As we’ve seen before, most cases of wrongful convictions come down to five basic causes.
Perjury or False Accusation
Official Misconduct – 51%
Mistaken Witness Identification
False or Misleading Forensic Evidence (23%)
False Confessions (13%)
It’s nothing short of astounding that over half of the 1,860 documented exonerations at the National Registry of Exonerations involve some sort of official misconduct. Misconduct is most common in homicide cases, present in 68% of all homicide exonerations. 530 cases out of 785. Those are the cases we know about.
90 of the 530 – fully a quarter of the cases – resulted in death sentences.
In a frightening number of child sexual abuse cases from the mid-80s into the 90s, cops and prosecutors coerced children as young as four years old in their statements and testimony. A series of cases in Kern County, California involved 30 defendants and led to 20 exonerations. The “Pitts 7” cases involved 377 counts with some defendants receiving sentences totaling over 400 years.
When you say “official misconduct,” people tend to think of bribes and frame jobs. Straight corruption cases like what Frank Serpico dealt with, or the Dirty Thirty doesn’t necessarily put the wrong person in jail. When corruption cases make the news, it’s usually because they’ve grown so big or gone on for so long.
But I think scandals and organized corruption like the Rampart scandal are not nearly as common as they seem to be. Misconduct is more likely to take the form of setting up a bad photo lineup, using emotional or physical coercion to gain a false confession or a bad witness statement, or pressuring unreliable informants.
Lineups have been problematic for years. In the stereotypical portrayal on TV, the suspect and 4-5 others walk into a room with a one-way mirror so the witness can’t be seen. The filler people, or foils, are supposed to be similar in appearance to the suspect. Suppose the suspect is described as a white male, about 6 feet tall with a foot-long beard. Your lineup crew better be filled with bearded white males. They don’t all have to look like William Lee Golden and Billy Gibbons. They’d better not look like Yul Brynner or Hervé Villechaize, either. Likewise, they need to be dressed as closely to the suspect’s appearance as possible. If the purported bad guy is in a jail jumpsuit, then all of your foils need to be dressed the same way.
Photo spreads can be an issue too. It’s easy to put subtle pressure on the witness or victim when you lay down the “right” photo in a sequential spread or simultaneous spread. Maybe you place the bad guy’s photo not quite lined up with the rest.
The best fix for either type of lineup – live or photo – is to use a double-blind format. The officer running the lineup doesn’t know which person or photo is the bad guy, or if the bad guy is even in the group. They’re just there to lay out the photos and report back to the detective.
Sometimes misconduct doesn’t look like misconduct. As happened during the child sex abuse hysteria, it might just look like aggressive police work, which isn’t necessarily a bad thing. “I just wanted to catch the bad guy” isn’t a wrong attitude; that’s what the cops are supposed to do. But cops and prosecutors and those who support their efforts in the law enforcement system have to take care not to break the rules. When you hear about the bad guys getting off on a technicality, all that means is that the good guys didn’t follow the rules that make them the good guys. And when that happens, what separates the good guys from the bad guys?
What does official misconduct look like? Here are some specific examples.
Dookhan was a chemist for the Massachusetts Department of Public Health’s Hinton Lab, from 2003 to 2012. She was supposed to test drug samples for police departments, but instead would “dry lab” them. That is, she’d visually identify a sample without actually testing it. Exact numbers are hard to pin down, but she could have caused anywhere from 20,000 to 40,000 wrongful convictions during her tenure. Charged with 17 counts of obstruction of justice, eight counts of tampering with evidence, and one count of perjury, she served about 28 months of a three-to-five-year sentence. That’s about 840 days or about 28 minutes per case she tampered with.
Yeah, that’ll teach someone.
Dookhan has not yet spoken publicly about why she did what she did. Was it the pressure to maintain a certain volume of work? Because she wanted to look good to her peers (she also falsely claimed a master’s degree)? We’ll probably never know, and it really doesn’t matter in the end to the people she helped wrongfully convict.
While Dookhan falsely certified drugs in eastern Massachusetts, Sonja Farak used drugs in the western part of the state. Farak, also employed by the Massachusetts Department of Public Health in their Amherst lab, admitted to being stoned almost on a daily basis for eight years, ending in 2013 when a co-worker noticed samples had been tampered with. Farak first started using the lab’s standards – known and proven quantities of a drug that they compared seized evidence to. When those got used up, she turned to her coworker’s assignments, altering computer records to hide what she was doing.
She also occasionally altered samples, by adding fake drugs to real drugs, to cover her thefts. But doing so could alter the weight of the original sample, bumping a case from simple possession to possession with intent to distribute. That could mean years of added time on a sentence.
There’s no direct indication that Farak’s actions led to wrongful convictions, although as of April 2013, 11 men have asked for case reviews. I’d say that any work she performed during that time should be reconsidered. The Massachusetts Supreme Court made the appeals process a little easier for Dookhan’s victims. It should do the same for Farak’s.
Scarcella is a former NYPD homicide detective. Over 50 of his cases are under review, and at least 3 involved the same witness. Teresa Gomez became known as Scarcella’s “go-to” witness, claiming to have witnessed 3 murders at different times. In one of those cases, she claimed to have seen the murder by watching through a keyhole in the door. A private investigator later determined that the door didn’t have a keyhole.
At this point, it seems that Scarcella may well have just made up confessions he said suspects made, confessions that were never recorded or written down. Why did they work? Because he was a decorated NYPD homicide detective and had presumptive credibility.
“Brady” in criminal law typically refers to Brady vs Maryland, a landmark 1963 SCOTUS case. In the case, prosecutors withheld a written statement from Brady’s co-defendant that stated Brady did not commit the murder of which he was accused. The Court ruled 7-2 that the withholding of evidence “material either to guilt or to punishment” violates due process. For example, assume that Jones is charged with murder. During the investigation, police inform the prosecutor that they have found evidence that Jones could not have committed the murder because he was undergoing heart surgery at the time. If the prosecution doesn’t disclose this exculpatory evidence, they’ve committed a Brady violation.
It’s most recently come to light in the trials surrounding the death of Freddie Gray in Baltimore. Prosecutor Marilyn Mosby failed to disclose an interview with the man who was on the other side of the police van when Gray was injured. She was chastised by the judge in the Goodson case, and all of the other charges were eventually dropped. No word yet on whether Mosby will face any substantial penalties for her failure.
Many police agencies are already working on some policy changes. Double-blind lineups are becoming more common. More and more agencies are recording interrogations and interviews. Some of these changes have been voluntary, and some have been in response to legislated directives. I applaud departments who have recognized the need and have made the needed changes proactively. I think though that legislatures need to continue requiring and prohibiting certain practices. Doing so will keep most departments from slipping back into bad routines.
I’d also like to see certain statutes of limitations adjusted. In partial response to the Catholic Church molestation scandal, several states changed the way the clock runs on the statutes of limitations for certain crimes. It’s also common for “heinous crimes” such as what’s known as first-degree murder, to have no statute of limitations. Similarly, fraud upon the court typically has no statute of limitations. I think it would be reasonable to change state laws such that the statute of limitations on crimes that result in wrongful convictions doesn’t begin to run until the wrongful conviction is discovered.
Yes, some of these changes might be painful or difficult or costly to implement. But what of the pain, difficulty, and costs to the people who have been wrongfully convicted?
Originally published on Bob Mueller
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