Second year Notre Dame law student Erika Gustin is more involved in what happens after a trial than during.
“Before I started law school I started looking into wrongful conviction statistics and information on my own, which is absolutely horrifying,” Gustin said. “It came out off an interest in process improvement. Everything is a process and everything can be improved.”
Gustin is involved in the Notre Dame Exoneration Project, a group working with the Chicago Exoneration Project to represent inmates who were wrongfully convicted and get them out of jail. She said a lot of wrongful convictions usually result from eyewitness misidentifications, faulty human memory or leading questions from the police.
“A lot of it tends to involve some kind of misconduct. It can either be official misconduct, police or prosecutors, or it might just be a bad process,” she said. “[In] 12 percent of exoneration cases with misidentification, they found the police pointed out or made clues about who they wanted to pick.”
Gustin said wrongful convictions can also result from placing too much stock in eyewitness testimonies.
“You also find instances where the suspect is shown to the witness multiple times,” she said. “The human brain is really good at copying and pasting faces onto other bodies. In many cases they’re not lying — they’re just unfortunately incorrect in what they remember.”
The Notre Dame Exoneration Project will be placing vases of white roses on the tables in the law school commons. There will be 166 roses, which represent the 166 exonerated, innocent people in 2016. Each vase will also have a statistic about wrongful convictions.
“White has that association with innocence. We wanted to have a good visual display,” Gustin said. “Every single year we’re seeing increasing numbers. Every year for the past five years has been a record-breaking number of exonerations.”
Gustin said the average innocent, convicted person spends between 8-and-a-half to 14 years of their life in jail. She said the longest sentence an innocent person has served — according to current knowledge — is 35 years.
Innocence Projects are inundated with mail and tasked with the responsibility of determining which cases have merit, Gustin said.
“You’re looking for someone who has a good story,” she said. “Something that seems like a legitimate alibi and maybe they say in the letter that they have 10 people that can prove it. Once you get past that initial stage the attorneys will start reviewing your documentation and your record. They basically go back and do the police and prosecutor’s job all over again.”
Gustin said about 40 percent of jurors will assume a defendant is guilty just because they are in court. This brings up the question of whether the presumption of innocence ever existed, Gustin said. A lot of the responsibility comes down to police officers and ensuring that they receive adequate training, in skills such as asking open-ended questions and using proper interrogation techniques, she said.
Gustin also said Conviction Integrity Units (CIU) aim to do the work of Innocence Projects and correct prosecutorial mistakes. However, she said, there’s a bias that exists since they are run by the prosecutor’s office and therefore review their colleagues’ work. Some of them also do not have publicly available information, she said.
“At least until recently, conviction integrity units have not done a good job,” she said. “So I think it’s just that a lot of the successful work comes from the private side. It comes from attorneys who are required to do pro-bono work and the attorneys that go above and beyond their requirements.”
The Notre Dame Exoneration Project was started in fall of 2016 and Gustin said the long-term goal is a criminal conviction clinic at the law school. Currently, the students involved are working on two wrongful homicide convictions in Elkhart.
“It fits right in line with the mission,” she said. “Our marketing slogan is a different kind of lawyer. Really what that means is an attorney who is really invested in giving back to the community.”
Gustin said some people are content with saying that the current justice system works and they “put band-aids on as problems come up.”
“Unfortunately our system is very quick to convict but it’s very hard to get you out,” she said.
She said she hopes the white roses on the tables helps bring more awareness to exoneration efforts and the gravity of the justice problem.
“We’re a year old, we’ve had fantastic progress and I really credit that to hard work from the executive board because their excitement makes other people excited and also the Notre Dame Law Students,” Gustin said. “We want people to sit and enjoy the flowers, but also be confronted with this very uncomfortable statistic.”
