Eight years ago, Donnell Johnson’s fate seemed to be sealed. He was convicted for the Halloween 1994 murder of a 9-year-old boy, then the youngest shooting victim in the history of Boston. Only 16 years old at the time, Johnson had been arrested the day after the shooting, and he remained in jail until his trial in March 1996. Three witnesses placed him at the scene with a gun. Johnson was sentenced to 20 years in prison, where he was to remain until he reached his mid-30s.

Attorney Stephen Hrones didn’t accept
that “the book was closed” after a verdict.

In many respects, Johnson’s case was unremarkable. An estimated 300,000 criminal cases wind their way through Massachusetts every year. Most criminals are caught. Most criminals are convicted or plead guilty. In courtrooms from Boston to Pittsfield, their sentences are meted out every day. In Donnell Johnson’s case, however, the wheels of justice ground past one important fact: He didn’t commit the crime.

While Johnson languished in prison, his lawyer argued with prosecutors for three years, claiming that the witnesses implicating Johnson were wrong. The Suffolk County District Attorney’s office stood its ground until an unrelated investigation turned up another suspect – someone Johnson had identified as the killer from the beginning. On November 22, 1999, a Superior Court judge ruled that Johnson had been convicted erroneously. He was set free.

“The jury has spoken, the book has closed – that was the mentality of the district attorney’s office,” says Johnson’s attorney, Stephen Hrones.

Now the book is starting to be reopened. Not that erroneous convictions are necessarily rampant. Massachusetts has exonerated only 36 people convicted of violent crimes in the past 200 years, though 15 of them have been cleared since 1989. But people are not statistics, and even prosecutors understand that every conviction overturned not on a technicality but on the truth shakes the public’s faith in the system of justice.

“We have to do everything in our power to stop it from occurring,” says William Keating, district attorney of Norfolk County. Keating had his own near miss in 1999, soon after he took office. His predecessor had arrested a Walpole man, Edmund Burke, for the murder of 75-year-old Irene Kennedy in a Foxborough park on December 1, 1998; 41 days after his arrest, prosecutors freed Burke when a DNA sample taken from Kennedy’s body implicated another man.

Burke is now suing the state, but his was a minor inconvenience compared with other erroneous convictions in Massachusetts:

  • Stephan Cowans, freed last year for the shooting of a Boston police officer. A convicted petty thief and shoplifter, Cowans was sentenced in 1998 to 35 years in prison. DNA evidence from a mug and a hat discovered at the scene later implicated someone else.

  • Dennis Maher, released in 2003 after 19 years in prison for two rapes in Lowell and Ayer. A volunteer law student discovered in the basement of Middlesex County Courthouse misplaced evidence, which had DNA residue that cleared Maher.

  • Kenneth Waters, convicted in 1983 of murdering an Ayer woman and freed 18 years later in 2001. His sister, formerly a waitress, worked her way through law school to press his case. She, too, found discarded evidence in a courthouse that had DNA evidence exonerating Waters, despite numerous witnesses against him.

The common theme in the reversals of the last 15 years has been DNA evidence irrefutably proving innocence – the testimony of eyewitnesses and even outright confessions to the contrary. Records set straight by this scientific tool have called into question the reliability of law enforcement’s standard operating procedures, such as eyewitness testimony, mug shots, and suspect lineups. “Beyond a reasonable doubt” is, all of a sudden, subject to doubt.

“The DNA is a surprise to people,” says Dan Givelber, a Northeastern University law professor and co-founder of the New England Innocence Project. “There is an emerging awareness that many of our traditional practices aren’t as accurate as we’d like to believe.”

Police, prosecutors, and lawmakers are now scrambling to transform these signs of fallibility into a new science of certainty, translating past foul-ups into new policies and procedures that (it is hoped) will stamp out erroneous convictions forever. Interrogations and confessions are being tape-recorded, witnesses are being shielded from prejudicial comments during suspect identifications, and, in general, the human factor is becoming subordinate to the physical in an attempt to take the guesswork out of justice. In the process, persons convicted of crimes they did not commit are regaining their freedom, and suspects are becoming less likely to be fast-tracked into prison. At the same time, at least if the governor of the Commonwealth is to be believed, the possibility of error is diminishing enough that it is no longer sufficient reason to abstain from the ultimate criminal sanction: the death penalty.

To err is human

Using DNA samples as evidence in criminal trials first came into vogue in the early 1990s, with Massachusetts courts beginning to accept them in 1994. Since then, prosecutors have embraced the genetic test as a virtually foolproof indicator of guilt or innocence. Mistakes in analysis do sometimes occur, but for the most part DNA and other physical, “scientific” evidence provide the most reliable grounds for conviction.

In contrast, legal scholars say, the most common causes of erroneous convictions are found in “human evidence”: eyewitness testimony, suspect confessions, and tips from informants. People remember facts incorrectly, identify the wrong suspects, even lie in court. Sometimes suspects will confess to crimes they did not do.

These sources of error are now on the criminal-justice agenda, put there by DNA exonerations. Last year, the University of Michigan did an exhaustive study of false convictions overturned since 1989, when DNA evidence first freed someone from behind bars, and documented 328 such cases nationwide. Nearly 320 were for rape or murder, of which 73 had placed someone on death row. And the pace of exonerations is accelerating, from an average of 12 per year in the early 1990s to 43 per year since 2000. As technology – particularly DNA analysis – has advanced, more mistakes are being discovered. What’s unknown is how many more miscarriages of justice remain uncorrected, since most crimes leave no DNA samples to study.

“It’s clear from this data that false convictions are much more common than exonerations, and that the vast majority are never caught,” wrote law professor Samuel Gross, the study’s author.

DNA analysis is uncovering more and more mistakes.

The simple explanation for lapses in human reliability is that the mind does, in fact, play tricks. Mahzarin Banaji, a Harvard University psychologist who studies memory, calls such false recollections “mind bugs.” Typically, she says, a person fills in the gaps surrounding a particular memory with details or assumptions from other memories.

“The recall or misrecall of each little event can affect the next,” says Banaji. “What’s important is that these downstream effects can happen entirely without conscious awareness.”

In the University of Michigan study, nearly 90 percent of false rape convictions stemmed from witnesses, including the victims themselves, misidentifying the suspects. But Gross found that the leading causes of false murder convictions were less innocent: perjury and forced confession.

Massachusetts district attorneys moved to take up the issue of false convictions last year, when “you couldn’t possibly miss” the exonerations reported in the media, says Massachusetts District Attorneys Association director Geline Williams. The 11 prosecutors spent the latter half of 2004 consulting with forensic experts, psychologists, defense lawyers, and others to develop new procedures for identifying witnesses and interrogating suspects.

“That’s where we’re looking for sweeping, systemic changes,” says Williams. She expects recommendations by spring.

Among the changes under consideration: showing mug shots of suspected criminals one at a time to witnesses, rather than in an array; using such “sequential presentation” for in-person identifications, replacing the traditional group lineups; using a “double-blind” system, where the officer presenting suspects to a witness does not know which person the investigating officers consider the likely criminal; and videotaping interrogations and confessions.

The Supreme Judicial Court expressed its own dissatisfaction with current interrogation techniques last August. In a 4-3 decision, the SJC ruled that when interrogations are not recorded, a judge must tell the jury that unrecorded confessions give “a woefully incomplete and inherently unreliable version of what everyone recognizes as critical evidence in the case.” Police bristle at the implication that they cannot be trusted, but defense lawyers and prosecutors alike agree that such judicial discounting of unrecorded confessions will give police strong incentive to commit their interrogation of defendants to tape.

Some DAs have already tightened up human-evidence procedures on their own. Notably, Suffolk County prosecutors and the Boston Police Department adopted sequential presentation and a stronger taping policy last summer. Other counties have also held training sessions with their local police departments.

“There is no question in my mind that these steps will reduce the number of false convictions,” says Suffolk County District Attorney Dan Conley. Conley came into office in 2002, and he commissioned a panel of criminology experts to devise those improved suspect-identification methods unveiled last year. He proudly notes that even famed defense lawyer Barry Scheck, co-founder of the New York-based Innocence Project, endorses the new standards.

Middlesex County District Attorney Martha Coakley personally led four training sessions with her county’s police departments last year. Meeting with 40 to 50 officers at a time, she gave them a nine-point checklist to be read to witnesses before asking them to identify a suspect, much like the Miranda warnings read to people placed under arrest. (Item 2: “This may or may not be the person who committed the crime, so you should not feel compelled to make an identification.”)

“We have to improve the way we elicit witness identification,” Coakley says. “To me, the most important part is giving them an easy kit to do it.”

Last July, Keating met with officers from Norfolk County police departments to review much the same material. One speaker was a rape victim who identified her “attacker” in court but was proven wrong – after the man spent seven years in prison. Banaji also spoke about flaws in human memory.

“We started by saying this is a human issue, not a police issue,” says Keating. “All people have cognitive prejudices that filter in. The presentation [Banaji] gave opened a lot of eyes.”

What’s at stake for prosecutors is credibility – with the public and with juries. False convictions are rare, says Williams, but it doesn’t take many to undermine confidence in the criminal justice system.

“It’s minuscule in hard numbers,” she says, “but it’s devastating in impact.”

Back from the dead

The quest for scientific certainty in criminal prosecution has not been confined to freeing those falsely imprisoned. In Massachusetts, the prospect of an error-free criminal-justice system has given new life – at least in the governor’s office – to hopes of restoring the death penalty.

Harvard professor Fred Bieber:
“Scientific evidence” is vitally
important in death penalty cases.

To date, exoneration by DNA of death-row inmates around the country has mostly bolstered the cause of capital-punishment opponents, demonstrating as it does the risk of a fallible criminal-justice system sending an innocent person to death. In 2000, Illinois Gov. George Ryan declared a moratorium on executions in the wake of overturned capital convictions. But for Gov. Mitt Romney, the evolution of forensic science has inspired hopes of a foolproof death penalty, and last May a panel of experts appointed by the governor issued recommendations on how to craft one.

Fred Bieber, a Harvard Medical School professor and co-chairman of Romney’s commission, concedes “the well-known foibles of human evidence,” which is why he says physical evidence should be paramount in the legal matter of life and death. “If you’re going to ask a jury to consider the ultimate sanction, we feel they should be armed with a lot more ammunition than a confession or jailhouse testimony,” says Bieber.

To that end, in addition to limiting the death penalty to a narrow set of crimes (including murders of law enforcement officers and “torture” murders), the governor’s commission insisted on two prerequisites for imposing the death penalty: that the jury be instructed about the perils of human evidence, and that a finding of guilt be based on “conclusive scientific evidence with a high level of certainty.” The commission defined such evidence as DNA samples, photographs, videotapes, fingerprints, or similar physical proof.

Bieber’s commission also proposed multiple layers of review, to prevent irreversible slip-ups. All physical evidence in death penalty cases would be subject to an independent scientific review, managed by an advisory committee of forensic experts. That committee would also help set standards for forensic expertise at crime labs working for the state.

“In the vision we had, there would be so much oversight into the forensics of cases… [with] independent people looking at the case soup-to-nuts, they could point out any errors in commission or omission,” Bieber says.

Under such a system, Gov. Romney declared at the time of the report’s release, he would “be happy to stake my own life on a process of this nature.”

State Rep. James Vallee, a Franklin Democrat and House chairman of the Legislature’s criminal justice committee, agrees that the quality of evidence is one factor in judging the merits of any death penalty plan. Though he is a supporter of capital punishment, “a lot of legislators have always had a concern about wrongful conviction,” says Vallee. Improved forensics and DNA evidence, he says, could make dispensing the death penalty more defensible.

So far, this new-and-improved approach to capital punishment has yet to demonstrate any political legs. In the Legislature, interest in resurrecting the death penalty, which was abolished in 1984, has waned since 1997 – when, in the wake of the murder of 10-year-old Jeffrey Curley, it came within one procedural vote of becoming law. Last session, in a hearing on perennially refiled bills not a single person testified in favor of restoring capital punishment. (Taking note of Massachusetts’s “foolproof death penalty” trial balloon in its annual Year in Ideas issue, The New York Times Magazine quoted University of California­Berkeley criminal-law professor Franklin Zimring as declaring Romney’s proposal “the first effort to write a solely symbolic criminal statute.”)

Suspicions were raised about planted prints.

Givelber, of the New England Innocence Project, believes that Romney’s convoluted procedure would result in “a really strange system,” in which death-penalty cases are so narrowly defined and so tighly reviewed that none could be prosecuted. And even some prosecutors find little reassurance in the supposedly airtight proposal.

Middlesex DA Martha Coakley says
even science isn’t foolproof.

“Unless they take the human part out of being a human being, I don’t think there is a foolproof system,” says Keating.

Coakley has a different concern. She previously supported the death penalty, but changed her mind once the wrongful conviction of Joseph Salvati was exposed. Salvati and three other men were sentenced to life in prison in 1965 for a New England organized-crime murder, and the FBI covered up evidence of their innocence until 2000. Salvati and fellow inmate Peter Limone were finally exonerated in 2001, but their other two cohorts had already died behind bars.

For Coakley, better science and better procedure can prevent honest errors. But deliberate sabotage is another matter. “Mistakes can right themselves,” Coakley says, “but malfeasance might not be uncovered.”

Chain of evidence

In a death-penalty (or any other) case, defense lawyers insist that for a conviction to be truly foolproof, all physical samples must be preserved and analyzed in a manner that’s open to scrutiny every step of the way. In much the same way corporations audit their finances to monitor cash flow, they say, outsiders must be able to audit a trail of evidence so they can identify possible malfeasance anywhere along the line.

“We have lots of examples, some of them unfortunately right here in Massachusetts, where analysts have given results that turned out to be blatantly false,” says Harry Miles, a defense lawyer in Northampton.

One example is the Cowans conviction. As a result of his exoneration, suspicions were raised about whether technicians in the Boston Police Department’s crime lab planted Cowans’s fingerprints on evidence. Police Commissioner Kathleen O’Toole asked the state attorney general’s office to investigate. No charges were filed, but an external review uncovered numerous problems, and O’Toole closed the fingerprint lab in October.

Miles, Bieber, and others say evidence must be tracked from its collection at the crime scene, through its labeling and storage, to its analysis at forensics labs. But district attorneys bristle at the thought of defense attorneys looking over their shoulders as they scrutinize evidence.

“To turn the world upside down because we have a new scientific tool, and say police should not investigate crime scenes unless defense attorneys are right there with them… has never been American jurisprudence, and never should be,” says Bristol County District Attorney Paul Walsh, who is president of the National District Attorneys Association.

Prosecutors note that they are legally and ethically required to disclose all evidence to the defense, even when that means acknowledging incompetence or fraud in the handling of it. In addition, they say, law enforcement officials have little motive to manipulate evidence when they’re still investigating the crime.

“Sometimes that’s lost on the defense bar,” says Keating. “Prosecutors shouldn’t make that quantum leap, and I don’t believe they do make that leap, to a suspect.”

Still, it wouldn’t hurt to put control of evidence and forensic analysis in the hands of a third party, with its findings available to all parties, Bieber suggests. That could mean shifting oversight of the state crime lab from the State Police to the Department of Public Health, for example. “That would go a long way to putting aside any lingering questions about bias in the system,” he says.

While defense lawyers worry about bias, prosecutors worry more about productivity, with underfunding of the crime lab resulting in lengthy delays in analysis. (See “Crime labs failing to make the case,” CW, Summer ‘02.) “For my money, Massachusetts has the worst crime lab in the country,” Walsh says. “It’s woefully underfunded. It is always a work in progress. I’ve been here for 15 years, and I’ve heard it all for 15 years.”

So have lawmakers, who are now responding. Funding for the crime lab in Sudbury, run by the State Police, went from $4.55 million last year to $6.23 million in fiscal 2005. Funding for the medical examiner’s office – long criticized for squandering grants, taking too long with autopsies, and forgetting names on death certificates – had been funded at the $3 million level for years. Its budget finally went from $3.66 million last year to $6.13 million in 2005.

Even with this infusion of funding for state forensics offices, prosecutors still frequently send evidence out of state for speedier analysis. Keating has sent samples to the state crime lab in Maine; Coakley, Walsh, and others use Cellmark Diagnostics in Maryland. “It’s a huge issue… in terms of implicating or exonerating people in a timely fashion,” Coakley says.

And it can be a huge expense: $10,000 to $20,000 for private testing of a DNA sample, plus more fees for scientists to testify at a trial. Massachusetts’s crime lab costs half as much and provides expert testimony for free. That’s if prosecutors can afford to wait for the results, which can take several months.

The DAs are willing to fork over the cash from their own budgets because of the ironclad verdicts DNA samples can provide, and because if a suspect is still at large, they can’t afford to skimp. “If there is testing to be done, you do it, because it’s the right thing to do,” Keating says.

Balancing the scales

Ultimately, the surge in exonerations may be just that – a surge, the result of a new technology (DNA testing) converging with old suspicions of injustice. Williams, of the Massachusetts District Attorneys Association, believes the system has now “turned a corner,” where police and attorneys grasp the scope of the evidentiary problem and lawmakers accept the need for more money to improve the certainty of conviction.

Suffolk County DA Conley compares the current changes in law enforcement to the act of ripping off a bandage: a painful moment that’s really a sign of recovery. “As these new standards take hold, I think citizens can have new confidence in what they see and hear,” he says.

Still, loose ends remain, some of them significant. For example, in 2001 and 2002 Norfolk County prosecutors searched for erroneous convictions from among more than 200 cases, all at least six years old, where inmates maintained their innocence and physical evidence was available for re-examination. “We didn’t find any” to reverse, says Keating, “but we thought it was a great process to go through.”

Then there is the question of what to do for those who were sent to prison wrongfully. Some states have a restitution formula that pays damages based on the average state wage or the prior income of the falsely convicted. On December 31, Lt. Gov. Kerry Healey, in Romney’s absence, signed into law a provision allowing those who have been proven innocent after serving a year or more in jail to obtain up to $500,000 in compensation.

Finally, there is the question of what to do about convictions in cases where physical evidence was destroyed or never existed at all. Givelber notes that all nine Innocence Project exonerations in New England stemmed from re-examination of DNA evidence. When choosing a case to support – his group is studying 25 to 30 cases at a time, he says – ”it comes down to whether there is biological evidence that would or would not exonerate.”

That policy would have left Donnell Johnson out of luck. He had no physical evidence to support his claims of innocence. But he had a tenacious defense attorney in Stephen Hrones, who was assigned to his case at random one day in 1994. An equally fortunate twist came when prosecutors stumbled across other suspects who fit both the facts of the crime and Johnson’s claims of innocence. But that twist didn’t come until Johnson had served five years behind bars.

For his part, Hrones, who has gone on to represent three other men exonerated in Suffolk County, believes police and prosecutors need not just a shift in a few procedures, but a fundamental change in attitude. Law enforcement officials need to be willing to explore every lead and every angle, not just the ones that promise speedy arrest and conviction.

“It’s the whole mentality that needs to change,” he says.

Bristol County DA Walsh admits that the techniques law enforcement is now adopting have been too long in coming. “We all should have been on board for better uses, and more prevalent use, of scientific evidence,” he says, both to reverse erroneous conviction and to ensure correct ones. “It’s a neutral scientific tool we should all embrace.”

And erroneous convictions aren’t solely the fault of law enforcement, Walsh insists. For every prosecutor involved in a false conviction, he says, the case also has a defense attorney, a judge, and a jury. But Walsh also recognizes that the burden of correcting the problem falls on offices like his.

“Right now, we own this issue,” he says.

Matt Kelly is a freelance writer in Somerville.