The tragic story of Antony Broadwater’s wrongful conviction is essential reading because, although it took place in the USA, there are important lessons for our own justice system.
In 1981 Alice Sebold, an 18-year-old student in Syracuse University in the US, was violently raped in an underpass amongst broken beer bottles and dead leaves. Five months later she passed a young black man in a street in Syracuse and felt certain that he was her assailant. Later she wrote in her memoir that “I knew his face had been the face over me in the tunnel. Knew that I had kissed those lips, stared into those eyes”.
She remembers him saying, “hey girl, don’t I know you from somewhere?” as if he was taunting her. She reported him and he was arrested. His name was Anthony Broadwater. There was an identity parade. She didn’t point out Broadwater, but the man next to him. She was distressed to realise she had chosen the ‘wrong man’ but the deputy district attorney, Gail Uebelhoer, apparently told her that Broadwater had brought along a friend who looked like him to confuse her. Later Sebold wrote in her memoir “the two men were like identical twins”.
At Broadwater’s trial, to make up for the mix up in the identity parade, the prosecution asked Sebold to identify her rapist in the courtroom. She pointed to Broadwater, unfortunately for him he was the only black man in the room. Perhaps the court was unaware of the problem of “cross race bias” which is the greater likelihood of mis-identifying a person of a different race. He was found guilty.
Broadwater maintained his innocence throughout the trial and his imprisonment. This came at a huge personal cost; he was denied parole five times because he refused to say that he was guilty. On five occasions he tried to have his case overturned, but without success. He even took two lie detector tests and passed them but remained in prison. When he had served his sentence, he was put on the sex offenders register and struggled to find work. Although he married, he tragically refused to have children because of what he felt to be “the stigma on my back”.
How a film producer cleared Broadwater’s name
Decades later Sebold’s memoir was going to be made into a film for Variety. Timothy Mucciante was going to be the producer. Luckily for Broadwater, Mucciante was also a lawyer, writer, and a former journalist. As he familiarised himself with the memoir, he began to have doubts about Broadwater’s guilt. Eventually he hired a private detective to investigate the case. Once they had interviewed Broadwater, they became convinced he was innocent. Digging further, they found several ‘red flags’.
- The assailant was right-handed, Broadwater was left-handed.
- When Sebold met Broadwater in a street in Syracuse, five months after the attack, she thought he had said to her “hey girl, don’t I know you from somewhere?”. However, a policeman was found who was standing behind her at the time and who knew Broadwater. He said that Broadwater was speaking to him and not Sebold and had not said “girl”.
- The science behind the forensic evidence concerning hair found on Sebold which was said to have come from Broadwater was found to have been discredited since the trial.
- Sebold had written in her memoir that the man she mistook for Broadwater in the identity parade looked just like him. Remember, she had said “the two men were like identical twins”. When he was tracked down, he looked nothing like Broadwater. He was not an accomplice of Broadwater as the assistant DA had told her and had never met him before the day of the line-up.
Eventually in November 2021, Broadwater at the age of 61 was cleared of the crime. The District Attorney said “I will not tarnish this proceeding by saying I’m sorry. That does not matter. This should never have happened.”
When Sebold, now aged 58, heard about Broadwater’s exoneration she took several days to make a public comment. She said she had been struggling to understand how the wrongful conviction could have happened.
She told Broadwater that she was sorry “ for the fact that the life you could have led was unjustly robbed from you , and I know that no apology can change what happened to you and never will. Forty years ago, as a traumatised 18-year-old rape victim, I chose to put my faith in the American legal system.”
With astonishing kindness, Broadwater accepted Sebold’s apology. “It took a lot of courage, and I guess she’s brave and weathering through the storm like I am”.
Wrongful allegations are not necessarily malicious
It is striking that for 40 years Alice Sebold remained convinced that she had correctly identified her rapist. As stated before, in her memoir she wrote “I knew his face had been the face over me in the tunnel. Knew that I had kissed those lips, stared into those eyes”. Describing the identity parade, she said “the two men were like identical twins”. Remember, Mucciante’s private detective discovered that the man she confused with Broadwater looked nothing like him. She also wrote that the microscopic hair analysis that helped to convict him matched on 17 out of 17 different points but Mucciante found no evidence of such a report. Nevertheless, Mucciante said that there was no doubt in his mind that Sebold had made a genuine mistake and had not acted maliciously.
How can a witness make such a serious error? Perhaps a clue is in the way memory works. Memory science has made much progress over the last 40 years. It’s now known that memory doesn’t work like a video recorder but is malleable and can change with time. Experiments have shown how easy it is to ‘hack’ someone’s memory and change it. Our recall of events can be influenced by our beliefs about the kind of person we would like to have been, and false memories can be planted by other people or by hearing other people’s stories. False memories or hazy memories for events that may or may not have happened can be reinforced by repeatedly reliving them until it feels as if they really happened. Even a lie detector test would not be able to determine if a memory was true, because a person with a false memory really believes it is true so wouldn’t have the normal physiological response of someone deliberately telling a lie. Witnesses with false memories will be very convincing in court.
Alice was only 18 and had suffered an incredibly traumatic event and would have been extremely emotionally vulnerable in the aftermath. When she couldn’t identify Broadwater in the police line-up, a person she would have trusted, the assistant DA, is said to have told her that Broadwater had persuaded a similar looking friend to join the identity parade to confuse her. She seems to have accepted this explanation and her later description of events, “the two men were like identical twins” appears to demonstrate how her memory adapted to conform with what the assistant DA had told her.
Whatever the explanation of the difference between her recall of events and what is now believed to have happened, it is clear that a witness to a crime can quite innocently identify the wrong person.
The legal process needs to learn from its mistakes
In his article in The Sunday Times, on 5th December 2021 Matthew Syed makes an important point. Most organisations have systems in place to learn from their mistakes. He gives the example of the aviation industry which has rigorous procedures to investigate accidents. These have been a great success and now only one take-off in 11 million results in a fatal accident.
Unfortunately, despite multiple examples of wrongful convictions, both here and in the United States, there is a strongly held reluctance to learn from these errors. Syed goes on to describe how in 1932 an American law professor listed eight miscarriages of justice in which people were convicted of murder of someone who was missing presumed dead, when in fact they turned out to be alive. If only the American justice system has learnt from these mistakes perhaps Broadwater would not have been convicted. When DNA technology became available scores of innocent people were exonerated because stored samples showed they could not have committed the offence. How many more people languish in prisons because they were not lucky enough to have had samples from the crime scene stored in this way?
The British system is not much better. Syed relates that when the court of criminal appeal was first proposed in the 19th century, the judges put up the greatest opposition. It took 60 years and 31 parliamentary bills to win the battle for an appeal system. The reluctance for the legal system to learn from its mistakes persists to this day. It is still illegal to ask how a jury came to its verdict, so when an error is later discovered it’s not possible to find out how it happened. When the Birmingham Six brought a civil action, Lord Denning rejected the case on the grounds that accepting that the police had lied would open an “appalling vista”. Anyone who works in critical occupations such as aviation, health care or the nuclear industry, knows how dangerous it is to pretend mistakes don’t happen. How long will it be before our judiciary dares to face its “appalling vistas” so that we can have the high-quality legal system we all deserve?