It’s been nearly 40 years since Rob Warden began investigating wrongful convictions, and much has changed. For one thing, there now is a national innocence movement with about 60 groups across the country working to exonerate prisoners. Northwestern University School of Law’s Center on Wrongful Convictions—which Warden co-founded in 1999—was among the first wave and has grown into one of the largest organization that accepts both DNA- and non-DNA-related cases. (Perhaps the best-known program, the Innocence Project at the Yeshiva University Benjamin N. Cardozo School of Law, was founded in 1992.)
Warden has helped exonerate nearly 60 people, and Illinois’ abolition of the death penalty largely was a response to a growing number of wrongful conviction cases identified in the state.
Now Warden has announced that he will retire as executive director of the center in August 2014. The National Law Journal spoke with him about his career, the early days of the innocence movement and the most important policy developments that have resulted from exonerations. His answers have been edited for length.
The National Law Journal: You’re a journalist and not a lawyer, so how did you initially get involved in investigating wrongful convictions?
Rob Warden: The whole innocence movement was really started by journalists—lawyers weren’t paying much attention. I’m proud of the fact that I happened to be one of the first. I had been an investigative reporter and a foreign correspondent and editor, in various capacities, at the Chicago Daily News. I later worked for The Washington Post. Then I had the opportunity to start a legal publication called the Chicago Lawyer.
This was in the aftermath of Watergate, and it had occurred to me that investigative reporting had focused heavily on the executive and legislative branches, but not on the third branch. Even though everything is recorded, it seemed to me that somehow it is the least accessible to the general public. I set out with Chicago Lawyer in 1978 to investigate wrongful convictions, which I had sort of known were a serious problem that had been overlooked.
NLJ: How did the Center on Wrongful Convictions come about?
Warden: In the years when I was editor and publisher of Chicago Lawyer, we exposed almost 20 wrongful convictions, including those of six people who had been on death row and were ultimately exonerated. Through that capacity, I had developed relationships with people at Northwestern University, principally professor Lawrence Marshall, who was interested in these cases. We worked together and we started a conference in 1998. It was called the National Conference on Wrongful Convictions and the Death Penalty.
We brought to a single stage at Northwestern 29 people who had been exonerated and released from death rows around the country. It really was kind of an amazing event. I remember sitting there with my wife, and there was a jam-packed auditorium and people giving a standing ovation to people who had been exonerated in cases where they had been sentenced to death. I thought, “Hey, we can abolish the death penalty.” And we basically went from there. The Center on Wrongful Convictions was an outgrowth of that conference.
NLJ: How has the role of journalists and lawyers in the innocence movement changed?
Warden: The movement was begun by journalists, but basically it has been taken over by lawyers. They are better at it than journalists are.
NLJ: Why weren’t lawyers more involved from the start?
Warden: I think it’s like lawyers only saw their one case—they didn’t see the bigger picture. You’d find lawyers who knew about what had happened to a client but they felt it was isolated. They didn’t know it was part of a bigger thing. So journalists sort of put it together for them.
I’m sort of happy to be retiring, because the situation has changed. At one point, journalism was immensely important in this movement—if it hadn’t been for great investigative journalists and wonderful people like Jim Dwyer in New York and Maurice Possley and Steve Mills in Chicago, the innocence movement wouldn’t have gotten off the ground. Now that we have something in the order of 60 innocence projects, mostly university- and law school-based, they are going to keep turning out these exonerations, and the exonerations will in turn drive reform. Journalists will be less involved. I’m leaving Northwestern at a time when the movement will continue just by sheer force, because of all the wonderful law schools that have got involved in these cases.
NLJ: What do you think the students get out of working on these cases?
Warden: It’s absolutely a transformational experience. I often told people when I was teaching classes on wrongful convictions, “The great thing we have done at this one university is, between undergraduate and law school and other programs, we’re turning out about 100 people a year who already know what took me almost 40 years to figure out.” This is important. These people are issuing out into influential positions in the legal profession—law firms, prosecutors offices, public defenders offices and in the media, where there is a new receptiveness to the idea that wrongful convictions are not rare. This is the future.
NLJ: What has changed the most in the innocence movement during the time you have been involved?
Warden: There was a time, back in 1983, when I first wrote a story about someone who I thought had been wrongfully convicted and sentenced to death for a crime he hadn’t committed. The mainstream media and even the legal profession said, “Come on.” Nobody believed it. Everyone believed we had the best criminal justice system in the world—and we may—but that wrongful convictions didn’t occur. And if one did on occasion, it was such a rare anomaly that we certainly didn’t need to make any changes in the system. That is what has changed, and it’s not really a result of anything I did.
Part of it was the fortuitous advent of DNA forensic technology, which suddenly showed that many people had been wrongfully convicted. And that, in turn, gave credence to the non-DNA cases where there was persuasive evidence of wrongful convictions. It just changed the momentum.
The media had been a rather hostile environment for discussing things that were wrong with the criminal justice system. Now, the media and the general public are certainly willing to question the reliability of the criminal justice system, and we’ve been able to bring about changes that have greatly improved the accuracy and reliability of the system.
NLJ: What do you see as the greatest policy victory the innocence movement has won thus far?
Warden: For one thing, virtually nobody believed that people would confess to crimes they hadn’t committed. We have been extremely important in exposing the phenomenon of false confessions and the psychological phenomena that lead to it. And we’ve exposed the fallacies of evidence that were often used to convict people, including misinterpretations of forensic results and the use of so-called jailhouse snitch testimony. People never really took that seriously until we started showing that they were leading to serious miscarriages of justices.
NLJ: What portion of cases involved DNA evidence, and why did the center opt to take cases that don’t involve DNA?
Warden: The vast majority of DNA exonerations occurred when there were sexual assaults. In our murder cases, only 10 or 12 percent involved sexual assault. So you could say that every time we’ve shown the fallibility of the evidence used in cases where there was DNA, there are nine other cases that rested on evidence in which there is not DNA available to exonerate the person. We had to go back and really look at these other cases.
NLJ: Do you keep in touch with the people you have helped to exonerate? How do they typically fare out of prison, and would you like to see policy changes in how exonerees are treated?
Warden: Yes, we do keep in touch. And from a policy perspective, there should be more support—if you walk out of prison after committing a crime that you acknowledge that you committed, you have certain services available to you. But if you’re innocent, it’s just “Hey, goodbye. Hope not to see you again.”
It’s always been amazing to me that somebody who is demonstrably innocent walks out of prison, and the first thing they say is, “No, I don’t blame anyone. I’m just happy that I’m free.” And then reality sets in, and they see that they’ve gone from one really horrible situation to a less horrible situation. They don’t have any money, and there are all these problems they have to cope with. By and large, nobody who is wrongfully convicted emerges from that experience whole. Invariably, they have very serious problems, and we’re not providing any resources to help them. I think that’s a great need.
NLJ: Are there cases that still haunt you?
Warden: Yes. The most recent example of that is our client Anthony McKinney, who just died in prison. [The center had worked for eight years to free McKinney, who was sentenced to life in prison for a robbery and murder of a security guard when he was 18 years old. He died in his cell last month at 53.]
We have such persuasive evidence that he was wrongfully convicted and that he was innocent, and we had it going back five years. Even after we were granted a hearing, it was delayed and stretched over five years. He died in prison and now it’s basically moot. We can’t do anything on his behalf now.
One of the things that I find alarming is that we have come up, in many cases, with dispositive evidence of innocence. Then prosecutors and the judiciary have managed to drag these cases on for years. And when we eventually get an exoneration, it’s based on evidence we had, say, five or eight years ago. It was all there. Why didn’t the exoneration occur then? It’s because these procedural problems were thrown up as roadblocks.
NLJ: Do you have faith in the criminal justice system?
Warden: I have faith in many people who are involved in the justice system—that they really want to do the right thing. But the system is inefficient, and the whole legal system doesn’t really make a great deal of sense. We see procedural roadblocks that prevent common sense from exonerating people.
Am I willing to throw the system overboard? Absolutely not. I believe in the rule of law. But what we really need to do is improve it, to bring the degree of accuracy and fairness to the best that we, as human beings, can achieve. We’re not there yet.