21,000 Years Lost and Counting: Prosecutors Are Working to Clear Wrongful Convictions, but Their Record Is Mixed

Before the charges against him were finally dismissed, Richard Phillips spent more than 45 years in prison for a crime he did not commit, earning him the dubious distinction of having been locked up longer than any other exoneree to date. He is one of 2,425 wrongfully convicted individuals exonerated since 1989, who have collectively spent more than 21,000 years behind bars.

Phillips was one of the 151 individuals exonerated in 2018 alone, according to a new report from the National Registry of Exonerations, a compendium of wrongful convictions cases. His release and eventual exoneration were facilitated by what the report calls “professional exonerators” — innocence organizations, independent or law school-affiliated nongovernmental groups, and conviction integrity units housed within prosecutors’ offices — whose influence in righting wrongful convictions is growing. In 2018, they were responsible for two-thirds of the exonerations reported by the registry; in nearly half of those cases, the innocence organization and CIU worked together to clear the wrongfully convicted, including in the case of Richard Phillips.

In March 1972, nearly nine months after 21-year-old Gregory Harris left his Detroit, Michigan, home to buy a pack of cigarettes, his body was found by the roadside some 24 miles north in the city of Troy. He’d been shot in the head. Two weeks later, Harris’s brother-in-law Fred Mitchell was arrested for an unrelated armed robbery and carrying a concealed weapon. And he had a story to tell.

Richard Phillips, right, hugs Detective Patricia Little in a Wayne County, Mich., courtroom on March 28, 2018.

It was an elaborate one, about how he’d already told police — back in the summer of 1971, after he’d been popped for carrying a .22 pistol — that two men he knew, Richard Phillips and Richard Palombo, had pulled him unwittingly into a plot to kill Harris as part of a mob-related beef. While there was no record of Mitchell having previously told the cops this story, based solely on his account of the crime, Phillips and Palombo were charged with first-degree murder. Indeed, when they were tried just months later, the only physical evidence the state had was a ballistics match between the .22 Mitchell was caught with the year before and two bullets recovered from Harris’s body.

Mitchell denied that he’d been given a deal on his armed robbery charge in exchange for his testimony, but lawyers for Phillips and Palombo made some headway during cross-examination, drawing out inconsistencies in the various stories Mitchell told police. Palombo’s parents testified that no one in the family was connected to the mob, as Mitchell had alleged. Still, Phillips and Palombo were found guilty and each was sentenced to life without parole.

After several appellate twists and turns — including the revelation that Mitchell had been given a deal in exchange for his testimony after all, information the state should have disclosed — Palombo finally admitted in the summer of 2010 that he and Mitchell were responsible for Harris’s death; Mitchell was mad at Harris because he’d allegedly stolen $500 from Mitchell’s mother. When asked about Phillips’s involvement, Palombo said that at the time of the murder, he didn’t even know Phillips. “And as far as I know, he had nothing to do with anything,” Palombo said, according to the registry.

Eventually, the University of Michigan Law School’s innocence clinic was tipped off to Palombo’s confession and got involved in Phillips’s case. (The UM and Michigan State University law schools, along with the University of California, Irvine’s Newkirk Center, are partners in the registry.) In December 2017, Phillips was finally released on bond. In January 2018, Wayne County Prosecutor Kym Worthy formed a conviction integrity unit, and it too took up Phillips’s case. The unit found additional problems and within months formally dismissed the case against him.

In announcing Phillips’s exoneration, Worthy did what few prosecutors have done so plainly: She apologized. “The system failed him,” she said. “Nothing that I can say will bring back years of his life spent in prison. Justice is truly being served today.”

Wayne County Prosecutor Kym Worthy in Detroit on April 20, 2015.

A Growing Trend

It was a watershed moment for the Wayne County CIU; Phillips was their first exoneration, but in just over a year of operation, the office, led by a veteran state appellate defender, has already cleared five more wrongful convictions — four murders and a child sex abuse case.

(Overall, 101 of the 151 exonerations last year involved violent crimes; 46 percent were homicide cases. And this number could still grow; because of the complexity of tracking cases of wrongful conviction, the registry typically has to revise its year-end numbers as it learns of additional exonerations it initially missed.)

The Wayne County unit is part of a national trend highlighted by the registry. Not only has the number of conviction integrity units steadily increased since the first were formed in 2002 — there are now 45 across the country, with eight new units coming online in 2018 alone — but they also are increasingly working in concert with innocence organizations.

Illinois’s Cook County CIU, working with the University of Chicago School of Law, accounted for 31 exonerations last year, all of which were tied to the bribery and protection scheme run by Chicago Police Sgt. Ronald Watts and his officers — the subject of The Intercept’s “Code of Silence” series. (To date, more than 60 cases related to the scandal have been dismissed, according to the registry.)

The report notes that while the Chicago exonerations arose out of a single, far-reaching scandal (similar to a spate of dismissals in Houston tied to a problem at the crime lab), the Wayne County CIU has undertaken investigations into cases that weren’t exactly low-hanging fruit; they have not relied on DNA evidence, and they spanned from 1971 to 2006, making them the kind of cases that the report says require a commitment of “extraordinary resources.”

By the time Valerie Newman was hired to run the nascent Detroit CIU, she already had a reputation as a fierce advocate with a talent for freeing the innocent. She’d spent more than 20 years as a Michigan public appellate defender and had clashed with Wayne County prosecutors on more than one occasion. And while she says she can’t speak for Worthy, Newman knows it was her reputation that put her on the radar as a contender to head up the CIU. “From what I’ve heard her say before, that’s one of the reasons why she wanted someone like me, because she knows that I have integrity,” Newman said. “I’m someone who knows what I’m doing and can be trusted to do a good job.”

Bobby Hines, right, with his then-attorney Valerie Newman at Royal Barbeque in Detroit on Sept. 12, 2017.

Key to the Detroit unit’s success, Newman says, are the DA’s support and the unit’s independence within the office. She and Worthy worked hard to come up with protocols for how the unit would work, Newman says, and in addition to her boss, the Detroit Police Department and other law enforcement organizations, as well as the local court system, have been supportive of the CIU’s work.

The office has two part-time attorneys and two full-time attorneys, including Newman, with another coming on board soon. There is also a full-time detective — a veteran of the Detroit Police Department — and a full-time support person. It’s robust staffing for such a young unit, and Newman says that was also Worthy’s doing. “She wanted sufficient funding so that … the unit could operate in good faith and do its work.”

Newman was the CIU’s lead attorney on the Phillips case, which had already made local headlines after a judge agreed with the University of Michigan’s Innocence Clinic in late 2017 that Phillips should be granted a new trial. Newman reached out to David Moran, who leads the university’s clinic, to say that the unit was going to do its own investigation. Ultimately, Newman’s office found additional evidence to back up what Moran’s team had already found, and several months later, Worthy announced that the case would be dismissed once and for all.

Moran said that to him, the fact that the CIU turned up additional evidence of Phillips’s innocence “was a very good sign” that the unit and the DA’s office as a whole was actually committed to this work. “There’ve been many conviction integrity units opened around the country, and not all of them have been very good. Some of them, I think, can be pretty safely called window dressing,” he said. “Just putting up a shingle somewhere in the prosecutor’s office and saying we have a conviction integrity unit doesn’t really do it.”

A Mixed Record

Where Wayne County had tremendous success in its first year — and is on track to surpass that first-year total — the registry report describes a number of CIUs that have been in operation for at least five years and have yet to produce a single exoneration. (The district attorney’s office in California’s San Bernardino County even refused to publicly divulge any information about its unit.) “A dearth of exonerations could in theory be evidence of a highly accurate adjudication process stretching back 20 or 30 years that produced few false convictions,” the report reads, “but that is deeply implausible.”

Instead, the report argues that the structure of a CIU has a direct correlation to its success, including whether the unit has at least one full-time attorney assigned to it. Of 14 units formed prior to 2018 that lack a full-time attorney, just six have reported an exoneration; 19 of the 22 CIUs founded before 2018 that have a full-time attorney have been involved in at least one exoneration.

In a 2016 paper on the rise of conviction review units, John Hollway, a dean at the University of Pennsylvania Law School and executive director of the school’s Quattrone Center for the Fair Administration of Justice, cited proper staffing as an important factor in helping to create independent, flexible, and transparent units. Among other things, an effective unit should accept all cases with a plausible or “colorable” claim of innocence (which would include convictions arising from plea bargains) and encourage the open exchange of information and ideas with the individual seeking review.

Those best practices remain true today, Hollway told The Intercept. “I still think that the ingredients we talked about in our report are the ingredients of a unit that operates with credibility,” he said. “And if you are really doing the work in good faith and honestly and in the right way, I think you’ll start to see an office like Detroit’s improve the legitimacy of everything that that DA’s office does.”

Mark Rotert, head of the conviction integrity unit of the Cook County State’s Attorney’s Office, talks to reporters in Chicago on Nov. 16, 2017, after a judge threw out the convictions of 15 men who said a corrupt Chicago police sergeant manufactured evidence that sent them to prison.

He believes that is in part why we see the CIU trend growing as more district attorney candidates run on reform-minded agendas. “There are a few things you can do that will send a public message that communicates the right philosophy of how justice is going to be done by the chief law enforcement officer of the jurisdiction,” he said. “A conviction integrity unit run properly is a big, public, easy-to-identify way of saying, ‘We’re humble; we strive for perfection, but we’re human. Our obligation to our community is to own up to that and make it right and learn from it.’ And where I still think there’s room for growth in the conviction integrity realm is the ‘and learn from it’ part.”

That’s exactly what Philadelphia District Attorney Larry Krasner — and the Philly Police Department, courts, and public defender’s office — have been trying to do, with a little help from Hollway and the Quattrone Center.

Preventing Wrongful Convictions

On the evening of April 13, 2011, at about 8:30 p.m., Talena Johnson and her nephew Nafis Murray were talking on a corner in northwest Philadelphia when a man in a gray hoodie came around the corner and started shooting. Johnson fled; she was shot in the back but survived. Murray was dead at the scene. Later, Johnson told police that she’d seen the muzzle flash and recognized the shooter as George Cortez. A surveillance video recorded the shooter, who police also believed looked like Cortez. He was arrested and charged with murder and attempted murder.

But Cortez had an alibi. He had a time-stamped receipt from a bakery where he’d picked up a cake for his son. He also had a cellphone video of his son at home licking frosting off that cake. And, at 8 p.m., Cortez had driven across town to pick his wife up from work; there was video of that too — though police couldn’t make out the image of the driver.

Cortez’s cellphone video turned out to be a pivotal piece of evidence. At trial, Cortez’s attorneys couldn’t figure out how to get the video off the phone to be projected for the jury, so the prosecutor asked a Philadelphia detective to extract it; in doing so, he concluded that the date and time stamp on the video had been altered, leading the state to believe that Cortez had recorded the video after the fact to bolster his alibi.

That was wrong — the phone had a glitch that impacted the way video files were stamped — and so was Johnson’s eyewitness ID. As it happened, another witness had come forward just days after the crime to say he believed that the shooter was actually Cortez’s brother, Owen.

The Philadelphia district attorney’s conviction review unit agreed the case was flawed; in April 2016, Cortez was exonerated. A day later, his brother confessed to the crime.

The case highlighted a number of issues at all levels — with police, prosecutors, defense attorneys, and the judicial system — that fed into Cortez’s wrongful conviction. So representatives from each group did something rather revolutionary: They sat down together to figure out exactly what went wrong in an effort to prevent the same issues from cropping up in the future. Known as the Philadelphia Event Review Team, the group, in partnership with the Quattrone Center, undertook a root-cause analysis. The result was an exhaustive report, full of recommendations for reform.

The idea was to approach the situation as the “National Transportation Safety Board would look at a plane crash or the way a hospital would look at a wrong-side surgery,” Hollway said. “A well-run unit is good at remedying past wrongs. And the next step is for more and more jurisdictions to do what Philadelphia is now doing and say, ‘OK, we’ve identified a case that we think needs to be changed. Now let’s figure out why that case happened the way it did — not to blame people, but to learn from it.’”

John Hollway, a dean at the University of Pennsylvania Law School and executive director of the Quattrone Center for the Fair Administration of Justice.

The Quattrone Center has received a $1.6 million federal grant to take the model — a “sentinel event review” — to up to 20 other jurisdictions; Baltimore, Chicago, and Austin have all reportedly signed on.

Newman agrees that learning from a wrongful conviction is key to a CIU’s work. She’s on a training committee that will work with both prosecutors and police and has engagements to speak at prosecutor and defense attorney organizations to discuss the CIU and best practices. And she agrees that working with innocence organizations is also key; the Wayne County Prosecutor’s office has won a sizable federal grant to work in partnership with the Urban Institute and the Western Michigan University Cooley Law School to set up a database tracking wrongful convictions and the factors that lead to them, which she hopes will aid CIUs across the country.

(Notably, Michigan Attorney General Dana Nessel recently announced that she will be starting a statewide CIU based on the Wayne County model. Hollway finds this encouraging, in part because it may offer an opportunity for smaller jurisdictions without the resources to set up an independent CIU. New Jersey’s attorney general has also announced the formation of a review unit.)

While Wayne County hasn’t undertaken a formal event-review process like Philadelphia’s, Newman says she’s walked both prosecutors and police through each of the cases her unit has tackled.

She recalled talking with one prosecutor about a case the prosecutor had handled, in which the CIU was now recommending the defendant be cleared. “She was kind of stunned,” Newman recalled, and didn’t have much to say. But the next day, she came back to Newman’s office, crying. “She had thought about it all night; she felt horrible.” She asked Newman whether it was her fault. No, Newman told her, there were other factors at play. But the prosecutor kept apologizing. “I’m like, ‘Don’t apologize, because you’re exactly the kind of prosecutor we want to have. You care.’”

Anyone would feel bad if they had convicted an innocent person, Newman recalls telling her colleague. “And a good prosecutor should be thinking about ‘Is there something else? Is there something I could have done so that this wouldn’t have happened?’”