New Report Shows More Than Half of Wrongful Convictions Involved Misconduct by Police and Prosecutors
Out of 2,400 cases analyzed by the NRE, 54 percent were the result of misconduct by law enforcement and prosecutors, and the more severe the crime, the more likely misconduct played a role. Overall, cops and prosecutors evenly split the misconduct. But the discipline was largely on law enforcement, with prosecutors rarely, if ever, taking the blame.
The 218-page report details the most common types of misconduct, giving examples of cases and the fate of the officials responsible for the misconduct. It then notes any discipline handed out and concludes with suggestions on why misconduct occurs and what can be done to prevent it.
Background
The NRE manages an archive of all known exonerations in the U.S. since 1989. So far, that comes to 2,663 cases. The report, though, focuses on all the cases up to February 2019. It also limits misconduct to government officials who contributed to the false convictions of people later exonerated. Typically, this means concealed or false evidence and lying witnesses.
For purposes of the study, the term “exoneration” is defined as “a person who was convicted of a crime [and] is officially and completely cleared based on new evidence of innocence.”
“Misconduct” is defined as a violation of an “official duty in the investigation or prosecution of a criminal case, and that violation contributed to the conviction of a defendant who was later exonerated.”
The misconduct is broken down into five general categories: witness tampering, interrogations, fabricated evidence, concealed evidence, and misconduct at trial.
While not less important, the report does not focus on misconduct by defense lawyers and judges.
Defense lawyers work for the defendant, and their errors are usually “sins of omission” (such as failing to investigate) and usually remain unknown. And lawyers tend to steer away from claims against judges, possibly because other judges are reluctant to pursue complaints against other judges, the study suggests.
Frequency of Misconduct
Misconduct occurred about evenly between men and women, and Black and White defendants, with slightly higher numbers in cases involving Black men. This, of course, is an average across all crimes, and some offenses were much more uneven, like drug cases versus white-collar crimes.
By far, the most misconduct happened in murder cases, with about half of the 908 murder convictions by way of official misconduct. Interestingly, prosecutorial misconduct in white-collar crimes beat out all other crimes, with more than half of the cases infected by misconduct. Those white-collar cases were also entirely federal cases.
Disturbingly, the report said that almost 80 percent of death penalty cases that were exonerated involved official misconduct. In other words, 8 out of 10 people who were wrongfully convicted and sentenced to die were put on death row because of police and prosecutorial misconduct. The report attributes this high rate to the fact that death penalty cases get more attention and therefore more scrutiny, which uncovers the misconduct more often. That’s probably why the worse the crime is, the higher the misconduct rate, the report states.
Drug case exonerations happened mainly in two places: Houston and Chicago. Most of the Chicago cases involved a few corrupt cops, notably Police Sgt. Ronald Watts, who planted drugs on people to extort money from them. At least 77 wrongful drug convictions were linked directly to Watts. The Houston drug cases involved drugs that were found to be not drugs at all, once they were tested in a lab. Hundreds of defendants were exonerated in Houston after that was exposed.
While Blacks make up only 13 percent of this country, 52 percent of wrongful murder convictions and 63 percent of drug exonerations involved Blacks. They were twice as likely as Whites to be wrongfully convicted in drug cases, according to the report.
Types of Misconduct
In order of the way proceedings happen in criminal cases, the following are the five common categories of misconduct listed in the report.
- Witness Tampering: Defined as “deliberate and successful efforts to get witnesses to give false evidence or withhold true evidence.” Witness tampering accounted for 17 percent of the exonerations in the report. The highest rate was for murder and child sexual abuse cases, with about 80 percent of all exonerations involving witness tampering.
It’s primarily a form of police misconduct, the report says, since they’re the main investigators who interview witnesses. The three common types of witness tampering include (1) procuring false testimony, (2) tainting identifications, and (3) improper questioning of a child victim. Tainted identification was the most common, occurring twice as often as the others. It’s also the type of witness tampering most often used to convict Black defendants.
- Interrogations: Misconduct during police interrogations made up seven percent of all exonerations, with 57 percent of those being false confessions. Chicago police led the nation in illegal interrogations, with 69 percent of false confessions in Chicago the result of violence. Nearly all of those exonerations stemmed from a pattern of torture during the 1970s and 1980s, where mostly Black men were tortured by Chicago detectives under then-Police Commander Jon Burge. In 2009, a “torture commission” found dozens of false confessions coerced by Burge and his men. Burge was eventually fired and sentenced to four years in prison.
- Fabricated Evidence: Misconduct when police create evidence in a case in order to convict happened in about 10 percent of the exonerations. This included actual false evidence in three percent of cases, officers lying as witnesses in five percent, and “confessions” by defendant created by the police in two percent of those cases.
Concealing evidence favorable to the defendant was a common problem, as was planting evidence, mostly in drug crimes (see Houston, for example). The report notes that planted evidence is difficult to detect and is most often only revealed by other coinciding factors.
Fabricated confessions (not false confessions) are those created by the police, often in the form of admissions written by the police that were not made by the defendant. Once again, the report found most fabricated confessions happened in Chicago.
- Concealing Evidence: In Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court held that the prosecution must turn over all favorable evidence to the defense. Over the last 50-plus years, prosecutors have devised ways around Brady, and courts have chipped away at the rule as well.
The report unsurprisingly found that concealing evidence from the defense was the most common type of misconduct found by the NRE in all exonerations. It happened in 44 percent of the exonerations in the report. Why the high number with such a clear command by the Supreme Court? The report notes several factors.
The evidence considered “reportable” by Brady is unclear, the report states. The Court has defined it as evidence that, had it been disclosed to the defense, the result of the case would’ve been different. The report points out the problems with this definition.
“First, how can anyone know whether a jury would have decided a case differently if it had additional evidence?” And, more importantly, how can a prosecutor make that call? After all, it’s the prosecutor who determines whether evidence might be favorable to a defendant and must be turned over.
“Given their role, it’s not surprising that prosecutors were responsible for concealing evidence in 73 percent of exonerations,” the report notes.
- Misconduct at Trial: Over 95 percent of convictions in this country are by way of guilty pleas, rather than trials. Many reasons exist for that unreal fact, but even in the small number of trials conducted, 23 percent of all exonerations involved misconduct at trial.
Lying cops called by prosecutors at trial made up most of the misconduct. They committed perjury in 13 percent of exonerations. They lied about the investigation in 75 percent of trials, which made up most of the report’s details.
Misconduct by prosecutors also occurred when they would “suborn” perjury, i.e., allow a witness to lie on the stand. A prosecutor has a duty to correct any lies by its witnesses. Prosecutors failed to do this in eight percent of all exonerations or 186 of the 2,400 cases. The most common lie by a prosecutorial witness was that they didn’t get favorable treatment in exchange for their testimony.
Lies by prosecutors themselves often came during closing arguments, trying to convince the jury to convict the defendant.
Federal Cases
Federal cases made up only five percent of all exonerations, but 41 percent of federal exonerations were white-collar crimes. And the misconduct in those cases was all by the prosecutors. White-collar cases are “big-ticket prosecutions” for federal prosecutors, the report notes. Federal prosecutors often use white-collar cases as platforms to push their career and position themselves for federal life-long judgeships.
This is true even though more than half of white-collar defendants never see jail or prison, and then those who do usually get sentenced to less than three years on average. Perjury was the main misconduct by prosecutors in those cases. In exoneration cases, federal prosecutors lied in white-collar cases two times more often than state prosecutors lied in murder cases.
Discipline
Discipline, when it did happen, was imposed in just 17 percent of exonerations and often came in bunches, the report states. Prosecutors were “rarely” punished, but cops were punished four times more often than prosecutors. Still, that was in only one in five known cases of misconduct by the police. Forensics workers got most of the punishment in nearly half the exonerations.
The type of discipline usually came down to employment (fired or demoted), professional (loss of licenses), or criminal (criminal charges filed). Out of 2,400 cases, only three prosecutors were ever criminally charged because of their misconduct, and those were high-profile cases.
The report notes that a loss in a civil lawsuit does not count as “punishment” because it’s usually the taxpayers or insurance company that pays the damages, not the officials themselves.
Two disgraced prosecutors were mentioned in the report. Former Williamson County (Texas) D.A. Ken Anderson, who purposely concealed evidence in a murder case that caused a defendant to spend 24 years in prison, spent just four days in jail for criminal contempt. And Michael Nifong, the former Durham County D.A. in North Carolina who falsely accused the Duke University Lacrosse players of rape, spent just a single day in jail on criminal contempt charges.
Conclusion
Why do law enforcement officials commit misconduct that leads to convictions of innocent people? The report concludes that the causes are mostly systemic. Pervasive practices that allow and encourage bad behavior by cops and prosecutors together with an environment of poor leadership and training all support misconduct by officials. Change those elements, and you can change the instances of misconduct, the report concludes.
Sources: reason.com, National Registry of Exonerations
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