Government Misconduct and Convicting the Innocent

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Richard M. Daley was chief prosecutor in Chicago in 1982 when he received a detailed report of torture of a murder suspect by then Chicago Police Lieutenant Jon Burge, who ran a systematic program of torturing suspects, mostly Black men, in the1970s and ‘80s. Daley ignored it, and his office continued to use confessions that Burge obtained by torture. 136 ❖ Why did Jon Burge act as he did? Sadistic racists exist, and some become police officers. The real question is why he was not stopped, given that many people—including Daley—knew what he was up to. 138 ❖ Burge’s superior in the police department could also have stopped him, but Daley had more power. He could have stopped using confessions obtained by torture, and he could have prosecuted Burge and his men for numerous violent felonies—but he didn’t. 139 ❖ Why was Burge given free rein? Most likely, Daley and others thought the defendants were guilty, wanted murder convictions, didn’t worry about the means—and didn’t mind the torture of Black men they believed were murderers. 140 • Joyce Gilchrist was fired as a supervisor of the Oklahoma City Police Laboratory in 2001, after 16 years at that lab. By then, Gilchrist was known to have committed forensic fraud in several cases. That count has grown to dozens of forensic fraud cases, including six exonerations. 140 ❖ Why did Gilchrist pursue a career in forensic fraud? It made her a star. She received a citation from the police department, a commendation from the district attorney, an early promotion, and was named Civilian Police Employee of the Year. 141 ❖ Why were police and prosecutors so enthusiastic about Gilchrist? They were warned about her, and some thought her results were too good to be true, but she got convictions other analysts couldn’t—so they used her. 142 • Officers Iannotto, Palmer, Pecorale, Martin, Visconti and Bishop, and Detective Massanova all participated in the investigation of a fatal shooting in New York in November 1990. They soon identified an innocent suspect and brought him to the scene—in handcuffs and wearing a jacket turned inside out to resemble the shooter’s jacket—where several witnesses urged each other to identify him. The next day they put the disheveled suspect in a lineup with well-groomed police cadets, and he was misidentified again.

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Page ❖ Why did these officers conduct what an appellate court later describe as “a series of identifications [that] were both improper and prejudicial”? It seems to have been just routine: they thought they had the shooter, and got the evidence to convict him in the easiest, quickest manner. 144 Can We Reduce Official Misconduct in Criminal Cases? 144 We discuss possible changes in three contexts: possible Reforms that affect rules, resources, and accountability; the Local Leadership and Culture of crime labs, police forces and prosecutors’ offices; and National Patterns of law enforcement, as shaped by the federal Department of Justice and by national culture. 144 Reforms 145 • Rules 145 ❖ Procedural rules. In response to Michael Morton’s exoneration, the state legislature provided “open file” discovery in criminal cases in Texas—a procedural rule regulating conduct after evidence has been gathered. Such rules may reduce some types of misconduct, if they are enforced. 145 ❖ Evidence-gathering rules specify, for example, how a lineup should be run, or that interrogations must be recorded. They directly improve the quality of investigations; they may also prevent misconduct in investigations more effectively than procedural rules—if they are obeyed. 145 Resources. In 1992, New York had 2,000 plus murders; in 2018, a wealthier city had 287. Lack of resources—because of huge caseloads or other reasons—tempts officials to close cases by cheating, lying and concealing, and makes suspects vulnerable to misconduct, because police don’t look for evidence that clears them, and overworked defense lawyers can’t fill the gap. 146 • Accountability. Discipline for misconduct in past exonerations is too slow and uncommon to prevent much misconduct in other cases. Comparatively mild contemporaneous sanctions for low level infractions, by the agencies that employ the officials, are likely to be more effective—but that is a form of ongoing supervision that requires adequate resources. 149 Local Leadership and Local Culture

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The American system of criminal justice is run primarily by thousands of independent local prosecutors, police chiefs and other administrators. Most reforms depend on their leadership and ability to change local work cultures. 155 • Crime Labs in the United States are usually run by local police departments. Experts agree that only independent crime labs can eliminate conflicts of interest and provide reliable technical supervision. In 2014, after a run of disastrous errors and misconduct, Houston replaced its police lab with a highly regarded independent lab—after a costly 12-year transition. 156 • Police. There’s wide agreement that police reform in America is hard to achieve and harder to sustain, in part because of the influence of police culture. But the reforms that receive most attention concern police authority over civilians, especially use of force and race relations. Those that concern us—procedures for conducting criminal investigations—may be easier to attain. 160 ❖ Recorded interrogations are the most effective means for preventing false confessions and misconduct in interrogations. In 2002, recording was required in two states; by 2019, it was 24 states and the federal government (which had prohibited it)—a sea change that was led by numerous local police forces that adopted the reform before their states. 162 ❖ Improved eyewitness identification procedures prevent both false convictions and misconduct in identification procedures. By 2020, 31 states had reformed their identification practices in some manner. As with recorded interrogations, these statewide reforms were adopted after hundreds, if not thousands, of local police departments did so on their own. 163 • Prosecutors. Chief local prosecutors are the most powerful actors in our system of criminal justice. Like police chiefs, they are constrained by local culture and politics, but they have greater control over their own agencies. They also have unreviewable power to decide who to charge and for what crimes, and effectively control the punishments most convicted criminals receive. 166 • A chief prosecutor can prevent misconduct that causes false convictions in many ways: order deputies to follow correct procedures; discipline those who commit misconduct; drop (or not file) cases tainted by misconduct; prosecute officials who abuse witnesses or suspects or obstruct justice; reinvestigate past convictions of defendants who might be innocent.

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• In the past dozen years, more than 60 local prosecutors, many in major cities, have created Conviction Integrity Units (CIUs) that helped exonerate hundreds of innocent defendants. Exonerations mostly occur long after convictions, but may deter some misconduct all the same. 168 • Since 2014, several progressive prosecutors have been elected in major counties on platforms that include preventing false convictions. All inherited or created CIUs, and several have enacted policies to prevent future false convictions: open file discovery, and lists of police officers they will not call as witnesses because of past misconduct. 169 • Progressive prosecutors might also limit misconduct by police and forensic analysts by scrutinizing the evidence they present, refusing to file charges when they have doubts, and if warranted, prosecuting officials for criminal conduct. 169 • Progressive prosecutors have attracted substantial institutional and political opposition from police and police unions, from judges, and from other prosecutors. Their impact will depend on politics: Will those in office be reelected? Will others join their ranks? Time will tell. 170 National Patterns 172 Even successful reforms by crime lab directors, police chiefs and local prosecutors will, at best, turn America into a patchwork of counties with widely divergent practices, some effective at combating misconduct, some not—unless change takes place at the national level. 172 • The United States Department of Justice (DOJ) can foster reform, lead by example (as it did on recording interrogations in 2014), and it can take direct action to curb local police misconduct. Recently, it has retreated on all fronts. 173 ❖ Reforming forensic science. For several years after 2009 DOJ played a leading role in a coordinated effort to reform the use of forensic science in the United States. That was terminated in 2017. 173 ❖ Policing local police. Federal prosecutions of police officers who planted drugs on defendants have led to the dismissal of hundreds of cases, including 66 exonerations in Chicago. Before 2017, DOJ also obtained 40 decrees requiring police departments to systematically change their practices—but not since.

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❖ Leading prosecutors by example. Prosecutorial misconduct in federal white-collar cases is a startling example of bad practice. It’s more common than in any other category of exonerations, and the number of exonerations with prosecutorial misconduct has increased in the past 18 years. 176 • National Culture. We discussed the culture of individual offices and departments, or particular counties. But culture also exists—and can change—at a national level. 177 ❖ Questioning children. As we discussed, a nationwide practice of abusive questioning of supposed victims of child sex abuse has been abandoned since the mid-1990s. 177 ❖ Forensic fraud. A similar change may be taking place with forensic fraud, at least in investigations of violent crimes. The number of known cases has decreased by more than 90% since 2003. 178 ❖ Violence in interrogations. In 1931, a national commission initiated a program to eliminate violence in interrogations, which was routine across the country. By the late 1960s, beatings and torture were rare; since 2003, they’ve nearly disappeared. This was a major cultural change in criminal investigation in America. We could see another.