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.”