Marshall is a professor of law at Northwestern University School of Law, where he serves as Legal Director of the Center on Wrongful Convictions. He has represented a number of clients who have been exonerated after having been sentenced to death or sentenced to life imprisonment.
The study of wrongful convictions is, in large part, a study about the limitations of the human condition. Eyewitnesses, despite their intense desire to identify the correct perpetrator, make mistakes at an alarming rate. Police, despite their interest in securing accurate statements and confessions, often use interrogation devices that prompt people to concoct untrue stories-which incriminate themselves and others. Prosecutors, despite their commitment to doing the right thing, often get caught up in the political game of securing and preserving convictions and develop tunnel vision that obscures their ability to appreciate the significance of evidentiary developments that make it clear to objective observers that an innocent suspect is behind bars. Judges, in whom we repose the ultimate power to do justice, are often subject to these same personal and political pressures that can blind them from recognizing that a grave injustice has transpired in their courtrooms.
As FRONTLINE's "An Ordinary Crime" establishes, when these phenomena come into play, justice and innocent defendants are the victims. Through its in-depth analysis of the Terence Garner case, "An Ordinary Crime" provides a chilling window on how our criminal justice system can fail miserably to accomplish the goal of criminal justice. It is tempting to dismiss this case as an aberration, but there is no reason to believe that there is anything that rare about what happened to Garner. As the documentary's title suggests, this was "an ordinary crime." The only unusual fact is that someone has exposed what happened here.
There are many facets of the case that deserve discussion. The one that I found most poignant, however, was the testimony of Alice Wise, a woman who was shot and partially blinded during the robbery of a finance company. As in many wrongful conviction cases, the centerpiece of the evidence against Terence Garner was eyewitness testimony. Despite all of the evidence showing that Garner is innocent, Alice Wise continues to have no doubt that he committed the crime. She told a jury and then told FRONTLINE that there is no possibility that she is mistaken about her identification because the face of the man who shot her was the last thing she saw with both of her eyes. The trial judge has made clear that he was very moved by this powerful testimony, and one can only imagine the impact this evidence had on the jury that convicted Garner.
There is no doubt, of course, about the honesty of Alice Wise. Obviously she has no interest in convicting anyone but the person whom she steadfastly believes to be guilty. But countless wrongful conviction cases have taught us that an eyewitness's honesty and certainty do not always equate with accuracy-particularly when the identification involves a cross-racial identification of a stranger whom the witness saw under very traumatic circumstances.
Indeed, as I watched Alice Wise I could not but think about another North Carolina case involving a thoroughly honest victim who was absolutely certain that she was identifying the correct perpetrator. That woman, Jennifer Thompson, testified at two separate trials that a man named Ronald Cotton was the person who raped her, and she explained that she studied the details of his face throughout the ordeal so that she would be able to make an accurate identification if she survived the attack. When Cotton's defense lawyers asked her whether a different man named Bobby Poole could have been the rapist, Thompson was emphatic that Cotton was the rapist. Her certainty and obvious integrity were eerily similar to Alice Wise's, and in both instances, eyewitness testimony led to convictions. Yet, DNA evidence later proved that Ronald Cotton was completely innocent, and that Bobby Poole was the man who raped Jennifer Thompson. By that time, Ronald Cotton had spent more than a decade behind bars for a crime he did not commit. [Editors' Note: see FRONTLINE's 1997 report "What Jennifer Saw" on this case of eyewitness error.]
Jennifer now travels the country trying to educate people about the risk of eyewitness error. She has said repeatedly that if she were to spend every minute of every day of the rest of her life begging Ronald Cotton for forgiveness, that would not come close to expressing her sorrow about having misidentified him. She accompanied a team of lawyers to Texas, begging then-Governor Bush not to execute Gary Graham based on the eyewitness account of a woman who saw a gunman from 30-40 feet away, at night, for a period of 6 to 7 seconds. As in the Garner case, there was significant evidence showing that Graham was innocent-several other eyewitnesses were emphatic that Graham was not the murderer. Yet, like the Garner cases and countless other cases that arise each year, the exculpatory evidence was never presented to the jury that returned a guilty verdict. In the Graham case, the execution went forward and no judge or jury ever listened to the testimony that rebutted the eyewitness who incriminated Graham. With the broadcast of "An Ordinary Crime," there is hope that someone will reopen the Garner case and give him, at the very least, a fair chance of a new trial before he spends decades of his life rotting in prison.
It is imperative that we take to heart the lessons of these cases. Eyewitnesses make mistakes at a distressing high rate. Yet jurors tend to believe that eyewitness testimony is the most powerful form of evidence available. Of course, no reasonable person would ever suggest that we ban eyewitness testimony from the courts, but we must do something to help remedy the spate of wrongful convictions that are caused by mistaken eyewitness testimony each year. For example, juries must be allowed to hear expert testimony that explains the significant risk of eyewitness error, and the various factors that enhance that risk. Jurors should be educated that a witness's stated level of certainty reveals much more about that witness's personality than it does about the accuracy of the identification. In addition, there are readily available ways of reducing the risk of eyewitness error in the first place. Lineups can be conducted in manners that avoid the suggestion that the suspect has been apprehended and minimize the chance that the witness will unconsciously fix on the person who looks most like the person who committed the crime.
Not so long ago, it was difficult to persuade ordinary Americans that there was a wrongful-conviction crisis in this country. During the last decade, however, any doubts about this subject have been erased. We are on the brink of the 100th exoneration of an inmate from death row. We are also closing in on the 100th DNA exoneration in this country. What these cases have proven is that the kinds of tragic conditions that led to Terence Garner's conviction and continued incarceration are ubiquitous. We as a people committed to justice have an obligation to reflect upon how we can reform the system so that we can minimize the risk of convicting the innocent while maintaining our ability to convict the guilty. One can only hope that "An Ordinary Crime" will help Garner, and win public support for this challenging task.
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