Getting Away With Murder

When a wrongful conviction is the result of prosecutorial misconduct, the prosecutor and other authorities involved in the case are less likely to spend time or energy finding the perpetrators of the original crime.

The troubling conclusion, based on a study of exonerations published in the Crime & Delinquency journal, suggests that misbehavior or incompetence of the system’s most powerful players can perpetrate a double injustice: it not only sends an innocent individual to prison, but poses a “substantial threat to the public” by allowing the real criminal to, often literally, get away with murder.

The author of the study, Jennifer N. Weintraub, a Pd.D. candidate in criminal justice at the State University of New York (SUNY) at Albany, examined 335 DNA exonerations, focusing on 86 cases where prosecutorial misconduct—such as failure to provide exculpatory evidence to defense attorneys—was either alleged or proven.

She concluded that in such cases, it was 59 percent less likely that the true perpetrators of the crimes for which the wrong person had been convicted would be found.

“Only 33 DNA exoneration cases in which prosecutorial misconduct was a contributor in the wrongful convictions identified a true perpetrator, compared with 80 percent of cases without such misconduct that did identify a true perpetrator, “ Weintraub wrote.

DNA exonerations are one subset of wrongful conviction cases. In about two-thirds of all exoneration cases, according to research cited by Weintraub, the guilty individuals escaped punishment. Without DNA evidence, findings of innocence depend on the defendant being able to hire an attorney willing to follow up leads to identify the guilty person.

At the same time, research has shown that investigative flaws, omissions or willful distortions of the evidence by prosecutors and other players in the system are present in over half of wrongful conviction cases, and in  79 percent of homicide exonerations, Weintraub wrote.

Weintraub said her research demonstrates that prosecutorial misconduct “can obstruct the postconviction procurement of compelling evidence, which would favor the wrongfully convicted and hinder a true prosecutor.”

According to Weintraub, her findings should encourage the development of better “mechanisms” by state authorities and bar associations to address and deter prosecutorial misconduct, citing for example legislation passed last year in New York State to create a state body empowered to investigate complaints of misconduct brought by any citizen.

Editor’s Note: In January a New York judge struck down the legislation establishing the commission on the grounds that it was unconstitutional.

But the study offered no legislative remedy that would compel a  prosecutor to reopen an investigation into a case in the absence of any new evidence, other than public or media pressure.

The reasons why prosecutors balk at helping identify the real culprits, even after their original case was thrown out, range from professional pride and the fear of being seen as ”soft on crime” to the loss of original documents or evidence, Weintraub said.

The damage, however, to the public, which has been “lulled into a false sense of security,” is arguably as serious as the impact on an innocent person who has wrongly spent years of his or her life behind bars, she charged.

“The commission of prosecutorial misconduct can carry dangerous consequences that extend past wrongful convictions and into public safety,” Weintraub wrote.
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The full study is available for purchase here.