On the Innocence of Anthony Broadwater (and Guilt of Alice Sebold)

The story made international headlines. Anthony Broadwater, a 61-year-old black man, finally heard a New York Supreme Court justice speak a truth that Broadwater had long proclaimed: Broadwater had been wrongfully convicted for the 1982 sexual assault of an 18-year-old white college student. Ordinarily, his exoneration wouldn’t have received much attention. We have become numb to the miracle of exonerations. In 2019, for example, roughly 136 people were exonerated; that’s one person every 2.6 days.

But Broadwater’s accuser was famed writer Alice Sebold, and Sebold had written an acclaimed bestselling memoir about her experience as both a rape survivor and a complainant witness. Netflix, in turn, had begun transforming her memoir into a feature film, and one gumshoe producer, uncomfortable with the facts underlying Broadwater’s conviction, had assembled a team that eventually facilitated Broadwater’s exoneration.

In the days since the exoneration, critics have argued that Sebold is morally, if not legally, culpable for Broadwater’s wrongful conviction. The criticism only intensified after she issued a problematic apology that, among other things, claimed ignorance of the racism inherent in our criminal justice system. But I fear that the public criticism of Sebold and her apology fundamentally misunderstands the nature of wrongful convictions.

I am a Black man who represents other Black men wrongly convicted of murders and sexual assaults, and I wrestled with how best to assess Sebold’s culpability. I abhor —and fight every day against—the way that our justice system cruelly and recklessly consumes the lives of young Black men, but I do not find myself particularly mad at Sebold. In fact, my heart breaks for her. No one should doubt that she survived a brutal life-altering assault, and, for forty years, the police, prosecutors, and courts cultivated her mistaken belief. Now, she’s left to accept a new truth in the public eye, and I suspect that her apology represents a small first step in a long journey that she may not be prepared to take. After all, for forty years, Sebold believed that Broadwater was the villain in her story; now she must come to terms with the possibility that she may be the villain in his.

I struggle, in part, because I find Sebold’s original identification so repugnant. Months after the attack, the police without real leads, Sebold passed Broadwater on the street. In her memoir, she wrote that she immediately recognized Broadwater as her rapist. “I looked directly at him. Knew his face had been the face over me in the tunnel. Knew I had kissed those lips, stared into those eyes, smelled the crushed-berry smell on his skin.” But the truth is that Sebold—who writes that, since her rape, she had grown fearful around “certain black men”—simply picked and condemned a random Black man walking down the street.

Broadwater could have been almost any Black man: me, a member of my family, one of my clients. Broadwater’s only sin was, as Sebold notes in her memoir, “shooting the breeze,” chatting with a friend. I am terrified that a white woman has the power to devastate a Black man’s life, her only evidence the color of his skin and the fact that he enjoyed his life.

But I also recognize that Sebold’s misidentification is textbook. Eyewitness identifications are notoriously unreliable. Victims can make genuine and sincerely believed mistakes in identification. In fact, eyewitness misidentification is a leading cause of wrongful convictions, contributing to roughly three-quarters of all wrongful convictions. These erroneous misidentifications, especially in cases such as Sebold’s, are not simply a matter of carelessness.

Trauma and stress can distort and worsen memory formation. This fact, to my students, often feels counterintuitive. In such an important moment, when victims often strive to memorize their assailants’ features, our memories are often at their worst. Human memory doesn’t operate like an iPhone that records events in real-time. No Memory is more like a 19th-century camera that captures random moments and produces grainy, narrow tintypes. Stress can make those tintypes even more opaque. So after a crisis, our minds and imagination improvise details, filling in the tintype’s flaws. In many cases, a victim cannot distinguish between which portions of memory are real and which are fabricated.

My experience also teaches that other factors may have contributed to Sebold’s misidentification. Study after study reminds us that white victims often have trouble with cross-racial identifications. Some white witnesses, in particular, experience difficulty recognizing Black suspects. In cases like Sebold’s, where the attacker yields a knife, accurate memories can become even more difficult to form. Likewise, one must question the accuracy of her memories when, as she notes in her memoir, she briefly lost consciousness.

I don’t want to suggest that Sebold’s hands are clean—they are not—but I have to acknowledge that her own mind may have played a trick on her. She may have sincerely yet falsely remembered, when she first saw Broadwater, that he was her attacker. Our own minds can easily fool us, and each of us is a poor judge of knowing when.

I’m also conscious that the criminal justice system repeatedly set Sebold up to fail. Time after time, the police signaled to Sebold that Broadwater raped her. For example, Sebold was there when authorities brought Broadwater into the station. At that moment, police cheered and congratulated each other, slapping each other on the back. Sebold, who sat in another room, must have taken comfort in the police’s confident celebration.

The prosecutor made matters worse, arranging a five-man lineup in which Sebold picked someone other than Broadwater. The prosecutor dismissed the error, blaming Broadwater for Sebold’s error, the prosecutor telling Sebold, “Of course you chose the wrong one. He and his attorney worked to make sure you’d never have a chance.”

The prosecutor told Sebold a wild story, claiming that Broadwater had demanded that his friend take part in the lineup. Sebold, the prosecutor said, had picked the friend, who was “dead ringers” for Broadwater and who contorted his face and stance to fool Sebold.

All the while, prosecutors and police vilified Broadwater for maintaining his innocence and exercising his constitutional rights. They lied to her, falsely alleging that Broadwater had a criminal record and had served time in prison. Prosecutors also explicitly warned Sebold that “the defense was building a case based on misidentification. A panicked white girl saw a Black man on the street.” Authorities practically encouraged Sebold to reject this possibility, with the prosecutor promising that she would not permit Broadwater’s misidentification defense to prevail in court.

In the meantime, authorities repeatedly told Sebold that Broadwater attacked her. They even pointed him out after she failed to identify him in the lineup. Microscopic hair analysis—a form of evidence the FBI would later repudiate and label junk science—also suggested that Broadwater’s hair matched a hair that her attacker possibly left behind. Therefore, no one should be surprised that, by trial, Sebold felt absolutely confident that Broadwater had hurt her.

In short, police and prosecutors provided Sebold with a form of confirmation feedback, a psychological phenomenon in which authorities can bolster an uncertain victim’s confidence that the victim has correctly identified her attacker. I wonder, after months of this continuous feedback effect, who amongst us wouldn’t have trusted our own identification?

Further, Sebold, an 18-year-old victim, seemed to have suffered the consequences of confirmation bias, a related psychological phenomenon in which individuals seek out and embrace information that supports their pre-existing beliefs and in which the same individual avoids and rejects information that challenges their beliefs.

These forces no doubt culminated with the verdict, where a judge—not a jury—decided Broadwater’s guilt. The judge sentenced Broadwater to 8⅓ to 25 years in state prison. A five-judge appellate court, unsympathetic to Broadwater’s claims of prejudice and error, unanimously dismissed his appeal in a shockingly short one-paragraph opinion.

Experts know that confirmation feedback and confirmation bias can have lasting effects, and state officials must have offered more problematic feedback over the years. At least five times, the state parole board refused to release Broadwater because he refused to admit that he raped Sebold. Another five times, courts rejected Broadwater’s petitions to overturn his conviction.

And, of course, Sebold would chisel her flawed recollection into stone in her memoir. The memoir, written 17 years after the assault, relied, in part, upon police records and the research assistance of the prosecutor. Critics, at the time, praised the New York Times bestselling memoir as “fiercely observed,” “precise,” “carefully detailed,” and “a controlled and meticulous account.”

These factors—faulty memory formation, confirmation bias, the feedback effect—may not persuade critics that Sebold deserves our patience and understanding. But in my time as an innocence lawyer I’ve learned at least one truth. You never really know how you would respond if confronted with a similar situation. Afterall, innocence cases are full of moments in which a person makes a seemingly inexplicable decision. False confessions are common. Defendants frequently waive their constitutional protections. Innocent people plead guilty in shocking numbers. The uneducated might find it easy to say, “I would never,” but those folks fail to appreciate the unique pressures our criminal-justice system imposes on folks like Broadwater and Sebold.

I’m still deeply troubled by her role in Broadwater’s conviction, but I cannot honestly say that Sebold’s controversial apology offends me. In her apology, she writes, “It has taken me these past eight days to comprehend how this could have happened.” Based upon my experience, I suspect that she has not, in fact, come close to comprehending what has happened. Indeed, I wonder whether part of her is not entirely convinced of Broadwater’s innocence. After all, for 40 years, the criminal justice system gave her no reason to question, let alone revisit, her memories. I find it hard to believe that anyone could so easily and quickly shed such long-held life-defining beliefs.

To his credit, Broadwater has accepted Sebold’s apology, and, like many exonerees I know, he seems to hold no bitterness at his mistaken accuser. In fact, Broadwater has observed that his wrongful conviction produced two victims, he and Alice Sebold. Perhaps, that should be good enough for the rest of us.