In 2005, a Detroit jury found that Kenneth Nixon had thrown a Molotov cocktail into his ex-girlfriend’s house, starting a fire in which two children died. Nixon was sentenced to life in prison.
Last month, Nixon walked free after the findings of an investigation led by the Wayne County Prosecutor’s office’s Conviction Integrity Unit convinced elected prosecutor Kym Worthy that Nixon did not receive a fair trial.
Exoneration stories have lost their “man-bites-dog quality.” Known wrongful convictions number in the thousands. By now they blend together in readers’ minds.
But there is something to notice in the Nixon story and in a growing group of similar cases illuminated by fledgling Conviction Integrity Units around the country.
What we have here is-potentially, anyway-a big thing.
The Wayne County Conviction Integrity Unit did more than give Kenneth Nixon’s case one more look; it used a new lens.
If you were to ask the Conviction Integrity Unit prosecutors who are now freeing men in Nixon’s situation how they see their jobs they would probably say they are just “Trying to do justice.”
In fact, they are pioneers in mobilizing a modernized understanding of how things go wrong in criminal justice.
They are offering the criminal justice system a resiliency it has never had.
The “Eureka Parts”
Attorney General Janet Reno gave the innocence movement a jump-start when she ordered the National Institute of Justice to collect the histories of the first 28 cases of DNA-based exonerations and to marshal commentary on their lessons from all perspectives in the criminal justice system: an effort that culminated in the publication of Convicted by Juries, Exonerated by Science.
Peter Neufeld and Barry Scheck, who were among the commentators in that pamphlet, immediately pointed out that the 28 cases discussed must represent only the visible tip of a very large submerged iceberg.
No one has ever seriously contested that observation. But it presented different challenges for two distinct communities of stakeholders: practicing defense lawyers and prosecutors on one hand, researchers on the other.
The infant cohort of “innocence lawyers” needed some way to triage what looked to be an overwhelming backlog of wrongful convictions.
Scheck and Neufeld dealt with this problem strategically. Their fledgling Innocence Project developed intake parameters that emphasized cases with DNA evidence. This was a prescient decision. It guaranteed a reservoir of “gold standard” cases where no one could dispute that there had been an error.
It burnished the Innocence Project brand, and it provided the field with a trusted foundation on which further developments could be built.
Before too long, lists of “causes” became part of the public discourse. Mistaken eyewitness testimony was often described as a “most frequent cause.” As time passed an informal taxonomy of error began to solidify, incorporating forensic science errors, professional misconduct episodes, and incentivized perjury scandals on its list of categories.
This approach approximated the method used by safety experts of that era. When a plane crashed, or power plant exploded, a search began for the “eureka part”-the broken component (say an electrical connection) or slovenly operator (the confused pilot) that could explain the tragedy. You simply reversed the narrative and followed the chain of events back to its origin.
The world of criminal justice generally operates on that Newtonian model of cause and effect. You have to show a rule violation as a way to “ante-up” and engage the process.
Once the process is engaged, the harm caused by the eureka part’s failure will be weighed in the case’s full context to see if it is harmful enough to justify relief, or if it is a tolerable “harmless error.”
Naturally, it seems to practitioners that to have any hope of winning relief you will need a plausible “eureka part” to put on the table. An element of self-fulfilling prophecy seeps in. If you don’t have a eureka part, then you really don’t have a case, because we can’t spend the time bringing one.
Sorry, but there are lots of people in the line who do have eureka parts we have to attend to.
In criminal justice practice the broken component (e.g., the faulty forensic technique) or the villainous practitioner (e.g., the prosecutor who hid the Brady material) gradually became the central intake criteria. A recent law review article offers a comprehensive “innocence checklist” compiling potential “eureka parts.”
The Wrongful Conviction Totals
Meanwhile, scholars and policy-advocates were attempting to estimate what fraction of cases results in wrongful convictions. They realized, of course, that any numerator is necessarily an estimate. They know that there will be innocence cases that never result in an exoneration because lawyers aren’t provided, waiver rules or statutes of limitation bar the claim, the culprit left no DNA, or some other practical reason.
Tell researchers that the actual wrongful convictions total is a “dark number,” and they won’t argue.
But what they may not understand is that a very wide swathe of exonerations is excluded by the criminal justice system’s fundamental model of manner of causation.
In the absence of DNA, you can’t know whether you have had a wrongful conviction unless you can say why you have a wrongful conviction.
It’s at this point that the startling novelty of the Kenneth Nixon exoneration and others recognized by the Wayne County Conviction Integrity Unit under the leadership of Valerie Newman becomes clear.
Nixon’s case involved a young eyewitness, some overvalued scientific evidence (a dog alerted to gasoline on Nixon’s clothes), and a jail house informant.
But Nixon could not offer exculpatory DNA, a recantation, or a third-party admission of guilt. Nixon’s was not a case (in my opinion, anyway) in which any court would have felt compelled to grant a new trial.
In short, Nixon was freed without producing an “eureka part.”
The New Lens on Error
The Conviction Integrity lawyers involved in Nixon’s case might say that it “just didn’t feel right,” but there’s more than intuition involved in these decisions.
Modern Safety experts would applaud the Nixon result. In their view, the legal system’s Newtonian model fails to capture the vulnerabilities of a complex system like criminal justice’s. The criminal system is not like a wristwatch, where a broken gear leads to inevitable results; its causes and effects are not automatic, linear, and sequential.
In a complex system, practitioners deal with “conditions” and “influences” that don’t create automatic effects; they change the probabilities. The risk of error doesn’t live in a single failed component; it lives in the many interactions of many components.
Today’s Safety people would say that the search for an “eureka part” is—and always has been—a dangerous diversion. Many wrongful convictions are “normal accidents.” Even when everyone does what they are expected to do, a tragedy can still result.
The criminal justice system’s concept of protection against error is “defense-in-depth.” We have a succession of screens: police, police supervisors, prosecutors, grand juries, trial defenders, juries, and appellate courts all standing in the way of error’s taking effect.
But when all of the screens are doing the same thing-simply repeating the same search for a eureka part-disasters caused by interactions-communication failures, “structural secrecy”, “practical drift”- will go unnoticed.
Just as you would miss “wetness” by looking at a single molecule of H2O, you will miss “emergent” errors if you insist on looking at the criminal process’ components in isolation.
The Conviction Integrity Unit in Wayne County didn’t offer Kenneth Nixon just one more screen; it offered a whole new way of looking at a potential tragedy.
A complex system is particularly dangerous when it is “brittle.” Something unexpected happens, a bad choice is made, and a disaster automatically follows.
So, contemporary Safety people, realizing that missteps are inevitable, aim to develop “resilience” (or, as David Woods puts it, “graceful extensibility”): the system’s capacity to adapt to an unexpected, even silent, error and provide a safe outcome.
This resilience is what was provided by the Wayne County Conviction Integrity Unit in the Kenneth Nixon case.
Knowing more now than any of the individual actors knew as a case originally wound its way through the system, a CIU is in a position to see how small misjudgments—none of them a “eureka part”—combined with each other and with latent system weaknesses and created a dangerous result.
This approach has broad potential. It could, for example, be extended to the high-volume world of misdemeanor practice that Alexandra Natapoff brilliantly anatomizes in Punishment Without Crime: an environment where every sort of system pressure works to degrade safety, where innocence is almost beside the point, and where no “eureka part” will ever to be noted.
As Barry Scheck has persuasively argued, it can be extended to reviews of sentences, when hindsight can improve decisions made under docket pressure, with fragmentary knowledge about the defendant, the victim (if any), and the range of dispositional alternatives.
And just as importantly, a Conviction Integrity Unit, deployed with system resilience in mind, can act to trigger not only the release of the prisoner but also a forward-looking, all-stakeholders sentinel event review. It can initiate the process of learning not just “Who?” erred, but “Why?”
Ask who is responsible for a wrongful conviction and the answer is “everyone involved, to one degree or another.” The cops got the wrong guy; the forensics didn’t exonerate him; the prosecutors missed the gaps; the defenders, the jury, and the courts failed to intercept the error.
All of these players were trying to “make sense” of swirling clouds of fragmentary and conflicting information under the pressure of time, in resource and training deserts created for them by others.
Conviction Integrity Units aren’t engaged in “second-guessing” those frontline actors. They are simply recognizing the advantages that time, distance and the panoptic view of the evidence that their vantage point and their collaborative approach to the defense bar provide.
They are using those advantages to do a little justice now, and to provide a little safety in the future. The human costs of wrongful convictions are heartbreaking. Their economic impacts more than justify investing in building system resilience.
This new lens deserves support.
Additional reading: Can Conviction Integrity Units Get Respect? The Crime Report, Feb. 24, 2021
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He welcomes readers’ comments.