DPIC Analysis Finds Prosecutorial Misconduct Implicated in More than 550 Death Penalty Reversals or Exonerations

An analy­sis by the Death Penalty Information Center has dis­cov­ered ram­pant pros­e­cu­to­r­i­al mis­con­duct in death penal­ty pros­e­cu­tions. DPIC’s ongo­ing review of death sen­tences imposed and over­turned after the U.S. Supreme Court struck down exist­ing death penal­ty statutes in 1972 has iden­ti­fied more than 550 pros­e­cu­to­r­i­al mis­con­duct rever­sals and exon­er­a­tions in cap­i­tal cas­es (click to enlarge image). That amounts to more than 5.6% of all death sen­tences imposed in the United States in the past half-century. 

“The data on wrong­ful con­vic­tions has long shown that pros­e­cu­to­r­i­al mis­con­duct is a sig­nif­i­cant source of injus­tice in the crim­i­nal legal sys­tem,” DPIC exec­u­tive direc­tor Robert Dunham said. ​“But this research doc­u­ments that what some judges have described as an ​‘epi­dem­ic’ of mis­con­duct is even more per­va­sive than we had imagined.”

These cas­es, Dunham cau­tioned, pro­vide only a glimpse into the extent mis­con­duct infects death penal­ty pros­e­cu­tions. The list does not include the even more numer­ous cas­es in which courts found that pros­e­cu­tors had com­mit­ted mis­con­duct but excused it on grounds of sup­posed imma­te­ri­al­i­ty or harm­less error. It also does not include mis­con­duct rever­sals in cas­es in which cap­i­tal charges had been pur­sued but defen­dants were con­vict­ed of less­er charges or sen­tenced to life or less.

DPIC reviewed exist­ing stud­ies of pros­e­cu­to­r­i­al mis­con­duct, DPIC’s Exoneration Database, case doc­u­ments from research for DPIC’s Death Penalty Census, and thou­sands of appel­late opin­ions to iden­ti­fy cap­i­tal cas­es that have been reversed for pros­e­cu­to­r­i­al mis­con­duct or result­ed in a mis­con­duct exon­er­a­tion. This review demon­strat­ed the wide­spread nature of the prob­lem, uncov­er­ing mis­con­duct rever­sals and exon­er­a­tions in 228 coun­ties, 32 states, and in fed­er­al capital prosecutions.

DPIC’s analy­sis uncov­ered a wide spec­trum of mis­con­duct lead­ing to rever­sal. DPIC clas­si­fied mis­con­duct rever­sals into sev­en preva­lent cat­e­gories and a catchall cat­e­go­ry of ​“oth­er” that encom­pass­es a num­ber of less com­mon types of mis­con­duct. DPIC dis­tin­guished between rever­sals and exon­er­a­tions based on with­hold­ing favor­able evi­dence; jury dis­crim­i­na­tion; improp­er argu­ment; improp­er ques­tion­ing; false evi­dence; improp­er evi­dence; and vio­la­tions of the right to counsel. 

DPIC found the most com­mon types of mis­con­duct were with­hold­ing favor­able evi­dence (impli­cat­ed in 35% of the reversed con­vic­tions or sen­tences) and improp­er argu­ment (present in 33% of reversed sen­tences). 16% of the mis­con­duct rever­sals or exon­er­a­tions involved more than one cat­e­go­ry of misconduct. 

Prosecutorial mis­con­duct was present in 121 cas­es that led to a death-row exon­er­a­tion. The mis­con­duct often spanned mul­ti­ple tri­al pro­ceed­ings, includ­ing the case of Mississippi death-row sur­vivor Curtis Flowers, who had four dif­fer­ent con­vic­tions and death sen­tences over­turned because of pros­e­cu­to­r­i­al mis­con­duct before he even­tu­al­ly was exon­er­at­ed. The preva­lence of mis­con­duct in exonerees’ cas­es sup­ports the find­ings of DPIC’s 2021 Special Report: The Innocence Epidemic, which doc­u­ment­ed that 69% of death-row exon­er­a­tions have includ­ed official misconduct.