‘It’s the tip of the iceberg’: shining a light on the horror of wrongful convictions


Show caption ‘What I really wanted to cast a light on was motivations and their impact on the people’ … a still of Charles Ray Finch from American Injustice. Photograph: Harper Collins / David S. Rudolf Books ‘It’s the tip of the iceberg’: shining a light on the horror of wrongful convictions In his book American Injustice, criminal defence lawyer David Rudolf looks at abuses of power and corruption that have put innocent people behind bars David Smith in Washington @smithinamerica Mon 31 Jan 2022 16.04 GMT Share on Facebook

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He had spent 43 years in prison, and a spell on death row, for a murder he did not commit. In 2019 Charles Ray Finch, an African American man from North Carolina now in his 80s, was finally set free.

“He went in at age 40, the prime of his life, and he came out in a wheelchair having suffered a stroke, and he suffered another stroke since then,” says David Rudolf, a criminal defence lawyer who worked on the case. “His whole life was taken from him. That was a particularly tragic circumstance.”

Now Rudolf, 72, has interwoven Finch’s life story with his own in a book, American Injustice, that offers a bracing account of abuses of power and corruption in the criminal justice system.

It tells how over the past 30 years more than 2,800 innocent American prisoners – their combined sentences exceeding 25,000 years – have been exonerated and freed after miscarriages of justice. This, Rudolf argues, is only a fraction of the actual number of people wrongfully accused and convicted over the same period.

“We should be worried just from the statistics we know right now because obviously that’s the tip of the iceberg,” says the lawyer, exuding a bearded, bespectacled and genial presence via Zoom from Toronto, Canada, where he is doing legal work.

“Those are the people who were lucky enough to find lawyers, then lucky enough to have those lawyers find the evidence they needed and then lucky enough to be able to litigate it successfully, overcoming all kinds of odds and the whole preference for finality in the criminal justice system over justice or truth.”

How do wrongful convictions happen? In taking the reader through numerous crime scenes, Rudolf identifies misconduct at all levels of law enforcement, such as concealing evidence of the defendant’s innocence, confirmation bias, suggestive procedures that make an eyewitness identification of a suspect more likely, fabricating or planting evidence and coercing innocent people into giving false confessions.

David Rudolf. Photograph: Harper Collins

The case of Finch, convicted in 1976 of murdering a grocery shop clerk during an attempted robbery, was particularly egregious, the consequence of a sheriff’s department covering up its own corruption. A store employee who saw the killer flee the scene told police that the killer had been wearing a three-quarter-length coat. An eyewitness later identified Finch in three different lineups.

But working with Duke University’s Wrongful Convictions Clinic at a 2013 hearing, Rudolf cross-examined the then chief deputy sheriff and, in what he describes in the book as a “Perry Mason moment”, demonstrated that Finch had been forced to wear a coat that made the lineup procedure unduly suggestive.

Rudolf says now: “It’s one of the few cases where I can honestly say that a police officer set out to frame an innocent person. In most of these cases – let me stress this – I don’t think police are setting out to frame innocent people.

“Through a combination of their hubris and experience and confirmation bias, they walk into a scene and say it was a murder, then everything gets filtered through that lens and you have confirmation bias and tunnel vision and all the things that I talk about.

“I think that’s 98% of how wrongful convictions occur, whether it’s a false confession, planting evidence, fake science, whatever the mechanism is. I don’t think that’s as important as the motivation. What I really wanted to cast a light on in this book was motivations and their impact on the people.”

Speaking of motivations, the 2020 police murder of George Floyd in Minneapolis delivered a brutal reminder of systemic racism. Rudolf, a New Yorker who worked as a public defender in the South Bronx then practiced law for decades in North Carolina, says the warping effect of racism is most evident when the victim is white and the defendant is a person of colour.

“I’ve been in trials where prosecutors have challenged every Black juror for reasons that were obviously, patently, transparently racial. There’s been studies done of jury selection in North Carolina made it clear that prosecutors were knocking people off because they were Black, for no other reason. In that setting, it’s pretty overt.”

Such findings are a crystal clear indictment of capital punishment. Finch, for example, was initially sentenced to death but this was reduced to life in prison after the supreme court declared North Carolina’s mandatory death penalty unconstitutional.

Henry McCollum in 2014. Photograph: Michael Biesecker/AP

American Injustice also highlights the plight of Henry McCollum and his half brother Leon Brown, convicted of the 1983 rape and murder of an 11-year-old girl; McCollum spent three decades on death row. Antonin Scalia, the late supreme court justice, cited the case to justify capital punishment in a legal opinion, contending that lethal injection would offer a “quiet death” compared with the victim’s.

But it was all a lie. Rudolf says: “Now we flash forward to 2018, 19. The two men have been completely exonerated. There’s a lawsuit filed against the police who essentially caused their wrongful conviction, and a jury in eastern North Carolina awards $75m to these two mentally handicapped brothers. This is the case that Scalia held up as the poster child for the death penalty and these guys were stone cold fucking innocent. What does that tell you?”

It might be assumed that the march of science, in particular DNA evidence, should make wrongful convictions less likely now than in the past. Not necessarily, says Rudolf, noting the growth of an “experts” industrial complex that is far from neutral.

“It’s a double-edged sword because 50 years ago we didn’t have things like blood spatter experts, dental experts, tyre impression experts, shoe impression experts. We didn’t have this whole plethora of pseudo-experts who are not scientists; they are laypeople. They’re mostly law enforcement and their way of validating their opinions is: did the jury or did the jury not convict? If the jury convicted, hey, they got it right! That’s absurd.”

To illustrate the point, Rudolf cites his most famous case – featured in the Netflix documentary series The Staircase – in which Michael Peterson, a novelist in North Carolina, was convicted of first-degree murder after the death of his wife in 2001 and sentenced to life without parole.

The jury’s verdict had turned on evidence provided by a blood spatter expert, Duane Deaver, which Rudolf was sure was not supported by science. In 2011, he was able to prove that Deaver had lied on the witness stand about his conclusions. Peterson was released and eventually sentenced to time served.

Michael Peterson and David Rudolf. Photograph: Netflix

“Duane Deaver is hired to come in to the scene at the Peterson house. The detective says, ‘I think this is a murder. Can you come in and take a look at this?’ He’s on the homicide team. So is he going to say to the homicide detective, ‘You know, I think you’re full of shit, this was a fall’?

“No! His confirmation bias is to help his fellow law enforcement officer. That’s natural. We would all be subject to that. So I’m not being especially critical of that. I’m just saying, let’s recognise it for what it is.”

Rudolf never expected The Staircase to be such a hit and believes it challenged negative perceptions of his profession.

“People came to see the criminal justice system in a much more nuanced way and that was my goal. When I grew up, Perry Mason, the criminal defence lawyer, was a hero. Matlock was a hero. These weren’t sleazy people. These were people who were trying to find the truth and who would actually exonerate people.

“Those were my role models growing up and then all of a sudden we get to Law and Order and all the defence lawyers are drunks and they don’t give a fuck, and they’re sleazy, and that was the public perception.

“It made me angry and so I thought to myself, it would be interesting if people could really see what we criminal defence lawyers do, that we’re not sleazy, that we’re actually trying to find the truth, that sometimes the truth is elusive, but we have a role to play that’s important and we do our jobs conscientiously with as much faithfulness as prosecutors and sometimes more.”

He adds: “I can tell you that I have received hundreds, if not thousands, of comments from people who say, ‘You really changed my view of what criminal defence lawyers do. I had no idea.’ That’s gratifying to me, not for myself but for everybody who does what I do. All of a sudden if those people go into a jury box they’re not viewing the defence lawyer as a sleazebag, so it levelled the playing field a little bit. That’s something I’m proud of.”

Such was the success of The Staircase that it is being turned into a TV mini-series starring Colin Firth and Toni Collette. Rudolf spent time with the actor Michael Stuhlbarg, who will portray him on screen.

“I said to him I was proud of what came out of The Staircase in terms of criminal defence lawyers and how people viewed us and your TV series could either reinforce that or it could totally smash that, and I want to let you know how important it is to me that you play this in a way that’s true to what was in that documentary. I’m not talking about guilt or innocence or any of that stuff. I’m talking about what we do and how we do it.”

Rudolf is also getting his message out with a podcast called Abuse of Power, co-hosted with his wife and law partner, Sonya Pfeiffer. Late in his career, he has discovered the power of media megaphones.

“I decided that rather than talking to 12 people in a jury box, I could talk to 12,000 people or 120,000 people on a podcast or who knows how many people in a book,” he adds. “That’s how change gets made. It gets made incrementally with a particular jury, but it gets made a lot quicker with this.”

American Injustice is out now