Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement (Excerpt)Posted below is the preface to a study released September 1 by the National Registry of Exonerations. This study contributes to a broader picture of the injustices perpetrated against African Americans and national minorities by the U.S. legal system, beyond the ongoing incidents of police brutality. This is a report about
the role of official misconduct in the conviction of innocent people.
We discuss cases that are listed in the National Registry of
Exonerations, an ongoing online archive that includes all known
exonerations in the United States since 1989, 2,663 as of this writing. In general, we classify a case as an "exoneration" if a person who was convicted of a crime is officially and completely cleared based on new evidence of innocence. [...] The Report is limited to misconduct by government officials that contributed to the false convictions of defendants who were later exonerated -- misconduct that distorts the evidence used to determine guilt or innocence. Concretely, that means misconduct that produces unreliable, misleading or false evidence of guilt, or that conceals, distorts or undercuts true evidence of innocence. Three years ago, the Registry released a report on Race and Wrongful Convictions in the United States. We found, among other patterns, that Black people who were convicted of murder were about 50 per cent more likely to be innocent than other convicted murderers, and that innocent Black people were about 12 times more likely to be convicted of drug crimes than innocent white people. Some of those disparities are caused by the type of misconduct we study here and some are not. Misconduct in obtaining and presenting evidence contributes substantially to the racial disparity in murder exonerations, as we will see. On the other hand, the huge disparity in drug exonerations primarily reflects a type of misconduct we don't cover in this Report -- racial discrimination in choosing which people to stop or search for drugs, what is commonly called "racial profiling." The Report describes many varieties of misconduct in investigations and prosecutions. Some are always deliberate, some are rarely or never deliberate, and some may or may not be deliberate. The Report organizes the myriad of types of misconduct into five general categories, roughly in the chronological order of a criminal case, from initial investigation to conviction: Witness Tampering; Misconduct in Interrogations of Suspects; Fabricating Evidence; Concealing Exculpatory Evidence; Misconduct at Trial. Most of the misconduct we discuss was committed by police officers and by prosecutors. We also report misconduct by forensic analysts in a minority of cases, mostly rapes and sexual assaults, and by child welfare workers in about a quarter of child sex abuse cases. Some major patterns we observed: - Official misconduct contributed to the false convictions of 54 per cent of defendants who were later exonerated. In general, the rate of misconduct is higher in more severe crimes. - Concealing exculpatory evidence -- the most common type of misconduct-occurred in 44 per cent of exonerations. - Black exonerees were slightly more likely than whites to have been victims of misconduct (57% to 52%), but this gap is much larger among exonerations for murder (78% to 64%) -- especially those with death sentences (87% to 68%) -- and for drug crimes (47% to 22%). - Police officers committed misconduct in 35 per cent of cases. They were responsible for most of the witness tampering, misconduct in interrogation, and fabricating evidence -- and a great deal of concealing exculpatory evidence and perjury at trial. - Prosecutors committed misconduct in 30 per cent of the cases. Prosecutors were responsible for most of the concealing of exculpatory evidence and misconduct at trial, and a substantial amount of witness tampering. - In state court cases, prosecutors and police committed misconduct at about the same rates, but in federal exonerations, prosecutors committed misconduct more than twice as often as police. In federal exonerations for white-collar crimes, prosecutors committed misconduct seven times as often as police. We also examined disciplinary actions against officials who committed misconduct. These were uncommon for all types of officials, and especially so for prosecutors. We tried to determine whether official misconduct that contributes to false convictions has become more or less frequent over the past 15 to 20 years. For most types of misconduct, we won't know for years to come, but we already see strong evidence that a few kinds of misconduct have become less common: violence and other misconduct in interrogations; abusive questioning of children in child sex abuse cases; and fraud in presenting forensic evidence. On the other hand, the number of federal white-collar exonerations with misconduct by prosecutors has been increasing. In the last section we consider what led officials to commit misconduct. We conclude that the main causes are pervasive practices that permit or reward bad behaviour, lack of resources to conduct high quality investigations and prosecutions, and ineffective leadership by those in command. We discuss a range of possible remedies, from specific rules to changes in culture, in cities, counties, states and the nation as a whole. [...] To read the entire report, click here.
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