When Experts Attack!

Wrongful convictions are political (transcript)

Jan 9, 2024

BRENDAN LYNCH, HOST:  We live in a time where nothing is true. An era where reality and hoax look the same on the internet. Whoa, wait a second. There are people who actually know what they're talking about — dangerous people. We call them experts. We're giving these experts a megaphone to drop some truth bombs. If you can handle the truth. I'm Brendan Lynch, and I'm the host of “When Experts Attack!.” If you've watched “When They See Us,” listened to the podcast “Serial” or learned about local cases in the news — maybe you've noticed more stories about innocent people being exonerated for crimes they didn't commit. Kevin Mullinix, associate professor of political science at the University of Kansas, examines how this growing issue is shaped by people's ideological differences in his new book, titled “The Politics of Innocence: How Wrongful Convictions Shape Public Opinion.” He tells “When Experts Attack!” correspondent John Niccum that policy reforms to reduce wrongful convictions really depend on the political sentiments in any given state, along with the leanings of the governor, and any influence held by innocence advocacy groups.

THEME MUSIC

JON NICCUM, CORRESPONDENT: Is there any one aspect of these wrongful conviction cases that you see over and over again?

KEVIN MULLINIX: Not necessarily over and over again, but there's common threads that lead to wrongful convictions. Usually when we see wrongful conviction and then exoneration subsequently, there tends to be common problems that we see that lead to them. Eyewitness testimony is one of the most common ones. It's really problematic. A substantial number of cases also involve false confessions. There's also even a lot of number of cases that have problems with forensic evidence. A lot of times people always assume, “Oh, if there's forensic evidence, then that obviously means they got the right person for a crime.” But that's not always the case. And so there's multiple factors that contribute to wrongful convictions, and you see some common threads between them.

JON NICCUM: One of the first things we learn in journalism is eyewitness accounts mean absolutely nothing. It's like “Twelve Angry Men,” how the entire court case is dismantled by the fact that the witnesses didn't see anything or didn't see what they thought they saw.

KEVIN MULLINIX: On the eyewitness stuff, I think we're seeing increased awareness of the problems with eyewitness testimony among the public, police, prosecutors, jurors, judges. But the thing is kind of fascinating to me a is I think people are more understanding of the fact that the eyewitnesses themselves makes mistakes. There's problems with their perception, their memory, their recall. Maybe the person had bad vision, the time of day, how long they saw the person. I think there's still a little bit of a lack of awareness that there's also problems with how we handle eyewitness identification. What I mean by that is there's a lot of things that go into the procedures that law enforcement are walking someone through as they go to identify someone that can sometimes lead to mistakes. Like the number of photos and array. How similar the different people are in a lineup. The specific instructions that are given to somebody. The feedback that's being given to someone as they're engaging in identification. So I think people are increasingly aware that there's problems in eyewitness testimony, but I'm not sure everyone fully understands all of the problems that contribute to it.

JON NICCUM: There's an assumption that only guilty people confess to crimes. Is this the reality?

KEVIN MULLINIX: It is not the reality. That's something that I run into a lot like when I talk to my students or my family and friends about wrongful convictions. You talk about sometimes innocent people confess to crimes they didn't commit. I think people have this knee-jerk reaction: “I would never confess to a crime I didn't commit.” But I think it reflects a little bit of a lack of really understanding what it is somebody's going through in this process. There's a lot of research on why it is that sometimes people who are innocent confess to crimes they didn't commit. I think you have to recognize, too, that this can happen at a couple of stages in the process. You can have a false confession during police interrogation, but you can also have someone plead guilty to a crime they didn't commit. There are factors that go into both of these. A lot of the social science research tends to focus on two categories of reasons why people confess to crimes they didn't commit. One of those is the system level variables or the situation — the environmental factors like features of the interrogation. But then there's also research on the characteristics of the individuals that some people are more vulnerable to confessing to a crime they didn't commit than others. On the situational side of things that contribute to why it is sometimes an innocent person confesses to a crime they didn't commit, I think we have to put ourselves in the perspective of someone that's being brought in for interrogation. This usually involves isolation. This is extremely stressful. It’s an emotional experience. That they're being brought in as a suspect, there's a good chance that law enforcement thinks the person did it, and so they might be, like, the whole process is essentially designed to get this person to confess to a crime they think they committed. And police engage in a number of tactics to try to get someone to confess to a crime. This often involves what we call maximization techniques, and then also minimization tactics. Maximization tactics involve emphasizing the worst-case scenario and punishment to somebody. Telling someone “This is how many years you could potentially be in jail or in prison if you don't confess to this crime.” That's also countered with minimization tactics, which may law enforcement trying to almost be sympathetic to the person to say, “Hey, you know, we know you're involved in this crime. We’re sympathetic. You were just at the wrong place at the wrong time.” This combination of these two tactics — being sympathetic to somebody, trying to understand maybe why you did what you did, — but then also maximization techniques of threatening the worst-case scenario. That's a pretty tough experience for people. In all 50 states, it is still legal for law enforcement to lie to people to deceive them and present them with false evidence — at least to adults. There's, I think, three states now that say that you can't do this to juveniles. You can be presented with false evidence that makes you look guilty. If you put yourself in this perspective of being interrogated, you're isolated, this is stressful, this is exhausting. This might go on for several hours. You start almost to have feelings and experiences akin to sleep deprivation. You're being told this is the punishment. You're being presented with all of this evidence that makes you look guilty. And then if you're engaged in this cost-benefit decision-making strategy, that's a tough choice. It's easy for us to sit here and say, “I would never confess to a crime,” but I've never been given the choice of you look really guilty, you can confess and go to prison for a year, or you could face 10 years. I think when we put it in that perspective, then all of a sudden that looks a little different. On the individual characteristics, there's also a lot of research that some people are more vulnerable to confessing to a crime that they didn't commit. I think some of the most notable things that people point out are juveniles and minors are more likely to do so. The Innocence Project tracks verified DNA exoneration cases, and they look at the percentage of those that involved a false confession. The percentages of minors doing that is much higher than when you look at adults. They're more susceptible to that. But also, people with different types of mental illness, people with intellectual and developmental disabilities, they're simply more vulnerable to some of these more coercive interrogation tactics.

JON NICCUM: Another assumption is that most people support reforms for wrongful convictions, but how is it divided by political ideology?

KEVIN MULLINIX: I think that we, both academics and people in the public, oftentimes assume that this is a nonpolitical a political issue.

JON NICCUM: Because everything is so nonpolitical these days.

KEVIN MULLINIX: But like so many other things, in reality, it really is somewhat politicized. The way that it's different is we see pretty substantial differences between liberals and conservatives and their support for reforms to mitigate the likelihood of wrongful convictions. That is, liberals are more likely to support different types of political policy changes to reduce the chances that we have wrongful convictions. This is something we talk quite a bit about in our book, about how liberals and conservatives differ on these issues. But it's not just that they differ in their support for the reforms. What we see is more at a foundational level, that liberals and conservatives differ in their awareness of the problems. We did several surveys with nationally representative samples in which liberals are reporting that they hear about wrongful convictions at higher rates, particularly like news-based stories, than conservatives. Also we see these big differences between liberals and conservatives and their beliefs about how frequently wrongful convictions occur, both with respect to misdemeanors and felonies, but even in perceptions and beliefs about whether or not the justice system has executed somebody that was innocent. It helps if we understand that they differ in those beliefs and their awareness of the issue — that really informs understanding of why we see ideological differences on support for reforms. Liberals are thinking this is happening more often. They think it's a bigger problem, so they want to do more about it. Conservatives don't see it as a pervasive problem, so they're less inclined to support the reforms. But what we have found in our book, though, that I think is really interesting and reassuring is that when people learn more about the problem, they become more supportive of reforms. And that is across the ideological spectrum. So it's not that conservatives are entrenched in their opposition to reducing or passing policies to reduce the likelihood of wrongful convictions. It's when they are given information about how many people have been exonerated in the last couple decades, well then, all of a sudden they start to become much more supportive of saying, “Let's do something to change the likelihood that this happened.”

JON NICCUM: It's surprisingly reassuring. What's a movie or TV show that really captures how wrongful convictions unfold?

KEVIN MULLINIX: We're almost inundated with the numbers of movies and TV shows and stories about the about wrongful convictions and so on. They're all kind of blending together, and I don't know that I have one that really captures it. I think across some, you see a lot of the common stories and problems that lead to wrongful convictions and also the…

JON NICCUM: Let me rephrase. I was thinking about how many movie and TV shows hinged on either someone being wrongfully accused. Is it hard for you to watch shows like that?

KEVIN MULLINIX: It is. Especially it's hard to watch documentaries and TV shows, even ones that are like more fictional or fiction-based stories and movies and novels. This more I've studied this issue, the more you realize the scope of the problem. It's pretty overwhelming to think about the scope of the problem, not just in terms of the thousands of people that are affected by wrongful convictions. We have over 3,000 verified exonerations, so when you watch a movie about one person, that is one of those thousands of stories, and that doesn't encapsulate all the potential wrongful convictions. When we say there's over 3,000 verified exonerations in the United States since 1989, that's only the ones that meet the criteria, which is tough to meet. That doesn't capture everyone who's potentially been wrongfully convicted. Even within each of those individual cases you're sometimes talking about years of their lives spent behind bars, and then there's a ripple effect to each wrongful conviction. That is it doesn't just impact the person who is innocent and convicted of a crime. It impacts their family, their friends, the people in their network. It impacts the victim and the victim's family. Sometimes that impacts the law enforcement that were involved in the case and the prosecutors. It is this massive effect. So when I see these movies or these TV shows, it's really hard for me to even to watch them, because when you start to think about the scale of the problem, it's pretty emotional.

JON NICCUM: A lot of people convicted of crimes claim they're innocent. On a percentage basis, how many are?

KEVIN MULLINIX: Well, that's a number that we can't know for sure. There's been a lot written and a lot of debates about the percentage or the rate at which people are wrongfully convicted. I guess to be clear here to that, there's this belief that everybody who's convicted of crimes says that they're innocent. That is not true. There are surveys that have been done of incarcerated individuals, and they consistently find that a majority of people will actually say that they were correctly convicted. There were some studies done in the 1970s that were some of the earlier research on this. They found that only about 15% of incarcerated individuals would say that they were innocent. There was a survey done in 2015 and 2016, and I think they estimated at around 6% of people who are incarcerated say that they were innocent. This idea that everybody who's convicted says they're innocent is simply not true. It's out of step with reality. But the bigger question about what percentage of people that are incarcerated actually are wrongfully convicted, it's tough to calculate this. If we think about as a fraction, it's tough to even calculate. If the numerator is the number of people that are innocent and the denominator being the number of people that are even convicted, both of those numbers are harder to calculate than what a lot of people assume. Most expert estimates put this at around 3% to 6%. But there's a lot of variation due to even the type and the nature of the conviction.

JON NICCUM: We typically see exonerated people being compensated for their years spent in prison, but that's not always the case, is it?

KEVIN MULLINIX: No, it is not. A number of states have passed legislation in the last couple of decades,] that is supposed to compensate people based on time incarcerated for when they were wrongfully convicted. In theory, this sounds really great in the sense that people that have had an injustice imposed upon them are going to receive some sort of compensation from the state. In reality, it doesn't happen that way. Even after someone has a verified exoneration, and there's a whole definition of what meets an exoneration. Also, each state has different laws about what falls into the wrongful compensation eligibility. But even when they seemingly meet this criteria, it can be a multi-year battle, a legal battle, for them to actually get those funds. This has popped up even in Kansas in recent years. There was a case just a few weeks ago I that caught some news headlines, and I think it went to the Kansas State Supreme Court. It dealt with a person who had been incarcerated in a county jail. They believe that they were entitled to some of these wrongful compensation funds. The state has said that the funds are only available to people that have been placed in a state prison. So is someone in the state of Kansas eligible for wrongful compensation funds if they are in a county jail and not a state prison? You have the laws on the books, but then you also have a little bit of a legal fight to actually access those funds, even if you have been exonerated.

JON NICCUM: Should a prosecutor or judge face penalties for wrongfully convicting someone?

KEVIN MULLINIX: I've never thought deeply about that, but I would probably say no. The reality is there's so many variables that go into a wrongful conviction, and it's tough to usually pinpoint where the actual problem or where the main problem is. It's usually a multitude of errors contributing to this. The justice system is made of human beings, and errors can be made all along the process. Whether we think about eyewitnesses, or maybe it also does involve law enforcement, or maybe it does involve prosecutors that have made decisions and might involve forensic experts that have made errors and how they're interpreting certain lab results. So to hold a single person accountable, like a judge or something, I don't know it’s the right move.

JON NICCUM: Have you made any personal contacts with people who were wrongfully convicted?

KEVIN MULLINIX: I was teaching at a different university at the time. We had a couple speakers come into the university to talk to faculty and students about the issues associated with wrongful convictions. In one of them was a lawyer that had worked on multiple cases. Another one was an individual who had been wrongfully convicted. I heard these two individuals talk on this issue several years ago, when I was just getting interested in this in this topic. Hearing the lawyer talk about the problems associated with wrongful convictions in the legal system was fascinating. But hearing the exoneree tell their personal story was really powerful. I mean, they it was moving. This also then informed some of the subsequent research that we were doing about how is the wrongful convictions impact public opinion. One of the things we ultimately started to study was the power of stories and narratives to transform people's attitudes on this issue. A lot of that can be traced back to I'm sitting in this room hearing this guy talk about what he went through. It was just so painful to hear. And you know, you could see the tears in people's eyes as they're listening to his story. That would probably be the main interaction I had with an exoneree. One of my co-authors, though, does a lot of interviews with exonerees and a lot of research on the difficulties they face when they are no longer incarcerated. Because it's not like they leave, and then everything in their life just goes back to normal and being great.

JON NICCUM: Doesn't everything involving any kind of academic research work better when it's not abstract and you have like a face to put to it?

KEVIN MULLINIX: Yeah, I think so. I think the best research comes from when we stop thinking just about our academic jargon and theories and start to connect stuff to the real world. So for myself, a lot of times where a research project comes from is I'm observing things in the world around me and I want to make sense of them. I study public opinion and why people have the attitudes they do. I'm always wrestling with why do people have the opinions that they do. Why do they think what they do? Or, what are the effects of certain types of information? And so when I got interested in this project, it was hearing like speakers on this, but also, there were so many podcasts, so many documentaries, so many movies coming out. It led to these conversations that I was having with the people that ultimately became my co-authors on these projects about what is the effect of this information about wrongful convictions that we're seeing everywhere and (in) media. What is that doing to public opinion? Then I turned to more academic theories to try to like explain this and understand it and then set up empirical studies to really isolate evidence about what the effects of this information are for people's attitudes.

JON NICCUM: Final question: Do wrongful convictions happen more in the U.S. than in other countries?

KEVIN MULLINIX: I don't know that answer, And I'm not sure if anyone has empirically tried to estimate that. It would be really tough to do in part just because, like I told you before, it's really tough to even estimate what percentage of people are wrongfully convicted. And countries don't keep track of conviction rates the same way. They might not have the same types of legal processes to challenge a conviction. Calculating like the number of exonerees would be really tough to do across countries, not necessarily impossible. My guess would be, though, is that this problem isn't unique to the United States. This is something that we see around the world. But I do think that we probably see variation. Maybe there's some countries that may be handled like eyewitness testimony in a very different way. There might be different policies guiding how the handling of forensic evidence and forensic expert testimony that when you start to see differences in the institutional variables and policies that are at work. Then all of a sudden you're probably going to see differences in the rates at which people are being wrongfully convicted.

JON NICCUM: Well, any final thoughts about this topic?

KEVIN MULLINIX: I want people to start to think about it, that this is an issue and not just,
“Oh, that's another problem. OK, forget about it.” When people hear these news stories about somebody who has been wrongfully convicted, or when they see a documentary on it or hear a podcast, pause and think about this ripple effect of how many people are hurt by this innocent individual being convicted of a crime they didn't commit. Also, start to think about whether or not we can do things differently and better. The reality is, there are policies that can reduce the likelihood of wrongful convictions, and we should try to move towards those. I think we can always do better.

JON NICCUM: Is there anything else as a powerless individual you can do to help solve this?

KEVIN MULLINIX: I would encourage people to check out The Innocence Project. They have opportunities for people to donate or to get involved and to learn more about the issue. It's also just becoming increasingly aware about it and talking about it.

HOST: We've come to the end of this glorious episode of “When Experts Attack!.” If you like what you hear, subscribe to our humble podcast and tell a friend about us. We'd love to know what you think. So if you have questions, comments or ideas for future episodes, let us know about it. You can reach us just drop a line to whenexpertsattack@ku.edu We're a co-production of the University of Kansas News Service and Kansas Public Radio. Music was provided by Sack of Thunder. Until next time, this is Brendan Lynch, signing off.

THEME MUSIC

Transcribed by https://otter.ai and edited for clarity and accuracy.