Despite expectations, in the 2010 US UPR, the issue of wrongful convictions and actual innocence featured minimally. Although it was raised by eight Stakeholders in their individual
submissions,257 there was no discussion in the National Report or Compilation Report and it
was not directly referenced in the main Stakeholder Report. This was in spite of USHRN in its Death Penalty Annex to its individual submission clarifying that ‘[p]unishment of the innocent as a result of government-sanctioned misconduct or discrimination violates Article 7 of the
ICCPR’.258
247 Furman (n 128). 248 Hood & Hoyle (n 9) 267.
249 Death Penalty Information Center, ‘The Innocence List’ (21 December 2017) <www.deathpenaltyinfo.org/innocence-list-those-
freed-death-row/> accessed and correct as at 24 August 2018.
250 Hood & Hoyle (n 9) 267. 251 Ibid.
252 Innocence Project, ‘Eyewitness Misidentification’ <www.innocenceproject.org/causes/eyewitness-misidentification/>
accessed 24 August 2018; Innocence Project, ‘Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of a Misidentification’ <www.innocenceproject.org/reevaluating-lineups-why-witnesses-make-mistakes-and-how-to- reduce-the-chance-of-a-misidentification/> accessed 24 August 2018.
253 See e.g., Brandon L. Garrett, ‘The Substance of False Confessions’ (2010) 62 Stan L Rev 1051.
254 See e.g., Russell Covey, ‘Police Misconduct as a Cause of Wrongful Convictions’ (2013) 90 Wash U L Rev 1133; Kate
McLelland, Comment, ‘“Somebody Help Me Understand This”: The Supreme Court’s Interpretation of Prosecutorial Immunity and Liability Under §1983’ (2012) 102 J Crim L & Criminology 1323.
255 See, Nat'l Research Council of Nat'l Academy., Strengthening Forensic Science in the United States: A Path Forward (2009)
6 [hereinafter referred to as ‘NAS Report’].
256 See generally, ibid.
257 ABA, ‘Stakeholder Report 2010’ (n 56) para 15, 17(d); ABA, ‘United States Universal Periodic Review Stakeholder Report
Annex 6’ (2010) <www.ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS9.aspx> accessed 24 August 2018; ACLU, ‘Stakeholder Report 2010’ (n 65) Part II(b); AHR, ‘Stakeholder Report 2010’ (n 166) para 4, 7; AI, ‘Stakeholder Report 2010’ (n 166) Part C(ii); NGO International CURE, ‘Stakeholder Report 2010’ (n 180) Section I, B; The Dui Hua Foundation,
‘United States Universal Periodic Review Stakeholder Report’ (2010)
<www.ohchr.org/EN/HRBodies/UPR/Pages/UPRUSStakeholdersInfoS9.aspx> para 17 accessed 24 August 2018; USHRN, ‘Stakeholder Report Annex 5 2010’ (n 63) para 7; IACHR, ‘Stakeholder Report Annex 2 2010’ (n 69) para 42-45.
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Stakeholder Reports
The Stakeholder Report did indirectly note that the ‘ABA indicated that post-conviction
collateral review continues to be curtailed by [AEDPA]’.259 For those who are not scholars or
practitioners of US law, which most government delegates making recommendations in the UPR will not be, this required clearer explanation of the limits AEDPA has placed on post- conviction review in terms of uncovering potential wrongful convictions. The ACLU did this in its individual submission, noting that AEDPA and the USA PATRIOT Improvement and Reauthorization Act of 2005 ‘drastically limit the availability of federal habeas corpus relief for
defendants sentenced to death’260 and, as such, these laws potentially leave innocent people
‘with no recourse’ to establishing their innocence.261 However, as this was not discussed in
the Stakeholder Report, recommending states may have missed the significance of the ABA’s comment cited in the main report, and in turn this may have prevented recommendations being
formulated based upon this information.262
In its individual submission, AI noted that ‘[m]ore than 100 prisoners have been released from US death rows since 1977 on grounds of innocence [and in] numerous cases, prisoners have
gone to their deaths despite serious doubts about their guilt’.263 AHR provided that ‘[t]he death
penalty in the [US] violates human rights regarding due process of law, right to liberty and security, and equal protection of law by subjecting innocent people to punishment’,264 and
discussed the troubling case of Cameron Todd Willingham, a potentially innocent man
executed in Texas in 2004.265 Willingham was convicted and sentenced to death in 1992 for
the murder of his three children through arson. However, leading up to his execution, his lawyers provided evidence through a ‘nationally recognized arson expert’ who testified that
his conviction was based upon ‘erroneous forensic analysis’.266 This case continues to gain
attention due to the fact there is the possibility that Willingham was innocent, despite the
prosecutor in the case being cleared of misconduct in a trial in May 2017.267 Furthermore,
Willingham is not the only potentially innocent person to be executed, the DPIC lists fifteen
cases with ‘strong evidence of innocence’ on its website.268
259 Stakeholder Report 2010 (n 52) para 30. 260 ACLU, ‘Stakeholder Report 2010’ (n 65) Part II(b). 261 Ibid.
262 See, chapter 7.1.1, 7.1.2.
263 AI, ‘Stakeholder Report 2010’ (n 166) para C(ii). 264 AHR, ‘Stakeholder Report 2010’ (n 166) para 4. 265 Ibid. Glossip (n 44) 2756 (Breyer J, dissenting).
266 Innocence Project, ‘Cameron Todd Willingham: Wrongfully Convicted and Executed in Texas’ (13 September 2010)
<www.innocenceproject.org/cameron-todd-willingham-wrongfully-convicted-and-executed-in-texas/> accessed 24 August 2018.
267 The Marshall Project, ‘Jury Clears the Prosecutor Who Sent Cameron Todd Willingham to Death Row’ (11 May 2017)
<www.themarshallproject.org/2017/05/11/jury-clears-the-prosecutor-who-sent-cameron-todd-willingham-to-death- row#.d4TOjxpQT> accessed 24 August 2018.
268 See, Death Penalty Information Center, ‘Executed but Possibly Innocent’ <www.deathpenaltyinfo.org/executed-possibly-
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Hood and Hoyle addressed the point of potential compensation for the family of Willingham, if it were found that he was actually innocent. They found that ‘[a]bout half the US [S]tates have enacted statutory compensation schemes to provide relief for those who have been wrongfully convicted and incarcerated’ although they ‘fail to take account of the harm of wrongful
execution, and the families are not likely to receive compensation’.269 USHRN briefly raised
the issue of compensation in the Death Penalty Annex to its individual submission, noting that the US ‘does not always compensate individuals who have been wrongly convicted and
sentenced to death’.270 However, this issue was not explored any further and was not included
in the Stakeholder Report.
Although, again, this was not discussed in the Stakeholder Report, the IACHR submitted its
case report on Medellín, Ramírez Cardenas, and Leal García in the 2010 UPR.271 The issue
of ‘junk science’ played a key part in the convictions. For example, Leal García’s conviction was partially based upon bite-mark evidence which the petitioner argued ‘allegedly result[s] in
63.5% false positives’.272 The National Academy of Sciences in its ‘Strengthening Forensic
Science in the United States: A Path Forward’ report, called bite mark evidence ‘controversial’,273 noting that ‘bite marks on the skin will change over time…[which] may
severely limit the validity of forensic odontology’.274
Furthermore, in Leal García’s case, it was alleged that the victim ‘had been sexually assaulted by several men on the night she was killed but the prosecution never attempted to match their
dental impressions with the marks found in her body’.275 It was also stated that ‘post-conviction
counsel retained a forensic odontologist whose testimony shed serious doubt on the reliability of the bite mark analysis…because of the way in which the evidence was handled and explored’,276 highlighting a further issue of the handling of evidence in State crime laboratories.
Although DNA testing is ‘the most reliable approximation of individualized evidence that the
science method can currently offer’,277 Leal García’s post-conviction attorneys found a ‘DNA
expert who testified that the lab conducting the testing had not followed accepted protocols,
had made mistakes handling the blood samples, and had failed to provide complete results’.278
To date, 362 people in the US have been exonerated by postconviction DNA testing proving
269 Hood & Hoyle (n 9) 333.
270 USHRN, ‘Stakeholder Report Annex 5’ (2010) (n 63) para 7. 271 IACHR, ‘Stakeholder Report Annex 2’ (2010) (n 69). 272 Ibid para 43.
273 NAS Report (n 255) 173. 274 Ibid 174.
275 IACHR, ‘Stakeholder Report Annex 2’ (2010) (n 69) para 43. 276 Ibid.
277 Sarah Lucy Cooper, ‘Forensic Science Identification Evidence: Tensions Between Law and Science’ (14 April 2016) The
Journal of Philosophy, Science & Law Volume 16, pp 1-35, 3.
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their innocence,279 and twenty of those spent some time, if not all, on death row.280 However,
this does not prevent human error or tampering with DNA evidence.
The IACHR’s case report also raised the ineffectiveness of the clemency procedure in the State of Texas, another curtailment to potential claims of innocence from those on death row. The petition stated that:
[T]he Board of Pardons and Paroles does not advise condemned prisoners or their counsel of the date on which it will consider their clemency petition; it does not provide any opportunity for representations at the time it considers the petition; it does not allow applicants to view the evidence submitted in opposition to their clemency requests; and it does not afford them an opportunity for appeal or reconsideration of the Board’s ruling.281
The IACHR found that the ‘procedure in place falls short of establishing minimal safeguards to prevent arbitrary decisions concerning evidence submitted either in favour or in opposition of a clemency request pending the execution of a death sentence’.282 However, whilst the
IACHR submission raised important points regarding wrongful convictions, none of this information was transferred into the final Stakeholder Report, indicating that the OHCHR needs to be more transparent in its procedures for deciding upon the content of the
Stakeholder Report.283
Advance Questions and Recommendations
The UK submitted an advance question about ‘the continuing use of the death penalty in the US’ and the ‘inevitable risk of irreversible miscarriages of justice’, asking ‘[c]ould you tell us
what steps the Administration is taking to address these concerns?’284 However, the US did
not respond to this question during the interactive dialogue, further indicating that changes to
the procedure for advance questions must be made.285
Moreover, following the minimal discussion in the three reports, it is unsurprising that there were no recommendations made by states regarding wrongful convictions in 2010. This was despite, as stated above, the eight Stakeholders all discussing the issue of wrongful
279 Innocence Project, ‘DNA Exonerations in the United States’ <www.innocenceproject.org/dna-exonerations-in-the-united-
states/> accessed and correct as at 24 August 2018; The National Registry of Exonerations ‘About’ <www.law.umich.edu/special/exoneration/Pages/about.aspx> accessed 24 August 2018. This was also noted by CURE and The Dui Hua Foundation in their individual stakeholder submissions, NGO International CURE, ‘Stakeholder Report’ (2010) (n 180) Section I, B; The Dui Hua Foundation, ‘Stakeholder Report’ (2010) (n 257) para 17.
280 Ibid.
281 IACHR, ‘Stakeholder Report Annex 2’ (2010) (n 69) para 56. 282 Ibid para 152.
283 See, chapter 7.1.1.
284 UNHRC, ‘Advanced Questions to the United States of America Addendum 1’ (2010)
<www.ohchr.org/EN/HRBodies/UPR/Pages/USIndex.aspx> accessed 24 August 2018.
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convictions and its causes and effect in their individual submissions. Again, this is further evidence that the recommending member states will not read the individual submissions,
making it imperative that the main Stakeholder Report is thorough.286