You asked for information on exonerations in capital cases and the criminal justice system generally in Connecticut.

SUMMARY

According to the Death Penalty Information Center (DPIC), as of February 28, 2005, there have been 119 exonerations of death row inmates in 25 states since 1973. None of these are from Connecticut. DPIC includes on its list death row inmates who (1) were acquitted of all charges related to the crime that placed them on death row, (2) had all charges related to the crime that placed them on death row dismissed by the prosecution, or (3) were granted a complete pardon based on evidence of innocence. DPIC states that the list is based on objective criteria from the justice system and not subjective judgments of who is “actually innocent. ”

Another study looked at exonerations in the United States from 1989 through 2003, stating that it was the most comprehensive listing of exonerations at that time. The study by University of Michigan Law Professor Samuel R. Gross and four students found 328 exonerations with 73 exonerations in death penalty cases.

Some question the criteria used by DPIC and others in compiling exoneration lists and argue that many fewer people are actually innocent. Critics argue that the lists combine those who are legally innocent with those who are actually innocent, question whether particular cases should be included on the lists, and see inaccuracies in the case descriptions.

A number of studies have looked at the outcome of death penalty cases in individual states. An Arizona study looked at sentence reversals, remands, and modifications in death sentence cases from 1974 to July 1, 2000 and found that 3 % or seven cases involving seven individuals resulted in acquittal or findings of not guilty on retrial, with 4% still pending. The Illinois study discussed above looked at the cases of 13 inmates released from death row and found that all 13 cases were “characterized by relatively little solid evidence connecting the defendants to the crimes. ” A study by Virginia’s Joint Legislative Audit and Review Commission found that the reversal rate for death sentences is low and because state and federal appellate courts strictly adhere to procedural rules, a “substantial portion of claims related to the fairness of capital murder trials are never considered during the post-conviction process. ” A Columbia University study looked at error rates in capital cases nationwide and found that courts found serious, reversible error in 68% of the cases that were fully reviewed during the period of 1973 to 1995.

Definitions of “exoneration” vary and some limit the definition to those who are actually innocent. We found two exonerations lists that include Connecticut cases and we were able to find some information on these cases. In addition, we found several cases where it appears that a court found a defendant’s conviction improper and the individuals were not later convicted for the same crime. Information on all of these cases is provided below but, from the information available to us, it is difficult to determine which of these cases would fit into a particular definition of “exoneration” and whether a person is actually innocent.

If you would like additional information on any of these or other studies, please let us know.

EXONERATION

Death Penalty

According to the Death Penalty Information Center (DPIC), as of February 28, 2005, there have been 119 exonerations of death row inmates in 25 states since 1973. DNA played a substantial factor in establishing innocence in 14 of these cases. The table below provides a breakdown by state.

DPIC includes on its list death row inmates who (1) were acquitted of all charges related to the crime that placed them on death row, (2) had all charges related to the crime that placed them on death row dismissed by the prosecution, or (3) were granted a complete pardon based on evidence of innocence. DPIC states that the list is based on objective criteria from the justice system and not subjective judgments of who is “actually innocent. ”

Three exonerations have been added to the list since DPIC’s report in September 2004. Of the 116 in the 2004 report, the basis for exoneration was (1) charges dropped in 69 cases, (2) acquittal in 40 cases, and (3) pardon in seven cases. The average number of years of incarceration for these 116 before exoneration was nine years.

Another study looked at exonerations in the United States from 1989 through 2003, stating that it was the most comprehensive listing of exonerations at that time. The study by University of Michigan Law Professor Samuel R. Gross and four students found 328 exonerations overall, with 73 exonerations in death penalty cases. This includes all exonerations the authors were able to locate and that resulted from investigations into the particular cases of the individuals. They define exoneration as “an official act declaring a defendant not guilty of a crime for which he or she had previously been convicted. ” They include (1) pardons based on evidence of innocence, (2) charges dismissed by courts after new evidence of innocence emerged, (3) acquittals on retrial based on evidence that they had no role in the crimes they were originally convicted of, and (4) posthumous acknowledgments of innocence of defendants who die in prison. Of the exonerations, 73 or 22% involved the death penalty with 13 of these based on DNA evidence (Gross, Jacoby, Matheson, Montgomery, and Patil, Exonerations in the United States 1989 Through 2003, supported by a grant from The Gideon Project of the Open Society Institute, April 19, 2004, http: //www. law. umich. edu/NewsAndInfo/exonerations-in-us. pdf).

Some question the criteria used by DPIC and others in compiling exoneration lists and argue that many fewer people are actually innocent. Regarding criteria, critics argue that the lists combine those who are legally innocent with those who are actually innocent because a finding of not guilty means that the prosecution could not prove the crime beyond a reasonable doubt and the person may not be actually innocence; when a case is overturned on appeal, the prosecution may drop the charges for many reasons other than actual innocence; and a pardon can be granted for reasons other than actual innocence. Some also question whether particular cases should be included on the lists and see inaccuracies in the case descriptions.

Arizona. An Arizona study looked at sentence reversals, remands, and modifications in death sentence cases from 1974 to July 1, 2000. Of 230 cases involving 228 individuals, (1) 3 % or seven cases involving seven individuals resulted in acquittal or findings of not guilty on retrial and (2) 4% or eight cases involving eight individuals were pending on remand or reversal (Office of the Attorney General, Capital Case Commission Final Report, December 31, 2002).

Illinois. The Governor’s Commission on Capital Punishment looked at the cases of 13 inmates released from death row and found that all 13 cases were “characterized by relatively little solid evidence connecting the defendants to the crimes. ” The commission found the evidence so minimal in some cases that there was a question not only why the prosecution pursued the death penalty but why they pursued the defendant. One conviction was based almost completely on the uncorroborated testimony of an in-custody informer, no physical evidence linked the defendant to the murder, and there was no solid corroboration of the alleged statement he made admitting to the murder. In another case, there was no physical evidence linking the defendant to the scene of the murder and no satisfactory explanation of a possible motive, the primary evidence was statements the defendant allegedly made that the police claimed were indicative of guilt, statement made during an interrogation were not memorialized and the defendant denied them, and a federal investigation led to the conviction of two others in a different state for the murders.

The commission found that in a number of cases, the prosecution appeared to rely unduly on the uncorroborated testimony of a witness with something to gain, such as an accomplice or in-custody informant. Also, there was a question about the viability or reliability of eyewitness evidence in several cases. For example, the conviction and death sentence in one case was based on the questionable testimony of one eyewitness, which was later found unreliable by the state Supreme Court. The commission also found at least one case involved a confession that was later shown to be false (Governor’s Commission on Capital Punishment, Illinois, April 2002, p. 7-9).

Virginia. A study by Virginia’s Joint Legislative Audit and Review Commission found that the reversal rate for death sentences is low. Because state and federal appellate courts strictly adhere to procedural rules, a “substantial portion of claims related to the fairness of capital murder trials are never considered during the post-conviction stages (Review of Virginia’s System of Capital Punishment, Joint Legislative Audit and Review Commission, January 2002).

Nationwide. Columbia University Law Professor James Liebman conducted a study looking at cases in death penalty states over 23 years (from 1973 when the U. S. Supreme Court reinstated the death penalty until 1995). The study found that courts found serious, reversible error in 68% of the cases that were fully reviewed during this period. The study did not include Connecticut because no cases have finished the full appeals process in this state.

Of the cases that had a final review of their direct appeal in state court, courts overturned 41% of the 4,578 cases due to serious error. The study could not compile state post-conviction information on all cases but, of the cases they found, courts reversed 10% of the sentences. 599 cases survived state direct and post-conviction review and completed review of a federal habeas corpus petition. Federal courts overturned 40% of these cases due to serious error. It is unclear how many cases were not reviewed on appeal but most, if not all, states require direct appellate review of a death sentence by law.

The study found that 76% of the reversals at the two appeal stages where data was available for study were because defense lawyers had been egregiously incompetent, police and prosecutors had suppressed exculpatory evidence or committed other professional misconduct, jurors had been misinformed about the law, or judges and jurors had been biased. Half of these reversals tainted the guilty verdict as well as the death sentencing decision. 82% of the cases sent back for retrial at the second appeal phase ended in sentences less than death, including 9% that ended in not guilty verdicts (A Broken System: Error Rates in Capital Cases and What Can Be Done About Them, http: //ccjr. policy. net/cjedfund/dpstudy/).

Connecticut Criminal Justice System Generally

Definitions of “exoneration” vary and some limit the definition to those who are actually innocent. We found two exonerations lists that include Connecticut cases and we were able to find some information on these cases. In addition, we found several cases where it appears that a court found a defendant’s conviction improper and the individuals were not later convicted for the same crime. Information on all of these cases is provided below but, from the information available to us, it is difficult to determine which of these cases would fit into a particular definition of “exoneration” and whether a person is actually innocent.

We found two exonerations lists that include Connecticut cases. None of these cases involve the death penalty. The exoneration study discussed above, headed by University of Michigan Law Professor Samuel R. Gross, lists two exonerations in Connecticut from 1989 to 2003: Rickey Hammond and Mark Reid. The report indicates that both exonerations were based on DNA evidence. The Northwestern University Center on Wrongful Convictions lists six exonerations in Connecticut: Delphine Bertrand, Murray Gold, Ricky Hammond, Luigi Lanzillo, Mark Reid, and Peter Reilly.

We found the following information on the individuals on these lists.

1. Delphine Bertrand pled guilty to manslaughter but the indictment was dismissed and she was released in 1946 when the actual killers confessed (Bedau and Radelet, “Miscarriages of Justice in Potentially Capital Cases,” 40 Stan. L. Rev. 21 (1987)).

2. Murray Gold had at least four trials for murder. His first trial resulted in a hung jury and mistrial. His conviction in the second was overturned on appeal. The third resulted in a mistrial after Gold discharged his attorney in open court before the jury during the proceedings. After the fourth resulted in a conviction, Judge Scheinblum granted a habeas corpus petition and ordered a new trial because Gold became legally incompetent during the trial (Gold v. Warden, No. CV90-00981, March 11, 1991). The Connecticut Supreme Court returned the case to the habeas court because that court should have allowed the trial judge from the fourth trial to testify about Gold’s demeanor at the trial (Gold v. Warden, 222 Conn. 312 (1992)). We are unable to find any further information on this case.

3. Ricky Hammond was convicted of rape in 1990 based on the victim’s testimony and other evidence, even though DNA evidence showed that he was not the rapist. The Connecticut Supreme Court returned the case to the trial court to decide whether to grant a new trial because the court was not adequately apprised of the issues regarding the reliability of the DNA evidence and the inconsistencies in the case (State v. Hammond, 221 Conn. 264 (1992)). The trial court ordered a new trial. According to the Hartford Courant, Hammond pled guilty to a misdemeanor to avoid “restrictive bail conditions set by the judge and avoid the risk of another trial, despite additional DNA tests corroborating the initial finding that he was not the rapist” (Touhy, Lynne, “The Whole Truth? Total Recall, Accessing Memory, A Series,” Hartford Courant, September 10, 2002).

4. Luigi Lanzillo was sentenced to life imprisonment for 2^nd degree murder in 1918 and pardoned 10 years later based on confessions from the three men who were convicted of the murder who, days before their execution, absolved Lanzillo of participating in the crime (Bedau and Radelet, “Miscarriages of Justice in Potentially Capital Cases,” 40 Stan. L. Rev. 21 (1987)).

5. Mark Reid’s conviction in a 1996 sexual assault and kidnapping case was overturned based on DNA evidence. The victim chose not to participate in the second trial and the state’s attorney dropped the matter. Reid was deported to Jamaica because of a previous felony conviction (Hamilton, Jesse, “Freed Man Sues Town,” Hartford Courant, March 6, 2004).

6. Peter Reilly was convicted of 1^st degree manslaughter in the death of his mother in 1974. A new trial was granted in 1975 but was never held. State’s Attorney Dennis A. Santore told Judge Simon S. Cohen he had found evidence tending to show Reilly’s innocence. In November 1976, Judge Cohen dismissed the manslaughter charge. A month later, then-Judge John A. Speziale directed Judge Maurice J. Sponzo to act as a one-man grand jury to investigate. The report in June 1977 castigated the state police over the case. In October 1977, State’s Attorney Santore stated he would not prosecute Reilly and he considered the case open. On November 22, 1977, Judge Sponzo granted a motion clearing Reilly and barring prosecution on a manslaughter charge in his mother’s killing (O’Brien, Joseph, “Mother’s Killing Still Unresolved, But Peter Reilly Puts Past Behind 20 Years After Trial,” Hartford Courant, September 23, 1993).

In addition, we found information on a few other cases where courts overturned an individual’s conviction. In each of these cases, it appears that a court found the convictions improper and the individuals were not later convicted for the same crime.

1. Larry Miller’s assault conviction was overturned based on a habeas corpus petition alleging actual innocence (Miller v. Warden, No. CV 92 1566 S, March 27, 1996 (unpublished)). The court relied on another person’s confession to the crime and other evidence in its findings. The Connecticut Supreme Court upheld the habeas court’s ruling (242 Conn. 745 (1997)). A Hartford Courant article in 1996 called this the only case in Connecticut’s history where a writ of habeas corpus for a new trial was granted solely on the basis of “actual innocence” (Tuohy, Lynne, “High Court Will Look at Wrongful Arrest Case,” Hartford Courant, May 21, 1996).

2. David Saraceno was convicted in 1998 of arson and other crimes in the 1994 burning of 15 Haddam-Killingworth school buses. Prosecutors agreed to set aside the conviction because of new evidence that others may have caused the fire. Then-Deputy Chief State’s Attorney Christopher Morano told the court the state would drop the charges in exchange for Saraceno pleading guilty to hindering prosecution by making a false confession. Judge Thomas Miano accepted the plea bargain. Saraceno had claimed that police coerced his confession (Libow, Gary, “Suspect Cleared in Bus Arson, Haddam Man Pleads to a Lesser Charge Ending 5-Year Drama,” Hartford Courant, December 10, 1999).

3. The Connecticut Supreme Court overturned the capital felony convictions and life sentences of Roy White and Winston Watkins (229 Conn. 125 (1999)) because of the prosecution’s failure to turn over exculpatory evidence to the defense. Prosecutors then declined to prosecute (nolle prosequi).

According to a news article, Judge Jonathan J. Kaplan recently granted a habeas petition setting aside the verdict and granting a new trial for Robert Arrington, a commercial truck driver convicted of negligent homicide in an accident on I-91. The court ruled that the conviction was marred by ineffective assistance of counsel because the defense attorney did not conduct an adequate investigation into the possibility that a different driver was responsible for the accident. Prosecutors will not appeal the ruling but it was unclear whether they will seek a retrial (Siegel, Lisa, “Trucker ‘Vindicated’ at Habeas Hearing,” The Connecticut Law Tribune, March 14, 2005).

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