The vast majority of cases end in plea bargains and therefore leave almost no paper trail. They “generate virtually no records that can be retrieved,” wrote Michigan’s Gross in a 2008 analysis of the statistics available. “No trial transcripts, no appeals, frequently no court hearings of any sort, in many cases no description of the investigation at all beyond a single police report, which (if it could be found) might include little factual information of any value.”11
Gross estimates that 1 percent of innocent defendants are ultimately exonerated and that from late 1989 through 2003, 850 were exonerated nationwide. If his conservative 1 percent estimate is correct, there are about eighty-five thousand convicted innocents in the prison system, or about two thousand more than could squeeze into our largest National Football League venue, the MetLife Stadium in New Jersey.
Some people who have been exonerated can be remarkably forgiving, refusing to give in to bitterness. “I just kept waiting,” said Scott Fap-piano, who spent more than twenty years in prison for the 1983 rape of a New York City woman. He walked free in 2006 after DNA testing ruled him out as the attacker. “I’m just happy that it’s over,” he added.12
Francisco “Frankie” Carrillo was never proved innocent of the Los Angeles drive-by shooting he was convicted for at age sixteen, but he was found guilty on shaky eyewitness testimony that was finally thrown out on appeal in 2011, after he’d done twenty years in prison. “There are some people I’m sure I will never convince of my innocence,” he said, “but I’m OK with it.” He added, “Only an innocent man can persevere with this kind of experience. There’s something that kind of takes you over when you know it wasn’t you.”13
Joshua Marquis, the district attorney for Clatsop County, Oregon, has contended that many of those exonerated may have perpetrated the crimes, though the evidence was too weak to prove them guilty beyond a reasonable doubt.14 But both science and the behavior of many of those exonerated suggest that a large number of them were truly innocent. In many of the hundreds of DNA exonerations won on appeal, it was proved beyond reasonable doubt that snitches lied in their testimony.
In a space of nineteen years ending in 2011, Texas paid more than $42 million to compensate seventy-four men and women who spent more than seven hundred total years behind bars for crimes they didn’t commit. Yet Texas clings to capital punishment, and Texas governor Perry veritably crowed about his state’s execution policy during his abbreviated campaign for the 2012 Republican nomination for president. After accumulating 234 executions on his work résumé, Perry said in a September 8, 2011, debate for Republican presidential candidates, “In the state of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the state of Texas, and that is you will be executed.”15
Two months earlier, in July 2011, Texas had executed Humberto Leal Garcia, thirty-eight, a Mexican national convicted of the rape and murder of a sixteen-year-old girl, even though he’d been denied access to the Mexican consulate when he was arrested. Article 36 of the Vienna Convention on Consular Relations, to which 170 nations are party, requires a nation arresting or detaining a foreign national to afford the detainee access to his or her consulate and to notify the foreign national of the right of consular access. The Supreme Court has upheld these particular rights. The U.S. Justice Department, Mexico, and the UN had all urged Perry to stay the execution.16
Perry’s most controversial death penalty case came in 2004, when Cameron Todd Willingham was executed for the murder of his three daughters in a fire that investigators ruled as arson. But as he sat on death row, scientists compiled a report that posed strong questions about the legitimacy of the evidence. New Yorker writer David Grann, whose lengthy September 7, 2009, article described an extraordinary rush to justice, said fire investigators told him that first- and second-degree burns suffered by Willingham were consistent with being in a fire before the moment of “flashover,” that is, when everything in a room suddenly ignites.17
After the execution, the Texas Forensic Commission ordered a reexamination of the case, and fire scientist Craig Beyler found, as had other scientists before him, that no evidence existed to conclude that arson was committed. Beyler was never able to present his evidence to the commission because Perry abruptly replaced its chairman with someone who cancelled the meeting and disassociated the commission from any further investigation. Once a defendant is executed, the case becomes moot, and authorities no longer have to defend their actions.18
In 2008, five years after he was cleared of aggravated sexual assault in Texas, Wiley Fountain was discovered sleeping out on the street. He’d done sixteen years for a crime he didn’t commit.19
It all started in January 1986, when he walked down a Dallas street in a warm-up suit and baseball cap. A man fitting his description had raped and robbed a pregnant woman earlier that evening on a nearby street. Fountain swore he was at home at that time of the crime, and a witness backed him up, but the victim identified him as the perpetrator, and at age thirty, he was convicted and sentenced to forty years. Eventually he was cleared by DNA evidence and issued a full pardon by Perry. The real assailant was never found. Fountain received financial compensation—which is unusual in such cases. The $190,000 he cleared added up to less than $12,000 for each year in prison. But nothing in his life had prepared him to handle such a sum, and it was soon gone. He’d been “living high,” he said. Soon he was collecting aluminum cans and sleeping on the street. Then he disappeared.20
In 2008 CNN reporter Ed Lavandera interviewed fifteen of the seventeen men who’d been exonerated by DNA evidence in Dallas County, Texas, since 2001. Few had managed to find steady, full-time employment because their convictions routinely popped up in criminal background checks. Lavandera described the men as “scarred” humans. Greg Wallis, who had spent seventeen years in prison, figured he was lucky to make it out alive. Countless fights with other inmates had left him “battered, bloodied and bruised,” Lavandera said. “I don’t like being around people,” Wallis told Lavandera. “If I could do it I’d move into the woods and live off the land.”21
David Shawn Pope, a self-described “artistic Southern boy,” left Dallas and moved in with his mother in Northern California after he was exonerated and released. Seven years out of prison he was still looking for full-time employment. He spent much time playing guitar and writing songs but wrote nothing about his time in prison because “it was so painful,” Pope said.22
Perry contended that all the Texas exonerations demonstrated that the system works well. “We have a very lengthy and methodical process of appeals,” he said a year after Cole’s posthumous pardon. “And that is a great and good mark for Texas.”23
When Georgia executed Troy Davis in 2011, seven of nine witnesses had recanted their testimony against him.24 Many doubted that authorities had arrested the right man, but not even a mass movement in countries around the world could save him.25