Ghost of the Innocent Man

by Benjamin Rachlin

  What followed was dysfunction on a scale that every commissioner sitting in Chris’s living room hoped to avoid. It had taken two long years for that Illinois study group to issue its report, a nearly three-hundred-page catalog of policy recommendations whose upshot was a single sentence from its introduction: “Achieving a higher degree of confidence in outcomes will require a significant increase in public funding at virtually every level.” Ten months later, though, the state legislature had neglected to adopt even one reform. So, forty-eight hours before the end of his term—barely a month ago, in mid-January 2003—the governor had commuted the sentence of every death row inmate in Illinois, all 171 of them, replacing their execution dates with life terms in prison.

  And the news had gone national. The New York Times named it the largest emptying of death row in U.S. history; the governor himself acknowledged it was likely to “draw ridicule, scorn and anger.” At home, he admitted, even his wife was disappointed in him. But what choice did he have? He had witnessed in Illinois a “spectacular failure to reform the system,” he bemoaned. “The Legislature couldn’t reform it, lawmakers won’t repeal it, and I won’t stand for it. Our study has found only more questions.”

  Quickly, he was proven correct—about the ridicule and anger, at least. His successor to the governorship called the mass commutation “a big mistake.” A local firefighter, whose brother’s murderer was among those inmates removed from death row, hoped publicly the outgoing governor would be charged with corruption and imprisoned. “How can one person have all this authority and power?” he demanded of reporters. “It’s making a mockery and a farce out of our legal system.”

  Today at Chris’s house, before commissioners could begin on any of the concerns they’d assembled the previous November, Don Stephens, the superior court judge who’d spoken up at that meeting, believed they should settle on a mission statement. They ought to proceed cautiously, Stephens said, since it would be difficult to find language that everyone agreed on. But he didn’t like the prospect of moving forward without one. From a folder, Chris withdrew five neat pages she’d drafted on her own, including a list of procedural rules and a statement of purpose. “‘The primary objective of the North Carolina Actual Innocence Commission is to make recommendations which reduce or eliminate the possibility of the wrongful conviction of an innocent person,’” she read aloud.

  Neither Stephens nor anyone else could think of any objection to this. “I can’t believe you were able to do that,” he admitted ruefully to Chris, who smiled at him politely. See? she thought. Not a restless trophy wife.

  Across the room, Rosen grinned.

  The problem to address first, commissioners agreed, was eyewitness identification, a matter that appealed to them for several reasons. First, it was preventive, not retrospective—targeted future verdicts, in other words, not past ones, so it posed no risk to closed cases, a prospect that made some commissioners squeamish. And eyewitness ID was so obviously a problem that everyone in the room could imagine agreeing on it. This meant Chris and Lake could use the issue as something of a trial balloon for the commission’s influence. Four hundred and seventy-five different law enforcement agencies operated in North Carolina, each of whose criminal procedures depended further on district attorneys, trial judges, and the state legislature. None of those bodies was certain to follow suggestions by a volunteer commission, Chris and Lake knew. They might as well use eyewitness ID to find out.

  To show commissioners the scope of the problem, Chris invited Jennifer Thompson, who lived in Chapel Hill. Thompson was a blond, vibrant, sharp-featured woman, as pert and compact as a gymnast, with the charisma of someone who’d been popular in high school. Her expertise with eyewitness identification was personal: Thompson was the victim who’d wrongly identified Ronald Cotton as her rapist eighteen years earlier.

  In late March, at the state bar association headquarters in Cary, a colonnaded brick and concrete building where the growing commission had migrated from Chris’s house, Thompson shared what it had felt like. That July night in 1984, up in Elon, barely an hour northwest from where they sat today, she’d awoken in her apartment at three a.m. to a gloved hand clamped over her mouth, an unfamiliar man in her bedroom. He could have her car, her credit card, everything in her wallet, Thompson had begged him; if only he didn’t hurt her, she promised not to call the police. “I don’t want your money,” the man said, and at once Thompson realized what would happen. Telling this part to commissioners now, her eyes welled.

  Think, she had told herself that night, lying still in her bed. Think, Jennifer. How will you get through this? She remembered having read that a person who remained calm had the best chance of surviving an assault. If she did survive, she would need to remember details for the police. How tall was her rapist, and how old? “I tried to memorize the things about his face I thought would be important,” she recalled for commissioners, literally during the assault. Did he speak with an accent? Was he missing any teeth? If I survive this and make it to the police, she thought, I will give them what they need to get you. Finally she escaped to the kitchen, on the excuse that she was thirsty. Then she bolted through her back door, toward a neighbor, who phoned the police. Soon men in uniform were asking whether she’d gotten a good look at her rapist. Yes, she had, Jennifer told them: about six feet tall, twenty-one or twenty-two, maybe twenty-four at the oldest. An African American man with a light complexion. Short-cropped hair and a pencil-thin mustache. He had worn dark pants, canvas shoes, and a navy shirt with white stripes on the sleeves.

  Jennifer’s memory had impressed the police, and over the following days they assembled a lineup. “It was my job to find him,” she remembered, “and I found him. He was number five. Ronald Cotton. I knew it.” She had felt proud to be so reliable a witness. She hated Cotton, and would make sure he was convicted. “I thought about it every moment,” she told commissioners. “I wanted him caught, I wanted him tried, I wanted him convicted, and had the state of North Carolina had the death penalty for rape, I would have wanted him dead.”

  Cotton was sentenced to life plus fifty-four years.

  Three years later, in 1987, an appellate court granted Cotton a retrial based on two facts his original jury had never been told. That same night as Jennifer, another woman had also been raped, likely by the same attacker. The second woman didn’t recognize Cotton. Together these facts might have influenced a jury’s thinking; if the other woman wasn’t sure about Cotton, how could Jennifer be? Jennifer herself resented this implication. During her assault, Cotton’s face had hovered four inches from her own, so close she’d seen her own reflection in his pupils. Where else would she have been looking, if not at him? She knew what she had seen. Again Cotton was tried, again Jennifer testified. This time Cotton’s lawyers argued that, during the three years he’d been incarcerated, another inmate had boasted that Cotton was serving time for a crime he himself had committed. Lawyers dragged this man to trial so Jennifer could look at him. His name was Bobby Poole. Jennifer had never seen him before in her life. “Are you sure?” a judge asked.

  “I’m positive,” Jennifer told him.

  Again Cotton was convicted.

  Over the following years, Jennifer married, and mothered triplets. In March 1995, more than a decade after her rape, Mike Gauldin—the lead detective on her case, who’d since been promoted to captain, and now sat in the conference room as a commissioner, listening to Jennifer speak—came to visit, along with an assistant district attorney. There was something new called DNA, the pair told her, and Cotton had asked that his be tested. The man had never stopped protesting his innocence. Gauldin and the DA and Jennifer all knew he was lying, and Gauldin didn’t think Jennifer should have to submit to any test she didn’t want to. But the blood sample that police had kept on file had deteriorated since 1984, and Gauldin wanted her to know that a court might order her to provide more.

  Jennifer rolled up her sleeve and offered her arm. “Let’s do it,” s
he said. She saw no reason to wait for a court order. She had never doubted who’d raped her. Cotton’s face still appeared in her nightmares. If DNA would prove finally that he was the monster she knew he was, she would call her doctor right then, drive to his office to give a blood sample. “But after this, don’t ever talk to me about Ronald Cotton again,” she warned Gauldin. “It’s been eleven years. I’m the mother of three five-year-old children. Okay? I’m raising children now.”

  Three months later Gauldin called again, wanting to know if he could come see her. “We were wrong,” he told Jennifer, standing sadly in her kitchen. “It wasn’t Ronald Cotton who raped you. It was Bobby Poole.” Already Gauldin had tracked down Poole in prison, to confront him with the DNA results. There Poole had confessed.

  “Everyone likes to ask me, ‘Well, dang, Jennifer, how did that make you feel?’” she told commissioners now, in the bar center. “‘What did you do? What did you say? Did you scream? Did you faint?’” She shook her head. “No. I just thanked him for the information. And wished him a good day. Because: What. Do. You. Do? With that kind of information?” She felt like a figurine inside a snow globe that someone had lifted and throttled. There in the conference room she raised her arms and quaked them, to show what she meant. “You believe something so strongly. So strongly that you put your hand on the Bible, and you testify. You swear to tell the whole truth and nothing but the truth.” She shook her head again. “I told the truth. And it was wrong.”

  The discovery of her error felt entirely different than the aftermath of her rape. That she had never experienced shame or guilt over, had understood was not her own fault. But this? Unwittingly she’d robbed some stranger of ten years of his life. Those years were gone. She pinched her fingertips before her face, then opened them suddenly, spreading her hands as wide as her shoulders. “Just gone,” she repeated. “I can’t give them back.” And who was this man, this Ronald Cotton, if not a rapist? Certainly he hated her now, wanted revenge. He was out of prison. He was going to come for her or, worse, for her children. For two more years she’d lived in persistent dread, before finally deciding the only way past it was to meet him.

  This she had done in February 1997, in her pastor’s study. When Cotton pulled up, Jennifer, watching him through the church window, was stunned; this man was taller than she remembered, taller than her rapist. How hadn’t she noticed that before? She’d planned to stand to meet him, but now her limbs went leaden and she spilled into tears. “If I spent every second of every minute of every hour of every day for the rest of my life telling you how sorry I am for what happened to you,” she pleaded, “it wouldn’t come close to how I feel.”

  But Cotton had knelt to take her hand. Had offered his forgiveness. “I’ve never been angry at you,” he told her. “You don’t need to be afraid of me.”

  From that meeting had bloomed an unexpected friendship. Today, six years later, Jennifer and Ronald traveled the country together, to share what had happened and to speak out for reform. The courts needed to do more about postconviction DNA, she declared. They needed to do more about forensic science in general. And they needed to do more about eyewitness identification. Often, when she gave talks like this, a person would raise his hand and confess not to understand how Jennifer could have made her mistake. Not that she was a bad person, but how could she have made an error like this? For more than twenty minutes she had stared into the face of her rapist, had memorized his nose, his chin, his eyebrows. How could she do that, and then choose Ronald Cotton?

  Here’s what she told that person, Jennifer said. She gestured with her arm across the conference room. “How many of you have a mother?”

  The roomful of lawyers raised their hands.

  “How many millions of times have you looked at your mother’s face?” Jennifer asked. “Millions, right? Billions. But if you sat down with a police artist, if you sat down with an identity kit, you cannot do a composite sketch of her. Because your mom’s nose isn’t in the kit! Her ears aren’t there, her hairline’s not there. You’ll come up with a likeness of your mom, but you won’t come up with your mom. And as soon as you have a likeness, that’s your new image. Your memory is contaminated. There’s no way to decontaminate it.” She shook her head. “You can’t peel back the wrong layers.” All you could do was to prevent wrong layers from collecting in the first place. In fact this was possible, she had learned in the decade since her own error had come to light. And this was what she had come to talk about. “You know, this is 2003. If you went into a hospital and you needed open-heart surgery, and somebody said, ‘We do it this new, better way, where you can heal quicker and cleaner, and avoid infections, and your recovery time’s shorter, but we think we might want to do it the old way,’ would you opt for that? No! You wouldn’t. Well, it’s the same thing in law. Science tells us here’s a new, better way, which reduces the risk for an innocent person. Why wouldn’t we do it this way?” While her friend Ronald Cotton was incarcerated, she pointed out, Bobby Poole had raped other women. Convicting the wrong person did nothing to reduce crime.

  Aside from Mike Gauldin, who had experienced Jennifer’s story firsthand, only a few commissioners had met Jennifer before, including Chris Mumma, who’d invited her today, and Theresa Newman. Newman had always thought Jennifer a dynamo; impassioned, unafraid of eye contact, one of the most arresting speakers she’d ever seen. At events where she knew Jennifer would be presenting, Newman had gotten into the habit of watching the audience, rather than Jennifer, to see people’s reactions as they listened. Today at the bar center she saw tilted heads, and tears, and flushed, dumbfounded expressions. One of these belonged to Rich Rosen. Because he’d represented Cotton during his DNA appeal, Rosen had met Jennifer before, but he’d never heard her entire version of the story. No wonder Cotton was convicted, he thought now. Against a witness this persuasive, the poor man didn’t stand a chance.

  Even those commissioners whose work often brought them into contact with crime victims, like police officers, had never heard directly from someone in whose case a verdict was reversed. Not one of them envied Mike Gauldin, whose job it had been to tell Jennifer of the mistake. The prospect of doing this themselves filled them with dread. Other commissioners, like Bob Orr, a colleague of Lake’s on the state supreme court, rarely met victims at all—not out of personal aversion, but simply because their portion of the law distanced them from the people whose cases they ruled on. Orr had never met someone like Jennifer. Oh God, he thought. So this is who I read about in the newspaper. It made him uneasy to think a defendant in a case he’d reviewed might one day turn out to be innocent. Might Orr himself have sentenced that man to prison, or even to be executed? He couldn’t imagine this was possible, though he knew, theoretically, it was. And if that was true, the imperative was obvious, he decided. If anything could be done to prevent another person from repeating either Jennifer’s or Cotton’s experience, then clearly the commission ought to do it.

  Which of course had been Chris’s strategy.

  To the next commission meeting, in May, Chris summoned Gary Wells, a psychologist and national expert on eyewitness identification. Wells, using a PowerPoint presentation, explained the science of Jennifer’s experience—data proved the accuracy of an ID diminished when it was cross-racial, and diminished, too, if a weapon was present. Identifications by the elderly were notoriously unreliable; so were identifications by the very young. More problems emerged from lineups themselves, where a witness typically viewed six or eight suspects simultaneously. In this case a witness usually compared each suspect to the image in her memory, and chose the suspect who seemed nearest, a tactic called relative judgment. A witness in this scenario was answering the wrong question—not whether a particular suspect was the criminal, but whether he looked similar to him. To avoid this impulse, it was smarter to show one suspect photograph at a time, so a witness could compare him not to the others but discretely to her memory of the criminal.

  The person ad
ministering the lineup also mattered, Wells explained. The best lineups were double-blind, for the same reason any good clinical study was: an officer with preconceptions could sway the proceeding in all sorts of ways, even unintentionally. When Jennifer had pegged Ronald Cotton, the officer running the lineup had told her, “That’s who we thought it was.” The effect of this on Jennifer was obvious.

  Here was the thing, though, Wells finished. Research showed that all these problems could be solved—with double-blind lineups, shown consecutively rather than simultaneously—without decreasing accurate identifications. That was the genius in all this. None of these methods made recognition any less likely, as long as the recognition was genuine. Reform would allow police to reduce mistaken IDs while preserving real ones.

  Across the conference room, an unlikely pair had gotten into the habit of sitting next to each other: Rich Rosen, the defense attorney, and Don Stephens, the conservative judge who’d once specialized in prosecuting death-penalty cases. Stephens’s early openness to discussion had impressed Rosen, and the two had grown to like each other, even as they’d built careers on opposite sides of the issues. In an earlier commission meeting the pair had joked that, if they ever came to agree on any particular issue, they could be certain something had gone wrong. Now Stephens leaned toward Rosen, and shook his head helplessly. “Well,” he said. “Nobody could be against this.”