No. 15-650

In the Supreme Court
of the United States
SHONDA WALTER
Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA,
Respondent.
ON PETITION FOR WRIT OF
CERTIORARI TO THE SUPREME
COURT OF PENNSYLVANIA
BRIEF OF AMICUS CURIAE
WITNESS TO INNOCENCE IN
SUPPORT OF PETITIONER
JENIFER WICKS*
400 7th Street NW Suite 202
Washington, DC 20004
jenifer@jwickslaw.com
(202) 393-3004
*Counsel of record

 i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii
INTEREST OF THE AMICUS CURIAE .................. 1
SUMMARY OF ARGUMENT ................................... 1
ARGUMENT .............................................................. 2
I.

Three Illustrative Cases .................................. 2

A. Henry Lee McCollum ....................................... 3
B. Frank Lee Smith .............................................. 5
C. Ronald Williamson ........................................... 7
II.

Despite Safeguards, Systemic Errors Persist,
Resulting in Wrongful Convictions ............... 11

A. Inadequate representation ............................ 12
B. Government misconduct ................................ 13
C False confessions ............................................ 15
D. Unreliable forensic evidence .......................... 16
E. Reliance on informants .................................. 16
F. Eyewitness error ............................................ 18
CONCLUSION.......................................................... 20

 ii

TABLE OF AUTHORITIES
CASES
Atkins v. Virginia, 536 U.S. 304 (2002) .................... 2
Berger v. United States, 295 U.S. 78 (1935) ........... 13
Brady v. Maryland, 373 U.S. 83 (1963) ................. 13
Cone v. Bell, 556 U.S. 449 (2009) ........................... 14
Gore v. State, 119 P.3d 1268 (Okla. 2005) ............. 11
N. Marial Islands v. Bowie, 243 F.3d 1109 (9th Cir.
2001) ........................................................................ 18
On Lee v. United States, 343 U.S. 747 (1952) ........ 18
Smith v. State, 515 So. 2d 182 (Fla. 1987) ............... 6
State v. McCollum, 334 N.C. 208, 433 S.E.2d 144
(1993) ......................................................................... 5
Strickland v. Washington, 466 U.S. 668
(1984) ................................................................. 12, 13
United States v. Bagley, 473 U.S. 667 (1985) ......... 14
United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir.
1993) ......................................................................... 18
Williamson v. State, 812 P.2d 384 (Okla. 1991)…...10
Williamson v. State, 905 P.2d 1135 (Okla. 1991) .. 10

 iii
Williamson v. Ward, 110 F.3d 1508
(10th Cir. 1997) ........................................................ 11
OTHER AUTHORITIES
ACAD. OF SCI., STRENGTHENING FORENSIC SCIENCE IN
THE UNITED STATES: A PATH FORWARD (Feb. 18,
2009) ..................................................................... 16
BARRY SCHECK, PETER NEUFELD & JIM DWYER,
ACTUAL INNOCENCE, 26-57 (Doubleday 2000) ..... 17
Bill Moushey, Win at All Costs (10-part series)
Pittsburgh Post-Gazette (1998) ........................... 15
Brandon L. Garrett, The Substance of False
Confessions, 62 STAN. L. REV. 4 (2010) ................ 15
BRIAN CUTLER, & STEPHEN PENROD, MISTAKEN
IDENTITY (Cambridge University Press 1995) .... 19
EMILY M. WEST, COURT FINDINGS OF INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIMS IN POSTCONVICTION APPEALS AMONG THE FIRST 255 DNA
EXONERATION CASES (2010). ................................ 13
G.D. LASSITER & JENNIFER J. RATCLIFF, EXPOSING
COERCIVE INFLUENCES IN THE CRIMINAL JUSTICE
SYSTEM IN INTERROGATIONS, CONFESSION AND
ENTRAPMENT 1, 4 (G.D. Lassiter ed. 2004) .......... 15
George C. Harris, Testimony for Sale: The Law and
Ethics of Snitches and Experts, 28 PEPP. L. REV. 1,
54 (2000) ............................................................... 18
GISLI H. GUDJONNSON, THE PSYCHOLOGY OF
INTERROGATIONS AND CONFESSIONS: A HANDBOOK
631-662 (2003) ...................................................... 15

 iv
Hugo Bedau & Michael Radelet, Miscarriages of
Justice in Potentially Capital Cases, 40 STAN. L.
REV. 21, 173 (1987) ............................................... 17
ILLINOIS GOVERNOR’S COMMISSION ON CAPITAL
PUNISHMENT (April 2002) .................................... 17
KATHLEEN RIDOLFI & MAURICE POSSLEY, NORTHERN
CALIFORNIA INNOCENCE PROJECT, PREVENTABLE
ERROR: A REPORT ON PROSECUTORIAL MISCONDUCT
IN CALIFORNIA 1997–2009 .................................... 14
KATHLEEN RIDOLFI, CALIFORNIA COMMISSION ON THE
FAIR ADMINISTRATION OF JUSTICE: PROSECUTORIAL
MISCONDUCT: A SYSTEM REVIEW (2007) ............... 14
Ken Armstrong & Maurice Possley, Trial & Error:
How Prosecutors Sacrifice Justice to Win (Parts 1–
5), Chicago Tribune (1999) ................................... 14
Richard A. Leo & Richard J. Ofshe, The
Consequences of False Confessions: Deprivations of
Liberty and Miscarriages of Justice in the Age of
Psychological Interrogation, 88 J. Crim. L. &
Criminology 429 (1998) ........................................ 16
STEVE WEINBERG ET AL., THE CENTER FOR PUBLIC
INTEGRITY, HARMFUL ERROR: INVESTIGATING
AMERICA’S LOCAL PROSECUTORS (2003) ............... 15

 1
INTEREST OF THE AMICUS CURIAE
Witness to Innocence (WTI) is a non-profit
organization of exonerated death row survivors and
their loved ones. 1 Through public speaking,
testifying in state legislatures, media work, and
active participation in the nation’s cultural life, its
members educate the public about wrongful
convictions. WTI also provides an essential network
of peer support for the exonerated, most of whom
received no compensation or access to reentry
services when released from death row. Witness to
Innocence is particularly concerned with this case
because its members have been personally impacted
by the failures of the criminal justice system. WTI
believes this brief can offer the Court its unique
perspective on the death penalty in America.
SUMMARY OF ARGUMENT
If the imposition of the death penalty is a
profound contradiction in a nation founded on
principles of justice, human rights, and civil liberties,
it is even more so when death sentences are handed
out to the innocent. Because the system has
consistently failed to protect innocent people from
wrongful conviction, the sentence of death violates

Pursuant to Supreme Court Rule 37.3, the parties have
consented to the filing of this brief. Pursuant to Rule 37.6,
Witness to Innocence states that no counsel for a party
authored this brief in whole or in part, and no such counsel or
party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than
the amicus, or its counsel, made a monetary contribution
intended to fund its preparation or submission.
1

 2
the Eighth Amendment’s prohibition against cruel
and unusual punishment.
The American criminal justice system provides
insufficient safeguards against the execution of
innocent people. The death penalty is fraught with
risk of fatal errors, most notably inadequate
representation, government misconduct, false
confessions, unreliable forensic evidence, reliance on
informant testimony, and eyewitness error. Once
convicted, a death row prisoner faces enormous
obstacles in convincing the courts that he or she is
innocent. As long as the death penalty remains a
part of the American justice system, innocent people
will continue to be sentenced to death. Some will be
executed. It is inevitable. Ultimately, the abolition of
the death penalty is the only guarantee against such
tragic mistakes.
ARGUMENT
I. Three Illustrative Cases
The criminal justice system does not adequately
protect innocent defendants. In 2002, this Court used
the word “disturbing” to describe the number of
instances in which individuals had been sentenced to
death but later exonerated. Atkins v. Virginia, 536
U.S. 304, 320 n.25 (2002). At that time, there was
evidence of approximately 60 exonerations in capital
cases. Today, 156 people in 26 states have been
released from death row upon evidence of their
innocence. See http://www.deathpenaltyinfo.org/
innocence-and-death-penalty.
Amicus highlights three illustrative cases,
quoting facts as found by the state courts in
affirming the convictions and death sentences. In

 3
each, the courts responsible for ensuring these
defendants were given fair trials were satisfied of
their guilt, as evidenced by the factual portrayals in
the appellate opinions. Yet each was ultimately
exonerated. These cases are examples of what can
and does go wrong.
A. Henry Lee McCollum
30 years on death row
On Sunday, 25 September 1983 at
approximately 12:20 a.m., Ronnie Lee Buie
noticed that his eleven-year-old daughter,
Sabrina Buie, was missing from their home in
Robeson County [North Carolina] when he
returned home from working the midnight
shift at a nearby business. On 26 September
1983, James Shaw, a friend of Ronnie Lee
Buie, found Sabrina Buie’s nude body in a
soybean field. An autopsy was performed upon
the body of Sabrina Buie. Linear abrasions on
her back and buttocks revealed a pattern
indicating that the body had been dragged
over a rough surface. There was a tear or
laceration deep within the victim’s vagina and
a tear or laceration in her anal canal.
Petechial hemorrhaging, characterized as the
bursting of small blood vessels caused by
pressure, was observed in the victim’s eyes.
Similar hemorrhaging caused by a pressure
mechanism was also observed in the heart and
lungs. The brain appeared slightly swollen due
to a lack of oxygen. A stick and pair of panties
were wedged in the victim’s throat, completely
obstructing the airway. Dr. Deborah Radisch,
Chief Assistant Medical Examiner for the

 4
State of North Carolina, testified that the
victim died of asphyxiation.
The defendant, Henry Lee McCollum, gave
a statement to law enforcement officers on 28
September 1983. 2 In this statement, the
defendant McCollum said that he saw Sabrina
Buie and Darrell Suber come out of Suber’s
house at approximately 9:30 p.m. on 24
September 1983. McCollum, Chris Brown,
Louis Moore and Leon Brown joined Sabrina
Buie and Darrell Suber, and the group then
went to a “little red house near the ballpark.”
The five males tried to convince Sabrina to
have sexual intercourse with them, but she
refused. Two of the males went to a store and
purchased some beer. When they returned, the
males discussed having sexual intercourse
with Sabrina. Louis Moore refused to
participate and left. The four remaining males
and Sabrina then walked across a soybean
field and sat in some bushes where they drank
beer. Suber stated that he was going to have
sexual intercourse with Sabrina. At this point,
the defendant McCollum grabbed Sabrina’s
right arm and Leon Brown grabbed her left
arm. Eleven-year-old Sabrina then began to
yell, “Mommy, Mommy” and “Please don’t do
it. Stop.” Suber then raped Sabrina while the
defendant and Brown held her arms.
Subsequently, each man raped Sabrina while
2 No physical evidence tied Mr. McCollum or Mr. Brown, both
African-American, as was the victim, to the crime. But a local
teenager cast suspicion on Mr. McCollum, who with his half
brother had recently moved from New Jersey and was
considered an outsider. Katz & Eckholm, DNA Evidence Clears
Two Men in 1983 Murder, N.Y. Times, Sept. 3, 2014, p. A1.

 5
the others held her. Leon Brown then
sodomized the child while Chris Brown held
her. After the men had raped and sodomized
Sabrina, Suber said “we got to do something
because she’ll go uptown and tell the cops we
raped her. We got to kill her to keep her from
telling the cops on us.” The defendant
McCollum grabbed Sabrina’s right arm while
Leon Brown grabbed her left arm. Chris
Brown knelt over Sabrina’s head and pushed
her panties down her throat with a stick while
Leon Brown and the defendant held her down.
After determining that the child was dead, the
defendant and Chris Brown dragged her body
away to a bean field to hide it from view.
State v. McCollum, 334 N.C. 208, 218-19, 433
S.E.2d 144, 149 (1993).
On September 2, 2014, thirty years after
McCollum’s convictions in this rape and murder,
Superior Court Judge Douglas C. Sasser vacated his
convictions and death sentence and ordered his
release. Both McCollum and his half-brother Leon
Brown were found to have been coerced into false
confessions, in part due to their mental disabilities.
DNA evidence implicated Roscoe Artis whose
possible involvement had been overlooked even
though he lived a block from the location of the
discovery of the body of Sabrina; only weeks after the
murder, Mr. Artis has also confessed to the rape and
murder of an 18-year old girl in Red Springs.
B. Frank Lee Smith
15 years on death row

 6
The victim, an eight-year-old female, was
raped, sodomized, and beaten severely by a
blunt
instrument
in
her
home
at
approximately 11 p.m. on April 14, 1985. She
later died from the injuries. A rock used in the
beating was found outside the room where the
beating occurred. Two witnesses identified
appellant as a man they had encountered in
the street outside the home approximately
thirty minutes before the crime. One of the
witnesses testified that appellant made a
homosexual solicitation to him and, when
rebuffed, stated he would have to masturbate.
The mother of the victim identified appellant
as a man she saw leaning into the window
when she returned home at approximately
11:30 p.m. and discovered the crime.
Apparently as part of a burglary, a television
set had been moved to the window where the
appellant was seen. Appellant was arrested
based on a composite drawing and
identification by one of the witnesses after he
returned to the neighborhood attempting to
sell a television set. He waived his rights to
remain silent and to have a lawyer present
and denied he committed the crimes or had
been in the neighborhood for months.
However, when falsely told that the victim’s
young brother had seen him commit the
crimes, appellant replied that the brother
could not have seen him because it was too
dark.
Smith v. State, 515 So.2d 182, 183 (Fla. 1987).
After the trial, the chief eyewitness recanted her

 7
testimony. Nevertheless, Smith was scheduled for
execution in 1990, but received a stay. Smith died of
cancer on death row in January 2000. After Mr.
Smith’s death, prosecutor Carolyn McCann was told
by the FBI lab which conducted the posthumous
DNA tests that: “He has been excluded. He didn’t do
it.” See http://articles.latimes.com/2000/dec/15/
news/mn-421. Eddie Lee Mosley was confirmed by
DNA testing as the rapist and murderer. See
Requiem for Frank Lee Smith by Frontline.
http://www.pbs.org/wgbh/pages/frontline/shows/
smith/.
C.

Ronald Williamson
11 years on death row

On December 8, 1982, twenty-one (21) year
old Debbie Carter was found dead in her
garage apartment in Ada, Oklahoma. She was
discovered by her father, who had come to
check on her at her mother’s request, fearing
that something might be wrong. Walking up
the stairs to the second floor apartment, Mr.
Carter observed glass covering the landing
and the screen door and front door standing
wide open. Walking through to the bedroom,
he found Debbie’s body laying face down on
the floor with a washcloth stuck in her mouth.
The police were called and the investigation
into the murder began.
***
Detective [Dennis] Smith . . . testified
that on March 14, 1983, he interviewed the
Appellant at his mother’s home. When shown

 8
a photograph of the decedent, Appellant stated
that he thought he knew her but he was not
sure. His mother said that she was sure
Appellant had nothing to do with the murder
as he was home that night by 10:00 p.m. The
Appellant was asked for hair and saliva
samples. He cooperated, voluntarily appearing
at the police station to comply with the
request.
***
Melvin Hett, forensic chemist with OSBI,
also testified in detail to procedures and
results in his analysis of hair and fibers
retrieved from the crime scene. His results
showed: (1) two (2) hairs found on the
washcloth were microscopically consistent
with scalp hairs from Appellant; (2) two (2)
hairs found on the decedent’s bedding were
microscopically consistent with pubic hairs
from the Appellant; (3) two (2) hairs found on
the decedent’s underwear were microscopically
consistent with pubic hairs from Dennis Fritz;
(4) seven (7) hairs found on the bedding were
microscopically consistent with pubic hairs
from Dennis Fritz; (5) two (2) hairs found on
the washcloth were microscopically consistent
with scalp hairs from Dennis Fritz.
***
The preliminary hearing testimony of Glen
Gore, declared to be unavailable to testify at
trial, was read to the jury. Mr. Gore testified
that he saw both the decedent and the
Appellant at the Coachlight Club during the
early morning hours of December 8, 1982.

 9
When he went up to the bar to get a drink,
Debbie Carter asked him if he would “rescue”
her. She told him the Appellant was “bugging”
her. (Tr. 331) Later, around closing time, when
the lights were being turned on, Gore saw the
Appellant talking to the decedent.
***
Terri Holland was an inmate of the
Pontotoc County jail from October 1984, until
January 1985. She testified that she had
overheard the Appellant, who was periodically
in jail during that time, talk about the murder
of Debbie Carter. Ms. Holland stated that she
overheard Appellant remark to other prisoners
that if Debbie Carter had cooperated with him
he would never had to kill her.
Appellant described the crime stating
that “he shoved a coke bottle up her ass and
her panties down her throat.” (Tr. 575) On
another occasion, Ms. Holland overheard a
telephone conversation between Appellant and
his mother wherein Appellant threatened his
mother, telling her if she did not do as he said
that he would have to kill her like he did
Debbie Carter.
***
[OSBI] Agent [Gary] Rogers stated that he
interviewed the Appellant on May 9, 1987.
After reading the Appellant the Miranda
warning and receiving a waiver of his rights,
Rogers questioned Appellant about the Carter
homicide. Appellant told Rogers that he was at

 10
the Coachlight Club on December 8, 1982,
when he saw a pretty girl and decided to
follow her home. Rogers stated that Appellant
started to continue his tale but then just
stopped and paused for a few minutes. He
resumed the conversation talking about
another topic, but Agent Rogers brought him
back to the subject of the homicide. Appellant
said he had a dream about killing Debbie
Carter. In the dream he was on top of her,
with a cord around her neck, stabbed her
repeatedly, and pulled the rope tight around
her neck. Appellant paused and then stated
that he was worried about what this would do
to his family. After another long pause,
Appellant said that Dennis Fritz was there
with him, and that he went to the apartment
with the intention of killing the decedent
because she had made him mad. Appellant
then looked to the floor and said “oh my god, ...
you cannot expect me to confess.” .... “I’ve got
my family; I’ve got a nephew to protect, my
mother and sister.... it’ll tear them up—or my
sister, it’ll tear them up.... it can’t hurt my
mother, .. she’s dead, you know, it’s been on
my mind since it happened.” (Tr. 450)
Appellant then requested an attorney and the
interview ceased.
Williamson v. State, 812 P.2d 384, 390-93 (Okla.
1991) order corrected, 905 P.2d 1135 (Okla. 1991).
Upon being convicted, Williamson was sentenced to
death. In 1997, Williamson’s conviction was reversed
by the Tenth Circuit Court of Appeals based on
ineffective assistance of counsel and the State was
ordered to retry him or permanently release him

 11
from custody. Williamson v. Ward, 110 F.3d 1508
(10th Cir. 1997).
In preparation for the new trial, samples of hair
and bodily fluids taken from Williamson and Fritz
were submitted for the newly available DNA
analysis. Williamson’s defense counsel, Mark
Barrett, also sought to interview Gore and obtain
samples for DNA testing; Gore refused Barrett’s
request to provide samples of his hair and bodily
fluids for DNA testing. The results of the DNA
testing excluded Williamson as a donor of the sperm
found in the victim and the case against him was
ultimately dismissed. Subsequent DNA testing of
samples taken from Gore showed he was the donor of
the sperm found inside the victim. See Gore v
Oklahoma, 119 P.3d 1268 (Okla. 2005).
II. Despite Safeguards, Systemic Errors
Persist,
Resulting
in
Wrongful
Convictions
These three examples demonstrate that critical
errors, singly or in combination, can result in
innocent people ending up on death row. Henry Lee
McCollum was exonerated after DNA showed that
police coerced two mentally disabled teenagers into
confessing to a rape murder and ignored a suspect
who truthfully confessed to a similar rape murder,
based on an even younger informant. Frank Lee
Smith was convicted based on his false confession
and unreliable and untruthful testimony; DNA
showed the error of the testimony. Ronald
Williamson was granted a new trial based on
ineffective assistance of his trial counsel and then
available DNA testing showed that he was had been
convicted based on the testimony of the actual rapist

 12
and murderer as well as a jailhouse snitch,
unreliable hair evidence, and his false confession.
The system is not infallible and the fact that
these issues remain thirty-nine years after this
Court decided Gregg v Georgia, shows that it is
unlikely to ever be sufficiently “fixed” to eliminate
the risk of executing the innocent.
A. Inadequate representation
Despite the Sixth Amendment’s guarantee of the
effective assistance of counsel, including providing
representation for indigent defendants, the lack of
national standards for creating and funding this
representation has left most states with inadequate,
underfunded systems. 3 This systemic problem has
led to reliance on overburdened, and sometimes
incompetent defense lawyers, to represent the
accused without adequate funding for investigators
and experts, all of which can contribute to an
inadequate defense, and, in turn, wrongful
convictions.
In Strickland v. Washington, 466 U.S. 668 (1984),
this Court set a two‐prong test to determine
ineffectiveness—counsel’s representation must fall
below an objective standard of reasonableness, and
there must be reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. But, in
evaluating the performance of counsel, this Court
stated that courts “must be highly deferential…A
court must indulge a strong presumption that
THE CONSTITUTION PROJECT, JUSTICE DENIED: AMERICA’S
CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO
COUNSEL (2009).
3

 13
counsel’s performance was within the wide range of
reasonable professional assistance.” Id.
The Strickland standard, as enforced by our
courts, often fails to ensure that only the guilty are
convicted. A review of published appeals among the
DNA exonerations reveals that 54 exonerees (about 1
in 5) raised claims of ineffective assistance of counsel
and courts rejected these claims in the overwhelming
majority of cases. Emily M. West, Court Findings of
Ineffective Assistance of Counsel Claims in PostConviction Appeals Among the First 255 DNA
Exoneration Cases (2010).
B. Government Misconduct
Eighty years ago, in reversing a conviction
because of prosecutorial misconduct, this Court
articulated the paramount obligation of a prosecutor:
“[A] prosecutor has a duty to refrain from improper
methods calculated to produce a wrongful
conviction… [While he] may strike hard blows, he is
not at liberty to strike foul ones.” Berger v United
States, 295 U.S. 78, 88 (1935). The Court emphasized
the critical role the prosecutor plays in a judicial
system like ours, one that is aimed at justice, not
simply conviction: The prosecutor “is the
representative… of a sovereignty whose… interest in
a criminal prosecution is not that it shall win a case,
but that justice shall be done.” Id. Because the
prosecutor
had
misstated
evidence,
bullied
witnesses, put words into the mouth of a witness and
intimated facts he knew were false, this Court
overturned the conviction.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), this
Court held that due process requires the prosecution
to turn over evidence favorable to the accused and

 14
material to his guilt or punishment. Brady, this
Court has long recognized, is among the most basic
safeguards brigading a criminal defendant’s fair trial
right. See Cone v. Bell, 556 U.S. 449 (2009). See also
United States v. Bagley, 473 U.S. 667 (1985)
(Marshall, J., dissenting).
Unfortunately, the problem of prosecutorial
misconduct persists; some prosecutors continue to
use these very tactics to obtain convictions in capital
cases. See Connick v Thompson, 563 U.S. (2011)
(Ginsberg, J., dissenting)(“As the trial record in the §
1983 action reveals, the conceded, long-concealed
prosecutorial transgressions were neither isolated
nor atypical. From the top down, the evidence
showed, members of the District Attorney’s Office,
including the District Attorney himself, misperceived
Brady’s compass and therefore inadequately
attended to their disclosure obligations.”); KATHLEEN
RIDOLFI & MAURICE POSSLEY, NORTHERN CALIFORNIA
INNOCENCE PROJECT, PREVENTABLE ERROR: A REPORT
ON PROSECUTORIAL MISCONDUCT IN CALIFORNIA
1997–2009 (2010) citing JAMES LIEBMAN, JEFFREY
FAGAN, AND VALERIE WEST, A BROKEN SYSTEM:
ERRORS IN CAPITAL CAUSES 1973–1995 (2000)
(reviewed 5,760 capital cases nationwide to examine
prejudicial
error,
including
prosecutorial
misconduct);
KATHLEEN
RIDOLFI,
CALIFORNIA
COMMISSION ON THE FAIR ADMINISTRATION OF
JUSTICE: PROSECUTORIAL MISCONDUCT: A SYSTEM
REVIEW (2007) (reviewed all appeals alleging
prosecutorial misconduct in California between 1996
and 2007 and reported the court findings and any
subsequent
prosecutorial
disciplining);
Ken
Armstrong & Maurice Possley, Trial & Error: How
Prosecutors Sacrifice Justice to Win (Parts 1–5),
Chicago Tribune (1999) (reviewed court record and

 15
appeals across the country between 1963 and 1999 to
determine how many homicide convictions were
overturned because of prosecutorial misconduct); Bill
Moushey, Win at All Costs (10-part series)
Pittsburgh Post-Gazette (1998) (review of federal
prosecutorial misconduct across the country); STEVE
WEINBERG ET AL., THE CENTER FOR PUBLIC INTEGRITY,
HARMFUL ERROR: INVESTIGATING AMERICA’S LOCAL
PROSECUTORS (2003).
C. False Confessions
When a defendant has confessed or made
admissions about a crime, the vast majority of police,
prosecutors, and jurors see it as rock-solid evidence
of guilt. Most people find it incomprehensible that
someone would confess to a crime he or she did not
commit. But, in 25 percent of all DNA exonerations,
defendants have done just that—confessed to crimes
that they did not commit. See Professor Steven
Drizin’s
False
Confession
Blog
(http://www.falseconfessions.org/blog/); Brandon L.
Garrett, The Substance of False Confessions, 62
STAN. LAW REV. 4 (2010); G.D. Lassiter & Jennifer J.
Ratcliff, Exposing Coercive Influences in the Criminal
Justice System in INTERROGATIONS, CONFESSION AND
ENTRAPMENT 1, 4 (G.D. Lassiter ed. 2004); Gisli H.

Gudjonnson, THE PSYCHOLOGY OF INTERROGATIONS
AND CONFESSIONS: A HANDBOOK 631-662 (2003)
(citing nearly 800 articles in areas relating to false
confessions and police interrogations); Saul M. Kassin &
Gisli Gudjonnson, The Psychology of Confessions: A
Review of the Literature and Issues, 5 PSYCH. SCI. IN
THE PUB. INT. 35-59 (Nov. 2004); Richard A. Leo &
Richard J. Ofshe,

The Consequences of False

 16
Confessions:
Deprivations
of
Liberty
and
Miscarriages of Justice in the Age of Psychological
Interrogation, 88 J. CRIM. L. & CRIMINOLOGY 429
(1998). Whatever the cause of this phenomenon, the
prevalence of false confessions contributes to the
high rate of wrongful convictions.
D. Unreliable forensic evidence
Since the late 1980s, DNA analysis has helped
identify the guilty and exonerate the innocent. While
DNA testing was refined following extensive
scientific research, many other forensic techniques—
such as hair microscopy, bite mark comparisons,
firearm tool mark analysis and shoe print
comparisons—have not been subjected to sufficiently
rigorous scientific evaluation. Meanwhile, forensics
techniques that have been properly validated—such
as serology—are sometimes improperly conducted or
inaccurately conveyed in trial testimony. In some
cases, forensic analysts have fabricated results or
engaged in other misconduct. While DNA
exonerations assist us in exposing how invalid or
improperly conducted forensics have contributed to
wrongful convictions, DNA testing alone cannot solve
the problem since it is estimated that at most 10% of
all criminal cases involve biological evidence that
could be subjected to DNA testing. See, e.g., NAT’L
ACAD. OF SCI., STRENGTHENING FORENSIC SCIENCE IN
THE UNITED STATES: A PATH FORWARD (Feb. 18,
2009) (identifying problems in the forensic sciences).
E. Reliance on informants
A growing literature documents the inherent
unreliability of compensated witnesses, cooperating

 17
co-conspirators, “jailhouse snitches,” and other types
of informants. Numerous accounts of wrongful
convictions based on perjurious informant testimony
have emerged, and they have prompted official
review of the practice of permitting compensated
informant testimony. For example: (1) The founders
of the Innocence Project discovered that twenty-one
percent of the innocent defendants on death row
were placed there by false informant testimony.
BARRY SCHECK, PETER NEUFELD & JIM DWYER,
ACTUAL INNOCENCE, 26-57 (Doubleday 2000); (2) The
Illinois
Governor’s
Commission
on
Capital
Punishment
unanimously
concluded
that
“[t]estimony from in-custody witnesses has often
been shown to have been false, and several of the
thirteen cases of men released from death row
involved, at least in part, testimony from an incustody informant.” The Commission recommended
the holding of reliability hearings to mitigate the
chances of perjury, ILLINOIS GOVERNOR’S COMMISSION
ON CAPITAL PUNISHMENT, CHAPTER 8 (April 2002); (3)
Bedau and Radelet in their comprehensive historical
study discovered that one-third of the 350 erroneous
convictions they studies were due to “perjury by
prosecution witnesses,” twice as many as the next
leading
source—erroneous
eyewitness
identification—and stemming in large part from the
prevalence of co-conspirator testimony. Hugo Bedau
& Michael Radelet, Miscarriages of Justice in
Potentially Capital Cases, 40 STAN. L. REV. 21, 173
(1987).
Courts likewise have recognized the inherent
unreliability of compensated informants, going so far
as to take judicial notice of their tendency to lie. “The
use of informants to investigate and prosecute
persons engaged in clandestine criminal activity is

 18
fraught with peril. This hazard is a matter ‘capable
of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be
questioned’ and thus of which we can take judicial
notice.” United States v. Bemal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993). “Our judicial history is speckled
with cases where informants falsely pointed the
finger of guilt at suspects and defendants, creating
the risk of sending innocent persons to prison.” Id.
Another court has noted that “[nlever has it been
more true that a criminal charged with a serious
crime understands that a fast and easy way out of
trouble with the law is . . . to cut a deal at someone
else’s expense and to purchase leniency from the
government by offering testimony in return for
immunity, or in return for reduced incarceration.”
Northern Marial Islands v. Bowie, 243 F.3d 1109,
1123 (9th Cir. 2001). Indeed, long before “snitching”
became a pervasive aspect of the criminal justice
system, this Court recognized that “[tlhe use of
informants, accessories, accomplices, false friends, or
any of the other betrayals which are ‘dirty business’
may raise serious questions of credibility.” Lee v.
United States, 343 U.S. 747, 755 (1952).
Yet despite the unreliability of this type of
evidence prosecutors continue to rely on informants
to gain convictions. George C. Harris, Testimony for
Sale: The Law and Ethics of Snitches and Experts, 28
Pepp. L. Rev. 1, 54 (2000).
F. Eyewitness error
Eyewitness misidentification is the greatest
contributing factor to wrongful convictions, playing a
role in more than 70% of convictions overturned
through DNA testing nationwide. Despite a high rate

 19
of error (as many as 1 in 4 stranger eyewitness
identifications are wrong), eyewitness identifications
are considered some of the most powerful evidence
against a suspect. But eyewitness identifications are
subject to such a high rate of error because (1)
witnesses are subject to high stress or anxiety; (2)
the human memory tends to reconstruct incidents
because humans do not have the capability to record
memories like a video recorder; (3) witnesses often
focus on weapons, not the identity of the perpetrator;
(4) suggestive eyewitness identification procedures
used by police or prosecutorial agencies; and (5)
cross-racial eyewitness identifications are known to
be incredibly suspect. See, e.g., BRIAN CUTLER, B. &
STEPHEN PENROD, MISTAKEN IDENTITY (Cambridge
University Press 1995).
Yet, jurors treat eyewitness identification as
compelling evidence, and are not always sensitive to
the risk misidentification. Id. As long as prosecutions
are reliant on identification evidence, there will
always be a risk of a mistake.

 20

CONCLUSION
For these reasons, this Court should grant
certiorari in this matter.

Respectfully submitted,
JENIFER WICKS
400 7th Street NW Suite 202
Washington, DC 20004
jenifer@jwickslaw.com
(202) 393-3004
Counsel of Record, Witness to
Innocence