Presence of Malice


In line with my article today, criminologist Richard Moran uses the FBI wrongful conviction case from last week to tout his new study on the causes of wrongful convictions in the NY Times. His conclusion? Most of them weren't accidents.

My recently completed study of the 124 exonerations of death row inmates in America from 1973 to 2007 indicated that 80, or about two-thirds, of their so-called wrongful convictions resulted not from good-faith mistakes or errors but from intentional, willful, malicious prosecutions by criminal justice personnel. (There were four cases in which a determination could not be made one way or another.)

Yet too often this behavior is not singled out and identified for what it is. When a prosecutor puts a witness on the stand whom he knows to be lying, or fails to turn over evidence favorable to the defense, or when a police officer manufactures or destroys evidence to further the likelihood of a conviction, then it is deceptive to term these conscious violations of the law — all of which I found in my research — as merely mistakes or errors.

He suggests we call these "unlawful convictions," in order to hammer home the idea that when an innocent person goes to jail because of prosecutoral malice, laws have been broken. And those who broke them ought to go to jail themselves. He also says we need to dispense with the notion that advancements in forensic science will eliminate wrongful convictions. I think that's right, though to the extent that it can, I think it should certainly be used help overturn them. But it's good to point out that advances in DNA testing have little to offer in the way of correcting malicious prosecutions related to the drug war, for example. And of course when the forensics experts themselves are corrupt or incompetent, there's little technology can do to correct the problem.