Government Misconduct and Convicting the Innocent The Role of Prosecutors, Police and Other Law Enforcement Samuel R. Gross, Senior Editor, [email protected] Maurice J. Possley, Senior Researcher Kaitlin Jackson Roll, Research Scholar (2014-2016) Klara Huber Stephens, Denise Foderaro Research Scholar (2016-2020) NATIONAL REGISTRY OF EXONERATIONS SEPTEMBER 1, 2020 Government Misconduct and Convicting the Innocent The Role of Prosecutors, Police and Other Law Enforcement National Registry of Exonerations Newkirk Center for PageScience i • National & Society Registry • University of Exonerations of California • September Irvine 1, • 2020 Irvine, California 92697 University of Michigan Law School • Michigan State University College of Law For Denise Foderaro and Frank Quattrone Government Misconduct and Convicting the Innocent The Role of Prosecutors, Police and Other Law Enforcement Page ii • National Registry of Exonerations • September 1, 2020 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. Government Misconduct and Convicting the Innocent The Role of Prosecutors, Police and Other Law Enforcement Page iii • National Registry of Exonerations • September 1, 2020 • 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 Government Misconduct and Convicting the Innocent The Role of Prosecutors, Police and Other Law Enforcement Page iv • National Registry of Exonerations • September 1, 2020 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. Government Misconduct and Convicting the Innocent The Role of Prosecutors, Police and Other Law Enforcement Page v • National Registry of Exonerations • September 1, 2020 (iii) Each page of the text (except the first pages of major sections) includes two highlighted buttons: Go to Executive Summary and Go to Table of Contents. If you click on them, they will take you to the beginning of the Executive Summary and of the Table of Contents, respectively. Government Misconduct and Convicting the Innocent The Role of Prosecutors, Police and Other Law Enforcement Page vi • National Registry of Exonerations • September 1, 2020 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.