Misconduct and Wrongful Convictions

DPIC’s Special Report: The Innocence Epidemic documented that 69% of death-row exonerations have included official misconduct. Official misconduct — defined as misconduct by police, prosecutors, or other government officials — is disproportionately prevalent in death-row exonerations of defendants of color, especially Black defendants. While official misconduct was a significant factor in exonerations of white death-row survivors, present in 58% of those cases, it contributed to 79% of the wrongful convictions of Black death-row exonerees and 69% of Latinx death-row exonerees. The odds that official misconduct contributed to a death-row exoneree’s wrongful capital conviction were 2.7 times greater if the exoneree was Black than if he or she was white, and 1.6 times greater if the exoneree was Latinx.

Further, exonerations take longer in cases involving official misconduct because of on-going efforts by government officials to hide misconduct and false testimony or accusations. Prosecutorial offices also tend to more aggressively defend cases and legal claims in which official misconduct is charged. Official misconduct was present in all eight of the cases in which an exoneration occurred 31 or more years after conviction. It also was a factor in 88% of the twenty-five cases in which exonerations occurred 21 – 30 years after the conviction.

DPIC’s examination of misconduct exonerations has uncovered more than 120 trial or in post-conviction proceedings in which there was strong evidence of prosecutorial misconduct. This includes misconduct in multiple trials for defendants like Curtis Flowers, who had four different convictions and death sentences overturned because of prosecutorial misconduct before he eventually was exonerated.

The 2020 exoneration of Kareem Johnson highlights many of the issues with prosecutorial misconduct in death penalty proceedings. Johnson was convicted and sentenced to death in Philadelphia in 2007 based upon evidence and argument falsely informing the jury that DNA evidence linked him to the murder. The prosecution, police, and a prosecution forensic analyst told the jury that Johnson shot the victim, Walter Smith, at such close range that Smith’s blood spattered onto a red baseball cap Johnson was wearing that was recovered at the murder scene. Philadelphia homicide prosecutor Michael Barry falsely linked Johnson to the murder through the hat, telling jurors in his opening statement that it “was left at th[e] scene in the middle of the street [and] has Kareem Johnson’s sweat on it and has Walter Smith’s blood on it.”

In reality, there was no blood on the red hat, nor did the police property receipt for the hat contain any indication of blood. Smith’s blood was actually on a second hat — a black hat he was wearing at the time he was shot in the head. The DNA reports for the red hat also raised questions about the sweat stain attributed to Johnson. The initial DNA report on the sweat stain — which was supplemented twice without explanation — did not link the hat to Johnson. When Johnson’s post-conviction counsel discovered the discrepancies with the hats, the Philadelphia District Attorney’s office agreed that Johnson’s conviction should be overturned. However, the DA’s office stipulated that the reversal was “on ineffective assistance of counsel at the guilty-innocence phase of trial.”

Johnson sought to bar the retrial on double jeopardy grounds. Although the lower courts described the prosecution’s mishandling of the evidence in the case as “extremely negligent, perhaps even reckless” and called Johnson’s trial a “farce,” they allowed the retrial to proceed. However, on May 19, 2020, the Pennsylvania Supreme Court reversed, finding that the misconduct — even if not deemed intentional — was so severe that retrying Johnson would violate his constitutional rights. “Under Article I, Section 10 of the Pennsylvania Constitution,” it wrote, “prosecutorial overreaching sufficient to invoke double jeopardy protections includes misconduct which not only deprives the defendant of his right to a fair trial, but is undertaken recklessly, that is, with a conscious disregard for a substantial risk that such will be the result.”