Government Misconduct and Convicting the Innocent

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Government Misconduct and Convicting the Innocent


Samuel R. Gross, Senior Editor
Maurice J. Possley, Senior Researcher
Kaitlin Jackson Roll
Klara Huber Stephens
Denise Foderaro

NATIONAL REGISTRY OF EXONERATIONS
SEPTEMBER 1, 2020

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Preface 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. This Report describes official misconduct in the first 2,400 exonerations in the Registry, those posted by February 27, 2019. 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. A more detailed definition appears here. 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% 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% of defendants who were later exonerated. In general, the rate of misconduct is higher in more severe crimes.

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• Concealing exculpatory evidence—the most common type of misconduct—occurred in 44% 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% 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% 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 behavior, 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. We present many other findings in the Report itself. The core of our data on official misconduct are available online, sortable and filterable, for others to explore; go to the “OM Tags” column here.

Samuel R. Gross Maurice J. Possley Kaitlin Jackson Roll Klara Huber Stephens September 1, 2020

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Use Note: 1. Common terms It may be useful to explain some terms that we use in this Report: Exoneration means an exoneration listed in the Registry. Every exoneration, identified by the name of the exoneree, has a page in the Registry, and is listed on our Summary View and Detailed View pages. Known exonerations: We know that our list of exonerations is incomplete: we regularly discover cases we missed. Sometimes we specify that these are “known exonerations,” more often we don’t, but it’s true regardless. Misconduct in an exoneration: Strictly speaking, the practice we write about is official misconduct that contributed to a criminal conviction that was ultimately reversed by exoneration. That’s a mouthful. For convenience, we often refer to it as “misconduct in the exoneration” even though the misconduct was part of the process of obtaining a conviction. Police: Police agencies in the United States range from one-person police departments to the FBI. The titles of sworn peace officers include Patrolman, Officer, Deputy Sheriff, Trooper, Agent—and many more. We refer to all of them as “police.” 2. Links and Navigation (i) The report contains numerous links to pages on the website of the National Registry of Exonerations. Most are links to the stories of individual exonerees; some are links to collections of cases. In both situations, almost all links go to the current versions of the pages, not those in effect in late February 2019, when we completed the set of 2,400 exonerations that are the subject of this report. For example: • This link goes to Ricky Jackson’s page, which was last updated in May 2020. That page contains information we did not know when we completed the compilation of the dataset fifteen months earlier—and (like other summaries and data on the Registry) it may be further modified in the future. • This link goes to a list of all exonerations with misconduct in Cook County at the time you click on it—230 as of this writing, more in months and years to come—not the 204 exonerations with official misconduct in Cook County among the 2,400 exonerations included in this Report. (For technical reasons, a few links go to copies of Registry pages rather than live pages.) (ii) The Executive Summary and the Table of Contents contain links that may help navigate this document. The Summary contains a list of page numbers in the form of links—like this, 9—that take you to the indicated page in the text. In the Table of Contents you can click on any part of an entry to go to the page on which that section begins.

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Acknowledgements We didn’t do this on our own. Not nearly. It took a couple of villages and a lot of friends. This report was produced by the National Registry of Exonerations. The editors of the Registry were essential: Barbara O’Brien, Editor in Chief; Simon Cole, Associate Editor and Director; and Catherine Grosso, Managing Editor. They read drafts, classified cases and thought through the project with us. The Registry staff—Ken Otterbourg, Jessica Weinstock Paredes, Meghan Cousino, and Eva Nagao who left us this June—were equally essential. They identify the cases on which our work is based; research, code and write them up; and maintain the website through which the work of the Registry is available to the world. We also received invaluable support and advice from our Advisory Board, especially Denise Foderaro, Barry Scheck, and Rob Warden, co-founder of the Registry. The core work of our work—researching, coding, checking and recoding information on official misconduct in the 2,400 cases in our database—was mostly done by a dedicated group of research assistants—some of whom also did legal research, wrote memoranda, commented on and corrected partial drafts, and provided advice at many stages. Most were students at the University of Michigan Law School—Christine Adams, Zachary Adorno, Claudia Arno, Jennifer Chun, Michael Darling, Lauren Flamang, Max Greenwald, Griffin Hardy, Caroline Howe, Connor Lang, Ginny Lee, James Millikan, Amanda Rauh-Bieri, Amanda Stephens, Jenny Stone, Julia Xin and Eric Yff—or at the Michigan State University College of Law: Nadine Kassem and Alison Swain. In addition, we received excellent contributions from two young lawyers, Marc Allen and Eli Wykell, and careful statistical analyses from Josue Guevara, starting when he was a student at Michigan, German Marquez Alcala, who works for the University of Michigan Law Library, and Valerie King, as graduate student at the Univesity of California, Irvine, and after she completed her degree. The staff at the University of Michigan Law School was as skillful and helpful as always. In particular, Cheri Fidh corrected more errors in content and format than we can count, while Alex Lee and Richard Savitski are responsible, respectively, for the appearance and the contents of the data we are making available online with this report. At a distance, Julie Smith designed the appearance of the report, and Margot Friedman worked tirelessly to present it to the world. The staff of the Innocence Project was unfailingly helpful, including especially Barry Scheck and Rebecca Brown, who answered questions, provided information, read drafts, and suggested additions. Elizabeth Webster, formerly of the Innocence Project, spent a summer helping us devise our initial coding system. And our dear friends in Ann Arbor, Phoebe Ellsworth and Alexandra Gross, read partial and full drafts of this report repeatedly over several years, made countless corrections and suggestions, and sustained our spirits. The Registry, and this project in particular, depend on generous financial support from many individuals and organizations. We are particularly grateful to James and Martha Newkirk, and to Denise Foderaro and Frank Quattrone, who encouraged and supported our work since its inception, in many ways.

Registry is a joint project of three universities. We are fortunate to have had the support of the Universit Michigan Law School, our original home for several years; the Michigan State University College of Law, which took us on four years ago; and the Newkirk Center for Science & Society at the School of Social Ecology of the University of California, Irvi ne, w our main home since 2016. Government Misconduct and Convicting the Innocent hich has been The Role of Prosecutors, Police and Other Law Enforcement Page viii • National Registry o f Exonerations • September 1, 2020

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Executive Summary

I. Introduction 1 II. Background 3 Misconduct by law enforcement has received a great deal of attention as a result of the Black Lives Matter movement, which has focused on racial discrimination and violence by police officers. We study a different (but overlapping) type of behavior: misconduct that distorts evidence in criminal cases and leads to convictions of innocent people. 3 There is a dearth of prior systematic research on police misconduct that contributes to false convictions. 3 Prosecutorial misconduct has attracted a good deal of attention in the past decade, primarily concealing exculpatory evidence. Several studies have found thousands of criminal cases in which courts or other agencies determined that prosecutors committed misconduct, but very few were disciplined for it. 3 Our database, the National Registry of Exonerations, is an ever-changing public archive. We define “exoneration” by the conduct of public officials, and use only non-confidential data. We list all exonerations we can find, add new cases regularly, and modify our postings on old cases as we get more information or refine or inquiries. 7 This unique database enables us to examine all exonerations—with data from multiple sources—to identify many cases of misconduct that cannot be found in official decisions, and to begin to describe the causes and effects of that misconduct. 8 We cannot, however, estimate rates of misconduct in all criminal cases; and even among exonerations we miss a great deal of official misconduct that remains hidden.

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Page We do not systematically examine misconduct by criminal defense attorneys or by judges. That’s unfortunate, especially for ineffective legal assistance by defense lawyers, which is probably a major contributor to convictions of innocent defendants. The main reason is that we do not have data that would enable us to speak to those issues. 9 III. The Frequency of Official Misconduct 11 In 54% of exonerations, official misconduct contributed to the false convictions; usually more than one type of misconduct. Overall, male exonerees and Black exonerees were modestly more likely to experience misconduct (with some larger differences by race for a few particular crimes). 11 30% of exonerations include misconduct by prosecutors, 35% misconduct by police, 3% by forensic analysts, and 2% by child welfare workers. 12 The overall rate of misconduct varies by crime, from 72% in murder cases to 32% for most non-violent crimes. For most crimes, the rates of misconduct for prosecutors and police are comparable. However: 12 • For drug crimes, the rate of police misconduct is nearly four times the rate of misconduct for prosecutors. 13 • In white-collar exonerations, prosecutorial misconduct is more than five times as frequent as misconduct by police. This gap is entirely due to the extremely high rate of misconduct by federal white-collar prosecutors. 13 We only count misconduct that contributed to the exonerees’ false convictions by generating false evidence of guilt or concealing true evidence of innocence. We don’t count misconduct that can’t produce false evidence—for example, police brutality that was not part of an interrogation—or failed attempts to produce false evidence, such as torturing a suspect who does not confess. 13 Violent felonies account for nearly 80% of exonerations. Misconduct is generally more common the more extreme the violence, ranging from 38% and 39% for robbery and sexual assault cases to 72% for exonerations from death sentences. These numbers reflect both higher rates of official misconduct in the most serious crimes, and more diligent post-conviction reinvestigations. 15 Drug crimes make up more than 60% of exonerations for non-violent crimes. Two-thirds of them occurred in two very different local clusters:

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• In Chicago, 66 convicted drug offenders were exonerated after it was shown that officers under the command of a corrupt police sergeant or his subordinates planted evidence on them. All of those cases involved police misconduct. 21 • In Harris County, Texas (Houston), 149 defendants who pled guilty to drug crimes were exonerated after lab tests found no illegal drugs in the materials seized from them. Only 3% of those cases involved misconduct. 24 White-collar crimes—the second largest group of exonerations for non-violent offenses—are primarily federal cases with a very high rate of prosecutorial misconduct. 26 About 80% of criminal convictions in the United States are misdemeanors, but only about 4% of exonerations, and two-thirds of those are Harris County drug crime guilty plea cases. The remaining sliver of misdemeanor exonerations—about 1% of the total—have a high rate of official misconduct, 58%. 26 Overall, exonerations of Black defendants have a slightly higher rate of misconduct than those of white defendants, 57% to 52%. But the differences are greater for murder cases (78% to 64%)—especially those with death sentences (87% to 68%)—and drug crime exonerations (47% to 22%). 28 Almost all the official misconduct we have identified falls into five general categories that we discuss in detail in the sections that follow: 29 1. Witness tampering occurred in about 17% of exonerations. 30 2. Misconduct in interrogations occurred in 57% of all exonerations with false confessions, or about 7% of all cases. 31 3. Fabricating evidence happened in about 10% of cases, in three forms: Forensic fraud—in 3% of exonerations, police officers or forensic analysts lied about forensic evidence. Fake crimes—in 4% of exonerations, police planted drugs or guns on innocent suspects, or lied and said the suspects had assaulted them. Fictitious confessions—in about 2% of exonerations, officers fabricated confessions from defendants who did not confess. 31 4. Concealing exculpatory evidence is the most common type of official misconduct we found. It occurred in 44% of all exonerations. 32 5. Misconduct at trial occurred in about 23% of exonerations, about evenly divided between perjury by law enforcement officers, 13%, and trial misconduct by prosecutors, 14% (with some overlap).

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Misconduct in interrogations occurred overwhelmingly in murder exonerations; concealing exculpatory evidence and misconduct at trial were most common in murder cases, followed by white-collar crimes; witness tampering was slightly more common among exonerations for child sex abuse exonerations than for murder; and fabricating evidence was several times more common among exonerations for drug crimes than for any other crime. 30 • IV. Witness Tampering 34 Witness tampering occurs when a law enforcement officer tricks, persuades or forces a witness to testify falsely against the defendant. The officer need not know that the witnesses is testifying falsely as long as the officer does not care whether the witness is telling the truth. 34 Witness tampering occurred in 17% of exonerations. In 5%, witnesses were forced to give false testimony by threats, in 13% they were manipulated into doing so without threats. (1% of cases included both types of tampering.) 35 Witness tampering occurred most often in child sex abuse cases, 28%, and murder cases, 23%. Police participated in witness tampering in 80% of cases where it occurred, prosecutors in 31% and child welfare workers in 14%. 35 About four-fifths of witness tampering falls into one of three categories: 1. Procuring false testimony—inducing a witness to testify to facts the officer or prosecutor knows the witness did not perceive. 2. Tainted identifications—inducing a witness to identify a suspect at an identification procedure, whether or not the witness recognizes the suspect. 3. Improper questioning of a child victim—repeated, insistent and suggestive questioning of a child by officials who will not allow the child to deny that s/he was a victim of sex abuse. 36 Procuring false testimony, with or without threats, means obtaining testimony that both law enforcement and the witness know is false. It occurred in 6% of exonerations, two thirds of them murder cases. Police were involved about twice as often as prosecutors. 37 A suggestive identification procedure—for example, giving a witness a single picture of a suspect to identify—may easily cause misidentifications, but that alone is not misconduct. A tainted identification occurs when an officer directly or indirectly “tells” a witness who to identify as the criminal. 39 Tainted identifications occurred in about 6% of exonerations. Three quarters were murder and sexual assault cases; almost all were obtained by police.

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• In 80% of murder cases with tainted identifications, at least one witness deliberately misidentified the exoneree; many were forced to do so. 40 • In all but one sexual assault exonerations, victims or other witnesses were persuaded or tricked into misidentifying the exonerees by mistake; in one case, the identification was produced by threats. 41 Improper questioning of a child victim occurred in about a quarter of child sex abuse exonerations, primarily cases from the epidemic of child sex abuse hysteria prosecutions in the early 1980s to the late 1990s. 41 • Police participated in improper questioning of child victims 85% of the time, and child welfare workers did so in 71% of the cases. Most of the children were questioned by more than one type of official. 36 • Some children who eventually testified against exonerees came to believe their accusations; others have said that they knew that they were lying. 43 • V. Misconduct in Interrogations 45 In 12% of known exonerations—mostly murder cases—convictions were based on false confessions by the exonerees. 57% of false confessions were obtained by misconduct in interrogations. 45 Misconduct in interrogations is defined (if not clearly) by the Supreme Court. Beginning in the 1940s, the Court developed an increasingly strong prohibition against violence in interrogations. Otherwise, an interrogation violates due process of law if under the “totality of the circumstances” it is deemed so coercive that the resulting confession is “involuntary.” 48 False confessions are far more common in Chicago than elsewhere. In the rest of the country, 10% of all exonerations and 18% of murder exonerations included false confessions; in Chicago the comparable figures are 33% and 54%. 47 The same is true of misconduct in interrogations: 77% of false confessions in Chicago were obtained by misconduct, compared to 49% elsewhere. 49 Actual or threatened violence was used in 64% of interrogations with misconduct—36% of all exonerations with false confessions—as often as all other forms of misconduct in interrogations combined. 50 The concentration of violence in interrogations in Chicago is particularly stark. Violence was used to obtain 69% of false confessions in exonerations in Chicago, but only 24% elsewhere. Half of all exonerations in the country with false confessions that were obtained by violence are from Chicago.