Being Wrong - Kathryn Schulz [120]
Penny’s sense of horror and responsibility was twofold. The first, obvious, part was that she had helped send a man to prison for eighteen years for a crime he didn’t commit. But a second wave of guilt set in later, when she learned the identity of her actual assailant. As happens in roughly 40 percent of wrongful convictions, the DNA results not only exonerated the original suspect but identified the real criminal—in this case, a man named Gregory Allen, who by then was serving time for the rape of another woman. That assault had been exceptionally brutal—it had earned Allen sixty years in prison—and, Penny learned, the authorities suspected him of committing eight to ten other rapes in the years between Penny’s attack and Allen’s 1996 incarceration. “I thought about those women all the time,” Penny told me. “Oh my God, how their lives had been changed because of a mistake I’d made.”
In the months and years after Penny acknowledged her error, she would learn a great deal about how it had come about. First there was the fallibility of perception and memory. “Everyone made a big deal about how I had identified Steven three times,” she said—once in the photos she was shown in the hospital, once in the live lineup, and once in court. “But I know now that what the memory experts say is true: you get one shot at it. As soon as I picked out a photo, that became my mental image of my rapist. From that moment on, that’s the face I was remembering, not the face of the man who attacked me on the beach.”
More disturbingly, Penny learned about the many ways the sheriff’s department had poorly served her, Avery, and the cause of justice more generally. They had reinforced her photo selection by telling her that Avery was the suspect they’d had in mind. They had coached her to conceal any doubts she might have harbored. (The first time the district attorney asked her how sure she was about the identification, she’d said 90 percent. His reply, according to her: “When you’re on the stand, you better say one hundred.”) They had admitted conventional hair analysis as evidence in the case, even though the procedure is widely regarded as worthless.*
Most egregiously, though, the sheriff’s department had failed to follow up on other leads. One week after Avery was arrested, the local police department had called Penny to tell her they had a different suspect in mind—one who looked a lot like Avery and had been showing increasing signs of violence. The cops had been tailing him for two weeks, but had been too busy on the day of the assault to track his movements. When Penny relayed this information to the sheriff’s department, she said, “I was told, ‘Don’t talk to the police department, it will only confuse you. We’ll look into this.’ Which I felt was patronizing—like my little female mind couldn’t handle the facts.” She later learned, from a report by the Wisconsin attorney general on Avery’s wrongful conviction, that a police detective had gone to the sheriff to ask if he was considering the additional suspect. The sheriff had replied, “We’ve got our guy,” and declined to investigate the other man. That man was Gregory Allen.
At the time that she learned of Avery’s innocence, though, Penny knew almost none of this. She blamed herself, and set about trying to understand how she could have been so wrong about something so important. DNA exonerations tend to be high profile, and Avery’s image appeared in the papers and on television almost every day in the weeks after the news broke. “I remember trying to study his face. I would pick up the local paper and look at the picture and even though intellectually I understood, ‘this is not the man who hurt you,’ on an emotional level I still had that visceral reaction. There was still fear there—I would still shake, the hair on the back of my neck would still stand up—because for so many years, the face I saw in my flashbacks and in my nightmares was his.”
Remarkably, Penny didn’t let her fear deter her from making contact with Avery. Almost immediately after the