'Police Misconduct as a Cause of Wrongful Convictions'

The headline of this post is the title of a new paper by Georgia Sate law prof Russell Covey. The abstract reads:

This study gathers data from two mass exonerations resulting from major police scandals, one involving the Rampart division of the L.A.P.D., and the other occurring in Tulia, Texas. To date, these cases have received little systematic attention by wrongful convictions scholars. Study of these cases, however, reveals important differences among subgroups of wrongful convictions. Whereas eyewitness misidentification, faulty forensic evidence, jailhouse informants, and false confessions have been identified as the main contributing factors leading to many wrongful convictions, the Rampart and Tulia exonerees were wrongfully convicted almost exclusively as a result of police perjury. In addition, unlike other exonerated persons, actually innocent individuals charged as a result of police wrongdoing in Rampart or Tulia only rarely contested their guilt at trial. As is the case in the justice system generally, the great majority pleaded guilty. Accordingly, these cases stand in sharp contrast to the conventional wrongful conviction story. Study of these groups of wrongful convictions sheds new light on the mechanisms that lead to the conviction of actually innocent individuals.

Covey focused on the Rampart and Tulia episodes to hone in on causes of wrongful convictions that may not be captured by the sorts of cases that win "actual innocence" claims. He observed that:

The vast majority of the exonerations studied to date occurred in rape cases following DNA testing and murder cases often involving the death penalty. Such cases, comprising a tiny sliver of the criminal justice system workload, are relatively unrepresentative of the vast majority of felony convictions. As a result, and as researchers compiling these datasets acknowledge, the most closely analyzed data on wrongful convictions does not capture a representative sample of the probable distribution of wrongful convictions that occur

That's a good point. Biological evidence only exists to be tested in around 10% of violent crimes and in most older cases was not preserved for testing after the fact. Focusing solely on DNA exonerations disproportionately emphasizes rape and capital murder cases where evidence is most likely to a) exist and b) be preserved, but that's not typical for the vast majority of criminal convictions. And anyway, he argued, false convictions likely occur in different types of cases for different reasons:

as one of the nation’s leading experts on exonerations, Professor Samuel Gross, has frequently emphasized, the primary causes of wrongful convictions are almost certainly crime-specific. That is, the factors that tend to cause wrongful convictions in rape cases are different from those that cause wrongful convictions in murder cases, and different from the causes of wrongful convictions in burglary cases, assault cases, and drug cases. The next generation of research must approach wrongful convictions in a more fine-grained manner.

In particular, argued Covey, "wrongful convictions in the mass exoneration cases are tied together by a single dominant causal factor: police misconduct," fact that distinguishes them from DNA exonerations, the majority of which involved faulty eyewitness identification:

While the leading identified cause of wrongful convictions in past studies of exonerations is witness misidentification, a very different dynamic is at work in the police misconduct cases. Police misconduct generally, and perjury in particular, was the primary cause of wrongful convictions in every Rampart and Tulia case resulting in exonerations. Witness misidentifications played virtually no role in any of the cases.

Bottom line: "the primary 'cause' of false convictions in the Rampart and Tulia scandals was police perjury, some form of which was present in 100% of the cases. ... After police perjury, the most common 'causes' of false convictions were the false confessions generated through police misconduct."

Another notable distinction was "the tendency of exonerees in these cases to plead guilty rather than go to trial confirms what many have long suspected: that the problem of wrongful convictions is not limited to the small number of cases in which innocent defendants unsuccessfully contest their guilt in a jury trial." Wrote Covey, "If there ever was any real doubt that false guilty pleas can occur in large numbers, the Rampart and Tulia data put those doubts to rest, indicating that at least in some types of cases, innocent defendants are far more likely to be convicted through a guilty plea than at trial."

Indeed, Covey found that actual innocence has only a slight effect on whether defendants plea guilty, arguing that it "appears from the data that actual innocence does induce some defendants to refuse a guilty plea and hold out for trial, but that the incentive has only a marginal effect, leading the innocent to contest their cases at trial at an approximately 10% greater rate than those who are actually guilty. Nonetheless, the data underscore that the vast majority of the actually innocent resolve false charges against them by pleading guilty." And when innocent defendants exercised their right to a trial, "those who did and lost paid a heavy price for that decision."

Covey concluded that, "Police misconduct, when it occurs, is a major source of wrongful convictions." The article closed with these observations:

Comparison of the mass exoneration data with prior exoneration studies suggests that two important adjustments to the empirical picture of wrongful convictions may be in order. Although earlier studies of wrongful convictions found only a small number of cases involving guilty pleas, in the mass exoneration cases, guilty pleas provided the main procedural vehicle to criminal conviction. In more than 80% of the combined Rampart and Tulia cases, innocent defendants pleaded guilty. While innocence did seem to provide a marginal incentive to some defendants to reject guilty pleas, actually innocent Rampart exonerees held out for trials only slightly more frequently than their guilty counterparts. The Rampart and Tulia exoneration data thus provides strong reason to suspect that guilty pleas are not insulated from the risk of wrongful convictions.

Consideration of this data should also raise the profile of perjury among the causes of wrongful conviction. Although eyewitness misidentification has received a substantial amount of attention as one of the main identified contributing factors in wrongful convictions, the mass exoneration cases make clear that the “causes” of wrongful convictions vary significantly by crime. These exonerations show that police misconduct is a potentially significant cause of wrongful convictions in its own right. Procedural reforms that reduce the incidence of police misconduct, therefore, should be high on the list of priorities among those working to reduce wrongful convictions.