On Wrongful Convictions and Penny Brummer

Updated - Here is a strong recommendation for Christmas weekend binge watching: The Making of a Murderer (Ricciardi and Demos, Netflix). Wisconsin viewers will recognize many of the players, the chilling police and prosecutor duplicity, the cover-ups, the lies, and the pathological lack of conscience of Wisconsin law enforcement. Raves are pouring in, this is a masterpiece that ought to shake the foundations of the state criminal law system. It won't.
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Wrapping up for Christmas Day weekend early, we note here again the findings of the first, systematic empirical study on actual innocence, wrongful convictions and exonerations.

"Police and prosecutors maintain their roles ... serving as the largest combined source of opposition to exonerations," conclude Jon B. Gould and Richard A. Leo in their important Path to Exoneration research paper.

Noted here at this site and across the Madison, Wisconsin press has been the case study of a wrongful conviction: Penny L. Brummer v. Wisconsin (Dane County Case Number 1994CF000617) (1994).

Standing in the way of exoneration are the police and the District Attorney's office.

There have been numerous exonerations in Wisconsin and in Dane County, (Wisconsin Innocence Project) and only a fool can doubt more innocent people remain behind bars today.

Yet, as we read of the exoneration of one Wisconsin citizen after another (Barton, Milwaukee Journal-Sentinel), there is not widespread outrage from jurists, no public demand for accountability from the police and prosecutors, no call for change in the police-prosecutor state about which the prescient 20th century jurist (and chief prosecutor for the Allied Forces at Nuremberg), Robert H. Jackson, warned our country about 75 years ago.

Instead, we find local police and prosecutors serving as the largest combined source of opposition to exonerations, and as eager foes of liberty.

To Penny Brummer and many other victims, please note in this holiday season: You are not forgotten.

As for Dane County Wisconsin, one step should be the establishment of a Conviction Integrity Unit independent of the District Attorney's office (acting in an advisory capacity) that can serve as a political check on cases such as the shabby investigation, the retrograde bigotry, passive compliance and careerism of law enforcement that caused Penny Brummer to serve year 21 now of a life sentence for an alleged homicide of which I believe prosecutors, police and many others know she is innocent.

To state what should be obvious: The careers of law enforcement officials are trivial in comparison to the life and liberty of the Wisconsin citizenry.

Looking for justice in Wisconsin—Penny Brummer

Research Report: Prosecutors, Police Protect Wrongful Convictions; Ignore Facts

Jon B. Gould and Richard A. Leo have a Research Paper out studying exonerations and wrongful convictions.

The conclusions drawn from the empirical study of exonerations indict the American criminal justice system, and show police and prosecutors will stand by convictions and arrests in the face of any exculpatory evidence.

Not many exonerated Georgia Thompson v. United States and Forest Shomberg v. Wisconsin cases around the nation, in which judges toss out cases and vacate convictions, (Cohen, NYT; Davidoff, Isthmus). Prosecutors can be counted on to defend wrongful convictions, seeking 'wins' over justice. Not many Robert H. Jackson fans around today.

Gould and Leo's abstract from their paper reads as follows:    

This article is the first systematic empirical study of how the American criminal justice system discovers and responds to factual error based on actual innocence. The study analyzes a data set of 260 cases of wrongful conviction of the innocent and 200 near misses (i.e., dismissals and acquittals involving an innocent defendant) to better understand the sources of and bases for exoneration; who is responsible for, as well as who opposes, exoneration; the statistical correlates of exoneration; and the primary methods and mechanisms involved in the path to exoneration.

This study leads to several findings. First, wrongful convictions are difficult to reverse in the absence of dispositive evidence of innocence. The vast majority of exonerations relied on one or two bases, and even then most required DNA evidence. Second, the adversarial nature of the criminal justice system continues from the trial level to subsequent efforts to exonerate the innocent. Police and prosecutors maintain their roles, infrequently playing a central part in investigating or advocating for exoneration and serving as the largest combined source of opposition to exonerations. Finally, exonerations take a long time, even longer when based on DNA evidence, which appears to be the primary basis for clearing defendants.

After examining these findings, the authors advocate for the following changes in the United States criminal justice system: 1) police and prosecutors must take a more active role in the review and reversal of factually erroneous convictions; 2) additional juridical proceedings are needed for the wrongly convicted to prove their innocence even after conviction; 3) efforts must be made to prevent wrongful convictions at the front end because the resources for freeing the wrongly convicted are so limited and the path to exoneration following conviction is filled with formidable challenges.