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

Innocence Project Lawyer Steven Wright Examines the Systems That Condemn Us All
By Steven Wright
December 22, 2021

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.
Folks fail to appreciate the unique pressures our criminal-justice system imposes on folks like
Broadwater and Sebold.

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.
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.

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 8? 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.