Why Some States Still Fight the Exoneration of the Innocent

Record numbers of wrongful convictions were overturned across the nation last year. But in some places, the trend seems to moving in the opposite direction.

Alessandro Bianchi/Reuters

The National Registry of Exonerations announced Tuesday that 2013 was a "record year" for exonerations in the United States. The group's investigators and researchers found that at least 87 men and women had the charges against them cleared, their convictions overturned, in 25 states around the country.  Black or white, male or female, Northern or Southern, many of these people were freed from prison in 2013 after serving decades in prison for crimes we now know beyond a reasonable doubt that they did not commit.

Each of these exonerations represents a tiny point of light in the darkness of the nation's criminal justice systems, which remain racially biased and, in countless other ways, arbitrary and capricious. The miracle here isn't just that 87 people last year were able to enjoy a new level of truth and justice. The miracle is that despite our grand pronouncements about equal justice under a rule of law there are so many more innocent people behind bars today who are yet to be exonerated.

There are a number of interesting revelations in the new report. For example, DNA exonerations declined last year and represent only about a fifth of the total. Fifteen of the 87 exonerations occurred after false guilty pleas, another sign of how prevalent coerced confessions can be. There were 40 murder exonerations in 2013 and 18 involving convictions for rape or other sexual assault. Perhaps the biggest surprise, however, is how optimistic the authors seem to be about growing cooperation from prosecutors and judges. From the report:

The pattern of exonerations in 2013 suggests that we are increasingly willing to consider and act on the types of innocence claims that are often ignored: those without biological evidence or with no actual perpetrator; cases with comparatively light sentences; judgments based on guilty pleas by defendants who accepted plea bargains to avoid the risk of extreme punishment after trial. The recent increase in the number of exonerations initiated by law enforcement directly shows that police and prosecutors have become more attentive and concerned about the danger of false conviction.

Maybe yes and may be no. I write about plenty of cases where actual innocence is an issue but where the intransigence of the courts, or of prosecutors, is remarkable. For example, I'm now into my third year covering the case of Tyrone Noling in Ohio. He deserves to have critical DNA evidence tested to determine whether another man committed the murder for which he now sits on death row. Had Ohio officials agreed to this two years ago, we'd all know the truth by now. The case would be closed. Instead, at great cost to taxpayers, those officials have balked. This year I'll be covering another hearing, at least.

You can say the same thing about Alabama, which won't permit DNA testing in the death penalty case of Thomas Arthur even though his attorneys say they will pay for it and even though another man confessed under oath to the murder for which Arthur was convicted and sentenced to death. You can say that same thing about Mississippi, which won't permit DNA testing in the death penalty case of Willie Manning even though the FBI—the FBI!—has offered to do the testing amid questions about the reliability of the scientific evidence introduced at his long ago trial.

And you sure can say the same thing about Texas. In some ways, state officials have done a laudable job recently of trying to rectify past injustices. Texas leads the 2013 list with 13 exonerations. On the other hand, the Texas Court of Criminal Appeals, on Wednesday, inexplicably refused to permit DNA testing in the case of a death row inmate named Larry Swearingen. The rationale the court applied was almost cruel: There could be no testing because Swearingen had not proven there was "biological evidence" to test. Of course, such testing would have put that question to rest, one way or the other.

There are thus two relevant facts worth noting that are not synthesized into the exoneration report's analysis. The first is that not all states are equal when it comes to prioritizing exonerations. Some simply care less about justice for the wrongfully convicted than others. Some are spending money on programs designed to ferret out inaccurate trial results while others are not. The registry that has given us this report may be national, in other words, but the remedies in place surely are not. Congress could help rectify that. So could the Supreme Court. So could the executive branch. Maybe this year.

The second point that needs to be made in the shadow of the report is that some states today are moving against the flow. Lawmakers in at least two states, Alabama and Tennessee, are seriously considering measures that would tighten appellate deadlines in capital cases, making exonerations harder to achieve. In Alabama, five men were given new trials in circumstances that might be precluded under the new proposal. In Tennessee, the bill now being considered, in addition to moving up those deadlines, would require public defenders to pay fines if they later are found to have provided "ineffective assistance" at trial.

What these two legislature proposals tell me, and what the Noling and Swearingen cases confirm, is that there is still a great deal of tension within our justice systems about the relative value of accuracy. For state lawmakers fed up with delays in capital cases, it's more important to bring finality than it is to ensure accuracy. For those prosecutors and judges in the Noling and Swearingen cases, there's no need to look more closely behind the curtain, no matter how substantial the questions may be about whether these men committed these crimes.

We all can be encouraged by the pace at which these exonerations are amassing. We all can hope that the support from judges and prosecutors is a trend we can bank on. The number 87 is better than the number 78. But when I read this report, all I can think about is how hard it is to undo these faulty verdicts, how much effort it takes by so many on behalf of the wrongfully convicted, and how stubborn so many others are to see what's right in front of their noses. Our justice systems are quite often unjust and it ennobles us, not diminishes us, when we acknowledge this and move quickly to fix it where we can.