Colin Starger, Innocence Project Staff Attorney since 2003, answers questions about the case of Jerry Miller, the 200th post-conviction DNA exoneration in U.S. history. The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongly convicted through DNA testing and reforming the criminal justice system to prevent further injustice.
Q: Could you give a little background on Jerry Miller’s case and your role in the case?
A: Jerry Miller was convicted of a rape that occurred in 1981 in Chicago. He was convicted in 1982. The basic crime was a single black male attacked a woman in a parking garage in downtown Chicago, he attacked her from behind and brutally raped her in her car, in her own car, and put her in the trunk of the car and attempted to drive out of the garage. The parking attendants recognized the car since the victim had been a long time customer there. They confronted the individual who fled and then they released the victim from the trunk of the car. The victim was taken to the hospital and her clothes were recovered on which the perpetrator had ejaculated.
The parking attendants, who were both black, were asked to give a description of the man who they had seen and a composite sketch was made. When one police officer saw this sketch, he thought it looked like Jerry Miller. Jerry Miller was a person who had no criminal record, but whom this officer stopped because he was allegedly looking inside cars a week previously. He hadn’t been arrested at that time, but he gave his address. And they went over and actually arrested Mr. Miller at his home based on the strength of this identification by a police officer of the resemblance to the composite sketch and took him into the police station, took photographs of him, and the two parking attendants identified him as the person who had committed the crime. The victim never identified him in a photo lineup and even in trial when he was sitting in the defendant’s chair, the victim was only willing to say that the young man looked like him.
It’s a classic kind of case where DNA testing would be extremely probative. The only evidence tying him to the crime is eye witness identification, which easily could have taken place in a very suggestive context (although we don’t have any specific evidence of that). But, we do know that in retrospect.
When they were able to do DNA testing on the sperm that was left on the victims clothing by the real perpetrator, it came back and not only excluded Jerry Miller, proving his innocence, but actually resulted in a DNA database hit to a man named Robert Weeks. Weeks had been convicted of a similar rape just months after Jerry Miller’s conviction, or false conviction I should say, and served some time in prison. After he got out on parole, he committed a series of other very violent crimes, so we were actually able to solve this crime through DNA testing, although the statue of limitations has passed. So although Mr. Weeks will not be prosecuted for this particular crime, the fact that he is guilty of it will likely be used in the ongoing prosecution for other crimes that he has been involved in during the sentencing phase.
The Innocence Project was contacted by Jerry Miller by a letter in the year 2000. At that time, the project was very small, kind of a mom-and-pop organization, getting hundreds and thousands of letters. As we’ve grown, we’ve been able to cut our backlog from four years to three or two years. It’s been getting better. We’ve been able to examine intake. We were able to examine Jerry Miller’s letter late in 2005. We accepted the case and worked it up and approached the prosecutor in Cook County. They have a special DNA review unit there who said we could file a motion under the statute. But we said, “listen we think this is the kind of case where DNA testing would be very probative of guilt or innocence, do you agree?” And the prosecutor agreed and we agreed to conduct testing first. We sent it off to a state laboratory and the state laboratory said they could do testing on these items, but they would have to consume all the evidence. So we agreed to send it to a private laboratory for testing at the Innocence Project’s expense. We sent it to Strand Analytical Laboratories. They performed all the testing and got the initial results late in February. Later on in March the rest of the results came in, and very quickly we arranged to have the sentence vacated and Mr. Miller be taken off the sex offender registry and really have his name cleared, which happened all last Monday and he was the 200th exoneration in the country — the 200th post-conviction DNA exoneration. To be specific, the 200th time DNA testing proved that someone had been wrongfully convicted after the fact.
Q: How did you persuade the prosecutors to conduct the DNA tests and convince the court to hear the case after so long? Was it difficult?
A: Illinois has had more post-conviction DNA exonerations than any other state now — with Jerry Miller’s, it’s 27. That’s not because they have a higher rate of wrongful convictions than any other state, but it’s really because of the pioneering work of the Center on Wrongful Convictions and others to push for post-conviction DNA testing. Illinois was one of the first two states to pass a law to allow for it. So they are very, very familiar with it in Cook County and they understand when DNA testing is relevant and when it’s not relevant. So when we approach them with a single perpetrator stranger rape, when we have **bleep** that we know came directly from the perpetrator, it didn’t take them long to realize: yes this is the kind of case where DNA testing is absolutely relevant. And so the prosecutor consented to the testing. So when we approached the court, they said the defense council wants this testing, the prosecutor wants this testing, so of course the court ordered it.
Q: It seems like a lot of people deny committing the crimes they are found guilty of, so how did you know that Jerry Miller was telling the truth or what made you take his case out of all the thousands of letters you get?
A: Well we have no crystal ball, so we can’t tell ahead of time whether someone is innocent or guilty. However, we will take any case where DNA testing can prove it one way or another. In his letters he was always sincere and sounded like an innocent person. As I got to know him, I always believed that he was innocent. But we didn’t take the case based on an evaluation of the likelihood of his story, so much as the ability of DNA testing to prove it. The fact that DNA testing could prove it was indicated not only by having the **bleep** of the actual perpetrator on the clothes of the victim, but also by the fact that this was a case where identification was highly suspect. The only evidence presented against Mr. Miller was the identification of the parking lot attendants and the only reason he even came into the police officer’s view was on the basis of a composite sketch, which is a very unusual way, especially given that the victim never identified him. So I can’t say that we accepted the case thinking that his story sounds likely, so therefore we’ll take it. But after we accepted it, we all believed very strongly in this case because the case against him was so weak. It was no great surprise when it came back proving to a moral certainty that he was innocent.
Q: Based on the fact that the case was so weak, why do you think that no one revisited the case sooner?
A: It’s a weak case only in the sense that it relied entirely on eyewitness identification, which we now know with experience of post-conviction DNA testing to be a type of evidence that’s susceptible to error. In 77 percent of the post-conviction DNA exonerations, there had been eyewitness error. However, that is not to say that eyewitness evidence is always bad, not by a long shot. There have also been plenty of convictions out there formed solely on the basis of eyewitness ID, which either can never be challenged because there is no DNA evidence available or can never be effectively challenged. Or perhaps is challenged and DNA testing sometimes can prove guilt because that sometimes happens as well.
So, as you mentioned at the very beginning of our conversation, there are many, many people in prison who claim to be innocent and it’s simple: the resources don’t exist out there to test every single person’s claim scientifically or objectively. Even if the resources did exist, a very small percent of all crimes involve DNA evidence. The estimates vary, but we feel comfortable with a figure of 10 percent of felonies have DNA left in a way that can really answer the question of who committed the crime. So it’s a very small percent of the cases. The reason Jerry Miller’s case wasn’t looked at earlier was simply a question of volume. Our criminal justice system is massively overloaded. And I think that’s something that prosecutors and defense attorneys would agree on. Millions and millions of people are put through the system over the years. We have 2.2 million people in prison or jail.
Q: Once you decided to take Miller’s case, how long did the whole process take and did you encounter any major stumbling blocks?
A: The whole process took about a year and a half. There were no major stumbling blocks that occurred. We just wanted to be very careful with every step, so potentially it could have gone faster if we didn’t send it to the state laboratory first. We wanted them to have an opportunity to look at the laboratory to make sure that the state felt comfortable with the way we were proceeding. When the state laboratory said they didn’t feel comfortable doing all the testing because they were going to consume the evidence, then we agreed to send it to a private laboratory, so that might have added an extra three or four months to the whole affair.
Q: Did or will Miller receive any financial or other compensation?
A: He has not received any financial compensation. Illinois does have a compensation statue, and I believe he would be eligible to receive some amount of money from that. Right now, Jerry is just really celebrating his freedom. He was on parole, but it was a very restrictive kind of parole as a sex offender. He had to wear an ankle bracelet at all times, and report in daily and carry a GPS wherever he went. So right now, he’s just celebrating his freedom. And with his attorneys, will be reviewing his options. But it’s a little premature to say exactly what will happen next on that front.
Q: Do you think there should be a national law on compensation for cases like this?
A: Well that would be great if there were some kind of federal legislation. I’m sure given the nature of federalism, the solution would most likely be one that was implemented on a state basis. But right now, there are precious few states that have compensation statues and so it is something we strongly believe should be in every single state.
Q: What kind of life do you think Jerry can have now? Do you think it’s even possible for him to move on and have a “normal” life after serving all that time for a crime he didn’t commit?
A: I don’t think it will be normal, but I think that he can have a full, productive, and happy life. He is an extremely intelligent person and has spoken to me about a lot of his ambitions. He is hard working and has had this cloud hanging over his head for so long. Now that he is out from under it, he really sees his life as in front of him. He has expressed an interest in learning computer programming. While he was in prison, they of course didn’t allow him to have computers, but they did allow him to subscribe to computer magazines and he devoured all of that stuff. He is interested in perhaps looking at that. He also has a mind for business and he’s considering those ideas.
A lot depends on his financial situation and what he is able to do and the kind of support he is able to get from his community and from the community in general. He’s an incredibly resilient person. Although many exonerated face a lot of difficulty after getting out of prison, he, I believe, is the kind of person (he weathered a very difficult storm for 26 years) who is more than capable of going forward in ways that will make him proud and make all the rest of us very proud as well.
Q: We received a few questions from our Comcast.net customers. One is “Now that we are approaching a more critical mass of persons exonerated by DNA, are there patterns emerging, flaws even in the police and prosecutorial procedures that need to be re-examined?”
A: Certainly. I would recommend your audience looks at our Website (innocenceproject.org), where we go over a lot of these issues in detail. But, I can say in terms of police practices, it’s beyond any argument now that there are problems with eyewitness IDs. As I mentioned before, mistaken ID has been involved in 77 percent of the exonerations that we have seen. So reform of eyewitness identification procedures to make sure that they are not overly suggestive is something that is extremely important for all police departments to undertake.
There are a number of different forms that we suggest. I’ll just give two examples very quickly. One is that all identification procedures should be done blind, which is to say that the person administrating either the live line up or photo line up doesn’t know who the suspect is, so they cannot give any conscious or unconscious cues to the person to identify the suspect that they are after. Also, an instruction should always be given that the real suspect, the real person that was seen may or may not be in that line up. We believe in sequential identifications where a person is asked to ID somebody one after another as opposed to having them all lined up together or all the photos all put together, where a comparative judgment is encouraged. We also know that in about 63 percent of the wrongful convictions that we are able to study, there has been some kind of forensic error, some kind of either junk science or error on the part of the laboratories. So it’s really important that the highest standards of science be brought to bear upon the investigations process. What actually happens out there in crime laboratories is not what you see on CSI. Unfortunately, a lot more mistakes are made. There is a lot more sloppiness and really we need to move things with proper oversight and proper review.
I could go on, but I will just mention one more thing we are seeing from all of these wrongful convictions: society has not solved its problem with racism yet. That’s specifically to say that a highly disproportionate number of the exonerated are black men who have been convicted of raping white women. That is an extremely rare crime, less than 10 percent according to the Bureau of Justice Statistics of all rapes are cross racial at all, and only 30 percent of men in prison for rape are black, and yet we have this high percentage of exonerates who have been convicted of this particular crime. That’s of course because that crime resonates so deeply to some of the more troubling parts of our nation’s history, and there is such hysteria around that particular kind of crime to this very day. So a person simply being accused of that crime stands a chance of being railroaded in one way or another. That’s just a sampling of some of the lessons we are learning, and there are many more, and they are explored in depth on our Web site.
Q: Another question submitted by a Comcast.net customer: “Will Jerry Miller be given an apology from the person responsible, the investigators, and the witnesses that picked him out of a lineup and perhaps some of the officers of the court?”
A: Jerry was already given an apology in person and then in public by the first assistance in the State’s Attorney’s office. He did it at a press conference, on behalf of the State’s Attorney **bleep** Devine and everyone that was involved in the prosecution. So that apology has already been made. He has not received and I don’t know if he will, a sort of individual apology from the actual people who were involved in his prosecution. He does not expect, nor desire, an apology from the victim. After all the victim is still a victim, this is not a case where a crime did not occur. A crime most certainly occurred. It was a horrible and traumatic crime and Jerry Miller recognizes that, and she never misidentified him. She said only that in her honest opinion, he looked like the person that attacked her, so simply no need for that. An apology from the parking attendants would be great. I have no idea where they are, if they have been hearing about this, even if they are still alive, I believe that one of them may be dead, so that’s really up to them and their own particular consciences.
Q: Okay, just a few final questions. How many people do you think are wrongly convicted every year in America and how many do you think are serving time in U.S. jails all together?
A: There is no scientific or accurate way to answer that question. There is simply no data set that has been studied that we can draw a legitimate inference. All we can do is estimate and there are different ways to approach the question. One is to try and estimate the error rate based upon the DNA exonerations we have seen. The other is to really look at the bigger picture. I should say that this is a very controversial topic, and there are a lot of people who have very strong opinions on it.
The way I like to look at it is to say that if you were to assume an error rate of one half of one percent, which actually anecdotally speaking we think is very, very low, given that we have 2.2 million people behind bars in this country that would be about 11,000 innocent people in prison today. Do I have any way of proving that? No, but what I do know is that we do have far too many people in prison and there is no indication that our rate is anywhere near perfection. Two hundred exonerations show that this is not an anomaly. It happens in every state. It happens in every jurisdiction, far more often than people had believed before. And no matter what the actual rate of wrongful convictions is, or what the rate of error is, we know that it’s too high. We need to think of ways of reforming our system so that it happens almost not at all.
Q: Having said all of that and based on your line of work, what do you think of the overall effectiveness of the U.S. Judicial System?
A: I think the U.S. Judicial System has many incredibly admirable qualities. There is a real commitment to fact finding by the juries, a real commitment to the idea that you should only be found guilty by a jury of your peers. There is a wonderful series of processes to try to preserve fairness in trials. There is state level and federal level reviews. So the system in theory is quiet good, the problem as I mentioned before is the system is completely overloaded. We have tried to solve so many of our society’s problems through punishment and prosecution, and as a result the system is completely overloaded. When the system is completely overloaded as it is and it ends up being overloaded primarily by the poor, the quality of justice is going to suffer. And the quality of justice has suffered. I think that the experience of exonerations should make us ask questions.
If we now know that the system can’t get it right on its most basic mission, which is to make sure that only the person who committed the crime is convicted of the crime, if it can’t get that right all of the time, what else is it not getting right? Perhaps it is not getting right its notions of how long people should be sentenced for. Perhaps it’s not getting right its notion of what should even be considered a crime and how long people should be made to sit in prison for things like selling drugs and what not. Maybe there are different ways of approaching these problems. My answer is, sorry I’ve gone on for a bit, but my answer is to say that the philosophy of the system is fantastic, but the system is set up to fail when it is so overloaded by people being processed by it.
Q: Is this the most high profile case the Innocence Project has ever worked on?
A: That’s hard to answer. I don’t think so. It’s certainly one of the most high profile cases the Innocence Project has worked on, but we’ve had a number of cases that have made national news for various different reasons. And of course co-founders Barry Scheck and Peter Neufeld are national figures in their own right. But it’s certainly a wonderful case and it’s really a great victory and the fact that it’s 200 is very special.