A Case for Justice Reform in 2017

The year 2016 will go down as a good one for Freddie Peacock. But because it was so long in coming, it surely must be bittersweet. His story illustrates the slow pace and enormous hurdles in correcting criminal justice miscarriages post-conviction. It also calls on our individual and national conscience to make 2017 the year responsible citizens send the message loud and clear to all public and criminal justice professionals that this nation must replace the mantra of “tough on crime” with “smart on crime.” In the Peacock case we learn many lessons about wrongful conviction rarely delivered so clearly by a federal judge.

In August 2016 U.S. District Judge Michael Telesca awarded Freddie Peacock nearly $6.2 million long after Peacock’s conviction of and imprisonment for a 1976 Rochester (NY) rape he didn’t commit. Peacock had sued the city of Rochester and Rochester police. Judge Telesca’s decisions in May (here) enabling Peacock to pursue civil damages and in August (here) determining his damages are instructional for those who believe wrongful convictions are the inevitable rare result of innocent human error.

In these two rulings (from which the judge’s quotes were garnered for this article), the judge revealed that public officials presented to the grand and trial juries faulty evidence that conspired to convict an innocent man.

In 1976 Peacock, a diagnosed paranoid schizophrenic, was functional with medication. He worked full time as a hotel cook, lived independently, participated in his church, and interacted with friends and family. But his mental condition worsened in prison. A psychologist would later conclude, “The Freddie Peacock who existed in his twenties died when he went to prison.”

The jury convicted Peacock on the powerful evidence of a confession and victim’s identification. Both proved to be unreliable.

Confession: False or Fabricated?

Judge Telesca explained that, after interrogating Peacock, [Detective John J.] Wernsdorfer [now deceased] typed a report he called an “oral synopsis” which he said contained Peacock’s admissions, such as “I did it,” and “I raped her.” This was the document provided the prosecutor “who relied on it in securing an indictment.” It was also referenced in Wernsdorfer’s trial testimony and in the prosecutor’s trial summation.

Peacock never signed this synopsis. In fact, Peacock claimed he never confessed or admitted involvement in the crime.

According to the Judge’s ruling in the civil case forty years after the crime, Rochester Police Officer Wayne Markel, who was present during Peacock’s interrogation, conceded under oath that Peacock “never made any admissions during the interrogation.” Instead, he “consistently and adamantly denied raping the victim.” Markel acknowledged that his colleague, Wernsdorfer, “must have fabricated the confession.”

Judge Telesca wrote, “…the record permits a reasonable jury to conclude that Wernsdorfer concocted Plaintiff’s confession out of whole cloth.”

Tainted Identification?

Judge Telesca also noticed that the victim’s first description of the perpetrator provided to Officer Markel was vague. Attacked in the dark of night, she described the rapist as “a black male of medium height.” Officer Markel understood the rapist to be a stranger. This is significant, because the victim knew Peacock; they lived in the same apartment complex.

Reports and testimonies differ on the timing and degree of certainty of the victim’s identification of Peacock as her attacker. In any case, the judge wrote that after Detective Wernsdorfer told her that Peacock had confessed, “…the victim began expressing certainty in her identification of Plaintiff as the rapist, and relating new, never-before reported details about her attacker…This description matched Plaintiff’s appearance…”

“A reasonable jury also could find that the false confession effectively bolstered the victim’s erroneous identification of Plaintiff as her assailant,” concluded the judge.

Studies show memories are vulnerable to contamination. Exonerations have revealed that increasing confidence in an identification has no reliable relationship to accuracy. Going from uncertainty to confidence and from vagueness to specificity are common in memories tainted by subsequent influences.

Official Misconduct and Perjury?

Officer Markel acknowledged that a confession was important to support thin evidence against Peacock. The prosecutor, knowing the victim’s identification had weaknesses, assured the jury they need not rely on her testimony alone.

The judge outlined facts suggesting the police fabricated Peacock’s confession. If so, they perjured themselves in permitting its use by the prosecutor.

In deposition Officer Markel said he did not know of Peacock’s confession until the civil case decades later. The Judge wrote, “…a reasonable jury could find this unworthy of belief, given Markel’s direct participation in the investigation, interrogation, and prosecution.”

The judge noted the officers’ failure to comply with the police department’s “well-established policy and practice,” which “calls for, whenever possible, a stenographically recorded confession or a statement written out and signed by the subject…”

Officer Markel’s testimony at trial also makes his claimed ignorance problematic. According to the judge, the prosecutor “who testified that it was his practice to speak to all trial witnesses beforehand, said that it ‘just doesn’t make sense’ to him that Markel would have had no idea, until his deposition, that Plaintiff allegedly had confessed to the crime.”

Markel was obligated to report to the prosecutor Peacock’s denials of guilt. The prosecutor recalled receiving no such report and none was in the case file.

Judge Telesca concluded, “Viewing the facts and inferences to be drawn from them in the light most favorable to the Plaintiff, a reasonable juror could find that Markel had contemporaneous knowledge that Wernsdorfer had falsified the confession, and had sufficient opportunity to intervene to prevent a wrongful conviction based on fabricated evidence.”

Wrongly Convicted, Incarcerated 5 Years, 9 Months: The Damages?

 In Judge Telesca’s award decision, he sought to evaluate the anguish suffered by Peacock, now 64, who was dubbed “Chester Molester” and “subjected to sexual harassment” in prison.

The judge reviewed the “voluminous evidence submitted” regarding Peacock’s “gentle and peaceful nature” and the “fragility of his emotional health, in concluding that the mental distress he suffered during prison was especially grievous.”

A high school friend described Peacock as being “like the lamb among wolves in prison.” Another stated, “I don’t know how he survived [prison], he’s too nice.”

Friends and family said that after prison Peacock was fearful of being falsely accused and withdrew from relationships. He relinquished his career as a cook because restaurant work required interaction with women.

Peacock’s prevailing mission inside and outside prison became proving his innocence. It took him 33 years to clear his name. He was released from prison in 1982 and from parole in 1992. Innocence Project lawyers, students, and private lawyer Donald Thomson utilized DNA testing to prove Peacock’s innocence in 2010. The Monroe County District Attorney (NY) supported vacating the conviction.

Peacock was the 250^th person exonerated by DNA. The National Registry of Exonerations recently reported 1,956 exonerations since 1989 gained through DNA testing and other evidence.

The Registry attributed Peacock’s wrongful conviction to false confession, mistaken eyewitness identification, perjury or false accusation, and official misconduct…frequent wrongful conviction contributors, detailed in this case by a federal judge, with the following damages:

Loss of liberty and pain and suffering: $5,000,000                                         

Loss of Normal Life:  $   750,000

Lost Wages:  $ 442,374

Total: $ 6,192,374

Fragile Justice: How Juries are Misled

In many wrongful convictions, each piece of evidence bolsters the others to create a credible portrait of guilt, even when the evidence later proves to be inaccurate, unreliable, or falsified. The lessons of 1,956 exonerations make the red flags of wrongful conviction in Peacock’s case painfully clear.

A jury is less likely to wrongly convict when the police interrogation is video recorded, a recommendation that protects both suspects and police from false accusation.

A witness is less likely to misidentify when officers employ best practices in interviewing and eyewitness identification. Blind administration (an administrator who doesn’t know which person is the suspect) in lineups ensures the administrator doesn’t influence the witness, purposely or inadvertently. This cautionary approach would have discouraged Wernsdorfer from telling the victim the suspect confessed (particularly egregious if Peacock never confessed).

Lost Innocence?

If the human tragedy of wrongful convictions is not enough to prompt calls for reform and best practices in criminal justice, perhaps settlements of nearly $8.5 million will do the trick. In addition to the $6.2 million award, Peacock’s attorneys were awarded fees and expenses of $770,000. Peacock was previously granted $1.5 in the Court of Claims. (It must be noted that the wrongly convicted are often compensated much less or not at all, another inequity.)

Perhaps recognition that a brutal rapist remained free to victimize others for more than three decades is a motivator to demand better.

What’s certain: We as a society can no longer claim ignorance or innocence. Too many lives have been trampled by miscarriages to ignore imperatives to implement best practices in criminal justice procedures…. follow forensic science reform recommendations…properly fund indigent defense…review miscarriages to prevent repeating them, and more.

Initiatives to reduce miscarriages, increase public safety, and diminish the enormous human and financial costs of wrongful conviction are clear, and need not be daunting. More accurate, fair, and equal criminal justice requires only a national will to make this foundational human right a priority.