EXONERATIONS: Part II in the Series – Frequency of Official Misconduct/ Characteristics of Misconduct and Its Disparities

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(This is the second in an 11-part series by The Vanguard reporting on a study of exonerations as produced by Samuel R. Gross, Maurice J. Possley, Kaitlyn J. Roll, and Klara H. Stephens)

By Layla Mustafa

Following the introduction to their report on exonerations, Samuel R. Gross, Maurice J. Possley, Kaitlyn J. Roll, and Klara H. Stephens worked to expand on the frequency of official misconduct within the cases studied.

Most distinctively, the researchers were able to identify that official misconduct played a role in more than half of the convictions of the 2,400 exonerated defendants studied.

They said the differences in race and sex between exonerees were modest. However, racial differences tended to increase depending on the crime and type of misconduct. For instance, when observing specifically murder and drug convictions, official misconduct rose among exonerations with Black and Hispanic defendants than those with White defendants.

Observing official misconduct in addition to the type of crime committed demonstrated even more of an increased disparity between the races of exonerees, according to the study.

For murder exonerations, for instance, 78 percent of innocent Black exonerees experienced official misconduct, this percentage jumped to 87 percent when the murder crime resulted in a death sentence. This can be compared to the 68 percent of White exonerees who experienced some form of official misconduct when sentenced to death for murder.

In the case of drug crimes, Black exonerees were more than twice as likely than White exonerees to have been convicted in whole or partially due to official misconduct, explained Gross et. al.

The two types of officials holding the most prominent role in misconduct are identified as prosecutors and law enforcement. For the most part, the rates of misconduct remained consistent among the two, with the exceptions of drug crime exonerations and white-collar exonerations.

In cases of drug crime exonerations, the rate of misconduct by the police was recorded at 34 percent, almost four times the number of misconduct actions committed by prosecutors. In cases that involved white collar crime exonerations, the role of misconduct by prosecutors was recorded at 57 percent, almost five times the number of misconduct acts committed by law enforcement. Both of these percentages can only represent the number of known acts of misconduct that contributed to the conviction of the exoneree.

The research study only reviewed the frequency of official known misconduct.

Researchers noted that in cases where misconduct may have occurred, unless it was known and recorded, it was excluded from the study. For example, in a case where serious misconduct may have occurred but was not the direct cause of the conviction, the case was excluded from the study. Known misconduct tends to be much more prevalent and easily detected in aggravated crimes…particularly murder. The prevalence and detectability of violent crimes helps to account for the high misconduct rate within murder exonerations.

The report found murder cases a more likely to result in wrongful convictions because the evidence to incriminate a defendant tends to be weaker in comparison to lesser crimes. With weaker evidence, prosecution and law enforcement must work harder to prove guilt. This trend, combined with added public pressure for accountability, has led to higher levels of misconduct in exonerated murder cases.

It follows that the rate of exoneration is much higher for death sentences and non-capital murder than for the lesser crimes of rape and robbery.

This is because there is supposedly more substantial evidence procured in the “lesser” crimes, Gross et. al. said, noting that in the case of a rape conviction, a DNA kit may be commonly used as significant evidence against the defendant. However, in the case of murder, the key eyewitness has passed, leaving prosecutors with weaker evidence to prove the crime.

One of the areas in which the frequency of misconduct is less accounted for is in non-violent crimes. While non-violent crimes account for more than 80 percent of felony convictions, only 19 percent of convictions involve non-violent crimes, researchers found.

Within those non-violent exonerations, official known misconduct contributed to 40 percent. Three quarters of these crimes are made up of drug crimes and white-collar crimes. It is very difficult and often too costly for defendants to invest time and funds into proving misconduct in nonviolent or “lesser” crimes.

For drug crimes, it is “basically impossible to win a case,” especially when the words of the accused are pitted against those of law enforcement. This was the predicament which faced George Almond in Cook County, Illinois. While Almond had been wrongfully sentenced to two years for possession of heroin (planted on him by a local law enforcement), he relented to authority and pleaded guilty.

Unfortunately, Gross et. al. said, for many of these victims aside from the great challenges in facing police officer testimony, many victims lack the time and funds to pursue a case against their wrongful convictions. “In drug cases, many defendants who are framed just suck it up, plead guilty, do their time and try to move on,” according to the study.

White collar crimes made up less than three percent of all exonerations, but tended to be more reminiscent of murder convictions than of other nonviolent cases such as drug crimes. For white collar crimes, exonerations were only second to murder at 62 percent, said researchers.

In the study, Gross et. al. expanded five broad categories of misconduct across cases: Witness Tampering, Misconduct in Interrogations, Misconduct of Fabricated Official Evidence, Concealing Exculpatory Evidence, and Misconduct in Trial. The researchers concluded the section on Misconduct Frequency by giving brief introductions to each of these five types.

In Witness Tampering, 17 percent of the convicted cases were a result of officials inducing witnesses to provide false evidence or to withhold accurate evidence. Officials were able to encourage witnesses to engage in the behavior through the use of threats and/or manipulation.

Through Misconduct in Interrogations, 12 percent of exonerees falsely confessed crimes usually under police pressure. Under the premise that guilty suspects have obvious motivation to lie, police interrogations of criminal suspects allow for scaring, tricking or deceiving defendants.

However, Gross et. al. said misconduct is committed when law enforcement officials go beyond said limits, by employing methods such as using or threatening to use violence. 57 percent of exonerations with false confessions involve known misconduct in interrogations.

The Misconduct of Fabricated Official Evidence may be committed through forensic fraud, fake crimes, and/or fictitious confessions, said researchers, adding that in cases where law enforcement officers serve as the official witness to the alleged crime, there is no need to tamper with witnesses to present false evidence as they are themselves the witnesses.

The most common type of misconduct found in the study was displayed equally in both prosecutors and law enforcement officials who Concealed Exculpatory Evidence favorable to the defendant – 44 percent of exonerations involved officials concealing information which tended to include substantive evidence of innocence as well as impeachment evidence, said the authors.

Finally, across the 80 percent of exonerated defendants convicted at trial, about 28 percent of those trials included Official Court Misconduct. This misconduct ranged from police perjury, to trial misconduct by prosecutors.

Gross et. al. said prosecutors committed misconduct at trial in more than 14 percent of all exonerations including knowingly permitting perjury, lying in court, and/or using improper statements in closing argument or cross examination.

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