In 1991, former New York Police Department detective Louis Scarcella set up a Brooklyn teenager, John Bunn, for the murder of off-duty corrections officer Rolando Neischer. The fingerprints from two bicycles found abandoned at the scene amidst blood didn’t match Bunn or his co-defendant. Just a single witness identified Bunn in a photo lineup; that witness was the only person to testify at the trial, which lasted just one day. Yet, at just 14 years old, Bunn was convicted of murder.
Bunn served 17 years before winning parole in 2009. He didn’t get the right to a new trial until 2016. And it wasn’t until May 2018 that he was formally fully exonerated in an emotional court proceeding before Brooklyn Supreme Court Justice Shawn'Dya Simpson.
Prosecutors refused to do more than announce they wouldn’t retry Bunn for the crime it’s now abundantly clear he didn’t commit. That refusal to acknowledge, much less apologize, inflicted a new hurt on Bunn: "They won't admit I'm an innocent man.”
Prosecutors’ recalcitrance is particularly mystifying given ample proof of Scarcella’s illegal tactics for securing convictions. Derrick Hamilton served 21 years in prison for a friend’s Brooklyn murder despite the fact that Hamilton was in New Haven, Connecticut, that night, with witnesses to prove it. Why? The judge wouldn’t give the defense time to produce their witnesses, and Scarcella fabricated a witness for the prosecution. He threatened the victim’s girlfriend: he’d take her children and jail her for a parole violation if she didn’t say she’d seen Hamilton shoot her boyfriend in the chest. She’d later recant.
It wasn’t until 2011 that Hamilton secured his release from the parole board with the assistance of a ‘post-conviction lawyer,’ Jonathan Edelstein, and a reporter willing to write about his case. Hamilton then fought for exoneration, arguing to a state appellate court that “actual innocence,” meaning the absence of evidence of a crime, should be grounds for vacating a sentence. He won, paving the way for other wrongfully convicted people in New York to pursue justice.
It only takes one bad actor.
Scarcella alone could have corrupted as many as 50 convictions in New York. He’s just one example of how one bad actor in the criminal justice process—or one faulty institution—can thwart justice for myriads.
Remember Joyce Gilchrist? Colleagues referred to the Oklahoma police department forensic scientist as “Black Magic” for her knack for securing convictions with her findings and testimony. She’d touched thousands of cases before several exonerations exposed a pattern of errors and lies. Twelve defendants were on death row when she was found out; 11 had already been executed. Gilchrist was fired for fraud and found liable for millions in civil cases, but she never faced criminal charges.
Then there’s the Houston crime lab—more on that later—that the American Bar Association called “the paradigmatic example of a failed forensic agency.” The DNA unit was shut down after a 2002 audit found they’d operated without a supervisor for year under a technical leader with neither training nor experience in DNA testing who fell well short of FBI standards. Staff were untrained, science was neglected, and the roof leaked. A University of California criminology professor, William Thompson, described the lab’s reports as “the worst he’d ever seen” and less sound than a middle school science project.
The Houston crime lab sent Josiah Sutton to prison for 25 years for a rape he didn’t commit. The lab had claimed a DNA match on the order of 1 in 694,000 when, in fact, the profile they’d analyzed would have matched one in every eight African-American people. They also claimed the semen sample came from two men; it came from one, not Sutton. He served four-and-a-half years of the sentence before investigations into the laboratory’s claims exposed the false claims.
These are just a few illustrative examples.
The scope of the problem.
About 4 percent of people sentenced to death would eventually be exonerated if all were left on death row according to a 2014 study. That’s nearly 1 in 25. It’s harder to predict rates of wrongful conviction, or exoneration, for crime more broadly. One study using post-conviction DNA testing for sexual assault convictions in Virginia suggested about 12 percent of convictions could be wrongful on that basis alone.
Racial bias is rampant: African Americans are 3.5 times more likely to be convicted of sexual assault, 7 times more likely to be convicted of murder, and 12 times more likely to be convicted of drug crimes. While African Americans make up 13 percent of the U.S. population, they account for 47 percent of the exonerations catalogued by the National Registry of Exonerations. That’s despite the fact that it takes on average three to four years longer to secure exoneration for black defendants.
It’s even easier to wrongfully convict folks for lesser crimes, even without intent. In 2014, 45 defendants who’d pleaded guilty to drug crimes in Harris County, Texas, were belatedly exonerated after lab tests proved their belongings didn’t actually include illegal substances. The real culprit was a faulty field test. Some had been carrying the burden of a conviction for years.
Why do innocent people plead guilty?
Imagine the choice between waiting in jail for months or even years for a trial because you can’t pay bail—separated from your family and community, unable to earn income and under threat of losing work, housing, and stability—and pleading guilty in exchange for a short sentence or probation. Or just being forced to choose between a “few weeks” in jail and the threat of two years in prison, as Amy Albritton was.
In 2010, Albritton’s boyfriend was pulled over by police while driving her car; she was in the passenger seat. Shortly thereafter, she found herself under arrest for possession of crack cocaine. A police officer had conducted a field test on a pinch of B.C. Powder and a crumb he found on her floor mat; he got a false positive from the test, which reacted not just to illegal substances but any number of other materials.
Before Albritton even got to speak to anyone beyond the jail’s walls, her court-appointed defense attorney—uninterested in her protestations and convinced by the field test—persuaded her to take a plea deal. Five months after Albritton, now a felon, had completed her sentence, the Houston crime lab tested the substances from her car. The tests proved her right.
Convictions springing from forced pleas are no less wrongful. It’d take another essay to address the systemic failures behind this phenomenon: how and why guilty pleas are pushed by overeager prosecutors, reluctantly used by overburdened defense attorneys, and accepted by desperate defendants.
There are better ways.
Two policy reforms that can be enacted on any level, local to state, could go a long way toward preventing forced pleas, decreasing wrongful convictions, and increasing the rate of exoneration for the wrongfully convicted.
Governments must stop imprisoning people because they can’t pay bail. Doing so inflicts major harms on individuals and communities, distorts the criminal justice system, and entrenches disparities. It also senselessly inflates incarcerated populations. That’s why cities like New York are moving to end cash bail.
There’s no magic bullet to cure law enforcement, prosecutors, and courts of active pursuing of wrongful conviction—it’s already illegal—or to eradicate racial bias, but there is an obvious mechanism for accountability and deterrence: review units. As Time reported in 2017, 29 counties—from Dallas County to Chicago’s Cook County and Brooklyn’s Kings County—now use “second-look” procedures or review units to re-examine fishy convictions.
These units extend the opportunity for exoneration beyond defendants with the resources to pursue it independently and those who can attract outside assistance from an organization like the Innocence Project, usually reserved for high-profile injustices and high-stakes sentences. So far, the county-based review teams have exonerated 225 people.
To be clear, wrongful incarceration’s also not just about folks who are innocent. We’ve not even reached the vast sentencing disparities experienced by people of color. There are wrongful years of incarceration to account for there, too, extra years assigned based on the color of a defendant’s skin, their nation of origin, or the language they speak. Their lives, and those of their families and communities, are unjustly disrupted for longer than they should be by extra years and added fines.
We need to pursue reforms that will end both wrongful conviction and unjustly harsh sentencing. The status quo is unacceptable.