“Everyone in prison is an innocent man,” or so goes the best line in chain-gang culture. Stephen King gave it to Red, the wizened lifer in the cult novella Shawshank Redemption. It played as a joke back then, both in the book and the movie. And yet scarcely two decades later, Red’s line is less a joke than a simple description, a slowly unfolding fact of American life. Every week, on average, the prisons of America discharge another newly exonerated soul, cleared of an old crime and restored to the world of socked feet and premium cable. They are the lucky ones, part of a national movement to right every judicial wrong.
But the work is slow, and the human toll is already in the hundreds of lifetimes, an average of 13 lost years per person from arrest to exoneration. The best estimates say that about 5 percent of the U.S. prison population is innocent, including at least 2 percent of inmates on death row. That’s more than 100,000 undeserving people doing hard time, another 36 waiting to die. If accurate, it’s perhaps the most acute moral crisis in America today.
What’s going wrong? Here’s an easy way to experience the rough carriage ride of national justice: watch The Staircase, a 10-episode documentary now playing on the Sundance Channel. Complete with two new parts and rare footage of junk forensics—the signature flaw in modern trials—The Staircase is the scariest portrait of criminal justice since the nonfiction film that helped launch the modern innocence movement, Errol Morris’s The Thin Blue Line. It’s scarier, in fact, because The Staircase isn’t based on re-creations but on original footage, a front-row view of legal truth as it’s feathered into existence, manufactured from guesses and conjecture, and sold to a jury as more or less believable fiction.
“In America,” says Jean-Xavier de Lestrade, the French director of the film and a lawyer by training, “no one is really looking for the truth. Each side is trying to tell a story.”
De Lestrade won an Oscar for his 2001 documentary, Murder on a Sunday Morning, the triumphant story of a poor black teen wrongly charged with killing a tourist in Jacksonville, Florida. The teen, as de Lestrade showed, was less a suspect than a symbol, his trial a neon sign flicked on to announce that Jacksonville was still “Open for Business.”
The Oscar helped de Lestrade win the access he needed for The Staircase, which follows the case of Michael Peterson, a then 60-year-old novelist, rich and white, a pipe-smoker in tortoise-shell glasses, who in December 2001 was accused of killing his wife Kathleen with a blow-poke in the couple’s many-gabled mansion in Durham, North Carolina. The trial was national news, and the documentary, which originally aired in eight parts on the Sundance Channel in 2005, was heralded as a masterpiece of suspense.
Now de Lestrade has brought the case through to the present day. No spoilers here: clarity on Peterson’s guilt or innocence is not forthcoming. He claims that his wife fell down a narrow, poorly lit stairway in their home and bled to death while he sat by the pool, out of earshot, finishing some wine; the state claims he beat his wife, took a break, then finished the job. Only Michael knows which story is true. But what does become clear is the speed with which all holes in the evidence against him were vulcanized in the rush to conviction.
“Truth is lost in all this now. Truth is of no meaning whatsoever,” Peterson says, plausibly, midway through the trial. “This has become a show, and it’s got its own momentum. We’re just going along.”
This spectacle of stories is present from the very first episode, when Peterson calls 911, hysterically crying, and reports his wife’s fall. His kids believe him, as do his ex-wife and a parade of friends. Everyone describes a perfect marriage, a gentle man, a charmed life. There is no witness, no murder weapon, no clear motive, and the physical evidence—bloody clothes, blood in the stairwell—is inconclusive at best.
But, lo, here comes the state, a prosecution team looking like the most squeaky-clean country lawyers you’ve ever seen. “We can’t know exactly what happened,” says Jim Hardin, the district attorney, in the first episode. A blond-haired local boy elected by the people, Hardin seems more certain as the state’s investigation unfolds, finding Peterson’s gay-porn stash and some emails between Peterson and “Soldier Top Brad,” an ex-enlisted man who works as a prostitute. By the trial, all uncertainty is gone: Hardin knows the Truth.
You can actually see the state lock in on “guilty.” At a meeting with her team, Freda Black, an assistant district attorney, winces at the gay porn, tiptoeing through the phrase “homosexual military men.” The murder narrative she develops—apparently based on nothing but soap opera plot lines—is that the porn was “discovered” by Kathleen Peterson, who naturally thought the pictures were “humiliating and embarrassing,” and when she confronted her husband about them, he killed her for fear of his secret getting out.
Never mind that Peterson says his wife knew about his bisexuality, as did his sons and brother. Never mind that he never slept with Soldier Top Brad. No, the state sees a gay “love triangle situation,” and the prosecution is glistening at the discovery. “It’s powerful information,” says Hardin, sitting low and cozy in his chair, almost smiling as de Lestrade interviews him, “because it could be very damaging from a lot of different perspectives.”
Meanwhile, the state’s paper monster is on the prowl. A crack squad of forensic experts is hitting blood-soaked sponges with sticks, trying to recreate the splatter at the crime scene. This is called science, and science concludes this was murder. This conclusion is written into evidence as fact; then a state medical examiner concurs.
“This is Durham,” says Peterson, trying to explain these twists to his legal team. “It’s unique. It’s particular. It’s dirty. It’s corrupt. It’s small.”
Maybe so, but the case also bears the hallmarks of false convictions nationwide. In 2011, Brandon Garrett, a law professor at the University of Virginia, completed a landmark review of the first 250 cases of DNA exoneration, and what went wrong in the original trials. His findings point to perjury and official misconduct, but also to a shocking amount of junk science. Fully 60 percent of state forensic experts concealed evidence or delivered invalid, unreliable, or erroneous test results, according to Garrett, whose work was buttressed by a larger review released last summer. Science exonerates, in other words, but science also damns.
It’s this CSI-gap that controls Peterson’s fate, just as it does in cases everywhere, because you can’t cross-examine science. Not without losing your audience. At closing argument in 2003, Peterson’s brilliant lawyer, David Rudolf, wisely built his defense around the concepts of reasonable doubt and the burden of proof. He pointed to at least 10 holes in the prosecution’s case, and it was compelling stuff, delivered with the clean, crisp diction of a lawyer trained in London and New York.
But then Freda Black stood up, and poured dawg-gawn North Carolina common sense all over the courtroom. She reminded the jury—a mix of toothpick-chewing black men and pucker-mouthed white women—that Peterson likes books and boys. “We’re not dealing with the average individual over here. We’re dealing with a fictional writer … a person who knows how to create a fictional plot … And then there’s Brad … People like Brad … Now … do you really believe that [Kathleen Peterson] knew? … Does that make common sense to you? … And I don’t mean to offend anyone, but he did say they were going to have anal sex … Filth. Pure-T Filth.”
Still, the clincher was the science, according to what jurors told the local paper. Duane Deaver was the blood-splatter expert. He said he had worked hundreds of cases and had “no doubt” that this case was murder. He had models and sponge-test results, and it all showed murder, murder, murder. It showed “injuries [that] can’t be from an accidental impact on the stairs,” as Hardin put it. And if you believe otherwise, Black added, “well, you’re just gonna have to believe that Duane Deaver is a liar.”
In 2003 Peterson was convicted of first-degree murder and moved from a 10,000-square-foot home into a bathroom-size cell, where he stayed for the next eight years … until, well, guess what. Deaver is a liar, according to an order signed by the judge on the Peterson case, and he did lie to the jury. Deaver lied about his credentials and about the scientific validity of his splatter tests. He lied for years in dozens of prior cases, according to a 2010 review of his work—spurred by the DNA exoneration of a man Deaver helped put away for 16 years on a bogus murder charge.
Peterson is out on bond, living in a condo in Durham, waiting for the state to decide whether it wants to retry him. His kids still support him, and although he’s limited to three counties, he leads what amounts to a free life, working out, watching movies, and writing. If he’s acquitted in a retrial, his name will join the rolls of the exonerated. If not, he’ll go back to prison. Either way, he’ll finally get what he deserves, what we all deserve: a fair hearing of the facts.