UVA Law Professors to Discuss Wrongful Convictions, Death Penalty at United Nations

Two University of Virginia School of Law faculty members will speak Friday at the United Nations in New York City at a conference exploring the death penalty, wrongful convictions and DNA exonerations.

UVA law professor Brandon Garrett, a leading expert on wrongful convictions, will appear alongside Stephen Braga, director of the Law School's newly expanded Appellate Litigation Clinic, at the Office of the High Commissioner for Human Rights conference, "Moving Away from the Death Penalty — Wrongful Convictions."

Garrett, author of "Convicting the Innocent: Where Criminal Prosecutions Go Wrong," which examined the cases of the first 250 people to be exonerated by DNA testing, will discuss lessons learned from the more than 300 DNA exonerations — 18 of which were in death penalty cases — that have occurred so far in the United States.

"In no country other than the United States has there been such a large group of people whose innocence has been so clearly proven by DNA tests," Garrett says in his prepared remarks. "These wrongful convictions were the product of practices that criminal courts rely on every day, and not just in the U.S. These errors could have happened anywhere in the world. It just so happened that in the U.S., they came to light."

Braga, who joined UVA Law's faculty this summer, is a veteran attorney who secured the release of two men who had been serving decades in prison for wrongful murder convictions — Marty Tankleff, who was exonerated on appeal, and Damien Echols — one of the "West Memphis Three" — who was on death row.

Echols will also speak at the United Nations event, and a clip from a documentary on the West Memphis Three will be screened.

Ban-Ki Moon, secretary-general of the U.N., will deliver the keynote address at the event. The U.N. has been calling for a global moratorium on the death penalty since 2007, and 150 out of 193 member states of the U.N. have abolished the death penalty or observe a legal or de facto moratorium on its use.

Braga said he hopes the U.N. event will help further discussion about a global moratorium on the death penalty while its implications and inadequacies are more fully studied and understood.

"In my presentation and in my answers to questions that might be asked during the interactive panel discussion, I hope to use the many flaws underlying the West Memphis Three convictions to highlight the imperfections in the criminal justice system," Braga said. "These imperfections lead to wrongful convictions, sometimes as a result of mistake and sometimes as a result of misconduct, which can never be corrected if the wrongfully convicted defendant is executed."

There are two primary grounds for opposing the death penalty, Braga said. One is based on moral values founded in individual belief systems, while the second is based on the "inescapable human potential for error in its application."

"It is difficult to move minds on the first ground because individual beliefs tend to be intractable, but it should be possible to persuade rational minds on the second ground because of its empirical and anecdotal bases — such as the West Memphis Three case," he said. "As a result, I am going to focus on the second ground."

Of the first 250 DNA exonerations in the United States, Garrett said, 171 were convicted of a rape, 52 of both a rape and a murder, and 22 of murder. Eighteen had been sentenced to death. These exonerations, he said, represent the "tip of a very large iceberg."

"The most haunting feature of these wrongful convictions is that these cases often came to light by sheer luck," he said. "Very few cases can be tested using DNA. We will never know how many other innocent people have been convicted, even for serious crimes like murder."

Ten of the 18 death penalty cases involved testimony by informants, who may have been criminals seeking leniency, but who claimed to have heard confessions by the defendants. Eight of the death penalty cases involved eyewitness identifications. Fourteen involved forensic evidence, but the evidence was often presented in an unscientific or exaggerated way that made it appear persuasive to a jury, according to Garrett.

Garrett said he will also address how the U.S. criminal justice system makes it rare for a conviction to be reversed on appeal or post-conviction, as it is difficult for early errors during the investigation phase to be corrected at trial, on appeal or by post-conviction courts.

"During their appeals and post-conviction litigation, exonerees rarely challenged faulty evidence that caused their wrongful convictions, and when they did try, they almost always failed," Garrett said. "They were innocent, but none had any success raising innocence claims until they happened to get DNA tests."

Garrett's key message at the event, he said, will be that criminal investigations must be carefully documented and done in an accurate way in order to minimize wrongful convictions, particularly when the defendant is facing a death sentence.

"This is a problem that's not unique to the U.S. or any particular state in the U.S., and it's a problem that we understand a lot better when we looked at all these DNA exonerations," he said.