Criminal Justice

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.

NEXT: What Executive Privilege?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. It would be interesting to know what % of convictions are false. The data from retroactive DNA testing should yield a reasonable estimate.

  2. Wish I were surprised.

    We truly have a sick legal system where justice is non-existent.

    I think most (close to all) of our prosecutors and cops are worse than the criminals they are supposed to protect us from.

  3. There’s an old story (I’ve heard it in Italian folktales, 1001 Nights, and several other places), wherein the king summons a subject to pass judgment on a hypothetical criminal. After the king describes the dastardly deeds of this criminal, the subject sentences him to some terrible punishment, whereupon it is revealed that the subject himself committed the deed, and has just condemned himself.

    We should impose that model on our justice system. If malicious prosecution is found, the responsible parties serve the sentence meted out to the defendant, or which they sought to mete out.

    So, say, Mike Nifong would be registering as a sex offender in about 20 years, when he gets out of jail.

  4. So, say, Mike Nifong would be registering as a sex offender in about 20 years, when he gets out of jail.

    What about Gil Garcetti, Marcia Clark, etc? Remember, they put lying, evidence tampering police on the stand in an effort to convict OJ Simpson.

  5. And those who broke them ought to go to jail themselves.

    Nah, let’s put some real deterrent into the system, like real prosecutors-turned-legislators do. I say capital punishment.

  6. I’ve never been so sure that DNA, or advances in forensic evidence in general, was really that great for the cause of justice.

    Like any other tool, it’s only as good as the intentions of the people using it – particularly as juries become used to automatically convicting based on it.

    It just doesn’t make me comfortable that with a couple of carpet fibers from my house and some leavings pulled off of my hair brush, you can convict me for virtually any crime if you set your mind to it, despite the absence of witnesses.

  7. 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.

    I can’t wait to hear joe’s and NM’s take on “unlawful convictions.”

    ***But the convictions were done under color of law! Thus, they’re lawful by defintion!!!***

  8. The other side of this coin, of course, would be to calculate the number of “unlawful acquittals” – that being when the defense puts a knowingly lying witness on the stand, etc.

  9. max,due to plea bargaining we’ll never know.Many people plea due to lack of money or fear.

  10. max,due to plea bargaining we’ll never know.

    I left out that the retroactive DNA testing must be random (not just at the request of the convict, which gives a highly biased sample).

  11. Wouldn’t these police officers and prosecutors be guilty of a felony murder then? After all, their illegal act of witholding evidence, or destruction of evidence would lead to the death of an innocent person.

  12. So Dan, do you piss in public pools as well?

  13. I think the problem is that those characters working for the people, the prosecutors, believe their job to be ‘get convictions’. Instead of what it should be: Do justice.

    The prosecutor should be layer of abstraction between the mob and the accused, not the tool of the mob against the accused.

  14. Dan,

    There is no such thing as an unlawful acquittal. We are innocent until proven guilty. There is nothing unlawful about not being able to prove guilt.

  15. Seriously, can we not get rid of this guy?

  16. Aw, come on. Dan T. adds a bit of je ne sais quoi to an otherwise crazy-conservative-free comments section.

  17. “””I think the problem is that those characters working for the people, the prosecutors, believe their job to be ‘get convictions’. Instead of what it should be: Do justice.”””

    Maybe we should change the name of the Justice Department to Department of I’m gonna get ya. Afterall that is how they act.

  18. As long as the police and prosecutors face absolutely no consequences for procuring a wrongful conviction, they will continue to do it. Not only that, but they will continue to argue the innocent is guilty (repeating “he was convicted by a jury of his peers” ad nauseum) because there are no benefits to admitting the truth; in fact, it is an implicit admission that they made a mistake, which may be thrown in their face at subsequent trials.

Please to post comments

Comments are closed.