Andrew L. Urban.
Justice at the hands of ‘The System’ is sometimes no justice at all, it seems, as the new 9-part series The Innocence Files (Netflix) reveals how police break the rules, forensic experts use junk science, prosecutors withhold exculpatory evidence and judges fail the wisdom test. But some witnesses also contribute to wrongful convictions – which can take decades to correct, if ever.
Protected by professional immunity, some in the legal fraternity and police set out to get convictions and the truth be damned. We know that. But to see it up close through eight detailed cases of the individuals wrongly convicted of serious crimes that incur severe penalties is shocking. The most galling aspect is that it is not merely mistakes or errors but wilful malpractice and dishonesty that is causing many miscarriages of justice. Although this series comes from the files of America’s Innocence Project (founded in 1992) and the Innocence Network, we here at wrongfulconvictionsreport know (after seven years of covering this subject) that America doesn’t have a monopoly on such behaviours. Indeed, many of the flaws and wrongdoing explored in The Innocence Files are replicated in Australia. Our bad.
Barry C. Schek and Peter Neufeld, cofounders of The Innocence Project
The co-founders of the now famous and acclaimed Innocence Project, Peter Neufeld and Barry C. Scheck, take us through this sample of crimes committed by The System against accused who are unprepared for The System’s onslaught. (The System – capitalised to stress it is a label.) To date, 367 people in the United States have been exonerated by DNA testing via The Innocence Project, including 21 who served time on death row.
The series informs us that in the past dozen or so years, some 16,000 prosecutorial misdeeds have been uncovered – such as withholding exculpatory evidence. Only 2% of the prosecutors faced disciplinary action. This is but the tip of the injustice iceberg; it is impossible to estimate how many forensic experts are giving false and misleading evidence (and even stubbornly defending it) or how many times miscreant cops coerce witnesses into false statements and accused youngsters into false confessions.
Speaking of false forensic evidence, the series begins with the outrageous case of a so-called dental expert, or Forensic Odontologist as he was presented to the jury, Michael West*, who made a living parading junk science about bite marks as evidence. He is thoroughly discredited … yet stubbornly refuses to accept his mistakes or to feel ashamed that he is no better than a snake oil salesman. He is ‘the star’ in the first of three episodes dealing with The Evidence.
Alfred Dewayne Brown – guilty until proven innocent
The next three episodes deal with The Witness, followed by three focusing on The Prosecution. Witnesses can cause havoc with false testimony; one such case is a heartbreaking story of a young mother who gives false evidence against her boyfriend when threatened she would be separated from her two daughters …a perfect example of The System behaving like a criminal gang.
Franky Carillo … guilty until proven innocent
In The Prosecution, we meet the worst kind of zealot – officers of the law who see fit to bend (and break) the law they swore to uphold for the satisfaction of a conviction. This sort of misuse of power is exactly what reforms should address as a priority – both in America and here. The prospect of jail time equal to that inflicted on their innocent victims might help keep them work within the rules, I would think. (Some who might fall foul of such reforms have appeared in this blog from time to time …)
Chester Hollman III with his father and sister Deanna after serving 25 years he shouldn’t have. Photo Steven M. Falk/philly.com
Commenting on the series, Eve Ash, herself a documentarian, says she is “devastated and delighted every time I see a wrongful conviction overturned. But the real pain of this brilliant series is realising how much so called scientific evidence was unfounded, mistaken and totally wrong. Experts we are led to believe are specially trained using valid science and experience, continually overseen and checked by their peers and their industry community. So what they put forward is usually accepted without question by a judge and jury. The more we unravel these wrongful convictions the more we see that experts can and do get it wrong. We see the continual problem of witness misidentification and worse still, prosecutorial misconduct. And the result is a free life is taken away from an innocent person for years and in many cases decades, and for some, a death sentence.”
Only last week, we reported on the four part eLearning series Ash produced, Giving Expert Evidence, which was released on OPENSESAME.com an acclaimed online learning library based in USA.
“Another aspect that comes through with the Innocence Files,” says Ash, is there are very few people in justice leadership positions, judges and prosecutors, and leading police investigators, who want to admit their errors or to publicly apologise. Why is that? Wouldn’t we all learn more and move the justice system forward more quickly into the 2020 era if people started to accept responsibility for mistakes? We have now free, wrongfully convicted, still suffering the human injustice of no acknowledgement, no accountability or apology for the trauma and devastation to their lives and those close to them. The heroes in this series, apart from the tolerant and forgiving wrongfully convicted innocents, are the Innocence Project, the conviction integrity units seeking the truth.
“We need more documentaries to expose the flaws in our justice systems across the world and we must fight for change so we can all regain trust and respect for our legal systems,” she adds in hope.
The series is compelling in its subject matter, thorough in its story telling and excellent in its production. My confidence in anticipation was boosted when I saw that among the filmmakers as executive producer and director of an episode (the Chester Hollman case), is New York born Alex Gibney, the multi awarded documentarian famous for Enron: The Smartest Guys in the Room (2005), Taxi to the Dark Side (2007, 2008 Oscar winner) and Going Clear: Scientology & the Prison of Fear (2015) – among many other works.
I watched this crime thriller series in two sittings and recommend it without reservation.
ADDENDUM
* Posted by David Greenwald in April 2020: As Radley Balko described West in 2016, “In the early to mid-1990s, Michael West became a rock star in the world of forensics. West claimed to have developed techniques that he and only he could perform. According to West, those techniques could both identify bite marks on human skin that no other medical specialists could see, and then match those marks to one person, to the exclusion of everyone else on the planet.”
Disgraced odontologist Dr Michael West
Such an exploit helped to put a lot of people in prison—a lot of them unfortunately innocent.
Levon Brooks and Kennedy Brewer – guilty until proven innocent
Two people that Michael West sent away were Kennedy Brewer and Levon Brooks—two men who were convicted in the separate murders of two girls in the same rural Mississippi town in the early 1990s. The key evidence: bite mark analysis and testimony by Michael West.
As it turns out, neither girl had suffered human bites at all and it was more likely insects and crawdads that created the marks—post mortem.”
West is 67, retired, and currently living in Hattiesburg, Mississippi. In a 2011 deposition, West said that he “no longer believes in bite-mark analysis. I don’t think it should be used in court. I think you should use DNA. Throw bite marks out.” However, it seems West still believes in his work. He gave a lengthy statement to Oxygen in which he said he still thinks bite mark analysis is valid, but “amateur practitioners” don’t know what they’re doing.
In 2009 the National Academy of Sciences published a study that discredited using bite mark analysis as a means to identify and/or convict defendants.
OMG! I am well into the Innocence Files and have shed many tears.
I don’t know why, but, I am shocked that human lives mean so little that people like Rizzo exploit others into doing what he and others wish.
I am really saddened by these events and broken hearted for all of them and their families.
It obviously happens in Australia as well.
I don’t know how our system can be fixed when prosecutors, Judges and Jurors, don’t see it as broken.
No doubt I WILL SHED many more tears as Susan’s appeal is tossed in the rubbish.
This could happen to anyone of us, we are left to prove innocence.
I feel sick to my stomach and hope that Susan is granted parole and found NOT GUILTY beyond a reasonable doubt.
I wish I had the money to get her the real help outside of this narrow minded State of Tasmania.
The point that needs to be recognised is the police are not getting the wrongful conviction cases ‘wrong’. It is not tunnel vision. They look at a case and determine who is guilty before the evidence is in. It is the nominative approach. They are building a case around a nominated suspect. Good old fashioned real detective work, what’s that? Circumstantial evidence becomes the key driver. They have been doing it for years and have become good at it. It is standard police Modus Operandi and it has to stop.
The whole justice system has to be overhauled.
And a CCRC would be a great start. Any other arm of government is covered by an ombudsman and audited for efficiency and value to the public. It seems justice is seen as an arm of government that has little over-sighting, other than by media and concerned individuals. And yet public money is being used to commit at times very questionable outcomes. Where there is little scrutiny there is sure to be corruption and ineptness. Confidence in the system can only be restored with more scrutiny, not less, so a future CCRC would be a vital part of the justice system. If there’s nothing to hide, it shouldn’t be a problem to have it.
Without a CCRC, the justice system seems more like a lottery than a considered approached to crime and justice for all. And it shouldn’t stop there, more scrutiny needs to be taken over all aspects of the system, including police investigations, prosecution, the reliability of witnesses and even judicial decisions. Remember, they are not above the law, nor are they the law, so they should all be open to scrutiny to ensure full justice and restore confidence to good governance (something sadly lacking these days).
In the Addendum, “West claimed to have developed techniques that he and only he could perform.” That sentence reminded me so much of the world famous DNA “expert” Mark Perlin in the Robert Xie case. Mark’s attitude at the voir dire then at the trial felt to me that he and only he had the DNA techniques needed.
So I looked through every article I could find about Mark Perlin’s DNA techniques to find a trace, just the slightest evidence, that his DNA techniques had been verified by someone, that his methods were actually validated by someone.
Eventually I found it. In the article When Good DNA Goes Bad https://www.cybgen.com/information/publication/2013/JFR/Perlin-When-good-DNA-goes-bad/paper.pdf
by Mark Perlin, on page 2 under the heading Computer Interpretation, “validated reliability” of his methods is shown in references 10, 11 and 12 in the list of references at the end of the article. And who wrote refererences 10, 11 and 12? Mark Perlin, of course. And his actual methodology, how his methods works – well, nobody is allowed to see that, of course.
Just one of many examples of junk science, in my opinion. Sadly, Xie is not the only person affected by his methods – there are others in other countries.
Exactly, Peter. And of course the defence is entitled to expect the prosecution to present expert witnesses whose evidence can be relied on.
How does the “system” deal with a verdict when the trial Judge commits suicide shortly after a simply ridiculous 5 months trial that miscarried 14 times ? It does nothing!
Great series. For Australian viewers, *this is not “an American thing”*. Indeed, the main difference between America and Australia is that they have more avenues for uncovering wrongful convictions. In Australia, the vast majority remain undetected as there is such poor review and oversight of the problem (hence the importance of this website). Regarding Michael West, junk forensic medicine is extremely common in Australia, and it is systematic and institutionalized. The resulting number of wrongful convictions for grave offenses would shock ordinary Australians.
Thank you Andrew for the time you spend compiling and publishing information on the different aspects which bring about a miscarriage of Justice. All the matters that we have experienced with a personal case in WA – The System is without doubt the enabler for the corrupt, lazy or poorly educated officers to operate in. A case of monkey see, monkey do type of training. Expert witnesses holding court on fabricated science and working in conjunction with the prosecution rather as a neutral player. Prosecutorial misdemeanours abound, with defence acknowledging this but refusing to address it as they have to continue to work in the swamp and therefore are fearful of their livelihood. It’s just too big and crushing for one or a few individuals to take on. The matter we are part of here in Perth has cost family and friends millions and personally my husband and I, 7yrs working on the matter and still counting. It’s hard not to become disillusioned when you know that so many openly agree with the defects of the system and yet do nothing about it. I applaud you and others such as Eve Ash, Bob & Bibi etc in all you do to keep advancing the topic in a respectful, persistent manner and with a high level of integrity on the information you advance. Many thanks!
It’s important that people are aware of the dangers you outline…The System is not to be trusted, sad to say. It’s a swamp.