Smoke But No Fire: An Interview with Jessica Henry

Amanda Knox with Christopher Robinson

Jessica Henry is a professor and former public defender based in New Jersey. She’s also the author of Smoke But No Fire (University of California Press), set to be published on August 4, 2020. Her book tells the stories of innocent people tried, convicted, imprisoned, and even put to death, for crimes that never occurred in the first place. She identifies the aspects and actors of our criminal justice system that not only allow, but encourage, this kind of injustice, and she poses solutions. 

The nightmare scenario people usually imagine when they think “wrongful conviction” revolves around an actual crime. What comes to mind is a gruesome murder, a killer on the loose, an innocent person in prison in their place. But no-crime wrongful convictions account for a third of all exonerations documented by the National Registry of Exonerations, and Henry believes that’s only the tip of the iceberg.

Amanda Knox

Tell me a little bit about yourself.

Jessica Henry

I am currently a professor in the Department of Justice Studies at Montclair State University. But before that I was a public defender in New York City for about 10 years.

Amanda Knox  

So you’ve seen it all.

Jessica Henry 

I’ve seen it all from both angles. So I’ve had the opportunity to really get in the trenches with people who are being targeted by the criminal justice system, and then I’ve also had a chance to do some research and writing and thinking about it from a more macro level. 

Amanda Knox 

How did you become interested in wrongful convictions for crimes that never occurred in particular?

Jessica Henry 

When I was a public defender in New York City in the ‘90s, I had a whole slew of trespassing cases, which are misdemeanor cases, and people would come in, they would be arrested by the police often for being in their own building without ID, or for visiting a friend or family member, where they absolutely had the right to be there, and they were arrested for trespassing under this program called the Clean Halls Act program. And it was part of a larger initiative in New York City to target minor offenses with the idea that that was going to stop larger crimes. It was called Broken Windows Policing. And I used to say to my clients who had endured being arrested and being processed and sometimes having to spend the night in jail waiting to be arraigned, I’d say, “If you would just come back, I promise you, we will fight this case tooth and nail.” And they invariably pled guilty at arraignment because they didn’t want to come back to court. They had childcare responsibilities and employment responsibilities or whatever else was happening in their life and they just didn’t want to take the time or the inconvenience or couldn’t afford to come back and fight these cases. So that bothered me tremendously, because it was so fundamentally unfair. Most of my clients were poor and people of color, and to see people targeted and processed routinely through the system for such bogus cases drove me crazy. And flash forward to when I became an academic and I entered into teaching, I created a course on wrongful convictions, and the National Registry of Exonerations has a fabulous database that you can search, and I was doing some research in it for my class when I saw that one third of all known exonerations were no-crime wrongful convictions, and I thought, “That couldn’t be right.” So I emailed the registry to ask, and sure enough, and I knew I needed to know more. That’s where this came from.

Amanda Knox  

My introduction into the world of wrongful convictions was obviously because a crime occurred, but what’s particularly insane is the idea that someone could be prosecuted for a crime that didn’t even happen! 

Jessica Henry  

The more I dug in, the more jaw dropping it became. I started talking with you about these misdemeanor cases. Frankly, they’re not really in the database that I just referred to, and when you think about that for a minute, you start to appreciate the scope of no-crime wrongful convictions. It might actually be the largest category of all wrongful convictions entirely. And what that means is our state, on behalf of us, the people, is spending an extraordinary amount of resources pursuing people for crimes that didn’t happen. And what possible societal interest is there in doing that?

Amanda Knox  

What other kinds of incidents are misidentified or miscategorized as crimes?

Jessica Henry 

It can be quite serious. We see numerous cases where parents or caregivers are charged with murder because there has been a misdiagnosis of Shaken Baby Syndrome. And under Shaken Baby Syndrome, the thinking was always whoever was last in the presence of the infant before the infant died must have been responsible for some kind of serious physical harm, and people have been convicted of murder under that theory. Now we know Shaken Baby Syndrome is based on not particularly reliable scientific evidence. So that’s one example. Other times a suicide can be mislabeled a homicide, or an accidental fire could be mislabeled an arson. There’s a whole bunch of forensic errors that can occur, where an event that’s actually accidental or natural is mislabeled criminal. And then we have false accusations where people, for a variety of motives, might wrongly accuse someone of committing a crime and nobody in the system picks up on the falsity of those accusations. And then finally, there’s a whole category of police misconduct, where the police literally invent from whole cloth crimes and then plant evidence to support their accusations. 

Amanda Knox

Let’s unpack that a little bit. You mentioned a number of people in your book who I’m personally familiar with ― Beverly Monroe, Sabrina Butler. Can you talk to me about why it is that women tend to be caught up in these no-crime wrongful convictions?

Jessica Henry 

Women make up only about 9% of all known exonerees, but they’re 17% of all no-crime wrongful convictions. So it’s statistically significant. And even more striking of all, the females in the National Registry of Exonerations database, 70% were convicted of no-crime cases. And many of those cases do indeed involve women who are accused and convicted of intentionally harming a family member. One of the things that might feed into no-crime wrongful convictions as it relates to women is the stereotype of what women are supposed to be. They’re supposed to be nurturers, and so they can be blamed and condemned because they weren’t these natural caregivers that protected the people they were supposed to protect.

Amanda Knox 

So if something bad befalls their partner or their child, there’s something wrong with the woman, not with the partner or with the child. 

Jessica Henry 

Exactly. 

Amanda Knox 

When it comes to sexual assault accusations and also sexual assault reports, we see women and men on both sides of this equation being disbelieved by police.

Jessica Henry 

We have seen people who came forward with actual reports of rape being disbelieved by the police and ultimately charged and convicted of filing a false report, only to have DNA come back years later to say, “Oh, gosh, you really were assaulted.” In the case of Fancy Figueroa, who was only 16 when she was raped, when she called the police to report this, they disbelieved her, and she wound up pleading guilty. That is another big issue that we see in no-crime wrongful convictions ― people pleading guilty to crimes that did not happen. Ultimately Fancy Figueroa was exonerated, because it was shown that she, in fact, was one of many women who were raped by the same perpetrator.

Amanda Knox  

And then on the other side, with people like Brian Banks, who points out that when the #MeToo movement says “believe women,” he’s like, “Well, yes, but also remember that, I was convicted on just an accusation, so let’s be more thoughtful about how we pursue due process and punish people based on accusations.”

Jessica Henry  

Brian Banks is a great example. For people who don’t know about his case, he was a 16-year-old high school student with really promising college prospects and professional football prospects, and it was all derailed when he was accused of raping a fellow high school student, and he pled guilty and was sentenced to six years in prison because he too was afraid of what might happen if he went to trial and lost. Eventually, the complainant did admit that she had lied. But of course, such damage had been done to his life and his career.

Amanda Knox

What about mass hysteria? How does that play into all of this?

Jessica Henry  

People like to talk about the Salem Witch Trials and be like, “Oh, we would never do that.” But of course, that’s exactly what happened, just in a modern day form, to so many people who fell prey to these accusations in the ‘80s, ‘90s, who fell prey to this moral panic. One of the most heartbreaking cases that I came across were Francis and Dan Keller down in Texas. They were this older couple who ran a childcare center out of their home. They eventually were convicted of horrific acts against children and sentenced to incredibly long prison terms, but if you look at what they were accused of doing, it’s hard to believe. They were accused of transporting the children to Mexico to be abused by soldiers in the Mexican army. They were accused of putting blood in the children’s Kool Aid. They were accused of dismembering babies. There were all these crazy accusations, but of course, there were no dismembered babies and there was no evidence that anyone had ever been harmed, except for the testimony of very small children that we later learned were manipulated by their therapists and by people within the legal system. 

Amanda Knox  

How are police and police culture specifically implicated in these kinds of wrongful convictions?

Jessica Henry 

They play two very different roles I think. The first is what I talked about with the trespassing cases. There is often a policy initiative that’s set out by the city or the area in which the police work, where the police are told they’re at war on something, and it’s typically a war on poor people and people of color. They over-police communities often for minor crimes. In Harris County, Texas, for instance, they were routinely stopping brown people and testing substances they claimed to be drugs, and their field tests would come back positive, and people would plead guilty. Of course, field tests are notoriously unreliable, and they sent these tests out to the labs, and it came back negative, the substances were not in fact drugs, and hundreds of people had pled guilty. So part of it is this aggressive over-policing that has to do in part with policy set up by the city, and also in part by, I was gonna say quotas, but anyone hearing this or reading this will say, “The police don’t have formal quotas,” and police departments will deny that they exist, but law enforcement people on the ground will tell you that they are given numerical targets that they’re supposed to hit each month in terms of the numbers of arrests. This idea that we are at war, we are soldiers, we have to go out and get people, we have to make a certain number of arrests. Then there’s also a police culture that allows misconduct to thrive. From the second the police get into the police academy, they are told that they are in a band of brothers and sisters. A family bond that is the most important of all. It’s loyalty to the Brotherhood over the communities that they are tasked to serve. The way that plays out on the street is when a police officer engages in misconduct, the fellow officers often do not call them out, either directly or to supervisors. And on occasion when they do, the folks at the very top, instead of commending the person who did the reporting, will often push back because it violates what’s called the “blue wall of silence.” You are not supposed to rat out your fellow officer. If there were a cultural shift, that might also contribute to reducing the prevalence of no-crime wrongful convictions that are caused by police officers who can act sometimes with impunity. 

Amanda Knox 

You’d think that the police would have enough work on their hands. Why are they making up crimes?

Jessica Henry

It depends. Some police have learned that making up crime can be quite profitable. There was a band of officers down in Baltimore, and another band of officers over in Chicago, who were stealing money from people they believed were drug dealers and stealing drugs and reselling them themselves. They also sometimes create crimes that didn’t occur to cover up their own wrongdoing. When I was at the Bronx defenders, I would see clients come in who looked really roughed up, and they would often be charged with resisting arrest, and I would say, “What happened?” And they’d say, “Oh, you know, a police officer hit me.” And I’d say, “Why would they? What happened?” They’d say, “Oh, I didn’t answer a question fast enough,” or “They didn’t like how I looked.” But ultimately, my client, who often would say they had done nothing to the officer, would be charged with resisting arrest and using force.

Amanda Knox

And this is considered a violent crime, right?

Jessica Henry

Depending on the level of the charges, it could be a misdemeanor, but it could also be a felony. Yeah.

Amanda Knox 

I think one key difference between no-crime wrongful convictions and actual crime wrongful convictions is the idea that there’s this evidence, right? You see all these True Crime shows where you’re looking to uncover the evidence that’s going to reveal the truth. And the greatest happy ending in a wrongful conviction story is that you test this uncovered DNA and it reveals who the true killer was, while the innocent person gets to go free. But in no-crime wrongful convictions, that evidence doesn’t exist. What kind of evidence are we even talking about that’s being presented at trial?

Jessica Henry  

It’s often the testimony of experts. Michael West, this notorious forensic odontologist, meaning a forensic dentist, claims that he can match marks on a person to people’s bites. He would routinely testify that, “This person was the perpetrator of this violent act because he or she bit the victim, and I was able to determine that based on the photographs that I saw of the injury to the victim.” Jurists don’t know what to do with that evidence, and the defense is often ill-equipped to challenge that type of testimony, which should never have been permitted in court in the first place.

Amanda Knox  

Is it the judge who’s supposed to allow or disallow that kind of junk science into the courtroom?

Jessica Henry

Absolutely. When we talk about no-crime wrongful convictions and the things that cause them, we can’t just look to the police or the experts to explain the entire story. One of the actors that’s often overlooked are judges, who do have this gatekeeping function. They are the people that are in charge of what evidence is going to be presented to the jury. And they’re supposed to only allow evidence before the jury that is reliable and accurate so that jurors can make a fair determination. And when they sit back and let bad science or exaggerated claims into courtrooms, we see a huge problem in terms of outcomes.

Amanda Knox 

It occurs to me that all judges should also have to be scientists. 

Jessica Henry 

Or, you know what, we let judges do what they do best, which is be legal scholars, but then allow them to hire experts when it’s needed. They can have objective, independent consultants with no skin in the game give them advice about how to analyze scientific evidence. 

Amanda Knox 

Let’s talk about solutions. What kind of concrete actions can be implemented now to reduce the convictions of people for crimes that never occurred in the first place?

Jessica Henry

It’s kind of a march through the entire legal system. We could start with the police and with changing police culture. We could retrain officers from the get-go that the way they can best protect the police is by reporting and calling out misconduct. There’s been some experimentation with that in a program called EPIC. EPIC was first used in New Orleans, and they had really good success. We could hold police accountable when they engage in misconduct. That’s something that’s a big topic nationally right now. Prosecutors play a significant role. One of the things that prosecutors are supposed to do is to check the factual basis for the arrest in the first place. If there is no evidence, they are not supposed to put forward the case at all. And yet, they often take at face value whatever’s in the police report and allow people to plead guilty based on that even before they’ve done their own independent investigation. That’s a problem because what it does is it makes the police be the arbiter of all things. Prosecutors also often play fast and loose with evidentiary rules. They have a constitutional obligation to turn over evidence that is helpful to the defense. It’s called the Brady Rule. They have to turn over exculpatory evidence, and they often don’t. And one way we could address this Brady issue is by allowing for open discovery, which would mean that both sides have to share their files. It would reduce the whole “trial by gotcha” mentality, and would encourage the prosecutors to do what they’re really supposed to be doing, which is seeking justice, just not getting convictions at all costs. And then on the defense lawyer front, we need to reduce defense lawyers’ case loads or increase the funding so that there are more lawyers doing their jobs. We need to make sure they are competent and well trained, so that they’re the most zealous advocates for their clients. But perhaps the best way to make sure that can happen is to stop arresting so many people in the first place.

Amanda Knox 

I think when the vast majority of people think of wrongful convictions, they think of these horrendous felony convictions where people spend years and years and years and years in jail. And that’s not the full picture of wrongful convictions. There’s this really rough estimate that as few as 1%, but as many as 5%, of people who are in prison currently are wrongfully convicted. Does that take into account the people who pled guilty to misdemeanor offenses? What could the actual number be, given your experience working with clients who plead guilty because it just wasn’t worth their time to struggle through the criminal justice system?

Jessica Henry 

I couldn’t put a number on it. But it would be an extraordinary number is my guess. When we touch over 6 million people in the criminal justice system ― jails, prison, pretrial detention, probation, parole, registries ― I can’t even begin to imagine the real scope of this problem. It’s significant because people plead guilty often because it’s rational for them to do so, even though it’s not just or fair. And everyone in the criminal justice system has become complicit in this, from prosecutors to defense lawyers to judges who aren’t requiring factual predicates to be proven. And it’s a huge problem, because misdemeanors matter. They create a criminal justice fingerprint that can haunt a person for the rest of their lives. But I also want to be clear that there are so many people who have been convicted of incredibly serious offenses who are on death row for these offenses that didn’t even happen. You mentioned Sabrina Butler, but Cameron Todd Willingham was executed for the arson murder of his three children that most forensic scientists who have looked at the evidence have said that was an accidental fire. So it’s alarming from the least serious offenses all the way on up to the most serious offenses that carry with them the possibility of an execution.

Amanda Knox  

Do you have any final thoughts before I let you go?

Jessica Henry 

I think we’re in a moment where change may be on the horizon and we’re seeing exciting things across the country. Recently in Austin, Texas, Jose Garza was elected the DA. He’s a really progressive DA. And we’ve got Larry Krasner in Philadelphia. And you’ve got New Jersey for the first time talking about releasing the misconduct records of police officers. And so there are interesting, exciting things happening, but I think it’s important that we work to create a more just and holistic vision of criminal justice reform that looks at all the system actors and how they impact poor people and people of color.