. She said she had told the police that Wilson looked somewhat like her attacker, but he seemed too old. The detectives assured her, she recalled, that he would have looked younger in a stocking cap. Siler said she had heard later about the other stabbings and had asked to see a photo of that perpetrator, but none had ever been produced. She realized that she’d picked the wrong man, and without her as a witness, the state declined to try Wilson a second time.
In the 85 cases examined by the Better Government Association and the Center on Wrongful Convictions, alleged government error and misconduct, and eyewitness misidentification, finished first and second as contributing causes of wrongful convictions, followed by false confessions, incentivized witness testimony (an incentivized witness is someone who testifies in expectation of or in exchange for a reward from law enforcement officials), questionable forensic evidence, and allegations of ineffective assistance of counsel.
Various reforms, many involving minimal expense, can reduce the likelihood that justice will go awry in an individual case.
The BGA and the CWC has compiled a list of best practices already in place elsewhere in the country, proposals from blue-ribbon commissions, and recommendations made during previous reform efforts in Illinois, chosen because nearly all involve only minimal expense. This list should be considered as a starting point toward reducing the escalating human and financial toll of wrongful convictions. Other possible reforms will be unveiled in follow-up reports to this BGA/CWC investigation.
>> Use "blind" administrators
Eyewitnesses made mistakes in identifying perpetrators in more than half of the 85 cases examined by the BGA and CWC. Investigators who run lineups and photo arrays can influence a witness’s decision, either subtly or overtly, intentionally or unintentionally.
To prevent this from occurring, police in New Jersey, Wisconsin, North Carolina, and Ohio are using "blind" administrators—someone who is unfamiliar with the case, unaware of its trajectory, and incognizant of which member of the lineup is the suspect.
In a photo spread, a knowing administrator can become effectively blind by putting each photo into a folder, shuffling the stack until he or she no longer knows which file contains the suspect’s photo and which hold shots of "fillers," and then handing the entire selection to the witness, instructing him or her to open them in sequence and make a decision about each image before moving on to the next. Various computer programs can accomplish the same task, allowing a witness to make a selection from a group of photos while an administrator is "blind" to the viewing.
- North Carolina and Ohio take further steps to safeguard the process by recommending that the eyewitness be told not just that the culprit might not be in the lineup, but also that the administrator does not know who the suspect is. This discourages the witness from looking for cues. North Carolina’s blind administration legislation was included in the Eyewitness Identification Reform Act, or HB 1625, which became effective on March 1, 2008. Ohio’s blind administrator law is part of the Ohio Revised Code Annotated, Chapter 2933.83.
- New Jersey Attorney General John Farmer Jr. established a policy of blind lineups and photo arrays in a memo to all police chiefs in the state on April 18, 2001 ("Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures").
- Wisconsin’s provision for a blind administrator, enacted in 2005, can be found in the state statutes, Chapter 175, Miscellaneous Police Provisions, 175.50 Eyewitness Identification Procedures. (back to top)
>> Record police lineups
Would a prosecutor have charged Robert Wilson with stabbing June Siler if the photo array procedure had been videotaped, capturing both her hesitancy and the detectives’ encouragement? Twenty-four hours later, with a second stabbing at a bus stop near Michael Reese, perhaps the assistant state’s attorney might have not been so quick to approve charges against Wilson.
>> Record felony interrogations
In 2003, state Senator Barack Obama sponsored a bill that became law in Illinois, mandating that all homicide interrogations and confessions should be recorded electronically. The requirement came after 13 death row inmates in Illinois were exonerated, some as a result of substantiated claims that their confessions had been coerced.
Those recordings have proved to be beneficial to both suspects and police, protecting the former from coercion and the latter from false accusations of brutality. That requirement could easily be extended to cover all major felony cases.
According to an ongoing study by former U.S. Attorney Thomas Sullivan, law enforcement officials in more than two dozen towns, cities, and counties throughout the state are already voluntarily recording more than the law requires, and 11 states and hundreds of municipalities across the United States record interrogations in major felony cases. (back to top)
>> Approve recommended rules of professional conduct for prosecutors
The American Bar Association maintains rules of professional conduct for attorneys, called the Model Code of Judicial Conduct. Rule 3.8, Special Responsibilities of Prosecutors, governs the actions of prosecutors in their evaluation of evidence and decision to prosecute. The first tenet, 3.8(a), holds that "The first duty of a prosecutor is to seek justice, not merely to convict."
- Illinois adopts each clause of rule 3.8 of the Model Code, but for clauses (g) and (h), which require prosecutors to promptly disclose exculpatory evidence discovered post conviction and to seek to remedy wrongful convictions. Those clauses have been embraced by Colorado, Delaware, Idaho, New Jersey, Tennessee and Wisconsin, but not by Illinois.
(back to top)
>> Record all interviews of in-custody informants
Witnesses with incentives to testify—those who provide evidence in expectation of some benefit from law enforcement—have often proven to be both unreliable and dangerous. In "The Snitch System," a study published by the Center on Wrongful Convictions in 2004, author Rob Warden pointed out that throughout the nation, incentivized witnesses have played a major role in putting innocent people on death row.
Of the 111 people who were sent to death row and later exonerated during the years 1970 to 2004, 46 percent had landed there as a result of a prosecution aided by an incentivized witness. "For the most part," Warden wrote, "the incentivized witnesses were jailhouse informants promised leniency in their own cases, or killers with incentives to cast suspicion away from themselves."
The BGA/CWC investigation of 85 wrongful convictions in Illinois also found incentivized witnesses testifying with nearly deadly effect, often in exchange for leniency for themselves. Of the 30 people they helped send to prison, 10 went to death row. Eight were sentenced to life. The 30 exonerees served a total of 406 years (an average of 13 years each) before they were released. The wrongful incarcerations and subsequent litigation have thus far cost taxpayers nearly $113.3 million, an amount likely to increase considerably in the next few years because of ongoing civil suits.
- The Los Angeles County District Attorney’s Office electronically records all interviews of in-custody informants. (In a case in which an in-custody informant is used, case law would require the district attorney’s office to share those recordings with the defense.) This protects prosecutors from accusations of secret deals with such witnesses, and protects criminal defendants who can see if an informant’s story changes over time.
John Spillane, who served as chief assistant district attorney in Los Angeles County, told the California Commission on the Fair Administration of Justice that interviews of in-custody informants by attorneys or investigators from the district attorney’s office are required to be tape recorded. See page 3 of the this section of the commission’s final report, published August 4, 2008.
The California Commission on the Fair Administration of Justice recommended this practice in its final report, published in 2008. (See page 4.)
- This policy was also recommended in the New York State Bar Association’s Task Force on Wrongful Convictions report in 2009. (back to top)
>> Hold pre-trial credibility hearings when
in-custody informants are listed as witnesses
In recognition of the fact that in-custody informants are often unreliable, Illinois statutes require judges to hold pre-trial hearings to assess the credibility of such a witness—but only in death penalty cases. As of last March, Illinois no longer allows capital punishment. The statute could easily be expanded to cover all major felony cases. (back to top)
>> Admit expert witness testimony
on the phenomenon of false confessions
Thirty-three men and women—39 percent—in our study of 85 exonerees falsely confessed. Ten of the false confessors in our study were sentenced to death, six to life, and all 33 served a total of 340 years. Common causes of false confessions include:
- desperation (a desire to bring a grueling interrogation to an end);
- mental fragility (confessions elicited from the mentally ill or developmentally disabled);
- brainwashing in which the suspect is led to believe that they must have committed the crime, but cannot remember doing it;
- coercion with physical violence or with threats of some onerous sentence unless the suspect confesses right away; and
- fabrication (authorities claim a suspect confessed though the suspect claims he or she didn’t). (back to top)
Currently, trial judges have the discretion to admit expert testimony on the phenomenon of false confessions, but they often decline to allow it. Removing the judge’s discretion and allowing admittance of the testimony could have significant impact, particularly in cases in which the developmentally disabled or juveniles have been charged.
>> Require transparency from the Chicago Police Board
The single greatest cause of wrongful conviction in the BGA/CWC investigation was alleged police error and misconduct, appearing in 66 of the 85 cases, contributing to 14 death sentences, 17 life sentences, 779 years of wrongful imprisonment, and $207.2 million in costs to taxpayers.
Identifying problem officers, however, has been a road strewn with obstacles, particularly in Chicago, where in 2007, not even a majority bloc of city council members could pry loose a ready-made list of officers with 10 or more complaints filed against them.
Disciplining problem officers has also been difficult. A study of abuse complaints filed against Chicago police officers between 2002 and 2004, conducted by Craig Futterman, a clinical law professor at the University of Chicago, concluded that the odds that an officer charged with abuse would receive meaningful discipline were 2 in 1,000.
One small but significant step would be to require transparency from the Chicago Police Board. The board ultimately hears some of the most egregious cases of police abuse and publishes summaries of their decisions online, but in doing so, they name no names. Those summaries also fail to explain the reasons behind the board’s decision or to indicate how each member voted. (In December 2009, the Chicago Justice Project published the results of a study of 10 years of data that found that the board upheld the police superindent’s recommended discipline for a sworn officer only 37 percent of the time.)
In 2010, an ordinance that would have required the board to publish that information, proposed by Chicago Ald. Robert Fioretti (2nd Ward), died in committee, despite testimony in favor of those provisions from the head of the police department’s Internal Affairs unit. (back to top)
>> Track police prosecutions by the Cook County State’s Attorney
Chicago’s in-house police accountability agency, the Independent Police Review Authority (IPRA), refers its most serious complaints of abusive behavior to the Cook County State’s Attorney’s office for possible criminal charges. A BGA inquiry in January 2011 established that while abusive off-duty behavior does sometimes move those prosecutors to indict, abuse committed by on-duty Chicago police officers is largely ignored unless it is captured on video.
Abusive officers know they have de facto immunity from criminal prosecution. Former Chicago police commander Jon Burge, along with detectives he supervised, tortured suspects over the course of almost 20 years, and despite repeated complaints, medical records supporting the allegations, and press attention, the state’s attorney’s office declined to investigate, even as innocent men sat on death row awaiting execution.
None of the officers who engaged in the torture were ever indicted by the Cook County State’s Attorney, and even after the city of Chicago acknowledged that the torture had taken place, the county’s chief prosecutor declined to question the convictions of men whose confessions were highly suspect.
With little difficulty and with minimal expense, the Cook County State’s Attorney could publish quarterly website updates tracking the number of cases referred to the office for possible criminal prosecution by the IPRA. That report could describe the alleged abuse, the police district where it took place, whether the officer was on or off-duty, the time and date at which the incident allegedly took place, and the date of receipt of the IPRA complaint. When a decision is made not to prosecute an officer, that could be reported without revealing the officer’s name. When a case resulted in an indictment, the officer could then be named on the office’s website, and thereafter the outcome of the case and any sentence imposed could also be published. This would enable the public to compare the number of cases referred with the number that result in indictment. (back to top)
>> Make forensic labs independent from law enforcement agencies
The BGA/CWC investigation found that 29 of the 85 exonerees were convicted with the help of forensic officials who supported the prosecution’s faulty theory of the case. Five of those men were sentenced to death, nine to life, and the group served a total of 329 years. Those 29 cases cost taxpayers $105.8 million in incarceration costs, compensation fees, and civil litigation.
In Illinois, most forensic testing of physical evidence for criminal cases is performed at various branches of the state police crime lab, at the DuPage County crime lab (run by the DuPage County Sheriff), and at the Vernon Hills-based Northeastern Illinois Regional Crime Laboratory, which is funded by annual fees paid by approximately 40 law enforcement agencies located in nearby counties.
In February 2009, a Congressionally mandated National Academy of Sciences report, "Strengthening Forensic Science in the United States," concluded that imprecise and exaggerated forensic testimony had contributed to the admission of erroneous and misleading evidence in criminal trials, that the reliability of many forensic methods was open to question, and that forensic science experts were vulnerable to bias. The report pointed out that forensic science labs and law enforcement agencies have different missions, and recommended that labs be made independent from police departments and prosecutors offices or autonomous within them. (back to top)
>> Establish minimum levels of experience
for defense attorneys in the most serious felony cases
Allegations of ineffective assistance of counsel arose in 23 of the 85 wrongful conviction cases in the BGA/CWC investigation. Five of those 23 exonerees were sentenced to death, five to life, and the 23 served a total of 283 years in prison.
In 2001, the Illinois Supreme Court imposed higher standards on attorneys working in death penalty cases, an attempt to "insure that capital cases are tried by experienced, well-trained attorneys." Among other requirements, the new Rule 714 barred attorneys in death penalty cases from serving as lead counsel if they did not have five years of criminal litigation experience in the previous seven years and if they had not worked as head counsel or co-counsel in at least eight felony jury trials, at least two of them murder cases, which had been tried to completion. Stiff requirements for co-counsels were also imposed.
In January 2011, the Illinois General Assembly voted to end the death penalty in Illinois, and when Governor Patrick Quinn signed the bill on March 9, Rule 714 became moot. However, the sentence of life in prison without possibility of parole remains, and other felonies now carry enhanced sentencing requirements that can amount to a virtual life sentence. All of those cases merit Rule 714’s level of protection for the defendant. (back to top)
John Conroy is a senior investigator with the Better Government Association, and Rob Warden is the executive director of the Center on Wrongful Convictions, Northwestern University School of Law.