DPIC Analysis: Use or Threat of Death Penalty Implicated in 19 Exoneration Cases in 2019

The use or threat of the death penal­ty was a fac­tor in more than 13% of exon­er­a­tions across the United States in 2019 and near­ly 95% of those cas­es involved some form of major mis­con­duct, a Death Penalty Information Center analy­sis of data from the National Registry of Exonerations has revealed. The DPIC review found that the death penal­ty played a role in at least 19 of the 143 exon­er­a­tions in 2019 (13.3%) list­ed in the Registry’s annu­al exon­er­a­tions report, result­ing in near­ly 500 years lost to wrong­ful incar­cer­a­tion. Based on the National Registry’s des­ig­na­tion of fac­tors con­tribut­ing to the wrong­ful con­vic­tions, Official Misconduct and/​or Perjury or False Accusation was present in all but one of the wrong­ful incar­cer­a­tions in which the death penal­ty was impli­cat­ed (18 of 19, or 94.7%).

The preva­lence of mis­con­duct was even greater in these cas­es than the already high his­tor­i­cal rate at which mis­con­duct occurs in exon­er­a­tions. A September 2020 report by the National Registry of Exonerations, Government Misconduct and Convicting the Innocent found that mis­con­duct was present in more than half of all exon­er­a­tions since 1989, ris­ing to near­ly three-quar­ters of the cas­es in which exonerees had been wrong­ful­ly con­vict­ed and sen­tenced to death.

“The num­bers show that the death penal­ty has dan­ger­ous effects on the crim­i­nal jus­tice sys­tem that go far beyond the already sig­nif­i­cant risk of exe­cut­ing inno­cent peo­ple,” said DPIC Executive Director Robert Dunham. ​“Innocent peo­ple con­fess to crimes they didn’t com­mit to avoid the pos­si­bil­i­ty of being exe­cut­ed. Suspects, both inno­cent and guilty, who are threat­ened with the death penal­ty if they do not coop­er­ate with law enforce­ment pro­vide false tes­ti­mo­ny that sends inno­cent peo­ple to jail, often for decades. The data sug­gest that the mis­use of the death penal­ty as a coer­cive inter­ro­ga­tion and plea bar­gain­ing tool pos­es a far greater threat to the fair admin­is­tra­tion of the crim­i­nal laws than we had previously imagined.”

The 2019 Annual Report of the National Registry of Exonerations iden­ti­fies three for­mer death-row pris­on­ers who were exon­er­at­ed in 2019: Clifford Williams, Jr.; Charles Ray Finch; and Christopher Williams. Collectively, they spent 111 years wrong­ful­ly incar­cer­at­ed for mur­ders they did not com­mit. However, DPIC’s review of the National Registry’s data iden­ti­fied at least six­teen oth­er exonerees not sen­tenced to death who either were wrong­ful­ly con­vict­ed after they or oth­ers asso­ci­at­ed with the case were threat­ened with the death penal­ty or had their wrong­ful incar­cer­a­tions extend­ed because wit­ness­es had been threat­ened with the death penal­ty if they tes­ti­fied for the defense.

In addi­tion to the three death-row exonerations:

• Prosecutors sought the death penal­ty against four oth­er men.[1] In three of the cas­es, jurors con­vict­ed them of less­er degrees of mur­der or reject­ed cir­cum­stances that would have made them eli­gi­ble for the death penal­ty. In the fourth case, pros­e­cu­tors with­drew the death penal­ty at the start of trial.
• An 18-year-old was not cap­i­tal­ly charged because of his age but was tried before a death-qualified jury because his co-defen­dant (who also was exon­er­at­ed in 2019) was cap­i­tal­ly tried.[2]
• Nine false­ly con­fessed as a result of the death penal­ty.[3] Six gave false con­fes­sions after law enforce­ment threat­ened them with the death penal­ty. One of them pled guilty to rape and mur­der to avoid the death penal­ty; the actu­al killer remained free and com­mit­ted anoth­er rape and mur­der. Three false­ly con­fessed to rape to avoid cap­i­tal mur­der charges and then false­ly impli­cat­ed a fourth man (also exon­er­at­ed in 2019) in the mur­der. A 16-year-old false­ly con­fessed under pres­sure from his old­er broth­er so the broth­er would not face the death penal­ty, and then a pros­e­cu­tion wit­ness who had been threat­ened with the death penal­ty false­ly impli­cat­ed the teen.
• Three were con­vict­ed of mur­der after pros­e­cu­tors pre­sent­ed false tes­ti­mo­ny from wit­ness­es who had been threat­ened with the death penal­ty.[4]
• One had his exon­er­a­tion obstruct­ed when pros­e­cu­tors threat­ened a post-con­vic­tion wit­ness with the death penal­ty for admit­ting to the mur­der and then charged the wit­ness with per­jury for his truth­ful admis­sion.[5]

[1] Keith West, Samuel Bonner, Willie Veasy, Robert Yell.

[2] Hubert Myers.

[3] Dean McKee, Stanley Mozee, Ronald Stewart, Christopher Tapp, Veasy, Demond Weston (mur­der); James Long, James Pitts, Jr., and Michael Shelton (rape).

[4] Dennis Allen, Richard Kussmaul, and McKee.

[5] John Miller.

Nationwide, the 143 men and women exon­er­at­ed in 2019 spent a total of 1,908 years in prison, a record for any year. The 19 men whose cas­es involved the wrong­ful use or threat of the death penal­ty account­ed for one quar­ter of that total, los­ing 480 years to wrong­ful incar­cer­a­tion. On aver­age, the 2019 exonerees spent 13.3 years each wrong­ful­ly incar­cer­at­ed. The aver­age wrong­ful impris­on­ment of exonerees in cas­es involv­ing death-penal­ty-relat­ed abus­es was near­ly dou­ble that fig­ure, at 25.3 years — an aver­age of more than a quar­ter cen­tu­ry per person.

More than half (76) of the 143 men and women exon­er­at­ed across the United States in 2019 had been wrong­ful­ly con­vict­ed of homi­cide. All of the 19 cas­es DPIC iden­ti­fied as involv­ing the wrong­ful pur­suit or threat­ened use of the death penal­ty were mur­der cas­es, though not all of the exonerees were ulti­mate­ly charged with or con­vict­ed of mur­der. Fifteen of the exonerees were con­vict­ed of some degree of mur­der; but one was con­vict­ed of manslaugh­ter and three oth­ers pled guilty to rape in a rape/​murder case.

Historically, offi­cial mis­con­duct and per­jury or false accu­sa­tion have been the lead­ing fac­tors con­tribut­ing to the wrong­ful con­vic­tion of inno­cent men and women in the United States. As of April 9, 2020, the National Registry of Exonerations report­ed that Perjury or False Accusation con­tributed to 58.5% of the 2,588 exon­er­a­tions it has iden­ti­fied. Official Misconduct was a fac­tor in 53.8% of the exon­er­a­tion cas­es. No oth­er fac­tor came close as a con­tribut­ing cause to wrongful convictions.

The National Registry’s report on gov­ern­ment mis­con­duct, which reviewed 2,400 of those exon­er­a­tions, found mis­con­duct in 54% of all exon­er­a­tions since 1989, and that mis­con­duct tend­ed to rise as the charges involved became more seri­ous. Misconduct was present in 72% of the cas­es in which exonerees had been sen­tenced to death.

The Registry also found that gov­ern­ment mis­con­duct was more like­ly to occur in cas­es involv­ing Black defen­dants. Overall, 57% of Black exonerees and 52% of white exonerees had been vic­tims of police or pros­e­cu­to­r­i­al mis­con­duct, but, the report found, ​“this gap is much larg­er among exon­er­a­tions for mur­der (78% to 64%) — espe­cial­ly those with death sen­tences (87% to 68%).” In the 2019 exon­er­a­tion cas­es in which police or pros­e­cu­tors sought or threat­ened to use the death penal­ty, DPIC found white exonerees were vic­tims of mis­con­duct 75% of the time (6 of 8 cas­es), while all eleven Black exonerees had been vic­tims of misconduct. 

Research has shown that there is a direct rela­tion­ship between the seri­ous­ness of a crime and the like­li­hood of a mis­car­riages of jus­tice. As University of Denver pro­fes­sors Scott Phillips and Jamie Richardson describe it in their law review arti­cle, The Worst of the Worst: Heinous Crimes and Erroneous Evidence: ​“the ​‘worst of the worst crimes,’ pro­duce the ​‘worst of the worst evidence.’” 

Phillips’ and Richardson’s review of more than 1,500 cas­es in which con­vict­ed pris­on­ers were lat­er exon­er­at­ed found that ​“as the seri­ous­ness of a crime increas­es, so too does the chance of a wrong­ful con­vic­tion.” They explain that pros­e­cu­tions for the most seri­ous crimes tend to involve the most inac­cu­rate and unre­li­able evi­dence, and the risks are great­est in cas­es pro­duc­ing mur­der con­vic­tions and death sen­tences. ​“The types of vile crimes in which the state is most apt to seek the death penal­ty are the same crimes in which the state is most apt to par­tic­i­pate in the pro­duc­tion of erro­neous evi­dence …, from false con­fes­sion to untruth­ful snitch­es, gov­ern­ment mis­con­duct, and bad science.”

DPIC’s analy­sis of the National Registry of Exonerations data sug­gests that this was again the case in 2019. Official Misconduct or Perjury or False Accusation were present in 94.7% of the 2019 exon­er­a­tions in which pros­e­cu­tors pur­sued the death penal­ty or police or pros­e­cu­tors threat­ened defen­dants or wit­ness­es with the death penal­ty if they did not con­fess and/​or pro­vide tes­ti­mo­ny against mur­der defen­dants or refrain from pro­vid­ing tes­ti­mo­ny that could exon­er­ate a pris­on­er wrong­ful­ly con­vict­ed of mur­der. In 78.9% of the exon­er­a­tions in which the death penal­ty was impli­cat­ed, both fac­tors were present.

Perjury or False Accusation and Official Misconduct were bad in the exon­er­a­tion cas­es in gen­er­al in 2019 and were worse in mur­der cas­es than in the non-homi­cide exon­er­a­tions. But as bad as these forms of mis­con­duct were in mur­der cas­es as a whole, they were even worse in the exon­er­a­tion cas­es that were cap­i­tal­ly pros­e­cut­ed or in which defen­dants and/​or wit­ness­es were threat­ened with the death penalty.

From the Executive Summary to the 2019 National Registry of Exonerations Annual Report

Overall, Perjury or False Accusation (P/​FA) was present in 101 of the 143 exon­er­a­tions (70.6%) in 2019, mak­ing it the most preva­lent fac­tor in the year’s exon­er­a­tions. P/​FA was more pro­nounced in homi­cide cas­es, where it was present 76.3% of the time (58 of 76 cas­es), as com­pared with 43 of 67 (64.2%) non-homi­cide cas­es. That fig­ure rose again to 84.2% in cas­es in which the death penal­ty was pur­sued or its use was threat­ened (16 of 19 exonerations).

Official Misconduct by police, pros­e­cu­tors, or oth­er gov­ern­ment actors — most com­mon­ly in the form of with­hold­ing excul­pa­to­ry evi­dence — was the sec­ond most fre­quent con­tribut­ing fac­tor to exon­er­a­tions in 2019, occur­ring in near­ly two-thirds of all exon­er­a­tions (93 of 143, or 65.0%). As antic­i­pat­ed, Official Misconduct was even more preva­lent in wrong­ful homi­cide con­vic­tions, where it was present three-quar­ters of the time (57 of 76 cas­es, 75.0%). But the rate of Official Misconduct soared when pros­e­cu­tors pur­sued cap­i­tal pros­e­cu­tions or police or pros­e­cu­tors threat­ened sus­pects or wit­ness­es with the death penal­ty. Official Misconduct was the sin­gle most fre­quent con­tribut­ing fac­tor in those cas­es, where it was present in 89.5% of the exon­er­a­tions (17 of 19).

To under­stand the increased risk of Official Misconduct and Perjury/​False Accusation in the death-penal­ty-relat­ed cas­es, we cal­cu­lat­ed both the prob­a­bil­i­ty and the odds that these fac­tors would be present in an exon­er­a­tion for four class­es of cas­es: (1) all of the 2019 exon­er­a­tions; 2019 exon­er­a­tions in non-homi­cide con­vic­tions — that is, cas­es in which the exoneree had been wrong­ful­ly con­vict­ed of a crime or crimes oth­er than mur­der or manslaugh­ter; 2019 homi­cide exon­er­a­tions; and 2019 exon­er­a­tions impli­cat­ing the death penal­ty — that is, cas­es in which an accused had been cap­i­tal­ly tried or non-cap­i­tal tried cas­es in which police or pros­e­cu­tors had threat­ened the exoneree or a wit­ness with the death penal­ty. What we found was dramatic.

• The odds that Official Misconduct con­tributed to a wrong­ful con­vic­tion was 4.57 times greater when the death penal­ty was pur­sued or its use was threat­ened, as com­pared to the 2019 exon­er­a­tions as a whole.

• The odds that Official Misconduct would be a fac­tor increased more than sev­en-fold (7.32 times greater) in the death-penal­ty-relat­ed cas­es, as com­pared to the non-homicide exonerations.
• As com­pared to homi­cide exon­er­a­tions as a whole, Official Misconduct was near­ly twen­ty per­cent more like­ly (19.3%) when a case involved wrong­ful use or threat of the death penal­ty, and the odds that Official Misconduct would be present as a fac­tor were 2.83 times greater than for homi­cide exon­er­a­tions as a whole.

• The odds that Perjury or False Accusation con­tributed to a wrong­ful con­vic­tion more than dou­bled (2.2 times high­er) when the death penal­ty was pur­sued or its use was threatened.

• The odds that P/​FA would be a fac­tor were near­ly triple (2.98 times high­er) than for non-homicide exonerations.
• As com­pared to homi­cide exon­er­a­tions as a whole, Perjury or False Accusation was ten per­cent more like­ly when a case involved wrong­ful use or threat of the death penal­ty and the odds that P/​FA would be present as a fac­tor were 1.67 times high­er than for homi­cide exon­er­a­tions as a whole.

Although every type of error or mis­con­duct was more like­ly to be present in exon­er­a­tions involv­ing the use or threat of the death penal­ty than in oth­er exon­er­a­tions, the two areas in which the dif­fer­ences were great­est were wrong­ful con­vic­tions in which pros­e­cu­tors pre­sent­ed false or fab­ri­cat­ed con­fes­sions or mis­tak­en eyewitness identifications.

Twenty-four of the 143 exon­er­a­tions report­ed by the National Registry in 2019 involved False or Fabricated Confessions (16.8%). One-third of the false con­fes­sion exon­er­a­tions were cas­es in which an accused had been threat­ened with the death penal­ty (8 of 19 cas­es). False con­fes­sions were 3.26 times more like­ly to occur in a case in which pros­e­cu­tors threat­ened to pur­sue the death penal­ty or police threat­ened sus­pects or wit­ness­es with the death penal­ty (42.1%) than in oth­er exon­er­a­tion cas­es (12.9%). And if one were attempt­ing to pre­dict an exon­er­a­tion case in which a false or fab­ri­cat­ed con­fes­sion con­tributed to the wrong­ful con­vic­tion, the odds that one would find it in a case in involv­ing the use or threat of the death penal­ty were near­ly five times greater (4.91) than in the other cases. 

About one third of the National Registry’s 2019 exon­er­a­tions involved Mistaken Eyewitness Identifications (48 of 143 cas­es, or 33.6%). However, misiden­ti­fi­ca­tions were a fac­tor in more than half of the cas­es in which pros­e­cu­tors pur­sued or law enforce­ment threat­ened the use of the death penal­ty (11 of 19 cas­es, or 57.9%) and were near­ly twice as like­ly to occur (1.94) in the death penal­ty cas­es than in oth­er exon­er­a­tion cas­es (37 of 124 cas­es, 29.8%). Altogether, the odds that mis­tak­en eye­wit­ness iden­ti­fi­ca­tion would con­tribute to a wrong­ful con­vic­tion in the 2019 exon­er­a­tion cas­es was near­ly three-and-a-quar­ter times greater (3.23) in wrong­ful con­vic­tion cas­es involv­ing the use or threat of the death penal­ty than in other cases.

2019 Exoneration Report: Official Misconduct and Perjury Remain Leading Causes of Wrongful Homicide Convictions

The report spot­light­ed sev­er­al 2019 exon­er­a­tions linked to the mis­use of the death penal­ty. Clifford Williams, Jr. was sen­tenced to death in Florida in 1976 and spent 42 years in prison before the Duval County Conviction Integrity Unit rein­ves­ti­gat­ed his case and found ​“no cred­i­ble evi­dence of guilt and … cred­i­ble evi­dence of inno­cence.” No phys­i­cal evi­dence linked Williams to the crime, and wit­ness accounts con­tra­dict­ed the bal­lis­tics evi­dence in the case. Williams’ defense coun­sel had pre­sent­ed no wit­ness­es, ignor­ing 40 ali­bi wit­ness­es who could have tes­ti­fied that Williams was at a birth­day par­ty at the time of the crime. Like the vast major­i­ty of Florida death-row exonerees, Williams’ jury had not vot­ed unan­i­mous­ly for death; in fact, his tri­al judge over­rode a jury rec­om­men­da­tion of a life sentence.

Charles Ray Finch also was sen­tenced to death in 1976. Finch’s case involved both lead­ing caus­es of wrong­ful con­vic­tions: offi­cial mis­con­duct and per­jury. Police in Wilson County, North Carolina obtained wit­ness iden­ti­fi­ca­tion of Finch through sug­ges­tive line­ups and the pros­e­cu­tion pre­sent­ed false tes­ti­mo­ny link­ing Finch to a weapon that did not actu­al­ly match the one used in the mur­der. Several pros­e­cu­tion wit­ness­es lat­er tes­ti­fied that they had been pres­sured into giv­ing false testimony.

The year’s third death-row exon­er­a­tion, that of Christopher Williams in Pennsylvania, was the result of offi­cial mis­con­duct and false accu­sa­tion by a self-inter­est­ed infor­mant. Philadelphia pros­e­cu­tors delib­er­ate­ly with­held excul­pa­to­ry evi­dence. The key pros­e­cu­tion wit­ness coop­er­at­ed with pros­e­cu­tors in exchange for avoid­ing cap­i­tal pros­e­cu­tion for six dif­fer­ent mur­ders. Williams’ case was one of thir­teen homi­cide exon­er­a­tions in Philadelphia in 2019, and one of nine aid­ed by inves­ti­ga­tions by the DA’s Conviction Integrity Unit.

Other cas­es ref­er­enced in the report involved the use or threat of the death penalty:

• Robert Yell was exon­er­at­ed in Kentucky of the arson-relat­ed mur­der of his son. In mid-March 2020, he filed a civ­il rights law­suit alleg­ing that law enforce­ment framed him. Prosecutors ini­tial­ly sought the death penal­ty in the case but with­drew it at the start of Yell’s tri­al. He was con­vict­ed of manslaugh­ter and sen­tenced to 52 years, but his attor­neys say the evi­dence against him was fab­ri­cat­ed and that law enforce­ment hid evi­dence that the fire was caused by a faulty electrical outlet. 
• Christopher Tapp was exon­er­at­ed in Idaho after a record­ing came to light that revealed police had told Tapp he faced the death penal­ty if he didn’t con­fess, lied to him that he had failed poly­graph tests, sug­gest­ed he had repressed mem­o­ries of the killing, and offered him lenien­cy — includ­ing pos­si­ble immu­ni­ty — for implicating others. 
• Florida exoneree Ronald Stewart was posthu­mous­ly cleared of the mur­der of Regina Harrison, which he had con­fessed to under threat of a death sen­tence. His case was re-exam­ined after Jack Jones, who was exe­cut­ed in Arkansas in 2017, sent a let­ter to his sis­ter con­fess­ing to Harrison’s mur­der. After Florida police deemed Harrison’s case closed, Jones went on to com­mit an addi­tion­al rape and murder.

— Robert Dunham, Executive Director
October 23, 2020