Unlawful Convictions:

LAST week, Judge Nancy Gertner of the Federal District Court in Boston awarded
more than $100 million to four men whom the F.B.I. framed for the 1965 murder of
Edward Deegan, a local gangster. It was compensation for the 30 years the men
spent behind bars while agents withheld evidence that would have cleared them
and put the real killer * a valuable F.B.I. informant, by the name of Vincent
Flemmi * in prison.

Most coverage of the story described it as a bizarre exception in the history of
law enforcement. Unfortunately, this kind of behavior by those whose sworn duty
it is to uphold the law is all too common. In state courts, where most death
sentences are handed down, it occurs regularly.

My recently completed study of the 124 exonerations of death row inmates in
America from 1973 to 2007 indicated that 80, or about two-thirds, of their
so-called wrongful convictions resulted not from good-faith mistakes or errors
but from intentional, willful, malicious prosecutions by criminal justice
personnel. (There were four cases in which a determination could not be made one
way or another.)

Yet too often this behavior is not singled out and identified for what it is.
When a prosecutor puts a witness on the stand whom he knows to be lying, or
fails to turn over evidence favorable to the defense, or when a police officer
manufactures or destroys evidence to further the likelihood of a conviction,
then it is deceptive to term these conscious violations of the law * all of
which I found in my research * as merely mistakes or errors.

Mistakes are good-faith errors * like taking the wrong exit off the highway, or
dialing the wrong telephone number. There is no malice behind them. However,
when officers of the court conspire to convict a defendant of first-degree
murder and send him to death row, they are doing much more than making an
innocent mistake or error. They are breaking the law.

Perhaps this explains why, even when a manifestly innocent man is about to be
executed, a prosecutor can be dead set against reopening an old case. Since so
many wrongful convictions result from official malicious behavior, prosecutors,
policemen, witnesses or even jurors and judges could themselves face jail time
for breaking the law in obtaining an unlawful conviction.

Strangely, our misunderstanding of the real cause underlying most wrongful
convictions is compounded by the very people who work to uncover them. Although
the term “wrongfully convicted” is technically correct, it also has the
potential to be misleading. It leads to the false impression that most inmates
ended up on death row because of good-faith mistakes or errors committed by an
imperfect criminal justice system * not by malicious or unlawful behavior.

For this reason, we need to re-frame the argument and shift our language. If a
death sentence is overturned because of malicious behavior, we should call it
for what it is: an unlawful conviction, not a wrongful one.

In the interest of fairness, it is important to note that those who are
exonerated are not necessarily innocent of the crimes that sent them to death
row. They have simply had their death sentences set aside because of errors that
led to convictions, usually involving the intentional violation of their
constitutional right to a fair and impartial trial. Very seldom does the court
go the next step and actually declare them innocent.

In addition, some of these unlawful convictions resulted from criminal justice
officials trying to do the right thing. (A police officer, say, plants evidence
on a defendant he is convinced is guilty, fearing that the defendant will escape
punishment otherwise.) In cases like these, officers or prosecutors have been
known to “frame a guilty man.”

The malicious or even well-intentioned manipulation of murder cases by
prosecutors and the police underscores why it’s important to discard, once and
for all, the nonsense that so-called wrongful convictions can be eliminated by
introducing better forensic science into the courtroom.

Even if we limit death sentences to cases in which there is “conclusive
scientific evidence” of guilt, as Mitt Romney, the presidential candidate and
former governor of Massachusetts has proposed, we will still not eliminate the
problem of wrongful convictions. The best trained and most honest forensic
scientists can only examine the evidence presented to them; they cannot be
expected to determine if that evidence has been planted, switched or withheld
from the defense.

The cause of malicious unlawful convictions doesn’t rest solely in the imperfect
workings of our criminal justice system * if it did we might be able to remedy
most of it. A crucial part of the problem rests in the hearts and souls of those
whose job it is to uphold the law. That’s why even the most careful strictures
on death penalty cases could fail to prevent the execution of innocent people *
and why we would do well to be more vigilant and specific in articulating the
causes for overturning an unlawful conviction.

By Richard Moran who is a professor of sociology and criminology at Mount Holyoke
College.