The original letter from Dr Michael Naughton was published in The Independent UK (Letters, 13 October 2008) and reads as follows.
Wrongful convictions. How the Birmingham Six could still be in jail today. Professor Graham Zellick, the outgoing chairman of the Criminal Cases Review Commission (CCRC), argues that "it's better that 10 guilty men go free than one innocent man be wrongly convicted" (27 September), suggesting he and his organisation have a serious concern with the wrongful conviction of the innocent.
But, although the CCRC was set up in response to notorious miscarriages of justice cases, such as that of the Birmingham Six, it cannot guarantee that innocent victims of wrongful conviction will be referred to the appeal courts, let alone have their convictions overturned. As the CCRC's website clearly states, it does "not consider innocence or guilt, but whether there is new evidence or argument that may cast doubt on the safety of an original decision".
In fact, it refers only to those cases believed to have "a real possibility" of being overturned and may not refer the cases of potentially innocent applicants if the evidence of their innocence was available at the time of their original trial.
Disconcertingly, by these criteria, the Birmingham Six would not have their case referred by the CCRC today, since the evidence of police misconduct and incorrect forensic expert testimony that led to the quashing of their convictions in the third appeal was available at the time of the original trial, so does not constitute the kind of "fresh evidence" required.
Professor Zellick's remarks certainly do not reflect the actual workings of the CCRC, and it is a great pity that he was not so vocal about the plight of the innocent during the five years when he was at the helm of the CCRC and was in a stronger position to do something about it.
Dr Michael Naughton
Chair, Innocence Network UK (INUK), Senior Lecturer, University of Bristol
The following item from SAFARI Edition 60 November 2008 adds more information about Professor Graham Zellick’s statements.
LURKING DOUBT SHOULD MEAN RETRIAL.
Professor Graham Zellick, the outgoing chairman of the Criminal Cases Review Commission (CCRC) has said the Court of Appeal should order retrials in cases that have a “lurking doubt” about the safety of the conviction. Instead of waiting to see compelling new evidence, Professor Zellick argues that the Court of Appeal should quash convictions where they simply believe the prosecution’s case has not been proved. (We only hope the CCRC’s new chairman shares his view.)
Prof. Zellick said: “It is far better that 10 guilty men go free than one innocent man is wrongfully convicted… We know from bitter experience that juries get things wrong. The Court of Appeal ought to be more active in quashing convictions even though there has not been any irregularity in the trial process.”
He added that when he had raised this argument with members of the judiciary he had been admonished for asking judges to second-guess the jury. “They tell me that in this country we have trial by jury, so who are they to go behind the verdict of the jury which has seen all the evidence? Well, I say we have trial by judge and jury, not just jury.”
Professor Zellick, who has been in charge of the commission’s referrals to the Court of Appeal for the past five years, said a more interventionist approach would allow the court to order a retrial when judges were unhappy about the safety of a conviction. “The Court of Appeal is even more reluctant in 2008 than in the 1990s to quash convictions because they think they are unsafe. We are more deferential to a jury now than in the 1990s when things were going wrong.”
Bearing in mind that polygraph (lie-detector) tests have consistently proved to be more reliable at lie-detecting than juries, and the Government and judiciary will still not allow polygraph evidence to be admitted on the basis that it’s “not reliable”, one has to question why the even-less-reliable jury is still the foundation-stone of justice in the UK and judges are loath to question a jury’s lie-detecting skills.
From the same edition of SAFARI as Appendix B (Issue 60 November 2008) is the following:
SAFARI PETITION IN PARLIAMENT: On Wednesday 22nd October 2008, at 7:14pm, Bob Spink MP stood up in the House of Commons and presented one of SAFARI’s ePetitions to MPs. (Mr Spink has been falsely accused himself, and, as a result, recently received substantial libel damages from five national papers and the Conservative Party over allegations of an affair with a former Conservative councillor.) He said: “SAFARI … is an organisation that fights for people who have been falsely accused and seeks to make convictions safer. Some may think that the British judicial system is perfect. I do not subscribe to that view, so I am pleased to put questions to the Government and I thank those involved in trying to make the system safer.
The petition, which supports an electronic petition of 224 signatures, states that too many people are wrongly convicted because the law allows too much weight to be given to the word of one or more people, without other more tangible evidence to support the conviction; believes it is wrong that the jury only have to be persuaded that the defendant is guilty, and that this leaves the system open to abuse and puts people at risk of being convicted because someone has lied to the court or is innocently wrong in their assertions, and the person who tells the lie and secures the conviction can then claim compensation from the Criminal Injury Compensation Board.
The Petitioners therefore request that the House of Commons urges the Government to ensure that people are not normally convicted when the only evidence is the word of one or more persons.”
References for Michael Shirley case from Google (November 2008).
(1) www.innocent.org.uk/cases/michaelshirley/index.html
(2) news.bbc.co.uk/1/hi/england/3041650.stm
(3) www.pubmedcentral.nih.gov/articlerender.fcgi?artid=1351149
Estimates for wrongful conviction vary from 5% to 7% . The best piece of evidence that I know that provides an unbiased scientific value for wrongful convictions is referred to in the following. It is only a small sample but gives a 7% error rate.
DNA Tests Exonerate 2 Former Prisoners. Virginia Governor Orders Broad Case Review. By Michael D. Shear and Jamie Stockwell Washington Post Staff Writers RICHMOND, Dec. 14 2005.
Newly tested DNA from rapes committed more than 20 years ago has exonerated two Virginians who had each spent more than a decade behind bars, reigniting a national debate about post-conviction testing of biological evidence.
Gov. Mark R. Warner (D) announced the test results Wednesday. One of the defendants served 20 years in prison for a rape in Alexandria that the new testing shows he did not commit. The other man was released in 1992 after serving about 11 years for an assault in Norfolk. …Warner said the discovery of two innocent men among the 31 newly examined cases compels an even more sweeping review. …
"This is a 7 percent innocence rate -- among people who never even asked for testing -- that should give pause to people who think mistakes in our criminal justice system are flukes," said Peter Neufeld, co-director of the New York-based Innocence Project. "This should be a beacon for other governors across the country to implement post-conviction DNA testing."…
The biological samples in the two cases were contained among the files of lab analyst Mary Jane Burton, who retired in 1988 and died in 1999. For years, Burton had meticulously preserved pieces of clothing smeared with blood, semen or saliva in her files, which ended up in a storage facility. Burton's files were rediscovered in 2001, when an inmate asserted his innocence under a new state law that for the first time granted the right to request testing of DNA evidence more than 21 days after sentencing.
In May 2003, Warner pardoned Julius Earl Ruffin, 49, of Virginia Beach, who was cleared by DNA evidence after spending 21 years in prison for rape. Marvin Lamont Anderson of Hanover County and Arthur Lee Whitfield of Norfolk each spent more than a decade in prison for crimes they did not commit and were exonerated by evidence in Burton's files. Those exonerations led to the first round of random testing and Wednesday's announcement.
Legal advocates at organizations such as the Innocence Project have been pushing for greater use of DNA testing in capital cases. But some prosecutors and lawmakers have said increased DNA testing could open the door to a flood of frivolous claims by inmates and undermine the basic system of evidence. …
Perhaps the most common estimate is 5%.
See http://www.alternet.org/story/11866/?page=entire for the following opening paragraph
“Innocence Lost: DNA Tests Expose Justice System's Flaws By Sandeep Kaushik, AlterNet. Posted November 6, 2001.
When innocent prisoners are exonerated through DNA tests, we celebrate. But DNA is no magic bullet: only 94 innocent people, out of perhaps 100,000, have been freed since 1988.
And later in the same text is the following paragraph:
“According to nationally recognized defense attorney Terry Gilbert, the best estimates we have of the number of wrongful convictions is around five percent of the total. 'To some people five percent may not seem like a lot,” he says, “but when you consider how many thousands of people are convicted of crimes each year, you begin to get a sense of the size of the problem.”
There are then the cases the legal process itself corrects on appeal and that frequently involves a period of wrongful imprisonment.
Failure to compensate for wrongful imprisonment.
As well as the wrongful imprisonment, when convicted people are exonerated on first appeal, the authorities generally feel no obligation to pay compensation for either the time they spent in prison or the trauma they have suffered wrongfully. Mrs Angela Cannings was an exception but it took a newspaper campaign to get her some compensation. It seems to me to be a remarkable state of affairs that neither the judiciary or the state accepts responsibility for its mistakes. It certainly breaks the consistency rule of science since court cases are essentially about holding citizens responsible for their errors.
What motivates people to choose to become expert witnesses?
No doubt there is a variety of motivations for people to choose to become expert witnesses. Their remuneration is not talked about but I suspect a juror would be envious of the expenses they receive. Strong opinions is another motivating factor or even a barrow of their own to push and both these factors introduce bias.
"Expert witnesses aren't what they seem - and I should know" by Dr Theodore Dalrymple (Filed: 02/02/2003) Daily Telegraph, contains more information on the subject.
More recently, John Batt’s leading article in the Solicitors Journal supplement on Experts (June 2008) adds to the subject.
Now so far this survey has concentrated on determining the truth. However people have an emotional side to them as well and science can contribute to that aspect of humankind. Consider yourself in the shoes of Keran Henderson.
(see http://www.carers4carers.co.uk/news.html and BBC NEWS Panorama Shaken Babies (7 Mar 2008) John Sweeney investigates the row behind Shaken Baby Syndrome following the conviction of childminder Keran Henderson.
news.bbc.co.uk/1/hi/programmes/panorama/7277667.stm )
Keran was doing a lowly paid job with a lot of responsibility and then was put through judicial trauma for several years - eventually being sent to prison - because the child she was caring for died. Detectives, prosecutors, medical “experts” and even the judge got stuck into her. Those professions are well-paid jobs and have lots of responsibility but surprisingly have no accountability like the child-minder. Nothing they do will bring the child back to life so why would they pursue a simple child carer with such vigour.
Passing sentence, the judge, Mr Justice Keith, said: "Mr and Mrs Sheppard trusted you to look after Maeve. We do not know what really happened to make you snap in the way the jury found that you did." Quite clearly the jury couldn’t possibly know that Mrs Henderson snapped. They weren’t there when the baby died to see what happened - let alone interpret what she was thinking - and there was the usual conflicting evidence from the “expert” witnesses which means the jury's conclusion was merely a guess. Why the jury found her guilty is not I believe conveyed to the judge, so why he should say what he did seems yet another unjustifiable jump to a conclusion. That so much fact should be derived from so little knowledge and differing evidence does not bear scientific credence.
The book “Actual Innocence” by Barry Scheck, Peter Neufeld & Jim Dwyer (February 2000) has several sections that overlap with this analysis. The Preface (pages xvi & xvii), pages 218-219 and pages 246-251 are pointed testimony to a system that badly needs changing.
The following is a letter in The Independent (UK) online of 20th August 2007
The innocents on US death rows.
Sir: Michael O'Sullivan (letter, 17 August) seems to think that people who oppose the death penalty are bleeding hearts, but he doesn't take into account the number of prisoners on death row in US jails who are innocent.
I used to write to a prisoner in the US who I'm sure was completely innocent of his "crime". He had pleaded "not guilty", his lawyer had received just $750 to defend him and, having been accused by someone who then received a reduced sentence for his own crimes, he was found guilty. He was later offered another trial, having been told that a "guilty" plea would get him off death row. He agreed to this and is now serving 99 years in Florida. The catch-22 is that now he is aware of DNA testing which would prove his innocence, he is not entitled to it as he entered a "guilty" plea.
JILI HAMILTON GENEVA
When lawyers insist on process like this, Dr Quirk, it is difficult for lay people to distinguish the villains from the lawyers.