Evidence and exoneration, from the Dreyfus Affair to the DNA era.
When it comes to criminal justice, Penn Law senior fellow David Rudovsky long believed that “most of the time, we get it right.” But it wasn’t until the DNA revolution of the 1980s that he began to form a different view: that too many times we get it wrong.
In May, Rudovsky delivered the 2017 Beitler Distinguished Lecture, “Crisis in Criminal Justice: Mass Incarceration and the Impact of DNA Science on the Phenomenon of Wrongful Convictions,” to an engaged audience on the sixth floor of Van Pelt Library.
Rudovsky, a nationally known advocate for criminal justice reform, explained, “We have 2.2 million people in prison. An estimated 4 to 8 percent are wrongly convicted … Each one is a remarkable story.”
Across the hall, in the Kislak Center for Special Collections, Rare Books, and Manuscripts, a few records from one such case were on display. They concerned the “Dreyfus Affair,” an international scandal that rocked France in the late 19th century. Over the years, curator Lorraine Beitler has collected more than 1,000 posters, advertisements, photographs, and other pieces documenting that episode, and a handful were on view to supplement Rudovsky’s lecture.
In 1894, Captain Alfred Dreyfus was wrongfully convicted of treason by the French Army. The case against Dreyfus rested on handwriting—what Rudovsky called “the DNA of the 19th century.” Unfortunately for Dreyfus, his handwriting vaguely resembled that in a treasonous note divulging French military secrets to the Germans. As a Jewish officer in the French Army, Dreyfus became a scapegoat and the victim of rising anti-Semitism. He was banished to Devil’s Island in French Guinea.
Later, it was also his handwriting that won Dreyfus’s exoneration in 1906, when French handwriting experts identified Major Ferdinand Walsin-Esterhazy as the true author of the note.
“The problems of the Dreyfus case continue to haunt us,” said Rudovsky, who went on to address “the modern Dreyfus problems that we have in our criminal justice system.”
According to the Innocence Project, a nonprofit dedicated to overturning wrongful convictions, there have been 350 exonerations in the 25 years since DNA testing has become scientifically viable and recognized by US courts. Twenty of those liberated innocent people from death row. In one-third of those cases, the actual perpetrator was identified by matching DNA evidence.
“But that’s just the tip of the iceberg,” Rudovsky said.
Those cases only represent ones in which the DNA evidence was still available, and where courts were willing to re-open the cases. Many police departments do not store forensics evidence after a case has been closed.
He recounted a case he worked on in 1987. Twenty-five-year-old Bruce Godschalk had been convicted of rape and burglary in Montgomery County, Pennsylvania, based on eyewitness identification and a detailed confession that he gave to police. He was sentenced to 10–20 years in prison.
For years, Godschalk maintained he was coerced into confessing, and in 1995 he contacted the Innocence Project. The fledgling nonprofit consulted with Rudovsky.
“When I first got the transcript of the case, I thought, ‘He’s guilty,’” Rudovsky admitted. “It was a powerful case.”
But Godschalk had been the victim of a duplicitous interrogation. Before the investigators started recording his “confession,” they gave him all the details of the crime. When they turned the tape on, Godschalk repeated what they had said with the understanding that he’d be released.
And what about the eyewitnesses? “The mind does not work like a video recorder,” Rudovsky explained. “The drop-off in accuracy is very sharp within the first 24 hours, 48 hours, and 72 hours. In addition, cross-racial identification is often more difficult. And if there was a gun involved, most people are looking at the gun and not the face.”
It turns out that about 20 percent of inmates exonerated by DNA evidence were manipulated into false confessions. Another 70 percent were misidentified by witnesses. And approximately 50 percent of those cases involved misapplication of forensic science.
In Godschalk’s case, the forensics just wasn’t done, aside from testing for blood type. Fortunately, the prosecutor still had the biological evidence, and—after seven years of fighting—Rudovsky was able to get it tested for DNA.
It didn’t match Godschalk’s.
Finally, in 2002, Godschalk was released, after spending 15 years in prison.
Rudovsky recommends some reforms. First, interrogations should be videotaped from start to finish. Second, “We ought to move away from the type of interrogation in which detectives are trained to convince the defendant that they’re guilty.” Third, police departments can improve their photo spreads by making the process double-blind, offering photos sequentially, measuring the witness’s level of confidence, and assuring the witness that the investigation will continue.
In the last 40 years, we have become much more punitive, Rudovsky notes. In the 1970s, about 400,000 people were in state and federal prisons; today 2.2 million are behind bars. In both per capita and absolute terms, the United States incarcerates more people than any other country in the world.
“If a hospital had a spike in deaths, there would be an investigation to see what had changed,” Rudovsky said. “Look at what the National Transportation Authority does whenever there is a bad accident. They [immediately] try to determine what went wrong.”
“But the legal system is slow to change,” he continued.
Looking back at Dreyfus, he said, “What went wrong in that case is not so much different from what goes wrong in a lot of cases today. You’ve got bad forensics, deliberate misconduct, the overlay of anti-Semitism. Shame on us that we aren’t able to learn from the kind of mistakes we’ve made.” —NP