This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Subscribe to future newsletters here.
English legal scholar Sir William Blackstone famously wrote in 1765 that it’s “better that ten guilty persons escape than that one innocent suffer.” It’s easily one of the most well-known and frequently cited maxims in modern law.
History is full of variations on this idea. While other examples often feature different ratios, the core concept reverberates through centuries and across cultures around the globe: It’s worse to punish innocent people than to let the guilty go free.
Today, a majority of Americans may not agree. In a series of recent surveys that polled more than 12,000 people, law professors Brandon Garrett and Gregory Mitchell found that more than 60% of Americans “consider false acquittals and false convictions to be equally bad outcomes,” and a “sizeable minority” viewed wrongful acquittals as worse than wrongful convictions. Mitchell and Garrett also found that in mock trials, those more concerned about wrongful acquittals than wrongful convictions were more than twice as likely to convict after viewing the same evidence.
If real-life jurors are bringing similar attitudes into actual trials, it may contribute to wrongful convictions, and hence, the need for exonerations. There were a record 268 exonerations in 2022, according to a database maintained by the National Registry of Exonerations.
Last week I had the opportunity to share the story of Earline Brooks Colbert, whose brother and son — Elvis Brooks and Cedric Dent — accounted for two of those exonerations. Both men were convicted primarily on eyewitness identification, which contributes to an overwhelming majority of wrongful convictions, according to the legal-aid group the Innocence Project.
That was also the case for Jason Hogan, who was exonerated for a 2000 kidnapping and robbery in Colorado earlier this month. His lawyer said that while reinvestigating the case, it was discovered that police and prosecutors withheld exculpatory evidence, as is common in exoneration cases.
The day before Hogan’s release, 49-year-old Patrick Brown had a 29-year-old rape conviction vacated in a New Orleans courtroom. Brown had been charged with the rape of his stepdaughter, who has always maintained that Brown was not the man who abused her. “I’ve written over 100 letters… mailed them to the DA’s office. I’ve shown up unannounced to talk to someone and been turned around,” she told the court.
Uriah Courtney, who was exonerated in 2013, spoke to The Appeal this week about the lasting trauma of the time he spent in prison on a wrongful conviction for kidnapping and rape. “I’ve got PTSD. Sometimes I’m still angry. I lost eight years of my life. Sometimes I think of what could have happened if I wasn’t arrested. What I was accused of could have gotten me killed in prison. I lived in fear daily,” Courtney told reporter Meg O’Connor.
Like Courtney, Christopher Dunn was also convicted without any physical evidence, and the two eyewitnesses who tied Dunn to a 1990 St. Louis murder have since recanted. On Monday, then-St. Louis Circuit Attorney Kim Gardner filed a motion to vacate Dunn’s conviction. As it turned out, it would be one of Gardner’s last acts in office, as she resigned the following day.
Weeks ago, Gardner announced that she would step down amid an effort by state legislators to remove her from office and reports of turmoil in her office. She had been expected to remain in the job until June. It’s unclear what Gardner’s departure means for Dunn. Gov. Mike Parson appointed former U.S. attorney Gabe Gore to the job on Friday.
Dunn’s is the second conviction Gardner filed to have thrown out, the first being the well-known case of Lamar Johnson. For the majority of Gardner’s time in office, local Missouri prosecutors did not have the power to file motions to vacate convictions. In 2021, state lawmakers passed a bill changing that.
Meanwhile, Cook County State’s Attorney Kim Foxx has had that power throughout her time in office and has used it. The county — home to Chicago — has now led the country in exonerations five years in a row. Indeed, Cook County accounted for about half of 2022’s record number of exonerations.
That’s largely due to Foxx’s efforts at tossing convictions tied to corrupt cops who extorted money from and planted drugs and guns on residents of the city’s Ida B. Wells housing projects, virtually all of whom were Black, for nearly a decade. Since 2017, 212 convictions tied to the officers have been overturned.
“Victims and their families will never be made whole,” Foxx told USA Today’s Grace Hauck, “But there’s something that is owed to them,” she said.
Foxx recently declared she would not be running for re-election.
