Innocence is Not Enough: The Public Life of Death Row Exonerations

Miscarriages of justice and wrongful convictions are a pervasive reality in America's criminal justice system.

Richard A. Leo, Rethinking the Study of Miscarriages of Justice: Developing a Criminology of Wrongful Conviction, 21 J. Contemp. Crim. Just. 201 (2005).

In this paper we examine news coverage of miscarriages of justice in the death penalty system and the release of death row inmates to try to understand the public life of exonerations. In so doing we contribute to a line of research on the problem of wrongful conviction that extends back to the early twentieth century when Yale Law School professor Edwin Borchard published one of the first books on wrongful conviction, Convicting the Innocent.

Edwin M. Borchard & E. Russell Lutz, Convicting the Innocent: Errors of Criminal Justice (1932).

What is true for the entire criminal justice system in general is also true in death cases.

See When Law Fails: Making Sense of Miscarriages of Justice (Charles J. Ogletree, Jr. & Austin Sarat eds., 2009).

Scholars estimate that of the 2,600 people currently on death row, approximately 1 in 25, or 104 people, are actually innocent.

See Gross et al., supranote 8; Andrew Cohen, Yes, America, We Have Executed an Innocent Man, The Atlantic (May 14, 2012), https://www.theatlantic.com/national/archive/2012/05/yes-america-we-have-executed-an-innocent-man/257106/.

Since 1973, 167 people from 28 different states have been exonerated from death row.

Innocence Database, Death Penalty Information Center, https://deathpenaltyinfo.org/policy-issues/innocence-database (last visited Jan. 20, 2020).

Even the discovery of the many factors that can lead to wrongful conviction is often insufficient to provide the legal basis for releasing someone from death row.

Herrera v. Collins, 506 U.S. 390 (1993).

Increased use of DNA testing has played a key role in uncovering error in murder and other kinds of cases. Such testing was first admitted as evidence in the New York case, People v. Wesley.

George Bundy Smith & Janet A. Gordon, The Admission of DNA Evidence in State and Federal Courts, 65 Fordham L. Rev. 2456 (1997).

Exoneration, by definition, is a kind of absolution. The word has Latin origins. “The ‘ex’ means ‘away’ or ‘from.’ And the ‘onerate’ comes from the Latin word, ‘onus’…. In Latin, [onus] literally meant weight … So exonerate means to lift the weight from or to remove the weight of.’”

Edgar B. Herwick III, Does ‘Exonerate’ Mean What We Think It Means?, WGBH News (Apr. 3, 2019), https://www.wgbh.org/news/national-news/2019/04/03/does-exonerate-mean-what-we-think-it-means. See also Glossary, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/glossary.aspx (last visited Mar. 30, 2020).

Nonetheless, according to Marc Bookman, the United States Supreme Court has

repeatedly declined to hold that the federal Constitution allows for so-called freestanding claims of innocence, that is, the right to be let out of prison simply because you didn’t do it, without any other procedural or ‘technical’ violation of the law. In the United States, the inmate who raises a compelling case of innocence after a constitutionally proper trial may well be doomed.

Marc Bookman, Does an Innocent Man Have the Right to Be Exonerated?, The Atlantic (Dec. 6, 2014), https://www.theatlantic.com/national/archive/2014/12/does-an-innocent-man-have-the-right-to-be-exonerated/383343/. See also Lara Bazelon, Scalia's Embarrassing Question, Slate (Mar. 11, 2015, 9:37 AM), https://slate.com/news-and-politics/2015/03/innocence-is-not-cause-for-exoneration-scalias-embarrassing-question-is-a-scandal-of-injustice.html.

As Justice Scalia once reminded his colleagues, the Court has

never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually innocent.’ Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence is constitutionally cognizable.

Corey Adwar, Justice Scalia Says Executing the Innocent Doesn’t Violate the Constitution, Business Insider (Sept. 4, 2014, 10:00 PM), https://www.businessinsider.com/antonin-scalia-says-executing-the-innocent-is-constitutional-2014-9?r=US&IR=T.

Exoneration touches on a central fear regarding the death penalty, namely that the United States has, at some point in history, executed an innocent person. Statistically, the execution of an innocent person seems very likely,

National Academy of Sciences Reports Four Percent of Death Row Inmates Are Innocent, Innocence Project (Apr. 28, 2014), https://www.innocenceproject.org/national-academy-of-sciences-reports-four-percent-of-death-row-inmates-are-innocent/. See also Cohen, supranote 18; Tom Jackman, Essay: The Problem of Innocence in Death Penalty Cases, Wash. Post (Aug. 28, 2017, 5:16 PM), https://www.washingtonpost.com/news/true-crime/wp/2017/08/28/essay-the-problem-of-innocence-in-death-penalty-cases/.

Exoneration is a story about a past wrong made right, about a death sentence no longer on the table and freedom granted. Because death has been successfully and rightfully avoided, there is a note of safety in the story of an exoneration and the promise of something close to a happy ending. The documentary film Time Simply Passes, which focuses on James Richardson, who was convicted of murdering his own children in Florida, offers one example of this pattern.

Time Simply Passes (Tanman Films 2015).

The opening scenes include sun-soaked, shaky footage, seemingly taken by a family member so overcome with joy that he cannot hold the camera steady. Richardson looks towards the sky, squinting into the light and proclaims “Thank God, I’m free. I don’t have to worry about that trouble no more. It's all over,” and is then embraced by an unknown man.

Id.

This is the reassuring picture of the exonerated, a person who has known great suffering but whose innocence now is his greatest possession. The joy of exoneration is so sharply separated from the actual process of his conviction, confinement, and appeals that it feels like a resurrection and the start of a completely different life, a different story, making the earlier suffering feel far away, boxed in, and, most importantly, over. That is how exoneration is meant to feel for the exonerated and be communicated to the public. Richardson is part of the exoneration canon, the value of his life and the potential for its loss now realized in full.

Yet life after exoneration is seldom easy.

Saundra D. Westervelt & Kimberly J. Cook, Life After Death Row: Exonerees’ Search for Community and Identity (2012). See also, Scott Pelley, Life After Death Row, CBS News (July 31, 2016), https://www.cbsnews.com/news/60-minutes-life-after-death-row-exoneration-2/.

In 2014, the Florida legislature authorized compensation for Richardson. After final passage of that legislation, as he watched from the gallery, legislators gave him a standing ovation. The documentary offers its viewers reassurance that rebirth is possible after exoneration. But, as Cathy Caruth's writings on traumatic experience and its denial of narrative finality would predict, something still doesn’t feel quite right.

Cathy Caruth, Unclaimed Experience: Trauma, Narrative, and History (20th ed. 2016).

Exoneration stories generally cover neither suffering, nor acknowledge the lasting harm done. Instead, they highlight the value of the lives at stake and the grace they earned. This is the story people expect from an exoneration: conviction is horrible and shocking; death row is deeply traumatic; life on the outside is complicated and still painful but unquestionably better. Exonerees are grateful to be alive, and they are alive because the truth that once was obscured is now known.

Nonetheless, there is a lively debate about the significance of false convictions and subsequent exonerations for the legal system. Some seize on the fact that “mistakes were caught before these prisoners were put to death” as “proof that the system works.”

Bush Blind to Execution's Dangers, St. Petersburg Times, Feb. 18, 2000, at A14.

Others argue that false convictions and exonerations show that “Our death penalty system has been—by any measure—a failure.”

Liliana Segura & Jordan Smith, “There Are Innocent People on Death Row” - Citing Wrongful Convictions, California Governor Halts Executions, The Intercept (Mar. 13, 2019), https://theintercept.com/2019/03/13/california-death-penalty-moratorium/.

In what follows we show how the release of innocent people from death row plays out in what we call the public life of exoneration. We examine the way newspapers tell their stories and the various tilts and tendencies that characterize their presentations. While publicized instances of wrongful conviction and exonerations in America date back to 1819,

See Stuart Banner, The Death Penalty: An American History 212 (2002).

In one of the first and most important examples of such attention, Frank Baumgartner and his collaborators conducted a content analysis of coverage of the death penalty in the New York Times from 1960 to 2005.

Frank R. Baumgartner et al., The Decline of the Death Penalty and the Discovery of Innocence (2008).

Another more limited study, by Laura Rozier, focused on 30 news clips from the Vanderbilt Television News Archives between 1981 and 2014.

Laura Rozier, The Media, the Innocent, and the Public: A Nuanced Look at Exonerations and Public Opinion of Capital Punishment (Apr. 27, 2015) (unpublished B.A. thesis, Weinberg College of Arts and Sciences, Northwestern University) (on file with the Department of Political Science, Weinberg College of Arts and Sciences, Northwestern University).

A third study, by University of Cincinnati professor David Niven, examined the way newspapers in the American South covered death row exonerations.

David Niven, Southern Newspaper Coverage of Exonerations from Death Row, 11 J. Crim. Just. & Popular Culture 20 (2004).

Following Rozier and Niven, we studied the substance of newspapers’ coverage of exonerations. Like them we analyzed what news stories said about the exonerations they described. We focused on the five states which, from 1972–2019, had ten or more exonerations. During that period, they were Florida, Illinois, Texas, Louisiana, and Oklahoma.

Since we completed the research for this article, a tenth man has been exonerated in North Carolina.

News coverage of exonerations is, of course, governed by the journalistic conventions of the newspapers which cover them. Those conventions emphasize both the need for independence and balance.

Christopher B. Daly, Covering America: A Narrative History of a Nation’s Journalism 154 (2012). See also David T. Z. Mindich, Just the Facts: How “Objectivity” Came to Define American Journalism (1998).

Michigan State University professor Frederick Fico observes that “all the codes of ethics of major news organizations and professional associations command fairness,” and that “courts in at least 10 states have adopted a ‘neutral reportage’ privilege in libel actions which protects journalists when they have presented balanced assertions from competing sources in stories about controversy.”

Frederick Fico et al., Fairness and Defamation in the Reporting of Local Issues (AEJMC 1997 Conference Papers) (on file with Michigan State University).

Our inquiry focuses on the aftermath of capital cases—once they have already been classified as wrongful convictions and the ex-defendant has been exonerated. As we will see, journalistic conventions are very consequential in reporting on such cases.

Rob Warden, The Revolutionary Role of Journalism in Identifying and Rectifying Wrongful Convictions, 70 UMKC L. Rev. 803 (2002).

In what follows, we ask whether coverage of exoneration explains how a miscarriage of justice occurred. Why? Has it happened to other people, past or present? Is the death of an innocent person an acceptable risk? We conclude that the public discourse surrounding exoneration, while providing evidence of the death penalty system's most consequential flaws, serves as much to preserve that system as to challenge it.

Richard Nobles & David Schiff, Understanding Miscarriages of Justice: Law, the Media, and the Inevitability of Crisis (2000).

Exoneration is the word used by every organization working on the problem of wrongful convictions and by the DPIC in its list of people released from death row. This word, as we noted above, suggests that those people no longer carry the burden of guilt, whether factual or legal. Yet one of the most striking facts of newspaper coverage of cases in which death row inmates are freed after the discovery of a miscarriage of justice is the infrequency with which it uses the word exoneration. Only 24.8% of newspaper articles that we examined mention that word or a derivative thereof.

Newspapers sometimes use the word, without applying it to a specific case, when they name an organization (National Registry of Exonerations etc.) or refer to a list of the states’ “exonerees.” In addition, there are other words and phrases which can have the same effect as exoneration, “innocence” or variants thereof being the obvious example. Exoneration is not a principally legal term (some states have introduced exoneration into the legal lexicon of compensation, but it remains largely outside of that world).

One example of the avoidance of the language of exoneration occurs in news coverage of the Florida case of Joseph Green Brown. He was convicted of the 1973 rape and murder of Earlene Treva Barksdale, the wife of a prominent Tampa attorney. Green, also known by his Swahili name “Shabaka,” was born in Charleston, South Carolina, but moved to Florida in search of work in the early 1970s. There he met Robert Floyd, and the two ultimately carried out a string of crimes, including robbing a Holiday Inn. The same day as that robbery, Barksdale was murdered in the back of her clothing store, from which $100 was also found to be missing. The similarities between the two crimes, committed within hours of each other, and statements made by Floyd implicating Brown after his arrest for the Holiday Inn robbery led police to arrest the twenty-four-year-old.

Brown's 1974 trial, in front of an all-white jury, took just five days. He was convicted of first-degree murder, rape, and robbery and sentenced to death. The prosecution's star witness was Floyd, who had accepted a plea deal in exchange for his testimony. Yet the prosecution denied that such a deal had been made in closing statements during the trial. Moreover, the prosecution also falsified ballistics evidence, claiming that Brown's .38 caliber handgun was the murder weapon, despite an FBI analysis that had eliminated that possibility.

At one point during his long imprisonment, Brown came within 24 hours of execution.

The reported number of hours varies. In some cases it is as low as fifteen.

Yet the Tampa Bay Times coverage of Brown's release describes him as “a convicted murderer imprisoned on death row since 1974.” The paper said that Brown was “freed because Hillsborough County prosecutors, ordered to retry the case, decided they lacked the evidence to prove the original murder charge.”

Bob C. Port, Charges Dropped for Death Row Prisoner, St. Petersburg Times, Mar. 7, 1987, at 7B.

The Florida Sun-Sentinel's coverage of Brown's release from death row also avoids referring to him as exonerated. Its headline–“Man Free After Death Row Stay”–with its reference to a “stay” makes death row seem like a bed and breakfast where many choose to spend some years.

The Associated Press, Man Free after Death Row Stay, Fla. Sun-Sentinel, Mar. 7, 1987, at 23A.

Michael Toney was convicted for the 1985 bombing-murder of three people at a trailer park in Lake Worth, Texas.

Alexandra Gross, Michael Toney, National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3692 (last visited Feb. 13, 2020).

However, police convinced Toney's ex-wife to say that she remembered being near the site of the bombing on the night of the murders, along with Toney's then-best-friend, Christopher Meeks. She also claimed that Toney had carried a briefcase similar to the one used in the bombing. Meeks corroborated her testimony, and Toney was convicted and sentenced to death, despite the complete lack of a motive or any physical evidence. His initial appeals were denied, but ultimately his lawyers discovered that police had fed information to Meeks and the former Mrs. Toney and withheld documents contradicting their testimony. They were able to persuade a judge to throw out his conviction, after which the prosecutor's office decided not to retry the case.

In Toney's case, no one discovered new evidence of innocence. There was simply never any real evidence of guilt. Testimony materialized and disappeared quickly, but, in the meantime, a man was sentenced to death. This is not the kind of case which typically generates much news coverage. There was no DNA evidence, no tortured false confession, and the man in question had already served time for other crimes. In this case many people, specifically the police, behaved badly, and news coverage of Toney's case struggled to come to terms with this reality.

Throughout his time on death row, the Houston Chronicle portrayed Toney as desperate to draw attention to his case and as eventually getting his way. One article's opening passage is followed by the revelation of the release of “14 documents…that cast doubt on the testimony of two key witnesses against him.”

Id.

The Dallas Morning News’ sole article on Toney also does not mention actual innocence.

Id.

Newspaper coverage of other cases uses the language of exoneration, but in a way that casts doubt on it. It does so by using qualifiers, like “could have,”

Ted Gregory, Dupage 7 Hearing Fuels War of Lawyers, Chi. Trib. (Nov. 10, 1997), https://www.chicagotribune.com/news/ct-xpm-1997-11-10-9711100213-story.html.

If refusing to actually use the word exoneration, or softening its effect with various qualifiers, expresses ambivalence about the innocence of those released from death row, then the outright questioning of innocence is the next step towards undermining the impact of such exonerations.

See Michael Leo Owens & Elizabeth Griffiths, Uneven Reparations for Wrongful Convictions: Examining the State Policies of Statutory Compensation Legislation, 75 Alb. L. Rev. 1283, 1317 (2011).

In the instances when news stories question a death row exoneree's innocence, most of the time (68.3%) they do so by quoting a state official, namely a policeman, a prosecutor, a politician, or some other state actor (see Table 3). As a result, state actors play a key role in sowing public doubt about the innocence of those released from death row. Officials who were principally involved in securing convictions in death cases become central narrators when those convictions come undone.

In what follows we offer some examples of the ways news stories question innocence. For example, take the 1963 case of Freddie Pitts and Wilbert Lee.

Freddie Pitts, National Registry of Exonerations\: Exonerations Before 1989, https://www.law.umich.edu/special/exoneration/Pages/casedetailpre1989.aspx?caseid=255 (last visited Jan. 26, 2020).

The racial dimensions of the case were heightened by witness reports that Lee, who was indeed at the gas station earlier in the day, and some female acquaintances had argued with its owner after the women were denied use of a whites-only bathroom. The police and polygraph examiner, who had been forced out of the Air Force for eliciting a false confession in another case, questioned a witness, nineteen-year-old Willie Mae Lee (no relation), for four days during which she denied any knowledge of the crime. However, after the discovery of Burkett and Floyd's bodies, she admitted to being an accomplice to the crime and implicated Lee and another man—Lambson Smith. When Smith's alibi proved unshakeable, she changed her story and implicated Freddie Pitts. The change in Lee's story was not revealed by the prosecution until well after the conviction of Pitts and Lee.

Both Pitts and Lee confessed under pressure, but soon recanted their confessions. Three years after their convictions, Curtis Adams Jr. confessed to the Burkett and Floyd murders. In 1968 Willie Mae Lee recanted her testimony. However, Pitts and Lee were not released until 1975.

Twenty-three years later they received $500,000 each as compensation for their erroneous convictions.

John Kennedy, Pardoned Pair Lobby State for Their Cause: They Meet Legislators, Seeking Compensation, Fla. Sun-Sentinel, Apr. 15, 1998, at 10B. See also, Judge Okays $1-Million Award to Men, St. Petersburg Times, May 23, 1998, at 1B.

In 2011, the state of Texas refused to compensate Clarence Brandley

Alexandra Gross, Clarence Brandley, National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3044 (last visited Jan. 26, 2020).

The other, all white, janitors at the school said that they had seen Brandley follow Ferguson to the loft. Semen recovered from her body was destroyed under suspicious circumstances, and no physical evidence was introduced at trial. Brandley's first trial resulted in a hung jury and a mistrial. During his retrial, in front of a second all-white jury, the prosecutor accused Brandley of being a necrophiliac. This time he was convicted and sentenced to death.

Less than a year after Brandley's conviction, his lawyers found out that the state had destroyed multiple pieces of potentially exculpatory evidence. It included the semen, Caucasian pubic hairs which matched neither the victim nor Brandley, and photographs which showed that Brandley was not wearing a belt on the day of the crime, which the prosecution had claimed was the murder weapon. Brandley came within six days of execution but was granted a stay because someone else confessed to Ferguson's murder. In addition, another janitor, John Sessum, recanted his statement implicating Brandley and instead said that another janitor, Gary Acreman, had committed the crime. Two other people claimed they had heard Acreman confess that he murdered Ferguson. In 1987 Brandley was granted a new trial, after which the prosecution dropped all charges against him.

News reports highlighted continuing doubts about Brandley's innocence. A story in the Dallas Morning News quoted one of the prosecutors in his case:

In the motion, Mr. Speers [a district attorney tasked with the Brandley case] argued that ‘neither the facts, in any version, nor the law support the conclusion that Clarence Brandley was denied a fair trial. Clarence Brandley is guilty of this heinous crime, and nothing in this court's opinion even suggests that it believes otherwise.’

The Associated Press, DA Files Appeal in Brandley Case: Motion Seeks to Block Inmate's Release, Dall. Morning News, Dec. 29, 1989, at 14A.

The article reports that the prosecution “conceded that it would be virtually impossible to retry Mr. Brandley because most of the physical evidence is missing and because key witnesses have recanted testimony.”

Id.

In the public life of exoneration, victims’ families also play a role in questioning the innocence of those released from death row. For those families, exoneration takes away whatever comfort is provided by the conviction and sentencing of someone they believe to be responsible for their loved one's death. It is not surprising that some of them resist this conclusion, even as the evidence of the miscarriage of justice piles up in front of them.

The role of victim families is highlighted in news coverage of Rolando Cruz's case, one of the best-known exoneration cases.

Center on Wrongful Convictions, Rolando Cruz, National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3140 (last visited Jan. 26, 2020).

The Nicaricos continued to believe in Cruz's guilt even after another man, Brian Dugan, confessed to the crime, and after recanted testimony and DNA evidence in the Cruz case became widely known. As the Chicago Sun-Times noted, “[The Nicaricos] also say they now accept that another man, Brian Dugan, was involved – as Dugan has reportedly confessed. But the Nicarico's say they believe Dugan acted with other defendants, even though a state police probe could find no link between them.”

Id.

The inclusion of these kinds of statements in press coverage of exonerations means that instead of a celebration of innocence, that coverage feels like an unending tragedy for a suffering family. It gestures to the idea that there is a real victim, a real innocent, who it is not the exonerated. In this sense, the rhetorical patterns of the criminal justice system are reaffirmed and the harm done to exonerees by the state is minimized. When news stories question their innocence, exonerees are treated as if they were not a victim at all or as being less important than some other, more legitimate, victim.

DNA is commonly thought to have been a difference maker in the national debate about capital punishment and in propelling the so called “new abolitionism,”

See Gould, supranote 23.

As Table 4 and 5 reveal, in a number of cases involving DNA, state actors continue to question innocence. They play a more prominent role in doing so in DNA cases than in exonerations where DNA played no role.

This questioning of innocence in DNA cases which result in exonerations is highlighted in the case of Robert Lee Miller who spent almost eleven years on death row in Oklahoma, convicted of the rape and murder of two elderly women. His conviction rested largely on forensic analysis showing that semen found at the scene matched Miller's blood type. However, DNA testing of that same sample later proved the semen belonged to an already-convicted rapist, Ronnie C. Lott, and not to Miller. As a result, Miller's conviction was overturned, and he was freed from death row.

However, as an article in the Daily Oklahoman reveals, prosecutors continued to insist that Miller was somehow involved in the crimes— “‘The DNA in the body fluids found on the bed ruled out that he (Miller) was the rapist,’ District Attorney Robert Macy said. ‘Yet we believe he was there.’”

Diana Baldwin, Macy Investigating Man Freed in Murder, Oklahoman (Nov. 10, 1999), https://oklahoman.com/article/2674426/macy-investigating-man-freed-in-murder.

At the time these statements were made, Lott had already been sentenced to twenty-five years for rapes of other elderly women which took place twenty blocks away from the scenes of Miller's supposed crimes. He had confessed and made no mention of a partner. Miller was an unquestionably innocent man, and yet his innocence was questioned repeatedly.

Another example of how little impact DNA can have on the trajectory of news coverage of exonerations is provided by Rudolph Holton's release from death row. Holton had an extensive criminal record, including convictions for armed robbery before he was sentenced to death in 1986 for murdering a seventeen-year-old prostitute in Tampa, Florida. He spent 16 years on death row for the crime before DNA proved that a hair found in the victim's mouth did not in fact match Holton's DNA.

A Tampa Bay Times article about Holton case quotes a member of the parole board who referred to DNA evidence as “a technicality,” which “doesn’t change what happened.”

Shannon Colavecchio-Van Sickler, Complicated Story Cuts an Early Release Short, Tampa Bay Times (Jan. 20, 2006), https://www.tampabay.com/archive/2006/01/20/complicated-story-cuts-an-early-release-short/.

Damon Thibodeaux

Alexandra Gross, Damon Thibodeaux, National Registry of Exonerations (Sept. 28, 2012), https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4004.

Given the conventions of modern journalism, it is not surprising that news coverage of exoneration is characterized by the continuing of an adversarial structure between the state and the exonerated. In this structure, the defense and the prosecution have very different relationships to time. Exoneration is a past tense designation. The defense focuses on a truth it claims to have always known, that the convicted person was truly innocent. The state sees exoneration as, at best, about discovery of things that could not have been known in the past, circumstances that changed, facts that are now known but could not have been known before.

The adversarial structure of exoneration's news coverage is exemplified in the coverage of the Gabriel Solache case.

Maurice Possley, Gabriel Solache, National Registry of Exonerations (Jan. 3, 2018), https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5252.

In news coverage of Solache's and Reyes’ release from death row, “First Assistant State's Attorney Eric Sussman said prosecutors still strongly believe Gabriel Solache and Arturo Reyes are guilty of the 1998 fatal stabbing of a couple in their Bucktown neighborhood home.”

Megan Crepeau, 2 Jailed in ‘98 Murders See Charges Dropped: State Cites Tainted Ex-Cop's Role in Confessions, Chi. Trib. (Dec. 22, 2017), http://digitaledition.chicagotribune.com/tribune/article_popover.aspx?guid=5f6d1b27-0867-475c-95cd-ed0553f436da.

As Table 6 reveals, in only one third of news stories about exoneration is blame attributed for the erroneous conviction. It often is difficult to point to a singular person, or department, more difficult perhaps to point to a rule or policy, and perhaps even more difficult to identify something that is fundamentally structurally wrong. In the absence of such attributions of blame, news coverage suggests that false convictions are, to borrow an idea from Judith Shklar, “misfortunes,” accidents for which no one can or should be held accountable, rather than “injustices.”

See Judith N. Shklar, The Faces of Injustice (1990).

When someone or something is blamed, blame is more often placed on an individual official within the criminal justice system than on the system itself. (See Table 7) Blaming “the state” in the general sense is as much a cry into the void, an expression of exasperation, as it is a genuine placement of blame.

Not surprisingly, exonerees or their advocates are most likely to point an accusing finger. (See Table 8) While police, prosecutors and other state officials are quoted more often than any other speakers in articles about exoneration, they were much less likely than those who have suffered a miscarriage of justice to find fault.

Anthony Graves represents a typical case in which blame appears in news coverage of exonerations. Graves, the 138^th person exonerated from death row,

Anthony Charles Graves, Infinite Hope: How Wrongful Conviction, Solitary Confinement, and 12 Years on Death Row Failed to Kill My Soul (2018).

In news coverage, Charles Sebesta, the prosecutor in the case, bears the brunt of the blame for Graves’ conviction. Stories refer to him to as “obsessed with death,”

The Editorial Board, Obsessed with Death, Dall. Morning News, Jan. 30, 2011, at P02.

Frank Lee Smith died of cancer while on Florida's Death Row, but, on December 15, 2000, he was posthumously exonerated by DNA which conclusively excluded him from guilt.

Glossary, National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/glossary.aspx (last visited Mar. 30, 2020).

During the appeals process, one witness recanted her identification of Smith, and Smith's defense team requested DNA testing of semen found on the victim. However, Smith died before those requests were granted. However, his case prompted Governor Jeb Bush to appoint a special prosecutor specifically to look into what went wrong. Newspapers blamed Captain Richard Scheff who was accused of lying to convict Smith.

See, e.g., Ardy Friedberg, Sheriff Supports Inquiry - Captain Is Accused of Lying in Testimony, Fla. Sun Sentinel, Mar. 2, 2001, at 1B; John Holland & Shannon O’Boye, Sheriff's Captain Accused of Lying - Officer Who Helped Send an Innocent Man to Death Row is Target of Inquiry by Special Prosecutor, Fla. Sun Sentinel, Mar. 1, 2001, at 1A.

In its coverage the Tampa Bay Times characterized the Smith case as an example of systemic failure rather than individual fault. Pulitzer Prize winning journalist Sydney P. Freedberg flatly notes that, “they got it all wrong. Florida locked up the wrong man for 14 years and left the real killer free - to commit other grievous crimes.”

Sydney P. Freedberg, He Didn’t Do It, Tampa Bay Times, Jan. 7, 2001, at 1A.

To say that someone has been exonerated is to name a singular truth, but newspapers conventionally present only different interpretations of that reality. Newspapers regularly communicate doubt about the connection between exoneration and actual innocence. They do so by avoiding the language of exoneration entirely and/or by conveying continuing adversarial perspectives on the meaning of miscarriages of justice in death cases.

It is rare that newspapers help their readers understand what forces produce such miscarriages of justice. Moreover, they generally do not focus on the traumatic experience of life on death row, the fear of imminent death, the isolation, the loss of relationships, the health battles, the psychological damage, and on the difficulty of adjusting to life on the outside. And, as we have shown above, they often avoid calling the exonerated person what they are: innocent.

In the end, our research suggests that the traction the recognition of miscarriages of justice has had in changing the national conversation around the death penalty has been gained in spite of, not because of, the way newspapers cover such events.