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Thursday, August 02, 2007

Unlawful Convictions

The New York Times ran an op-ed this morning by Prof. Richard Moran (sociology, Mt. Holyoke). He has conducted a study that found that 2/3 of wrongful convictions resulted from willful misconduct by prosecutors and/or police.  Such actions include putting witnesses on the stand that prosecutors know are lying, failing to turn over evidence favorable to the defense and manufacturing or destroying evidence to increase the possibility of conviction.   

Moran’s study looks interesting, but the story is probably better told through individual stories rather than statistics. The Trials of Darryl Hunt, a documentary about how one man was wrongfully convicted of a brutal rape and his struggle to prove his innocence, should be mandatory viewing for everyone in the profession.  It was a racially charged case in Winston-Salem and some of the same characters appear in the Duke Lacross players saga. Needless to say, although the City and State paid Mr. Hunt a pretty penny, the people involved in hiding exonerating evidence proving he was innocent were not punished.  Moran suggests that we change our rhetoric (calling these “unlawful” instead of “wrongful convictions”) and establish more specific standards for overturning convictions.  These suggestions are too weak.  The real problem, as he points out, is “the hearts and souls of those whose job it is to uphold the law.”  I am not sure whether law or ethics rules can change hearts and minds, but setting that philosophical debate aside the law surely can put fear into the hearts and minds of prosecutors by actually punishing them for misconduct.  All prosecutors who engage in such conduct should be fired and disbarred.

By the way, thanks to Dan and the other Prawfs for inviting me to blog this month!

Posted by Alexandra Lahav on August 2, 2007 at 11:58 AM in Criminal Law, Current Affairs | Permalink


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Tracked on Aug 2, 2007 4:03:38 PM


What's the absolute rate of either wrongful convictions or prosecutorial misconduct?

It seems to me that in one sense Moran's study is good news: absent willful misconduct by prosecutors, the system works pretty well. It would be scary if a significant number of innocent people were being inadvertently convicted.

Moran makes some excellent points. Any willful misconduct by prosecutors is too much, and we should work to minimize it. 80 instances of misconduct in death cases over 35 years is 80 too many. The evidence suggests that better forensic evidence will not necessarily improve the wrongful conviction rate. (It seems likely to me that it will mostly tend to lower the numbers of unsolved crimes and wrongful acquittals.)

But, without more, I'm not sure it's troubling that "2/3 of wrongful convictions resulted from willful misconduct by prosecutors and/or police."

Posted by: David | Aug 3, 2007 12:19:05 AM

The two terms (wrongful conviction v. unlawful/unconstitutional conviction) are not interchangeable. Wrongful conviction has come to mean actual innocence--that the individual did not commit the unlawful acts with which he was charged. Most state and federal compensation statutes require an individual to show actual innocence (that he did not engage in the charged unlawful activity) as an element. Unlawful (or unconstitutional) conviction means there was an underlying constitutional violation, regardless of whether the individual committed the acts charged. The mere fact of a constitutional violation, absent actual innocence, may not be enough to get the convicted person compensation. Moran's study is important in showing the substantial overlap between those two categories and the need for more comprehensive remedies.

Posted by: Howard Wasserman | Aug 2, 2007 9:52:04 PM

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