Why Justice Denied Magazine is Important: A
By Hans Sherrer
Vol. 2, Issue 1
April 26, 2000
Justice Denied is the first
regularly published magazine to focus on the pervasive problem of
wrongful convictions in the United States. A few courageous people,
however, have preceded Justice Denied by writing
books and articles disclosing the prevalence and tragedy of wrongful
convictions . I think these pioneers deserve to be recognized; they
laid the foundation for understanding how wrongful convictions occur.
Published during the last 100 years, the following 21
books and articles explore various aspects of wrongful convictions.
They are presented in chronological order. Though diverse, these
publications share a common theme -- wrongful convictions are not an
infrequent aberration of an otherwise good system, but are symptomatic
of a never-ending plague infecting the core of the law enforcement
To my knowledge, the first publication in the U. S.
that documented cases of wrongful conviction was a 550-page report in
the early 1900s by Nashville attorney, K. T. McConnico. The document
detailed cases of innocent people executed prior to 1901. Relying
partly on Mr. McConnico's research, a Memphis merchant named Duke
Bowers prepared a 97-page memorandum in 1915 titled, Life
Imprisonment vs. The Death Penalty. The documents by Mr.
Bowers and Mr. McConnico were instrumental in influencing the Tennessee
legislature to abolish the death penalty for murder in 1915.
Although there is at least one known copy of Life
Imprisonment vs. The Death Penalty, there are apparently no
known copies of Mr. McConnico's document in existence. Neither is its
exact year of publication known, although it is prominently referenced
in Mr. Bowers's 1915 memorandum.
Mr. Bowers and Mr. McConnico picked a fertile topic
for their passion. There is evidence that the practice of executing
innocent people began in 1608, when George Kendall not only became the
first person executed in Colonial America, but he was an innocent man
wrongly convicted and sentenced to death for political reasons.
The first book published in the U.S. that dealt
exclusively with the conviction of the innocent was Yale Law Professor
Edwin Borchard's 1932 book Convicting the Innocent.
Its information is still relevant -- today, people continue to be
wrongly convicted by the same methods involved in the 65 cases
presented in the book. Remarkably, 20% of these cases involved innocent
people convicted of crimes that never occurred.
Eight years later, Convicting the Innocent
was published in the Rocky Mountain Law Review. Max
Hirschberg, a German criminal defense lawyer who emigrated to the U.S.
in the 1930s, wrote the 1940 article. Mr. Hirschberg's article is
significant because it examined the problem of wrongful convictions
from a European perspective. Beginning with Lesurques's wrongful
conviction and execution in 1796, Mr. Hirschberg demonstrated that, for
centuries, people in Europe have been wrongly convicted by the same
methods as in the U.S. The article describes 26 cases of wrongful
conviction, including three men exonerated by the efforts of the
author, two who were sentenced to death. Mr. Hirschberg refers to
German lawyer Erich Sello's 1911 book, The Mistakes of the
Penal Jurisdiction and its Causes, which relates
153 German cases of innocent people convicted in potentially capital
cases and sentenced to death or life imprisonment. Mr. Hirschberg also
relied on an 1897 book, Miscarriages of Justice and their
Causes, by two Frenchmen, Maurice Lailler
and Henri Vonoven, that relates numerous cases of innocent people
convicted in France, some of whom were executed. At the time
this article is written, neither Sello's book, nor Lailler and
Vonoven's book, have been translated into English.
The second book I know that dealt with cases of
wrongful conviction was published in 1952. Perry Mason buffs might be
surprised to learn the author was Erle Stanley Gardner. The
Court of Last Resort related 13 cases of wrongful conviction.
Mr. Gardner, a lawyer before he became a detective writer, founded a
loose coalition of lawyers and investigators in the late 1940s called
The Court of Last Resort. This organization operated until the early
1960s and helped innocent people who were imprisoned and had nowhere
else to turn for help.
Five years later, Judge Jerome Frank's book, Not
Guilty, was published. The 1957 book was written from the
perspective of a well-known judge who was often at odds with views
espoused by his legal contemporaries. The book cited 34 cases of
Another five years passed before Sarah Ehrman's
magazine article, For Whom the Chair Waits ,
appeared in a 1962 issue of Federal Probation. She
related the stories of five innocent men who were waiting on death row
for their date with the executioner.
Investigative reporter Edward Radin's 1964 book, The
Innocents, highlighted 80 cases of wrongful conviction. Mr.
Radin looked at 300 such cases, and the ones he chose to include in the
book were representative of the different ways such injustices occur. A
significant revelation in Mr. Radin's book was a judge's estimate that
5% of all U.S. convictions are of innocent people. It is worth noting
that the judge interviewed by Mr. Radin was afraid that if people found
out how unreliable the "justice" system is at separating the innocent
from the guilty, the public would lose confidence in the "system's"
Nine years later Wrongful Imprisonment
was published. This 1973 book was written by two people in the
Britain, Ruth Brandon and Christie Davies, and it related 70
British cases of wrongful imprisonment that occurred between 1950 and
1970. The authors opined that the cases they examined comprised only
"the tip of a much larger iceberg" of wrongful convictions.
Although it didn't deal exclusively with the subject,
Professor Elizabeth Loftus' 1979 book, Eyewitness Testimony
cited several cases involving a wrongful conviction. Her book is still
important and relevant because of its wealth of information about how
easily faulty eyewitness testimony can contribute to a false
Arye Rattner's 1983 Ph.D. dissertation, Convicting
the Innocent: When Justice Goes Wrong has been often cited
because it contains the estimate that 14,000 people are wrongly
convicted every year. Significantly, if Mr. Rattner's 1983 estimate is
adjusted for the growth in the criminal prosecution system, it
indicates there are now over 50,000 wrongful convictions every year.
Guilty Until Proved Innocent: Wrongful
Conviction and Public Policy was a 1986 article published in
the journal Crime & Delinquency. Co-authors
C. Ronald Huff, Arye Rattner and Edward Sagarin examined data related
to several hundred cases of wrongful conviction.
In 1987, the Stanford Law Review
published the most significant document in the nearly 100 years the
prevalence of wrongful convictions has been written about in this
country. Written by Hugo Adam Bedau and Michael L. Radelet, Miscarriages
of Justice in Potentially Capital Cases documented 350 20th-
century cases of a wrongful conviction in a potentially capital case.
The article's 158 pages included 23 cases involving the execution of an
The article was considered authoritative enough for
the U. S. Supreme Court to cite it in Herrera v. Collins,
506 U. S. 390 (1993). Ironically, the decision in that case opened the
floodgates for the executions of innocent people we are witnessing
today. In Herrera, the Court ruled that absolute
innocence of a crime is not a Constitutional bar to being executed. The
Court reasoned that the due process clause requires only that an
accused person receive a "fair trial." Therefore, if an innocent person
is convicted after a "fair trial," his innocence is a mere error of
fact and not a constitutional issue.
Chief Justice Rehnquist wrote in the majority opinion
that federal courts "sit to ensure that individuals are not imprisoned
in violation of the constitution, not to correct errors of fact." He
also wrote that "a claim of actual innocence is not itself a
constitutional claim." Dissenting from the Court's decision, Justice
Harry Blackmun castigated his fellow justices for endorsing what he
called the "simple murder" of innocent people by the state.
In 1988, Convicted but Innocent
was published in the journal Law and Human Behavior.
Written by Arye Rattner, the article analyzed data related to 205 cases
of wrongful conviction.
Martin Yant's book, Presumed Guilty,
was published in 1991. In my opinion, Mr. Yant's book is perhaps the
most readable work dealing with wrongful convictions. The book's
easy-to-read style in no way detracts from its wealth of information
related to how wrongful convictions are produced by police,
prosecutors, "defense" lawyers and judges. It is worth noting that Mr.
Yant cites an estimate that 20% of all rape accusations are false. This
estimate was revealed as conservative by a 1997 FBI study of 12,000
rape cases, which found that 25% of all accusations are false.
Continuing research shows the actual percentage of false accusations
may be closer one third. That is, the rape may have occurred, but the
wrong man is accused.
In Spite of Innocence, a
book-length treatment of Hugo Adam Bedau and Michael L. Radelet's 1987 Stanford
Law Review article, was published in 1992, and reissued in
1996. The book's appendix expands on their 1987 article and lists about
420 cases of wrongful conviction in potentially capital cases.
Psychologist Gisli H. Gudjonsson's 1992 book, The
Psychology of Interrogations, Confessions and Testimony,
related several dozen cases of wrongful conviction caused by false
confessions. The author began his career as a police investigator, and
he learned firsthand the danger of false confessions and how easily
they are induced. He found that with almost no effort he was able to
obtain a false confession from an innocent man -- for a crime that he
later found out never occurred.
The 1992 wrongful conviction of Richard Lapointe
inspired Convicting the Innocent. The 1996 book is
an anthology focusing on how a false confession is used to procure a
wrongful conviction. In the essay he contributed to the book,
sociologist Richard Ofshe estimated that 60% of the general public can
be expected to falsely confess to murder if subjected to the
psychological pressure of normal police questioning techniques.
Professor Ofshe's estimate is substantiated by the 70% of American POWs
in China during the Korean War who were induced, by psychological
techniques, to falsely confess to war crimes or otherwise collaborate
with the Chinese.
Professor Ofshe's estimate is also backed by the
research conducted by Professor Stanley Milgram at Yale University in
the 1960s. His experiments revealed 67% of Americans are inordinately
susceptible to the psychological suggestions of authority figures to
act in extreme ways they ordinarily wouldn't.
Another book published in 1996 was Convicted
but Innocent: Wrongful Conviction and Public Policy. This
book cites 42 cases of wrongful conviction, and was written by C.
Ronald Huff, Arye Rattner and Edward Sagarin.
Mean Justice, a 1999 book by Edward
Humes, focused on the 1993 false conviction of Pat Dunn for his wife's
1992 murder. In an appendix, Mr. Humes lists 102 people wrongly
prosecuted in Kern County, California, from 1982 to 1998. Fifty-six of
these people were wrongly convicted, including Mr. Dunn. Mr. Humes was
awarded a Pulitzer Prize in 1996, and his credibility as a researcher
helped his book attract national attention.
At the beginning of this year Actual
Innocence was published. The book was written by Barry Scheck
and Peter Neufeld, the most well-known proponents of vindicating
innocent people by DNA testing, with the assistance of Jim Dwyer. The
book has been reviewed in many major newspapers and magazines because
of its authors' notoriety as lawyers for O. J. Simpson.
These books and articles, published over a span of 85
years, carry a central theme -- under the best of circumstances, the
protections shielding the innocent from being wrongly convicted are
weak and insufficient. Those precarious protections have been shunted
aside over the last three decades in reverse ratio to the enormous
growth of the U.S. law enforcement system. The recent expansion of
police power is reflected in the 1000% growth during the past 30 years
in the number of people incarcerated.
As the law enforcement system has grown by magnitudes
of bureaucratic complexity, its meager internal precautions against
wrongful convictions have completely broken down. The pages of Justice
Denied duly report this breakdown, along with its human impact of
untold pain and anguish to the innocent victims of the system, whose
lives and dreams are demolished, whose family life is often destroyed,
and who suffer financial bankruptcy in trying to defend themselves
against a false accusation.
The U. S. Supreme Court sets the tone for the attitude
adopted by state and federal courts when deciding issues. The 1993 Herrera
decision symbolized the clear signal the Court has been sending to
every U.S. state and federal court -- innocence is a mere detail that
is no bar to punishment, including execution. Considering the Supreme
Court's lack of concern for innocence, it isn't surprising that on
March 3, 2000, Freddie Lee Wright was executed several hours after an
Alabama Supreme Court justice characterized him as an innocent man.
The truth may be unpleasant to face, but the current
judicial process functions as little more than a cog in a massive
system that processes the wrongfully accused in a manner appropriate to
pigs entering a sausage factory. This is perhaps no more alarmingly
demonstrated than by the over six million Americans
who are under the control of the law enforcement system at any given
time. People who are imprisoned, or on probation or parole, include
almost 5% of the adult males in this country. Based on an analysis of
the known information, my own estimate, which I believe conservative,
is that over one and one quarter million of these six million people
are legally innocent.
This helps illustrate that the proliferation of books,
articles, and news stories related to wrongful convictions since the
early 1980s has not occurred in isolation from reality. All across
America, innocent men, women, and even children are being prosecuted,
convicted and imprisoned at an alarming rate. More tragically, court
decisions show that innocent people are being executed with the full
knowledge and approval of the highest U.S. judges, with ever increasing
Justice Denied Magazine was not
founded in a vacuum, but in response to the systemic breakdown of state
and federal courts to even appear to function as fair, impartial
adjudicatory bodies of innocence or guilt. This breakdown has directly
contributed to the out-of-control epidemic of wrongful convictions
occurring in this country.
The literary and research efforts of the men and women
I've mentioned, as well as of many other deserving, unnamed people,
provide Justice Denied with a solid historical,
factual and theoretical foundation.
Building upon these pioneering efforts, Justice
Denied Magazine is generating a body of irrefutable evidence
that wrongful convictions are not an isolated phenomena in this country
-- they are enough of an everyday occurrence to support a regularly
Bibliography of sources related to the conviction of
This is not meant as an exhaustive bibliography.
There are many unlisted books and articles in magazines, journals, and
law reviews related in some manner to wrongful convictions. Justice
Denied has a link on its website listing several
hundred books, articles, documentaries and movies related to
Life Imprisonment vs. the Death Penalty,
Duke Bowers, 1915. Available in the New York Public Library. This
document along with Mr. K. T. McConnico's report was influential in
persuading the Tennessee legislature to abolish the death penalty in
Convicting the Innocent: Sixty-Five Actual
Errors of Criminal Justice,
Edwin M. Borchard, Yale, University Press New Haven, Connecticut, 1932.
(Cites 65 cases of wrongful conviction.)
Convicting the Innocent , Max
Hirschberg, 13 Rocky Mountain Law Review 20,
December, 1940. (Cites 26 cases of wrongful conviction, 2 in the U. S.
and 24 in Europe, primarily in Germany.)
The Mistakes of the Penal Jurisdiction and
its Causes (untranslated title: Die Irrtuemer In
Der Strafjustiz Und Ihre Ursachen), Erich Sello, 1911.
(Cites 153 cases of innocent people, primarily in Germany, sentenced to
death or life imprisonment.)
Miscarriages of justice and their causes
(untranslated title, Les erreurs judiciaires et leurs causes),
Lailler and Vonoven, 1897. (Cites cases of innocent people convicted in
France, some of whom where executed.)
The Court of Last Resort, Erle
Stanley Gardner, William Sloane, New York, 1952. (Cites 13 cases of
Not Guilty, Jerome Frank and
Barbara Frank, Doubleday, Garden City, NY, 1957. (Cites 34 cases of
For Whom the Chair Waits , Sarah
Ehrmann, Federal Probation, March 1962, pp. 14-25.
(Cites five cases of men wrongfully convicted who were sentenced to
death and waiting on death row.)
The Innocents, Edward. D. Radin,
William Morrow, NY, 1964. (Cites 80 cases of wrongful conviction out of
300 such cases the author looked at.)
Wrongful Imprisonment: Mistaken convictions
and their consequences, Ruth Brandon and Christie Davies,
Archon Books, Hamden, CT, 1973 & Allen & Unwin, London,
1973. (Cites 70 cases of wrongful imprisonment. 52 of the cases
resulted in pardons and 18 of the convictions were set aside. The
quotation is on page 20.)
Eyewitness Testimony, Elizabeth
Loftus, Harvard University Press, Cambridge, MA, 1996 ed. with new
Convicting the Innocent: When Justice Goes
Wrong , Arye Rattner, Ohio State University, Columbus, OH,
Ph.D. dissertation, 1983, AAT 8400279. (Public Administration, Ohio
Guilty Until Proved Innocent: Wrongful
Conviction and Public Policy , C. Ronald Huff, Arye Rattner,
and Edward Sagarin, Crime & Delinquency,
Vol. 32, No. 4, Oct. 1986, pp. 518-544. (Analyzed several hundred cases
of wrongful conviction.)
Miscarriages of Justice in Potentially
Capital Cases , Hugo Adam Bedau & Michael L.
Radelet, Stanford Law Review, November, 1987, Vol.
40, pp. 21-179. (Cites 350 cases of wrongful conviction. 326 were
homicide and 24 were rape convictions.)
Convicted but Innocent: Wrongful Conviction
and the Criminal Justice System , Arye Rattner, Law
and Human Behavior, Vol. 12, No. 3, Sept. 1988, pp. 283-294.
(Analyzed 205 cases of wrongful conviction.)
Presumed Guilty: When Innocent People Are
Wrongly Convicted, Martin Yant, Prometheus Books, Buffalo,
In Spite of Innocence: Erroneous Convictions
in Capitol Cases, Michael L Radelet, Hugo Adam Bedau, and
Constance E. Putnam, Northeastern University Press, Boston, 1996 pb
edition with new forward (C) 1992. (Cites approximately. 420 cases of
The Psychology of Interrogations, Confessions
and Testimony, Gisli H. Gudjonsson, John Wiley &
Sons, London, 1992. (Cites several dozen contemporary cases of wrongful
conviction caused by false confessions. In exploring the history of
false confessions, the author relates a 1660 British case in which
three members of a family were publicly executed after one of them
falsely confessed and implicated the others in the murder of a man who
turned up alive two years later. (p. 235))
Convicting the Innocent: The Story of a
Murder, a False Confession, and the Struggle to Free a "Wrong Man,"
edited by Donald S. Connery, Brookline Books, Cambridge, MA, 1996. In
addition to the essay he contributed to this book, Professor Ofshe has
written several outstanding articles related to how false confessions
contribute to wrongful convictions.
Convicted But Innocent: Wrongful conviction
and Public Policy, C. Ronald Huff, Arye Rattner, and Edward
Sagarin, SAGE, Thousand Oaks, CA, 1996, ISBN: 0-8039-5953-2. (Cites 42
cases of wrongful conviction.)
Mean Justice: A Town's Terror, A Prosecutor's
Power, A Betrayal of Innocence, Edward Humes, Simon &
Schuster, NY, 1999. (Cites 56 cases of wrongful conviction in an
Actual Innocence: Five Days to Execution and
Other Dispatches From the Wrongly Convicted, Barry Scheck,
Peter Neufeld, Jim Dwyer, Doubleday, NY, 2000. (Analyzes 62 cases of
wrongful conviction in Appendix 2, 26 involving prosecutorial
misconduct and 31 involving police misconduct.)