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How to Avoid Convicting the Innocent

By Adrienne Frank

Julia Carrano and Jon Gould head AU's Preventing Wrongful Convictions Project. (Photo: Jeff Watts)

Julia Carrano and Jon Gould head AU's Preventing Wrongful Convictions Project. (Photo: Jeff Watts)

A man is sentenced to life in prison for murder — and released a decade later when DNA evidence exonerates him and identifies the true killer.

Wrongful convictions—cases that end in an official exoneration after conviction—are headline news, drawing the attention and ire of advocates, academics, attorneys, and the American public. But what of the near misses: oft overlooked cases in which a defendant’s innocence is established before a verdict is rendered?

Lawyer and social scientist Jon Gould heads up the first research team in the country to focus on these near misses, American University’s new Preventing Wrongful Convictions Project.

Funded by the National Institute of Justice (NIJ), the project brings together researchers and organizations — including the National District Attorneys Association, the National Innocence Project, and the Police Foundation — that have never before collaborated. Their charge: to determine how the criminal justice system identifies innocent defendants and kicks them out of the system before they’re wrongfully convicted.

Using empirical social science methods — another first in this field of study — Gould and his team are comparing near misses and wrongful convictions, cases in which the defendant is factually innocent (he didn’t commit the crime) rather than legally innocent (prosecutors can’t prove beyond a reasonable doubt that he is guilty). In each case, they examine a variety of demographic factors, including the age, sex, and race of both victim and perpetrator, along with gang affiliation, prior convictions, and educational background. The team also pores over trial proceedings, surveying DNA and forensic evidence, confessions, and informants.

Though they’re still soliciting near misses, the team hopes to compare 500 cases—all violent felonies since 1980—across 60 variables, building a rich database for the NIJ that students and researchers can mine for years to come.

The Biggest Hurdle: Identifying Near Misses

“These are proving difficult to find, but that’s a good thing because it means we’re doing something new and innovative,” said Gould, who came to AU in January from George Mason. His team, including research assistant professor Julia Carrano and six grad students, has been combing LexisNexis for cases, soliciting anonymous tips on their Web site, and chatting up prosecutors and defense attorneys, who must agree on a case’s merits.

Once the cases have been identified, the researchers pore over court transcripts and newspaper accounts and conduct interviews with lawyers, judges, and jurors. Some cases—the wrongful convictions—are extremely well documented, spawning journal articles, books, and even movies. Others require researchers to be more creative in their methods; in one instance, Carrano scoured a juror’s Facebook page for information on a trial. Tougher cases can require 12 hours of work.

“It can be incredibly time-consuming, but I enjoy piecing together the storyline,” she said. “I like the near misses a lot, because, in many cases, they’ve been overlooked until now.”

Now one year into the NIJ grant, the team will wrap up the analytical work by the end of 2011. In addition to the database, they will produce a statistical study that reveals predictors of wrongful conviction, and a handful of case narratives.

Carrano and Gould, who also serves as director of AU’s Washington Institute for Public Affairs Research, hope their work will lead to a variety of changes in the criminal justice system—how juveniles and the mentally ill are handled and how confessions are solicited, for example—that will help prevent wrongful convictions.

In researching the cases, “we’re discovering why they went wrong,” said Carrano. “We want to help the system get it right.”