About This Blog

Entries beginning with a number are a continuation of the old Judging Crimes blog, which was long focused on the two meanings of its name: the way crimes are judged in America, and the, uh... occasional defalcations and derelictions of the berobed.

Judging Crimes took a long hiatus for some of the reasons explained here.

Entries beginning with Book 'em! are book reviews and commentaries. No attention is paid to the imperatives of book marketing. As Calvin Trillin once pointed out, the average shelf life of a book in a bookstore falls somewhere between milk and yogurt, but in these days of long-tail online marketing that matters less to everyone, and I don't see why it should matter at all to reviewers. Most posts will be about books that have been around long past the time when yogurt would have solidified.

Other entries will be... well, I'm curious to find out what the others will be.

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Saturday
Mar032007

246. DNA and the slut defense

I've long noticed that a very high percentage of the "exonerations" engineered by the Innocence Project - the name is an excellent example of "unspeak" - seem to involve violent sex crimes.  If a lesson is to be drawn, it's that it's too easy to convict men of sex crimes against women.

Do you believe that?

Innocent people are sometimes convicted.  I don't think anyone can doubt that, any more than anyone can doubt that guilty people are sometimes acquitted.  (I once had to respond to a brief that cited Barry Scheck's book, and I was happy to concede that Scheck's most famous case showed that juries do, indeed, sometimes reach irrational verdicts.)  No human institution is perfect.  The legal system isn't even in the top 40.

The Innocence Project website claims "195 exonerated."    In 2005, America had the grotesquely high number of 2,193,798 people in our prisons and jails.   So it appears we have an error rate in our criminal courts of 195/2,193,798, or .000088%.

Do you believe that?

If all the Innocence Project did was prove that only a tiny fraction of 1% of all American prisoners are wrongfully convicted, it would actually be establishing how fantastically accurate our judiciary's factfinding mechanisms are.  Yet that's not the lesson people draw from the Project's publicity machine.

In the Washington Post review I cited in the last post, Patrick Anderson wrote:

The recent past has not been kind to America's prosecutors; the growing number of innocent people freed from prison by DNA testing has demonstrated that at least some are overzealous, incompetent or simply corrupt.

Well, a good number of prosecutors are incompetent - the low pay sees to that - but they aren't the ones responsible for the wrongful convictions.  "Overzealous" is an euphemism for dishonest, but I don't know why an euphemism is needed: some prosecutors are dishonest, just like some reporters.  And, you know, prosecutors whose dishonesty is discovered tend to become ex-prosecutors, and another name for "ex-prosecutor" is "defense attorney." 

My point isn't that Anderson doesn't appear to have given the matter much thought, but that an intelligent person who doesn't give the matter much thought is very likely to believe implicitly in the Innocence Project's self-promotion.  

But is there actually any reason, other than the self-promotion, to believe that the Project is freeing the innocent, as opposed to the guilty whose guilt can't be re-proved beyond a reasonable doubt after the passage of many years?  (This question, unlike the earlier ones, isn't entirely rhetorical.  Newspaper accounts of the legal system are notoriously unreliable.  See post 183.   Judges, when they're on their high horses, are even worse.  And true-believer lawyers are the absolute worst, because their lies are in service of a higher truth.  That doesn't leave many sources of information.)

I tried looking on the Innocence Project website for statistics about the nature of the crimes for which the "exonerated" had been convicted.  What percentage of the "exonerated" had been doing time for sex crimes against women?  Maybe the statistics are there and I just didn't find them, or maybe you'd have to tote up the figures yourself.

But, luckily, George Soros paid a gaggle of law professors to assemble the figures for me.  This 2004 report, looking (I think) at a different dataset of freed prisoners, states that "93% of the exonerations for non-homicidal crimes [were] concentrated among the rape cases".  Moreover, "all but a couple" of the murder exonerations "included rape as well."

Why should that be?  A clue is offered by the CBC's deeply touching account of the 26 Vancouver women whose remains were found on Pickton's pig farm.  It's no coincidence that they share much in common with the victims of Ridgway, the Green River Killer.  Sex workers, everyone knows, are at extremely high risk of becoming victims of violence.  Imagine for a moment that the victim of a 10-year-old murder was a prostitute, and testing of samples taken from her body shows the DNA of someone other than the convicted killer.  Does that exonerate the killer?

Yes, of course, provided you use "exonerated" as the Innocence Project does.  

Now, imagine instead that the woman wasn't a prostitute but happened to have unprotected sex with someone the day before she was murdered by someone else.  Ten years later, testing reveals sperm from the first someone.  Does that exonerate the second someone?  Or does it, instead, add one more difficulty to the already-difficult task of retrying a case after so many years, encouraging the prosecution to give up?

The Wisconsin Innocence Project achieved the release of Steven Avery - he's one of the 195 on the national website - and just weeks later the charred remains of a young woman were found scattered around his family's junkyard.  (See post 17.)   Avery's nephew described how he and his uncle tortured, raped and murdered the woman - and how his uncle watched him take his turn, congratulating him on his rape technique.  Supposedly his computer contained all sorts of violent pornography.  (Avery is on trial now.

So how does one explain the amazing coincidence that the victim of the earlier rape "wrongly" identified a man who, if the stories are to be believed, not only enjoys sexual violence against women but likes to watch other men committing it, too?

Realizing they were on a roll, the Wisconsin Innocence Project next turned their attention to Ralph Armstrong, whose rape conviction the Wisconsin Supreme Court overturned despite "a mountain of evidence" against him.   Armstrong is well-known here in New Mexico:

On the night of October 3, 1971 at about 11:15 the prosecutrix was returning home. She had parked and locked her car when another car drove up and stopped behind hers. A man, later identified as the defendant [i.e., Armstrong], got down and called to her and as she turned he walked up and took her by the arm. He had a knife in his hand which he held close to her stomach. He ordered her to get back into her car on the passenger side. Defendant then got in and drove to an isolated area east of Albuquerque where the acts complained of were committed.

Defendant does not dispute the fact that the sexual acts complained of took place.  (511 P.2d at 561)

Armstrong's defense, almost hilariously, was that New Mexico's sodomy statute was unconstitutional because it criminalized consensual acts as well as the particular type of anal sex he preferred.  (Almost hilariously, because he got one judge to agree with him.) 

(Incidentally, saying that a person "got down" from a car is a common New Mexico usage, but I've never heard anyone from anywhere else use it.)

Armstrong was on parole from the New Mexico conviction when, according to the jury in his Wisconsin case, he acted on the lesson learned: leave no witnesses.   Four members of the Wisconsin Supreme Court thought the jury's verdict wasn't reason enough to keep Armstrong in prison, given DNA evidence that the victim had had sex with her fiance some time before her murder. 

As pointed out by the dissenting justice,

There is another fact that bears on the testimony about semen.  [The victim] was raped anally and vaginally with a hard object.  Her injuries were not caused by being raped with a body part.  Therefore, it is understandable that semen from the perpetrator of this crime was not left at the crime scene.

So, just like the Avery case, it turns out that a person who was "wrongfully" convicted of this sex crime just happened to be a man who is extremely dangerous to women.  Gee, what are the odds?

Why does "misidentification" happen so frequently with sex crimes?  The Colorado Court of Appeals explained in 1891:

Conviction of [rape] is seldom or never allowed upon the unsupported evidence of the prosecutrix. She is allowed to, and is generally the only witness who can, testify directly to the principal facts,-the perpetration of the offense; but to warrant conviction the evidence of the main fact must be corroborated by other evidence of circumstances and facts sustaining the principal charge. The injured party is legally competent as a witness. “But her credibility must depend upon the circumstances of the case which concur with her testimony; whether she is a person of good fame ..."  (Bueno, 28 P. at 249)

Cases like Avery's and Armstrong's are taking us back to the world in which a woman's testimony is automatically viewed as suspect.  Judges reversing rape convictions no longer write about what a dangerous precedent they would be setting if they allowed a conviction to rest on the woman's "unsupported evidence."   Instead they talk about the unreliability of eyewitness identification.  But it amounts to the same thing.

And judges are too discreet these days to say a woman's "ill fame" makes her testimony unbelievable as a matter of law.  But these two Wisconsin cases show that some judges still believe it.  The slut defense remains a get-out-of-jail-free card: "Look, she had sex with someone else, too, so what I did wasn't rape."

Reader Comments (7)

"So it appears we have an error rate in our criminal courts of 195/2,193,798, or .000088%."

Wouldn't it be more accurate to divide 195 by the number of cases in which DNA evidence was (1) taken, (2) remain avaiable for testing, and (3) in cases were the results could be dispositive. DNA tests *may* show that someone did or did not commit a rape, but it is not relevant evidence in the vast majority of cases.

(2) Judges no longer write about what a dangerous precedent they would be setting if they allowed a conviction to rest on the woman's "unsupported evidence." Instead they talk about the unreliability of eyewitness identification. But they mean the same thing.

That is just unfair. The problem with ID evidence is not particular to rape cases.
March 4, 2007 | Unregistered Commenterme-mo
(I changed the wording a little to make the meaning clearer.)

If other types of cases have the same "problem", doesn't that reinforce the point? Those other cases don't get reversed. I think that if you look at the effect, rather than the words used, it's hard to deny that we're in the middle of a backlash against the sex crime reforms of the 1970s.
March 5, 2007 | Registered CommenterJoel Jacobsen
Extremely well thought out post. Science and technology are tools, only.

The human mind can think around them, fairly easily.

This shows why so many women are reluctant to press charges in a rape case.
March 5, 2007 | Unregistered Commentered dickson
Well written post, the problem is not with sex crimes, it is what is almost unique with sex-crime cases, the ability to access DNA that was unavailable at the time of trial. Sam Gross's work on the subject, such as his paper on SSRN available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=753084, I think explains the disparity better than I could ever hope to. I would just note his chief point, the reason we haven't seen en masse exonerations for crimes that are more common than rape is that for robbery & drug distribution you don't generally have DNA present in the post-conviction record.
March 7, 2007 | Unregistered Commenterkarl
I agree with you about the Armstrong case. I live in the city of Wisconsin where th murder that he was convicted of took place. My understanding is that New Mexico paroled him earlier this year and has now locked him up again. What a piece of work Armstrong is.
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