By David M. Greenwald
An analysis released last week by the Death Penalty Information Center found prosecutorial misconduct at the center of reversals and exonerations of those on death row.
DPIC’s review of death sentences, since the death penalty was reimposed in the 1970s, “has identified more than 550 prosecutorial misconduct reversals and exonerations in capital cases. That amounts to more than 5.6% of all death sentences imposed in the United States in the past half-century.
“The data on wrongful convictions has long shown that prosecutorial misconduct is a significant source of injustice in the criminal legal system,” DPIC executive director Robert Dunham said. “But this research documents that what some judges have described as an ‘epidemic’ of misconduct is even more pervasive than we had imagined.”
Dunham argues that these cases are just the tip of the iceberg and “provide only a glimpse into the extent misconduct infects death penalty prosecutions.”
He points out, for instance, “The list does not include the even more numerous cases in which courts found that prosecutors had committed misconduct but excused it on grounds of supposed immateriality or harmless error. It also does not include misconduct reversals in cases in which capital charges had been pursued but defendants were convicted of lesser charges or sentenced to life or less.”
To determine this, DPIC reviewed the existing studies of prosecutorial misconduct, DPIC’s Exoneration Database, case documents from research for DPIC’s Death Penalty Census, and thousands of appellate opinions. They were then able to identify those cases that were reversed for prosecutorial misconduct or that resulted in an exoneration based on misconduct.
“This review demonstrated the widespread nature of the problem, uncovering misconduct reversals and exonerations in 228 counties, 32 states, and in federal capital prosecutions,” they found.
Their analysis classified such reversals into seven categories including those based on withholding favorable evidence; jury discrimination; improper argument; improper questioning; false evidence; improper evidence; and violations of the right to counsel.
The most common type of misconduct in capital cases was a form of a Brady violation—withholding favorable evidence—which was implicated in more than a third of all cases (35%). It was followed closely by improper argument (33 percent).
Moreover, 16 percent of all reversals stemmed from more than one category of misconduct.
The review in all found that “prosecutorial misconduct was present in 121 cases that led to a death-row exoneration.”
They also found that such misconduct spanned multiple trial proceedings.
For example, in the case of Curtis Flowers, a Mississippi death row survivor, he had four different convictions with death row sentences that were overturned because of prosecutorial misconduct. He was eventually exonerated.
They conclude, “The prevalence of misconduct in exonerees’ cases supports the findings of DPIC’s 2021 Special Report: The Innocence Epidemic, which documented that 69% of death-row exonerations have included official misconduct.”