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Ex One Rations Us 1989 2012 Full Report

Ex One Rations Us 1989 2012 Full Report

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05/25/2012

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The frequencies of the factors we list are in part a function of the availability of information. We

almost always know when a defendant has confessed; it is a central fact that is likely to be

mentioned in any description of a criminal case. We believe our data on that issue are reasonably

complete. On the other hand, we often have no way of knowing if a witness has lied in

Exonerations in the U.S., 1989-2012

5/20/2012

42

testimony, and we’re even less likely to know if she lied to the authorities outside of court or if

the authorities themselves committed serious misconduct. If it’s not caught, misconduct goes

unnoticed, in our data as elsewhere. As a result, the proportions of cases we report under

estimate the extent of these problems.

The same applies, in force, to incompetent or inadequate legal defense. For 104 exonerations, our

information includes clear evidence of severely inadequate legal defense, but we believe that

many more of the exonerated defendants – perhaps a clear majority – would not have been

convicted in the first instance if their lawyers had done good work. The failures of defense

counsel are overwhelmingly sins of omission, especially the failure to investigate. Unless those

failures are actually litigated, they are likely to go unmentioned, and in many cases there is no

occasion to question the competence of the defense attorney. For example:

In March 1987, a student at the University of Alabama was raped in her apartment
by a masked man who then stole her car. Several days later, another student
picked Jeffry Holemon out of a lineup as the man he saw emerging from the
victim’s car after the rape. Based on this identification, Holemon was convicted in
1988. Ten year later – with the aid of a jailhouse lawyer – Holemon got the DA’s
office to locate and do DNA tests on the rape kit, which exonerated him. He was
released soon after, in January 1999.

As best we can tell, the quality of Holemon’s defense was never raised as an issue at any point.

That’s not surprising. For all we know, the defense attorney may have failed to interview or call

several alibi witnesses who would have testified that Holemon was elsewhere at the time of the

crime. But that sort of failure, however damaging, cannot normally be raised on appeal because

appeals are limited to the record that was actually made at trial, and litigation on a failure to

investigate requires a hearing at which new evidence is presented. The issue may be litigated

separately after appeal, but it’s uncommon because most defendants cannot afford to hire

lawyers, and they are not entitled to appointed counsel at that stage.57

Ten years later, when

Holemon was finally exonerated by DNA, no one bothered about what might have happened if

his defense at trial had been different.

57

See Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel
Claims
, 92 CORNELL L. REV. 679 (2007).

Exonerations in the U.S., 1989-2012

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This seems to be a general pattern. We found clear evidence of unacceptable legal defense work

in 17% of the non-DNA exonerations (95/548), but only in fewer than 3% of the DNA cases

(9/325). Apparently once they had exculpatory DNA evidence, advocates for the exonerees

rarely had to try to excavate those ruins.

Because we can’t produce even a reasonable estimate of the frequency of ineffective legal

defense, we don’t include that factor here, despite its importance.58

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