Court Justice David Souter reflected this sentiment when he wrote that erroneous convictions (in capital cases) happen “in numbers never imagined before the development of DNA tests” (Kansas v. Marsh, 2006: 2544). After analyzing hundreds of post-1989 exonerations, Gross Jacoby, Matheson, Montgomery, & Patil (2005: 551) made this point even more forcefully: “any plausible guess at the total number of miscarriages of justice in America in the last fifteen years must be in the thousands, perhaps tens of thousands.” Indeed, a recent report by the Urban Institute found erroneous convictions in five percent of homicide and sexual assault cases in Virginia during 1973-1987 (Roman, Walsh, Lachman, & Jahner, 2012). The exoneration of hundreds of innocent prisoners in the last two decades also has had an effect on academic scholarship, generating a virtual explosion of research on wrongful convictions (Leo, 2005). Strikingly, most of this scholarship has occurred in law reviews, not in peer reviewed social science or criminology journals. In the last decade, law professors and legal scholars have written extensively about the legal causes and consequences of wrongful conviction, as well as about legal and policy reforms designed to reduce their occurrence (Leo & Gould, 2009). Beyond the large quantity of legal scholarship, there also has been a sense that a new paradigm may be emerging, one that treats accuracy and reliability within the legal system as on par with or even more important than traditional concerns about procedural due process (Thomas, 2008). Daniel Medwed has coined the term “innocentrism” to connote the emerging centrality of innocence-based arguments and scholarship in criminal law and procedure (Medwed, 2008). Yet for all the attention that academe has given to wrongful convictions, there has been relatively little dialogue on this topic between criminal law scholars and lawyers on the one hand and criminologists or social scientists on the other (Leo & Gould, 2009).
narrative (Leo & Ofshe, 1998)—that contextualizes and attempts to explain the “I did it” statement, transforming the into a confession. A detailed post-admission narrative is what makes the story appear to be a compelling account of the suspect’s guilt. The content and structure of a suspect’s post-admission narrative goes a long way toward explaining why confessions are treated as such powerful evidence of guilt and sometimes lead to the erroneous conviction of the innocent (Leo, 2008). Police detectives use the post-admission phase of interrogation to influence, shape, and sometimes even script the suspect’s narrative. The detective’s ultimate objective is to elicit a persuasive account of what happened that successfully incriminates the suspect and leads to his conviction. For example, in false confession cases interrogators have sometimes invented, suggested, or elicited an account of the suspect’s motivation. They often use scenario-based inducements as a method of attributing a minimizing motive to the suspect—which the suspect agrees to and then repeats back, even if it is completely inaccurate, because he comes to believe that it will reduce his culpability. Police interrogators also will encourage suspects to attribute their decision to confess to an act of conscience, to express remorse about committing the crime, and to provide vivid details of the crime scene that appear to corroborate the suspect’s guilty knowledge and thus confirm his culpability. In addition, interrogators will try to make the admission appear voluntarily given, portraying the suspect as the agent of his own confession and themselves merely as its passive recipients (Leo, 2008). Police detectives help create false confessions in the post-admission narrative phase of interrogation by pressuring the suspect to accept a particular account and suggesting crime facts to him, thereby contaminating the suspect’s post-admission narrative. Unless the suspect has learned the crime scene facts from the media, community gossip, or overheard conversations, an
Gross and O’Brien’s (2008) analysis implicitly assumes that the convicted capital defendants who were executed are guilty and the ones who were exonerated are innocent, although they are careful to qualify this point by attributing judgments about sufficiency of evidence to the legal system. Unlike Harmon and Lofquist’s (2005) study (which compared the innocent executed to the innocent exonerated), but like Harmon’s (2001) study, Gross and O’Brien (2008) compare the innocent exonerated to the guilty executed. Using chi square tests rather than regression models, Gross and O’Brien identify several statistically significant differences between the capital convictions leading to exoneration and those leading to execution. Defendants who were exonerated were significantly less likely to be reported as mentally ill, more likely to have been tried for crimes that involve two or less victims, more likely to have been tried for crimes that involve children as victims, less likely to have confessed, more likely to have claimed innocence at trial, and more likely to have had an extensive criminal record (especially violent felonies). In addition, in the capital cases leading to exonerations, the time from crime to arrest was significantly much longer than in the cases leading to execution. Gross and O’Brien’s analysis demonstrates that these differences are modest predictors of exoneration in capital cases. I.D. Investigating a New Question: How Erroneous Convictions Differ from Near Misses As each of the four studies indicates, it is essential to create a comparison, or control, group of cases when studying erroneous convictions. Otherwise, researchers risk labeling certain sources as “causes” of erroneous convictions when the factors are merely correlates. The task, again, is to understand how erroneous convictions differ from the other set of cases – which sources are exclusive to erroneous convictions as against a different set of cases – and to develop a better comprehension of how those sources interact with one another. In choosing a
Defendants in erroneous convictions will be significantly more likely to have received a weaker defense than those in near misses. (iii) Hypotheses Concerning Sociological Factors Believed to Influence Erroneous Conviction These seven “traditional” sources of error are sometimes juxtaposed against more sociological sources of error, such as race, class, or demographic effects (Bedau & Radelet, 1987; Free & Ruesink, 2012). The idea here is that minorities and people from lower status or class background are at greater risk of poor treatment in the criminal justice system, which may increase the chance of an erroneous conviction. The heightened risk may operate directly—where, for example, racial minorities are arrested at a higher rate than whites in America (Tonry, 1995)—or the danger may be indirect, such as prior findings that African Americans who murder white victims are disproportionately sentenced to death (Baldus, Woodworth, & Pulaski, 1990). In addition, given that criminal justice practices operate within a larger political system and culture, we anticipate regional differences in the prevalence and distribution of erroneous convictions. Accordingly, we hypothesize that: Racial minorities are significantly more likely to be present in the erroneous convictions than in the near misses; African Americans charged with crimes against white victims are significantly more likely to be present in the erroneous convictions than in the near misses; Cross-racial misidentification is significantly more likely to be present in erroneous convictions than in near misses; Class effects are significantly more likely to be present in the erroneous convictions than in the near misses (i.e., individuals from low socio-economic status are significantly more likely to be present in the erroneous convictions than in the near misses);
2010). While a legally innocent defendant may also be factually innocent of the crime, this is not always true. In each case analyzed in this study, we relied on factual innocence. To establish factual innocence, each case had to possess two separate components: (1) a judicial, executive or legislative acknowledgement that the individual did not commit the crime for which he was erroneously indicted (including a statement of innocence by a prosecutor, governor, judge, state compensation board, or a juror after an acquittal), and (2) evidence that would convince a reasonable person that the individual did not commit the crime (such as post-conviction DNA testing, another individual was prosecuted and convicted of the crime, or a new diagnosis of the victim’s condition). In general, a prosecutor’s decision not to retry a defendant after a judge overturned the defendant’s conviction was not, by itself, considered a sufficient statement of innocence to include the case in our study. However, in a few rare situations where the evidence was uncontroverted and strong enough to prove beyond any doubt that the defendant was factually innocent, we did not require the case to have an official statement of innocence. These were exclusively single-defendant rape cases in which DNA tests on the semen excluded the defendant as the contributor. We considered it important to employ such a conservative definition of factual innocence for several reasons. First, other research studies on erroneous convictions have suffered from lengthy debates about the actual innocence of some of the defendants included in their study. This, in turn, detracts from a meaningful discussion about the majority of cases over which there is no debate. In addition, one of the goals of the current research was to involve criminal justice
Medwed, D.S. (2004). The zeal deal: Prosecutorial resistance to post-conviction claims of innocence. Boston University Law Review, 84, 125-183. Medwed, D.S. (2008). Innocentrism. University of Illinois Law Review, 2008, 1549-1560. Medwed, D.S. (2012). Prosecution complex: America’s race to convict and its impact on the innocent. New York, NY: New York University Press. Meissner, C.A., & Brigham, J.C. (2001). Thirty years of investigating own-race bias in memory for faces: A meta-analysis. Psychology, Public Policy, & Law, 7, 3-35. Merola, M. (1982). Federal, state, and local governments: Partners in the fight against violent crime. The Journal of Criminal Law and Criminology, 73, 965-984. Mitchell, T.L., Haw, R.M, Pfeifer, J.E., & Meissner, C.A. (2005). Racial bias in mock juror decision-making: A meta-analytic review of defendant treatment. Law and Human Behavior, 29(6), 621-637. Mnookin, J. (2008). The validity of latent fingerprint identification: Confessions of a fingerprinting moderate. Law, Probability, and Risk, 7, 127-141. Moenssens, A.A. (1993). Novel scientific evidence in criminal cases: Some words of caution. Journal of Criminal Law and Criminology, 84, 1-21. Natapoff, A. (2006). Beyond unreliable: How snitches contribute to wrongful convictions. Golden Gate University Law Review, 37, 107-129. National Institute of Justice. (1999). Eyewitness evidence: A guide for law enforcement. Washington, D.C.: U.S. Dept. of Justice, Office of Justice Programs, National Institute of Justice. National Research Council. (2009). Strengthening forensic science in the United States: A path forward. Washington, DC: The National Academies Press.
Table 5. Bivariate Results: All Variables, Nature of the Crime Nature of the Crime Variables Erroneous Convictions Total % (N) Near Misses Total % (N) Race of victim 1 (% Caucasian) 65 (198) 62 (155) Race of victim 1 differs from defendant 1* 43 (198) 31 (151) Victim 1 and defendant 1 were strangers** 65 (251) 48 (198) No victim was a stranger*** 62 (260) 46 (200) Female victim 1*** 85 (260) 57 (199) At least one female victim*** 86 (260) 66 (199) At least one white female victim*** 48 (260) 31 (200) Criminal charges*** Murder only Rape only Murder and rape Lesser offense 28 (260) 56 (260) 14 (260) 5 (260) 56 (200) 26 (200) 5 (200) 11 (200) Mean number of charges 4 (243) 5 (200) Serial crime 25 (259) 25 (199) Criminal justice action demanded* 8 (260) 15 (200) Mean number of alleged 0.7 (260) 1.5 (200) Mean number of codefendants** 0.2 (260) 0.7 (200) Mean number of female victims* 1.0 (260) 0.9 (200) Mean number of white female victims* 0.5 (260) 0.4 (200)
Strength of victim characteristics None: Weak: Probative: Highly probative: 37 (260) 4 (260) 28 (260) 32 (260) 53 (200) 2 (200) 23 (200) 22 (200) * p<0.05 ** p<0.01 ***p<0.001 Note: The following variables are not represented as percentages: mean number of charges, mean number of alleged co-perpetrators, mean number of codefendants, mean number of female victims, and mean number of white female victims. Table 6. Bivariate Results: All Variables, Quality of Work by Criminal Justice Officials Quality of Work Variables Erroneous Convictions Total % (N) Near Misses Total % (N) County sheriff investigated* 23 (246) 32 (199) Local police investigated* 81 (246) 72 (199) State bureau investigated 1 (249) 4 (199) State police investigated* Federal law enforcement investigated* 3 (248) .04 (257) 7 (199) 3 (200) Exculpatory evidence withheld* 14 (259) [Alleged: 7] 6 (200) [Alleged: 7] Police withheld exculpatory evidence 11 (259) 9 (199) Prosecution withheld exculpatory evidence** Time b/w crime and arrest (days-log) Time b/w arrest and indictment (days-log)** Judicial error** Judicial misconduct 11 (260) 1.3 (226) 1.8 (116) 5 (26) [Alleged: 5] 0.4 (260) [Alleged: 0.8] 0.4 (260) 4 (200) 1.2 (178) 1.6 (73) 0.5 (200) [Alleged: 3] 0 (200) [Alleged: 0] 9 (199)
Medical error*** Police error Police misconduct Prosecutor error Prosecutor misconduct Other official error 16 (259) [Alleged: 14] 8 (259) [Alleged: 9] 9 (260) [Alleged: 7] 4 (260) [Alleged: 5] 0.8 (260) 11 (198) [Alleged: 15] 12 (199) [Alleged: 15] 6 (199) [Alleged: 6] 3 (200) [Alleged: 4] 0.5 (200) Other official misconduct [Alleged: 0] 0.4 (260) [Alleged: 0.8] [Alleged: 0.5] 0 (200) [Alleged: 0] Criminal justice official lying** 5 (259) [Alleged: 4] 1 (199) [Alleged: 1] Forensic fraud 6 (203) [Alleged: 6] 4 (138) [Alleged: 4] Abuse to elicit confession 21 (57) 18 (56) * p<0.05 ** p<0.01 ***p<0.001 Note: The following variables are not represented as percentages: time between crime and arrest and time between arrest and indictment. Table 7. Bivariate Results: All Variables, Nature of the Facts Available to the State Nature of the Facts Variables Erroneous Convictions Total % (N) Near Misses Total % (N) False confession* 14 (259) 22 (200) Any incriminating statement 22 (259) 29 (200)
False evidence by jailhouse snitch 11 (260) 7 (200) Non-eyewitness gave evidence* 31 (260) 21 (198) If so, was evidence false? Eyewitness identification 82 (260) 75 (200) Eyewitness misidentification*** (unintentional, only cases with ID) 83 (215) 57 (151) Additional misidentification*** 20 (260) 9 (199) Intentional misidentification or lie by victim*** Intentional misidentification by non-victim eyewitness*** 2 (260) 12 (260) 13 (200) 24 (200) Intentional misidentification*** 14 (260) 36 (200) Forensic evidence errors*** (only cases with forensics) 43 (203) 22 (133) Forensic evidence errors (all cases)*** 34 (260) 15 (200) Fingerprint* Presented w/ no errors: Errors: Ballistics*** Presented w/ no errors: 18 (258) 1 (258) 0.4 (259) 9 (196) 2 (196) 13 (195) Errors: Microscopic hair*** Presented w/ no errors: 0.8 (259) 20 (258) 0 (195) 3 (196) Errors: Serology*** Presented w/ no errors: Errors in testing: Errors in testimony: Errors in testing and testimony 6 (258) 29 (259) 3 (259) 16 (259) 2 (259) 1 (196) 4 (196) 0.5 (196) 0.5 (196) 0 (196)
Show-up: Photo array: Lineup: Single photo: Eyewitness 1 misidentified defendant** Eyewitness 1 took multiple tries to ID defendant* 8 (125) 58 (125) 10 (125) 2 (125) 36 (258) 8 (92) 5 (63) 37 (63) 3 (63) 0 (63) 49 (183) 1 (88) Eyewitness 1 provided unique details of perp 66 (62) 71 (76) Discrepancy b/w Eyewitness 1’s description and the defendant 19 (62) 9 (75) Eyewitness 1 made cross-racial ID 21 (57) 19 (54) Eyewitness 1 identification method Direct: 48 (86) 65 (89) Show-up: 2 (86) 6 (89) Photo array: 35 (86) 21 (89) Lineup: 11 (86) 7 (89) Single photo: 5 (86) 1 (89) Eyewitness 1 provided description of perp 89 (66) 96 (82) Eyewitness 1 certain of ID 82 (87) 89 (89) Total number of eyewitnesses 1.3 (260) 1.5 (200) Strength of witness characteristics** None: Weak: Probative: Highly probative: Strength of identification information** None: Weak: 43 (260) 7 (260) 25 (260) 26 (260) 10 (259) 17 (259) 32 (200) 2 (200) 27 (200) 39 (200) 17 (200) 16 (200)
%(N) Race of defendant (% African American) 45 (109) 39 (124) 62 (182)*** 31 (62)*** High school graduate 42 (60) 54 (76) 44 (97)*** 82 (28)*** Previous criminal conviction 65 (81)** 46 (109)** 66 (157)*** 38 (53)*** Female defendant 5 (109) 5 (131) 1 (185)* 5 (67)* Mean age of defendant 25 (106)** 28 (128)** 25 (65)** 30 (181)** Strength of suspect characteristics None: Weak: Probative: Highly probative: 26 (85) 57 (85) 14 (85) 4 (85) 43 (118) 32 (118) 21 (118) 3 (118) 24 (161)** 53 (161) 19 (161) 4 (161) 50 (54)** 33 (54) 17 (54) 0 (54) * p<0.05 ** p<0.01 ***p<0.001 † no control applied Note: The following variables are not represented as percentages: mean age of defendant. Table 12. Bivariate Results: Nature of the Defendant, Significant Variables Controlled for Pre- and Post-DNA Resolution Nature of the Defendant Variables Erroneous Convictions Pre-DNA Cases %(N) Near Misses Pre-DNA Cases % (N) Erroneous Convictions Post-DNA Cases %(N) Near Misses Post-DNA Cases %(N) Race of defendant (% African American) 65 (147)*** 39 (26)*** 47 (109) 37 (163) High school graduate 48 (75) 62 (13) 40 (53)* 65 (92)* Previous criminal conviction 65 (130)*** 37 (19)*** 68 (82)* 43 (147)* Strength of suspect characteristics None: 25 (134) 44 (23) 22 (88)** 46 (151)**
Table 15. Bivariate Results: Quality of Work by Criminal Justice Officials, Significant Variables Controlled for Murder and Sexual Assault Quality of Work Variables Erroneous Convictions Murder Cases % (N) Near Misses Murder Cases % (N) Erroneous Convictions Sexual Assault Cases % (N) Near Misses Sexual Assault Cases % (N) Exculpatory evidence withheld 19 (108)*** [Alleged: 9] 5 (131)*** [Alleged: 8] 10 (184) [Alleged: 6] 9 (67) [Alleged: 6] Medical error 1 (109)** 9 (130)** 0 (185)*** 9 (67)*** Prosecution withheld exculpatory evidence 19 (108)*** 2 (130)*** 7 (184) 6 (67) Criminal justice official lying† County sheriff investigated† Local police investigated† State police investigated† Federal law enforcement investigated† Time b/w arrest and indictment (days-log)† Judicial error† * p<0.05 ** p<0.01 ***p<0.001 † no control applied Table 16. Bivariate Results: Quality of Work by Criminal Justice Officials, Significant Variables Controlled for Pre- and Post-DNA Resolution Quality of Work Variables Erroneous Convictions Pre-DNA Cases %(N) Near Misses Pre-DNA Cases % (N) Erroneous Convictions Post-DNA Cases %(N) Near Misses Post-DNA Cases %(N) Exculpatory evidence withheld 12 (147) [Alleged: 8] 4 (28) [Alleged: 4] 15 (112) [Alleged: 5] 6 (171) [Alleged: 7] Prosecution withheld exculpatory evidence 9 (147) 0 (28) 13 (112)** 4 (171)**
Exculpatory evidence withheld† Prosecution withheld exculpatory evidence† Medical error† * p<0.05 ** p<0.01 Table 18. Bivariate Results: Location Effects, Significant Variables Controlled for Illinois Location Effect Variables Erroneous Convictions Illinois Excluded (N) Near Misses Illinois Excluded (N) Case from former Confederate state*** 41% (225) 23% (180) Death penalty culture*** .081 (166) .039 (140) Political ideology of state (Median Democratic presidential vote 1980 to 2008)** 39% (225) 54% (180) Crime rate 5 years prior 581 (225) 620 (170) Crime rate the year of the crime 614 (225) 628 (159) Crime consistency*** 6.57 (225) -0.71 (159) * p<0.05 ** p<0.01 ***p<0.001 Table 19. Bivariate Results: Nature of the Facts Available to the State, Significant Variables Controlled for Murder and Sexual Assault Nature of the Facts Variables Erroneous Convictions Murder-DNA Cases % (N) Near Misses Murder Cases % (N) Erroneous Convictions Sexual Assault Cases % (N) Near Misses Sexual Assault Cases % (N) False confession 28 (108) 33 (131) 11 (184) 6 (67)
Table 21. Bivariate Results: All Variables, Quality of Defense: Significant Variables Controlled for Murder and Sexual Assault Quality of Defense Variables Erroneous Convictions Murder Cases %(N) Near Misses Murder Cases % (N) Erroneous Convictions Sexual Assault Cases %(N) Near Misses Sexual Assault Cases %(N) Defense presented DNA evidence 0 (81) 4 (102) 1 (136)*** 11 (55)*** Defense presented evidence of misconduct 12 (81) 23 (106) 7 (136)** 24 (55)**
14) Race/ethnicity of victim: (if more than 2 victims, add in) a) Victim #1: i) Caucasian/white ii) African American/black iii) Hispanic/Latino iv) Asian American v) Native American vi) Other vii) Unknown b) Victim #2: i) Caucasian/white
36) What was the result? a) Conviction affirmed (describe court’s rationale) b) Conviction overturned and case thrown out (describe court’s rationale) c) Conviction overturned and new trial ordered (describe court’s rationale) d) Unknown e) Other (please describe) 37) If conviction was affirmed, did defendant seek further appeals? Write in all further direct appeals, their dates of resolution, their results, and the courts’ rationales. 38) Did the defendant file any petitions for habeas corpus, whether in state or federal court? Write in all habeas appeals, their dates of resolution, their results, and the courts’ rationales.
[Question #56] You must write in the first date on which an exoneration occurred. If the exoneration occurred through a governor’s pardon, use the date of the pardon. If the exoneration occurred through legislative action, use the date the bill was passed. If the exoneration occurred through a court declaration of innocence, or an overturned or set aside conviction with prejudice, use the date of the court’s opinion or order. If the exoneration occurred through other court action, coupled with a prosecutor’s decision to dismiss charges or vacate the conviction, use the date at which this action was given legal effect (i.e. the date that the court grants the motion to vacate or the date that the prosecutor dismisses the charges). Length of time between trial resolution and exoneration (time_to_exoner): scale This will be calculated for you. Length of time served from conviction to release (time_served): scale [Question #59(a)] Write in. Measured in months. For erroneous convictions, the time served should begin when the defendant was convicted of the relevant crimes, even if the defendant was in prison earlier awaiting trial, and end when the defendant was released from prison. If the defendant remained in prison due to another conviction, use the date on which the defendant was exonerated as the release date. If the defendant was released on bond or was paroled and then returned to prison, use the time between conviction and final release from prison (do not subtract the time spend on bond, parole, etc).
0=no 1=yes 99=not applicable [Question #57(d)(4)] Discrepancy between eyewitness 1 description and person identified (witness1_discrepancy): nominal 0=no 1=yes 99=not applicable [Question #57(d)(4)] This will require some subjective judgment. However, you may rely, in your discretion, on the conclusions of those involved in the case (i.e., defense attorneys) as long as there are sufficient details about the victim’s original description and the defendant’s characteristics to support their conclusion. Eyewitness 1 pretrial identification 1 (wit1_id1): nominal 0=witness volunteers identification of the defendant 1=show-up used, did not identify the defendant when defendant was present 2=show-up used, identified the defendant 3=sequential line-up used, did not identify the defendant when the defendant was present 4= sequential line-up used, identified the defendant
2=probative 3=highly probative Strength of victim characteristics in suggesting defendant’s guilt (vic_strength): ordinal 1=weak 2=probative 3=highly probative 99=not applicable (victim deceased) Strength of witness characteristics in suggesting defendant’s guilt (wit_strength): ordinal 1=weak 2=probative 3=highly probative 99=not applicable (no witness) Strength of identification information in suggesting defendant’s guilt (id_strength): ordinal 1=weak 2=probative 3=highly probative 99=not applicable (no identification) Strength of statements provided by defendant (statement_strength): ordinal 1=weak
VIII.F. Sample Factors and Exemplars from the Modified Police Foundation Strength of Evidence Rating Scale Type of Physical Evidence 1 Weak 2 Probative 3 Highly Probative Serology Sample from the victim is mixed and suspect cannot be excluded. Suspect has blood type that is the same as that found in seminal fluid from the victim’s PERK kit Suspect has very rare blood type or disease, and traces of which are found in the seminal fluid from the victim’s PERK kit. Recovery of Stolen Items Stolen items are recovered in garbage can. Inscribed piece of jewelry was recovered. Recovered stolen laptop is identified with serial number. Stolen item found in suspect’s girlfriend’s car. Stolen items are found in suspect’s locker at work. Victim’s driver’s license is on suspect. Class ring is found on victim’s body and matches suspect’s history.
During the next two months, Manchester police tried to find additional information that would connect Borrensa to the crime but were unable to uncover anything. On May 1, police showed Mrs. Zinfani the same photo array that Fontaine had shown her, and she again chose Borrensa. Following this second identification, police arrested Borrensa on June 3. Police conducted an in-person line-up on August 31. Mrs. Zinfani was brought into the court to make the identification and was walked past a group of men assembled for the line-up. She saw Borrensa and spontaneously identified him as the first assailant. Garrett Martinez, the New Hampshire Attorney General, and Rebecca Robinson, Assistant Attorney General, then indicted Borrensa for armed robbery in the Hillsborough County Superior Court. The Trial At trial, the state’s case primarily rested on Monique Zinfani’s eyewitness identification testimony and the information gained from Postal Inspector Fontaine’s informant. However, because Fontaine argued that his informant's life would be in danger if he testified in open court, and the prosecutors supported this argument, the judge agreed that Fontaine himself could testify to what the informant said. Borrensa’s public defender, Keith Millard, had little in terms of counterarguments. On January 15, 1980, the day of the crime, Borrensa admitted he had spent the day getting high on drugs with acquaintances at a house were people often gathered to buy and use intravenous drugs.