Government Misconduct and Convicting the Innocent

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Page Much of the violence in interrogations in Chicago was due to a systematic program of torture of Black suspects in the 1970s and 80s by Chicago Police Commander Jon Burge and his subordinates (see Section XII). 50 Some lies, promises and threats in interrogations are permitted, and some are prohibited. The distinction can be elusive. Other than violence, most misconduct in interrogations consisted of prohibited lies, promises or threats. 48 53 Interrogators are allowed to lie about the facts of the investigation (“we found your fingerprints”) but not about the law (“you’ll get sentenced to death”). They may make vague promises (“if you confess, we can help you”), but not specific ones they can’t keep (“if you confess, the DA won’t ask for the death penalty”). In 20% of exonerations with false confessions, the police lied about the law or promised outcomes they couldn’t deliver. 48 53 Police may threaten to arrest a suspect who does not confess—an act within their power—and prosecutors may threaten to prosecute one who does not cooperate. But threats against third parties—e.g., to arrest a spouse or child of the suspect, or to remove minor children from her home—are prohibited. Third-party threats were used in 8% of exonerations with false confessions. 46 48 54 Several permitted interrogation practices also contribute to false confessions: 55 • Permissible promises and threats. • Lying about the investigation. • Telling the suspect details of the crime (which makes it hard to separate true confessions from false ones generated by the police). • Interrogating a juvenile without a parent or guardian present. One or more of these practices contributed to 70% of false confessions: 79% of those obtained with misconduct and 57% of those obtained without it. 60 Confessions by actual or possible codefendants of the exonerees falsely implicated exonerees in about 13% of cases. 60 Many codefendants voluntarily confessed and implicated exonerees, usually to shift some blame away from themselves. About a third of codefendant confessions that contributed to false convictions were obtained by the same types of misconduct that produced most false confessions by the exonerees themselves. 61 In a third of exonerations with codefendant confessions, the exoneree also confessed; in the rest, the exoneree did not. The net effect is that all false confessions—by codefendants as well as by exonerees themselves—contributed to the convictions in 21% of exonerations.

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As with false confessions by exonerees, false codefendant confessions that helped convict exonerees were concentrated in murder cases, and in Chicago. 61 • VI. Fabricated Official Evidence 65 In 10% of exonerations, officers falsely reported that they examined forensic evidence that proved (or failed to disprove) the defendants’ guilt, saw the defendants commit crimes that did not occur, or witnessed confessions by defendants who did not confess. 65 Forensic fraud—the deliberate falsification of forensic evidence to help convict a defendant—occurred in 3% of exonerations. 65 • Forensic fraud is a form of intentional misconduct. We do not count a larger set of cases with forensic evidence that was (as far as we know) unintentionally mistaken, misleading, or invalid. 65 • We only count forensic fraud by law enforcement officers, usually forensic examiners at police crime labs or other state-run labs. 65 • There are many types of forensic fraud, but these are the most common: 1. In more than a third of the cases, analysts reported that the defendant’s hair, saliva, blood, semen, tooth marks, etc., matched or were consistent with those found at the crime scene, when in fact testing had shown the opposite. 65 2. In about a quarter of the cases, forensic witnesses reported that the defendants might have been the source of crime-scene blood, semen or fingerprints, after forensic tests that showed that was impossible. 65 • A third of forensic fraud cases involve repeat offenders, possibly because they are more likely than other wrongdoers to eventually get caught, after which many of their prior cases are reexamined. 67 Fake crimes were fabricated by police in about 5% of exonerations: 68 • In about 4%, police planted evidence at the scene of the crime and claimed to have found it there. In all but a few cases, they planted illegal drugs—especially in a cluster in Chicago (see above, Section III.3.c.i). 68 • In about 1%, officers falsely claimed that the defendants assaulted them, usually to cover up their own violence against the same defendants.

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Fabricated confessions: In about 2% of exonerations, police made up confessions from exonerees who did not confess. 70 • In several cases, police had exonerees sign documents they did not or could not read, which later turned out to be confessions. In most cases, they lied and said the exonerees made unrecorded oral confessions. 70 • As usual for false confessions, fabricated confessions were more likely in Chicago than elsewhere, but by a modest amount, 16% to 11%. 72 • VII. Concealing Exculpatory Evidence 74 Concealing exculpatory evidence contributed to the convictions of 44% of exonerees, more than any other type of official misconduct we know of. 75 The legal duty to disclose exculpatory evidence has multiple bases: 75 • In Brady v. Maryland, in 1963, the Supreme Court announced the ‘Brady rule’: “[S]uppression by the prosecution of evidence favorable to the accused… violate[s] due process where the evidence is material either to guilt or to punishment.” 75 • Brady only applies if the concealed evidence is “material”—which, in this context, means that the outcome of the trial would likely have been different if that evidence had been known. This requirement has been widely criticized as incoherent, inconsistent and unadministrable. 75 • In addition, rules of professional responsibility and pretrial discovery that govern criminal cases also require the prosecution to disclose all exculpatory evidence, regardless of “materiality.” 78 • We apply these procedural and ethical rules—and classify hiding evidence as misconduct regardless of “materiality”—because they prescribe correct conduct rather than define a violation of the constitution. (Plus, we too could not classify “materiality” consistently if we tried.) 80 The rate of concealing exculpatory evidence varies by crime, from 61% for murder to 27% in child sex abuse cases. It is so common and widespread that it happened in 82% of all exonerations with any official misconduct. 81 Prosecutors concealed exculpatory evidence in 73% of cases in which it occurred. That’s not surprising, since prosecutors have the duty to disclose that evidence to the defense. We only count other officials as responsible if (as far as we know) prosecutors were ignorant of the evidence.

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Police concealed exculpatory evidence in 33% of cases where it occurred (including cases with concealing by more than one type of official), and forensic analysts did so in 6%. In some portion of those exonerations, prosecutors did know about the concealed evidence, but we have no record of that knowledge. 82 As far as we know, only 13% included concealed physical objects—clothing, weapons, etc. This gap may in part reflect how effectively objects can be destroyed or hidden, but information may linger in electronic or physical files, or the memories of people. 83 In 63% of cases with concealed exculpatory evidence, substantive evidence of the exonerees’ innocence was hidden—evidence that in itself helps prove the defendant’s innocence, such as an eyewitness who named another person as the criminal. 85 In 80% of such cases, impeachment evidence that undermined testimony by prosecution witnesses was concealed—for example, evidence that a witness who identified the exoneree as a murderer told his brother he never saw the killing. 85 In half the exonerations with concealed exculpatory evidence, both substantive and impeachment evidence were hidden. Often, a single item of evidence serves both functions. “Substantive” evidence may sound more important, but concealing impeachment evidence that eviscerates the credibility of a critical prosecution witness can be devastating to an innocent defendant. 85 Predictably, law enforcement officials usually conceal their own misconduct. That’s misconduct in itself, derivative concealment. For example, it’s misconduct for an officer to plant drugs on a suspect, and it’s a separate act of misconduct to conceal the officer’s knowledge that the suspect is innocent. 85 Evidence of other official misconduct was concealed in 26% of all exonerations, over half of exonerations with any concealed exculpatory evidence. 88 A large variety of types of exculpatory evidence were concealed, but most fall into several categories. 89 Impeachment evidence: • Incentives to testify against the exonerees were concealed in 21% of exonerations, most often deals on criminal charges against the witnesses. 89 • Inconsistent statements by prosecution witnesses that contradicted their testimony were concealed in 14% of exonerations. 90 • Criminal records and histories of dishonesty of witnesses for the state were concealed in 4% of exonerations.

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Substantive Evidence: 91 • Exculpatory forensic tests were concealed in 6% of exonerations, including many that conclusively established the exonerees’ innocence. 91 • Alternative suspects were concealed in 12% of all exonerations—20% of murder exonerations and 6% of other cases. 92 • Exclusions by an eyewitness—evidence that an eyewitness said the exoneree is not the criminal—was concealed in 2% of exonerations. 92 • Alibi evidence was concealed in 1% of exonerations. 94 • Evidence that no crime was committed was concealed in 6% of exonerations, mostly cases where police concealed the fact that they themselves framed the defendants. 94 • VIII. Misconduct at Trial 96 At least 95% of criminal convictions in the United States are obtained by guilty pleas rather than trial verdicts, but 80% of exonerations in the Registry followed conviction at trial. About 28% of those trials (23% of all exonerations) included official misconduct in court. 96 Police perjury 96 • Perjury by all law enforcement officials occurred in 14% of the trials at which exonerees were convicted, or 13% of all exonerations (including those after guilty pleas). In about a quarter of those cases, officials lied about forensic testing, or about things the officials themselves claimed to have witnessed the exonerees do or say. (See above, Section VI.) 96 • Perjury by police officers occurred in 11% of trials of exonerees. In 9% of those trials (7% of all exonerations), officers lied about information obtained from others. 97 • Most often, police lied about the conduct of the investigations: what a witness had said, whether or how a lineup was conducted, etc. The most common subject of police perjury was the conduct of interrogations at which innocent defendants confessed.

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• We miss a great deal of police perjury. We rarely have access to transcripts or other detailed information about trial testimony, so we only learn about perjury at trial if it becomes a conspicuous issue. 98 Trial Misconduct by Prosecutors 98 • Permitting Perjury 98 ❖ In 1959, the Supreme Court held that a prosecutor has a constitutional obligation to correct perjury by a state witness even if she did not herself offer the false testimony. 99 ❖ Prosecutors permitted perjury to go uncorrected in 8% of exonerations. In most cases, the perjury was by civilian witnesses. The most common lies were about favorable treatment the witnesses receive in pending criminal cases of their own. 99 • Lying in Court 100 ❖ It is misconduct, and punishable as contempt of court, for a lawyer to lie in court, whether or not the lawyer in under oath. 101 ❖ We know that prosecutors lied in court in 4% of exonerations. The real rate may be higher since we only count cases with clear evidence that prosecutors made statements they knew were false. 102 ❖ About half of lies by prosecutors were made in closing argument. A common pattern is to repeat and affirm perjury by a witness that the prosecutor knew about but failed to correct—for example, a lie by a witness who claimed to have no deal with the prosecutor. 102 • Improper Statements in Closing Argument or Cross-examination 103 ❖ Prosecutors also commit misconduct at trial without lying, usually in closing arguments or in questions on cross-examination. 103 ❖ Prosecutors made improper closing arguments (without lying) in 3% of exonerations, ranging from statements that the prosecutor “knows” the exoneree is guilty to outright appeals to bigotry.

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❖ Prosecutors asked impermissible questions on cross-examination in 1% of exonerations. 106 ❖ Both forms of misconduct are undoubtedly much more common than we know. They are only visible if the defense objects at the time, and lawyers often fail to do so, intentionally or by neglect. 104 • IX. Federal Cases 108 Federal crimes are a small and unrepresentative minority of all criminal cases in the United States. They generate about 6% of convictions, heavily skewed to immigration, drug and white-collar crimes. 108 Federal exonerations are a comparably small minority of all exonerations, and equally skewed: 41% are white-collar crimes, and another half are about evenly split between drug and violent crimes. 108 The overall rate of official misconduct is somewhat higher in federal exonerations than in state cases, 61% compared to 54%. 109 Most misconduct in federal exonerations was committed by prosecutors, 52% compared to 29% in state cases. 109 Federal prosecutors committed misconduct in exonerations more than twice as often as police (52% to 20%), while state prosecutors committed misconduct less often than police (29% to 36%). 109 Federal white-collar exonerations have striking similarities to murder exonerations under state law. They are the most common types of exonerations in their respective courts; many are big-ticket cases—expensive, long-running, conspicuous; they have the highest rates of misconduct for exonerations in those courts, 65% for federal white-collar crimes, 72% for state-court murders. 110 In federal white-collar exonerations, prosecutors committed misconduct more than 7 times as often as police, 65% to 9%; every federal white-collar exoneration with any official misconduct included misconduct by a prosecutor. 112 Federal white-collar cases have both the highest rate of misconduct by prosecutors and the lowest rate of misconduct by police of exonerations in any crime category.

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Federal white-collar prosecutors seem to play a more dominant role in cases that lead to exonerations than state prosecutors. They have more resources, and are more likely to take the lead in the investigations. That role may reduce police misconduct—but not misconduct by the prosecutors themselves. 113 • X. Discipline 115 In 17% of exonerations with official misconduct, we know that some form of discipline was imposed on officials who participated in that misconduct. 115 Many officials who were disciplined committed misconduct in several or many exonerations, but formal discipline was limited to one, or was imposed in a separate case. Chicago Police Commander Jon Burge, for example, was sentenced to prison for lying about the torture program he ran. We count that as discipline in all 19 cases in which he or those he commanded abused the exonerees. In 70% of exonerations with discipline, it was imposed for general patterns of behavior or in cases other than the specific ones at hand. 115 Discipline may be imposed by three sets of authorities: employment discipline by the agencies that employ the misbehaving officials; professional discipline by regulatory bodies that certify or license their professions (this category includes a few instances of courtroom discipline of prosecutors by judges); and criminal discipline, convictions by courts for misconduct that violates criminal laws. 117 Disciplining Prosecutors 119 • Prosecutors are hardly ever disciplined for misconduct that contributes to false convictions. We know of some discipline for prosecutors in 4% of exonerations with prosecutorial misconduct. In most of those cases, the discipline was comparatively mild. 120 • Eleven prosecutors were disciplined by the offices that employed them, but just two were fired (and four resigned or retired); 14 were disciplined by bar authorities or courts, but only three were disbarred. Only two prosecutors have been convicted of crimes for misconduct in exonerations, both in notorious cases, and both received nominal sentences. 120 Disciplining Police 121 • Police officers were disciplined in 19% of exonerations with police misconduct, about five times the rate for prosecutors.

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• In almost 80% of these cases, officers were convicted of crimes; in 20% they were disciplined by the police forces for which they worked. We know of no professional discipline of police officers. 120 • In 127 exonerations, police officers who committed misconduct were convicted of crimes for misconduct of the sort they committed in those cases—but not 127 separate officers. As we explained, the conviction of a single serial offender may count as discipline in many cases. 121 • Even so, at least 30 officers were convicted of crimes (compared to two prosecutors) and some received long prison sentences. 122 • Disciplinary records of police officers are often concealed by their employers, unions, and professional agencies. As a result, we have no doubt missed cases of employment and professional discipline of police. 122 Disciplining Forensic Analysts 124 • Forensic analysts were disciplined in 47% of exonerations in which their misconduct was discovered, a much higher rate than prosecutors or police. Four-fifths of them were disciplined by their employers, a fifth by professional agencies, and a few were convicted of crimes. 124 • As with police, several analysts who were disciplined were repeat offenders, each of whom participated in multiple cases. We know of 35 exonerations with discipline for forensic misconduct, but only 13 separate analysts were punished, six of whom accounted for 80% of the cases. 124 • XI. Changes in Official Misconduct over Time 127 It is difficult to detect decreases in misconduct in exonerations because of the long time lag from conviction (the last date for occurrence of misconduct) to exoneration (the earliest date when the misconduct can be added to our data). 127 For example, there were six times more exonerations with misconduct in murder convictions in the 16 years from 1987 through 2002 than in the 16 years from 2003 through 2018—but because the average time to exoneration for such cases is 17 years, more cases from the later period will continue to emerge for years. 128 In three contexts, official misconduct decreased so sharply that we believe the decline is real despite the difficulty of identifying decreases: 128 • Improper questioning of child victims all but stopped after the end of the child sex abuse hysteria epidemic that ran its course in the late 1990s.

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• Misconduct in interrogations, especially violence, has dropped to a small fraction of what we saw for convictions before 2003. 129 • Forensic fraud has declined sharply in all exonerations from convictions since 2003, and among those with forensic evidence problems. 130 On the other hand, the rate of federal white-collar crime exonerations with official misconduct has doubled among exonerations for convictions since 2003. 131 • Increases in misconduct—unlike decreases—are not hard to spot. In fact, since more exonerations in recent cases with misconduct will continue to occur, the size of an observed increase will go up over time. 131 • XII. Discussion and Conclusions 133 Why do Law Enforcement Officials Commit Misconduct? 133 We address this question by examining the conduct of the officials who committed or permitted misconduct that led to many false convictions. We conclude that the main causes are systemic: pervasive practices that permit or reward bad behavior; lack of resources to train, supervise and conduct high quality investigations and prosecutions; and ineffective leadership by police commanders, crime lab directors and chief prosecutors. 133 • Ken Anderson, was the district attorney of Williamson County, Texas, who prosecuted Michael Morton for the murder of his wife, and obtained a life sentence in 1987. Anderson concealed potent exculpatory evidence that could have cleared Morton and led to the real killer—who killed another woman in 1988. Morton was exonerated by DNA in 2012. 134 ❖ Why did Anderson conceal this evidence? Our best guess is that he believed Morton was guilty, paid little attention to evidence to the contrary—and concealed that evidence because that was his regular practice, it made winning easier, and no one had stopped him before. 135 ❖ Anderson set the tone for his office. We know that one subordinate followed Anderson’s lead and concealed evidence to convict an innocent defendant. There were probably others.