Why do some jurisdictions have more confirmed wrongful convictions than others?
Early research on wrongful conviction reported remarkable variation around the country. Confirmed wrongful convictions were concentrated in Texas, New York and Illinois, which are among the most populous states—so the implications were unclear.
New York and Illinois also had very effective innocence advocacy projects (the original Innocence Project was established by Barry Scheck and Peter Neufield at the Benjamin N. Cardozo School of Law at Yeshiva University, and the Center on Wrongful Convictions at Northwestern University School of Law, respectively); so, were wrongful convictions more frequent in these states or just more likely to be discovered?
More recent research revealed pronounced county variability in wrongful convictions which had been masked by the earlier statewide data. It turns out that Kings County (Brooklyn), New York, along with Cook County, Illinois, and Dallas County in Texas, are among the counties with the largest number of confirmed wrongful convictions.
Kenneth Thompson became Brooklyn’s first African-American District Attorney in 2014 after defeating incumbent Charles J. Hynes in the 2013 Democratic primary. Shortly after assuming office Thompson established a Conviction Review Unit to investigate past Brooklyn convictions (an endeavor that was likely to put a new DA at odds with other prosecutors, law enforcement, and judicial authorities who secured the convictions).
As of March 2016, Thompson’s Conviction Review Unit had exonerated 19 defendants. All of them had served at least five years in prison; many had served one, two, or three decades. Seventeen of the 19 had been convicted of a homicide. Three defendants died in prison before they were exonerated. All but one of the exonerees (Vanessa Gathers) were male. In terms of ethnicity, all of the exonerees appear to be Black or Latino.
A review of the features associated with the recent Brooklyn exonerees reveals interesting patterns.
According to data reported at the National Registry of Exonerations, the leading contributors to the Brooklyn wrongful convictions were: perjury/false accusation, official misconduct, and false confession. In some cases perjury/false accusation involves a mistaken or lying witness totally independent from the police or prosecution. However in other cases, false accusations and perjury are engendered by prosecutors who intentionally “manufacture” evidence through incentives (cash payments or reductions in legal penalties) provided for testimony.
The National Registry of Exonerations defines official misconduct as significant abuse of authority, or of the judicial process, which contributes to a wrongful conviction. The most common form of official misconduct, according to the literature on wrongful conviction, is suppression of exculpatory evidence (a “Brady violation”). The prosecution is required to reveal to the defense any evidence suggestive of a defendant’s innocence.
The third leading contributor among Brooklyn exonerees was false confession. The National Registry of Exonerations notes false confession refers to circumstances, either where defendants made false incriminating statements, or where police asserted the defendant made such statement. While the term ”false confession” implies the erroneous statement was produced by the suspect, typically these defendants initially assert their innocence—but during the course of a prolonged interrogation with coercive elements, deception, and inducements to “confess,” suspects are persuaded to make incriminating statements.
A recent Crime Report commentary by Matthew B. Johnson argued for mandating the electronic recording of the entire interrogation so there is a record of the interrogation tactics that were used.
Examination of the Brooklyn Conviction Review Unit exoneree cases, as presented at the National Registry of Exonerations, suggests these wrongful convictions were highly preventable. In other words, policy reform, combined with altering the culture in the DA’s office, can substantially reduce the occurrence of wrongful convictions.
The presence of perjury/false accusation in several cases illustrates the extent to which police and prosecutorial conduct contribute to wrongful conviction. In these cases perjury/false accusation rarely occurred without official misconduct or incentivized testimony.
One example is the wrongful conviction of William Lopez. In August 1989, Elvirn Surria was robbed, shot and killed in a residence where he sold drugs. In September of that year, Janet Chapman, a substance abuser, was arrested for prostitution and a probation violation. During an interview, she reported her presence at the residence and identified William Lopez in a police line-up. Lopez was arrested, despite information from Surria’s employees describing two men who entered the residence who did not fit Lopez’s description. Lopez’s counsel failed to investigate these claims as well as Lopez’s alibi.
Chapman provided testimony for the prosecution at trial regarding Lopez’s involvement in Surria’s murder. She denied she was receiving favorable treatment for her testimony. Lopez was convicted, and before sentencing, the prosecution received a tip from a woman who knew Chapman and claimed Chapman told her she lied about Lopez’s involvement in the homicide in order to be released. A few months afterward, Chapman told Lopez’s brother she implicated Lopez in order to be released early.
In 2013, during a hearing, affidavits and transcripts about Chapman’s deal with the prosecution in exchange for testimony was revealed. Lopez was granted a new trial that cited Chapman’s recantation, his alibi, prosecutorial misconduct, and new testimony from a former worker present at the residence during the time of the offense. Lopez’s conviction was vacated. District Attorney Charles Hynes attempted to appeal the decision. However, after losing to Kenneth Thompson in the 2013 election, the appeal was dropped. Lopez died later that year.
He had spent almost half of his life trying to prove his innocence.
Perjury/false accusation also contributed to the conviction of Andre Hatchett. Hatchett was convicted in 1992 for the 1991 murder of Neda Mae Carter. He was visiting his aunt, who lived in the same building as Carter, on the day of the murder. At the time, he was recovering from gun injuries and had to walk with crutches. Unrelated to the murder, Gerard Williams was arrested for burglary. He told officers he had information about the murder of Neda Mae Carter.
Williams claimed he and a woman named “Popeye” were present during the time of the murder, and he stated he saw someone with a crutch at the scene of the offense but later recanted his statement.
Hatchett agreed to participate in a two separate line-ups where Williams and “Popeye” identified him. Hackett was convicted at trial. At the time, attorneys did not present medical records to validate Hatchett’s physical inability to commit the crime. The Conviction Review Unit re-examined the case and found the following: Williams had originally identified another person, he was under the influence of crack during the time of the offense, and Williams burglary charge was dismissed on the day he implicated Hatchett—thus strongly suggesting Williams provided testimony in exchange for favorable treatment from the prosecutor.
In March 2014, the DA’s office filed a motion to exonerate Hatchett and the motion was granted.
False confessions have also contributed to wrongful conviction, as demonstrated by the cases of Anthony Yarbough and Shariff Wilson. Eighteen-year-old Yarbough returned home one morning and discovered his mother, sister and sister’s friend stabbed to death in his apartment. Police interrogated 15-year-old Wilson and Yarbough for the offense. Wilson provided an admission of guilt and a taped confession implicating Yarbough and himself. Yarbough also signed a written statement implicating himself in the three homicides.
Wilson went to trial in 1994. He claimed the interrogating detectives threatened him and promised to release him if he confessed. However, medical examiners presented evidence suggesting that the victims were murdered after Yarbough claimed to have discovered their bodies.
At Yarbough’s trial, which began after Wilson’s conviction, he testified that neither he nor Wilson committed the crime and that he signed the written statement after being physically struck by interrogating officers. A mistrial was declared due to a hung jury. Yarbough went to trial again and Wilson testified against him in exchange for a reduction in sentence. Yarbough was convicted and sentenced to 75 years.
In 2005, Wilson wrote a letter to Yarbough’s aunt admitting he falsely implicated Yarbough. Yarbough petitioned for re-trial in 2010 and used Wilson’s recantation and medical records indicating the time of death was much earlier than that reported by the medical examiner at trial. Also, DNA evidence from underneath his mother’s fingernails did not match the profile of Yarbough or Wilson.
The DNA was linked to another homicide in Brooklyn, committed while Yarbough and Wilson were incarcerated. Although the exculpation of Yarbough and Wilson via DNA evidence is noteworthy, the recognition of their innocence might have been expedited if their interrogations were recorded.
In 2014, DA Thompson requested a motion to vacate both the Wilson and Yarbough convictions.
Vanessa Gathers’ wrongful conviction further illustrates the extent to which a false confession could have been prevented. In November 1991, Michael Shaw was assaulted and robbed in his home. Then- NYPD Detective Louis Scarcella was assigned to this case. Five months later, Michael Shaw died in the hospital due to injuries sustained from his assault. Gathers was questioned and informed Scarcella a woman in the neighborhood admitted to involvement in the offense. The woman was interviewed and she denied her involvement, implicating three other women.
The case turned cold and Scarcella was reassigned to it five years later as a cold case investigator. He bought Gathers in for questioning again. He told her two witnesses informed him she was at Shaw’s residence during the time of the offense. He also told her he had forensic evidence linking her to the crime but if she admitted to the offense she would be released. After taking a polygraph, Scarcella told her she failed. Gathers provided a videotaped confession and was arrested for manslaughter, burglary and robbery. Gathers immediately recanted her statements.
Her trial began in 1998 and the confession she provided was the primary evidence used to convict. However, after a New York Times article about Scarcella’s corruption was released, The Legal Aid Society asked Kenneth Thompson to review Gathers’ case.
The following inconsistencies were discovered. Gathers stated in the videotaped confession she beat Shaw who was in a wheelchair and stole $60. However, Shaw did not use a wheelchair and it was highly unlikely he had money available to steal. Further, no forensic evidence linked Gathers to the scene of the crime. Additionally, the polygraph indicated deception but was unreliable since it was taken five years after the crime. Thompson’s motion to vacate the Gathers decision was granted. Videotaping this interrogation may have resulted in Scarcella behaving more ethically and perhaps evaluating exculpating evidence more rigorously.
The extent of former NYPD Detective Louis Scarcella’s misconduct stretched far beyond Gathers’ wrongful conviction. A prime example is the wrongful conviction of brothers Alvena Jennette, Darryl Austin and Robert Hill for the murders of Ronnie Durant and Donald Manboardes. Once again, the official misconduct that occurred in these cases is coupled with perjury/false accusation. Based on a tip from substance user and drug trafficker, Teresa Gomez, Hill was charged for the murders of Donald Manboardes and Bruce Siblings.
Gomez asserted she was in a closet, looking through a keyhole, when Hill entered the residence, and shot and killed Bruce Siblings. An investigator testified after visiting the scene there was no keyhole in the door where Gomez claimed to have been hiding. Hill was acquitted for the Siblings murder. As for the Manboardes murder, three other witnesses present at the time of the offense stated Hill was not the gunman. They agreed to testify but were not called to do so. Hill was convicted and sentenced for this murder.
Gomez also implicated Austin and Jennette for the unrelated murder of Durant. Three witnesses came forward stating neither Austin nor Jennette were involved in the Durant murder but this information was not disclosed to the defense. Prosecution relied mostly on Gomez’s testimony and the brothers were convicted. Jennette was paroled in 2007.
However, Austin died in prison in 2000. A New York Times article claimed Scarcella’s misconduct included manufacturing incriminating evidence, suppressing exculpating evidence, and coercing witnesses. It noted Gomez testified in six unrelated murder cases for Scarcella.
Scarcella denied that Gomez received cash compensation for testimony other than food money and cigarettes. However, Scarcella’s former supervisor stated Gomez was one of several prostitutes who police paid $100 per murder for information. Jennette, and Austin were exonerated.
The extent to which Scarcella abused his power and utilized unethical policing procedures is alarming. That brings up an important question: how many other law enforcement officers in New York and elsewhere have engaged in similar practices?
The exoneration of 19 defendants warrants recognition as a laudable achievement. It has brought immeasurable relief to those unjustly deprived of their freedom as well as their family members. Further, the conviction review process restores a degree of integrity to prosecution in Brooklyn. It is also essential to recognize the tremendous personal, professional, political courage that is required to investigate the work of your colleagues, acknowledge past errors and violations, and seek justice for those who could be easily forgotten and ignored.
But going forward, the challenges for Brooklyn DA Kenneth Thompson and the entire conviction review process remain formidable.
It is critical that the lessons from past erroneous convictions be used to prevent wrongful convictions in the future. The outstanding contributors to past wrongful convictions—perjury/false accusation, official misconduct, and false confession—demand prospective remedies. Will the Brooklyn DA address perjury and false accusation by limiting, monitoring, or prohibiting the use of incentivized testimony?
Will Ken Thompson establish effective penalties to deter suppression of exculpatory evidence? Will Brooklyn lead the other boroughs of New York by requiring the recording and preserving of the entire period of custodial interrogation? Will Brooklyn emerge as a national beacon and model for criminal prosecution?
Editors Note: For a table showing a list of all Brooklyn exonerees, please click HERE.
Rukiya King, a Brooklyn native, is a doctoral student in clinical psychology at City University of New York (CUNY). She has been a member of Prof. Matthew B. Johnson’s Wrongful Convictions Research Group at John Jay College of Criminal Justice, CUNY since 2014. She welcomes comments from readers.