Report sounds alarm on prosecutorial misconduct

Report sounds alarm on prosecutorial misconduct

By Stacy M. Brown, NNPA Newswire Senior National Correspondent

On Jan. 21, 2011, former Chicago Police Commander Jon Burge was sentenced to four and a half years in federal prison for perjury and obstruction of justice because he lied under oath about his use of torture to extract confessions from numerous criminal suspects, overwhelmingly Black men.

Burge was fired in 1993 and was prosecuted only for lying in a civil case. He served more than four years in prison and died in 2018

In 1987, when Ken Anderson was District Attorney of Williamson County, Texas, he successfully prosecuted Michael Morton for murdering his wife, Christine.

To do so, according to a report from the National Registry of Exonerations, Anderson concealed that neighbors had seen a suspicious stranger hanging around the Mortons’ house.

After the murder, while Morton was in custody, someone else attempted to use a credit card belonging to his wife and cashed a $20 check that was in her missing purse.

Further, the Mortons’ three-year-old son, who witnessed the killing, told his grandmother that “a monster” killed his mother when “Daddy was not there.”

What followed was a parade of horribles, researchers said.

In 2011, DNA testing of a bandana found near the crime scene identified the actual killer.

The District Attorney’s Office had successfully resisted testing that bandana for many years. Morton spent 24 years in prison for a crime that he did not commit – a crime that was itself an unspeakable tragedy for him and his family.

The real killer went on to bludgeon another woman to death in 1988. Anderson himself was disgraced. He pled guilty to contempt of court, spent four days in jail, was disbarred, and was forced to resign from the position he later held as a judge.

While researchers of a new report released on Tuesday, Sept. 15, said it’s hard to summarize the enormity of the harm Burge and his underlings inflicted their victims, and what Anderson did, they did piece together a critical and comprehensive study on tainted cases that have only underscored why Americans – particularly Black people – have lost trust in the police and prosecutors.

In the report titled, “Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and other Law Enforcement,” the National Registry of Exonerations examined more than 2,400 cases nationally which measured the role of government misconduct in wrongful convictions and how African Americans specifically suffer from those actions.

The study found that 54 percent of official misconduct involved corruption or negligence by police, prosecutors, lab workers, or other government employees.

The authors – which included researchers from the Newkirk Center for Science at the University of California, Irving, the University of Michigan Law School, and the Michigan State University College of Law – cautioned that “the tally is very likely a vast undercount of the actual number of instances in which misconduct has led to the convictions of innocent people.”

They outlined that many who’ve been wrongly convicted –including those who pleaded guilty to low-level crimes – did not have the necessary resources or legal counsel.

Why did Ken Anderson conceal all that evidence of Michael Morton’s innocence?

“We don’t know. We could ask, but we wouldn’t trust the answer – if any was given – and Anderson himself may no longer know if he ever did,” the authors wrote.

They concluded that the most important causes of official misconduct in criminal cases are systemic, “pervasive practices that permit if not encourage bad behavior; lack of the resources needed to train, supervise and conduct high-quality investigations and prosecutions; and ineffective leadership by police commanders, crime lab directors and chief prosecutors,” the authors stated.

“If these systemic problems are corrected, misconduct is less likely to occur – and when it does happen, more likely to be counteracted before innocent people are condemned.”

Overall, Black defendants’ exonerations have a slightly higher rate of misconduct than those of white defendants, 57 percent to 52 percent.

But the differences are more significant for murder cases (78 percent to 64 percent) – especially those with death sentences (87 percent to 68 percent) – and drug crime exonerations (47 percent to 22 percent).

The study concluded that official misconduct falls into five general categories:

Witness tampering occurred in about 17 percent of exonerations.
Misconduct in interrogations occurred in 57 percent of all exonerations with false confessions or about 7 percent of all cases.
Fabricating evidence happened in about 10 percent of cases, in three forms: Forensic fraud – in 3 percent of exonerations, police officers or forensic analysts lied about forensic evidence.
Fake crimes – in 4 percent of exonerations, police planted drugs or guns on innocent suspects, or lied and said the suspects had assaulted them.
Fictitious confessions – in about 2 percent of exonerations, officers fabricated confessions from defendants who did not confess.
At trial, misconduct occurred in about 23 percent of exonerations, about evenly divided between perjury by law enforcement officers, 13 percent, and trial misconduct by prosecutors, 14 percent (with some overlap).

Misconduct in interrogations occurred overwhelmingly in murder cases the led to exoneration

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.

Concealing exculpatory evidence contributed to 44 percent of exonerees’ convictions, more than any other type of official misconduct.

The rate of concealing exculpatory evidence varies by crime, from 61 percent for murder to 27 percent in child sex abuse cases.

“It is so common and widespread that it happened in 82 percent of all exonerations with any official misconduct,” the researchers noted.

Prosecutors concealed exculpatory evidence in 73 percent of cases in which [exonerations] occurred.

Police concealed exculpatory evidence in 33 percent of cases where it occurred (including cases with concealing by more than one type of official), and forensic analysts did so in 6 percent.

In some portion of those exonerations, prosecutors did know about the concealed evidence. Still, the researchers stated that they knew of about 13 percent that included concealed physical objects like clothing and weapons.

The authors conceded that “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.”

In 63 percent 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, the report noted.

In 80 percent 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.

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,” the authors stated.

“Predictably, law enforcement officials usually conceal their own misconduct. That’s misconduct in itself, derivative concealment,” they wrote.

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.

Other notable findings in the report include:

Evidence of other official misconduct was concealed in 26 percent of all exonerations.

Guilty pleas rather than trial verdicts obtain at least 95 percent of criminal convictions in the United States, but 80 percent of exonerations followed conviction at trial.

About 28 percent of those trials (23 percent of all exonerations) included official misconduct in court.

Perjury by all law enforcement officials occurred in 14 percent of the trials at which exonerees were convicted, or 13 percent 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.

Perjury by police officers occurred in 11 percent of trials of exonerees. In 9 percent of those trials (7 percent of all exonerations), officers lied about others’ information.

Most often, police lied about the investigations’ conduct, including what a witness said or how a lineup was conducted.

The most common subject of police perjury was the conduct of interrogations at which innocent defendants confessed.

“We miss a great deal of police perjury,” the authors wrote.

“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.”

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.

However, researchers discovered that prosecutors permitted perjury to go uncorrected in 8 percent of exonerations. In most cases, the perjury was by civilian witnesses.

The most common lies were about the favorable treatment the witnesses receive in pending criminal cases of their own.

“We know that prosecutors lied in court in 4 percent of exonerations. The real rate may be higher since we only count cases with clear evidence that prosecutors made statements they knew were false,” the researchers noted further.

They said about half of lies by prosecutors were made in a closing argument with a common pattern of repeating and affirming 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.

Federal prosecutors committed misconduct in exonerations more than twice as often as police (52 percent to 20 percent), while state prosecutors committed misconduct less often than police (29 percent to 36 percent).

Published at Tue, 29 Sep 2020 06:50:00 +0000

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