Essays and Criticism

The Operation of the Criminal Justice System

Although over half the countries in the world have abolished capital punishment, the United States continues to use it, and a consistent majority of Americans support it. A 2004 Harris poll found that 69 percent favored the use of capital punishment, even though only 41 percent thought it was a deterrent. Thirty-six percent favored an increase in the number of executions. However, few people who have investigated the issue in depth can remain quite so sanguine about the criminal justice system in capital cases. The problems with the system, which are dramatized so effectively in The Exonerated, fall broadly into six main categories, as described in Stanley Cohen’s book, The Wrong Men: America’s Epidemic of Wrongful Death Row Convictions: eyewitness error; corrupt practices within the legal system; jailhouse informants who lie; false confessions; inadequate or poorly applied science (often known as “junk science”); and lack of evidence.

Eyewitness error is a common cause of invalid convictions. Although most jurors tend to believe eyewitness testimony, studies have shown that it is accurate in only about 50 percent of cases. It turns out that people do not have very accurate recall of people they may have seen for just a few fleeting seconds, often from a fair distance away, and sometimes in darkness. Also, people remember information less well when they are in stressful situations, such as witnessing a violent incident or a murder. An analysis of wrongful convictions since the restoration of capital punishment in 1976, conducted in 2001 by the Center on Wrongful Convictions at Northwestern University, concluded that erroneous eyewitness testimony, whether offered in good faith or perjured, was the most frequent cause of wrongful convictions in the U.S. criminal justice system. The center analyzed the cases of eighty-six defendants who had been sentenced to death but legally exonerated based on strong claims of innocence. Of those eighty-six, eyewitness testimony played a role in the convictions of forty-six—over half of the total. In thirty-two of those forty-six cases, only one eyewitness testified. Also, eyewitness testimony was the only evidence against thirty-three defendants (38.4 percent).

Eyewitness error was a factor in the conviction of Delbert Tibbs, one of the characters in The Exonerated. The rape victim, Cynthia Nadeau, identified Tibbs from a Polaroid photo shown to her by police, even though Tibbs did not match the original description she gave. She also picked Tibbs out of a police lineup. But as both the play and Stanley Cohen point out, nothing else about the case supported Nadeau’s story. There was no physical evidence against Tibbs, and no witnesses could place him anywhere near the place where the crime took place. The case against Robert Earl Hayes (Robert in The Exonerated) was also boosted by eyewitness testimony that later turned out to be false. Ironically, one of the characters in the play, David, who was only eighteen at the time and still in high school, shows a naïve faith in eye witness testimony. When he is coerced into confessing, he reassures himself that the eye witnesses to the crime will know he did not do it “‘cause I just wasn’t there and they would have seen that.” He assumes that these witnesses will testify in court that he was not the robber. Unfortunately for David Keaton, the system did not work quite like that. Not a single eyewitness said at the trial that David was not the man they had seen.

According to Cohen, the second category of error that produces false convictions, corrupt practices, includes such factors as police perjury, prosecutors who withhold evidence that might benefit the defense, and incompetent defense counsel. Prosecutorial misconduct was the major factor in the false conviction of Kerry Cook. After Cook’s conviction was overturned in 1991 and his retrial in 1992 had resulted in a hung jury, a state district judge ruled in 1993 that prosecutors had suppressed key evidence. This made no difference to the outcome of his third trial in 1994, when he was convicted and again sentenced to death. In 1996, the Texas Court of Criminal Appeals reversed the conviction, citing prosecutorial and police misconduct. The case against Cook rested largely on a fingerprint of his found on the door of the victim’s home. A fingerprint expert testified that the print had been left only twelve hours before the body was discovered. However, it is not scientifically possible to date a fingerprint, and the expert later admitted that he had been coerced by the district attorney’s office to testify otherwise.

Cook also had poor legal representation. In The Exonerated, the character Kerry points out that when a witness who had originally said she had seen someone else in the victim’s apartment on the night of the crime, changed her testimony and points in the courtroom at Kerry as the man who was there, his lawyer did not even challenge her statement. He adds, “My court-appointed attorney was the former DA who jailed me twice before. He was paid five hundred dollars by the state, and in Texas you get what you pay for.” Such things happen not only in Texas. Most defendants in capital cases cannot afford a lawyer, so the court provides one for them. These cases are complex and require much expertise and experience on the part of the defense counsel, but states provide little in the way of compensation. The result is that people on trial for their lives frequently are represented by inexperienced and sometimes incompetent lawyers. In...

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Imprisonment and Capital Punishment

In his seminal study Discipline and Punish: The Birth of the Prison (1975), Michel Foucault discusses the transition within Western...

(The entire section is 1155 words.)

Review by Brian Gilmore

After appearing in a recent performance of Jessica Blank and Erik Jensen’s documentary drama The Exonerated, actor Ben Vereen signed...

(The entire section is 1099 words.)

Review by Terry Stoller

For their new documentary play, The Exonerated, writers Jessica Blank and Erik Jensen interviewed sixty people who had spent anywhere...

(The entire section is 757 words.)

Delbert Tibbs - A Man Wrongly Accused and Sentenced to Death

Few victims of the capital justice system have roused public support the way Delbert Tibbs did when he was sentenced to death in 1974 for...

(The entire section is 1195 words.)