August 23, 2007
Criminologist and professor of sociology Richard Moran specializes in cutting through the jargon and arcane scholarly
language that cloud our thinking about crime and punishment. What makes him successful is that he has a knack for "hitting
the nail on the head." His latest big idea came to him 20 years ago, and he figures the data to support it has been out
there for at least five years. This summer he found a hook, dashed off 800 words to the New York Times op-ed page, and his
phone hasn't stopped ringing since.
The idea is that most death sentences overturned on appeal occurred not because somebody goofed or because events conspired
to lead the jury astray, but because police and prosecutors planted evidence, withheld evidence favorable to the defense,
or knowingly allowed people to lie on the witness stand. In other words, those sworn to uphold the law in fact broke the law
in order to railroad the accused, some of whom turn out to be innocent. What troubles Moran most is that he has never heard
of anyone being called to task for this behavior, even if caught red-handed. "I don't think there has been a single law
enforcement person punished or a single prosecutor who has gone to jail for planting evidence," or a single policeman
prosecuted for perjury" he said.
Moran's op-ed, "The Presence of Malice," made a splash. He is now working on an article to submit to a law review
because he wants this revelation to have a lasting impact on policy. He also believes the term "unlawfully convicted"
should replace "wrongfully convicted" in order to distinguish cases where justice went off the rails due to official
malfeasance from mistakes resulting from good faith errors. "How do you expect criminals to go straight and to respect
the law if those who run the system have no respect for it?" Moran asks.
Moran remembers reading a 1987 Stanford Law Review article, "Miscarriages of Justice in Potentially Capital Cases."
He called one of the authors, his friend Hugo Adam Bedau, and told him, "This is a great study but you've got no guts."
He blames many researchers and activists doing "innocence work" for glossing over the fact that what are usually
termed "wrongful convictions" can be traced to official misconduct. A few years ago Moran had this discussion with
Caroline Nobo '07, his research assistant who graduated this year and is starting graduate work in criminology at the University
On his suggestion Nobo went to the Death Penalty Information Center Web site (see link below), where they list capital
cases overturned on appeal. It didn't take long to realize that of the 124 cases on the site fully 80 or 66 percent involved
police or prosecutorial misconduct. "Anybody could have put this together," said Moran, noting that the hundredth
case was listed in 2002, creating a data set at least twice what would be needed to draw valid conclusions. In fact, friends
urged Moran not to delay in going public with his finding lest someone beat him to it.
Anyone with an Internet connection and a week or two to put the pieces together could have written the op-ed, according
to Moran. The catch, he added, is that until recent publicity surrounding DNA exonerations many editors wouldn't have touched
it. "It would be too far out of their knowledge base," Moran said. "Most of my best stuff cannot be published
until about two years afterwards, when editors are ready to look at a new perspective."
The problem of "unlawful convictions" has become endemic because many prosecutors are more concerned with their
win/loss records than they are with doing justice. "In most states they have political careers and a lot of the politicians
have come up through the prosecutorial system," Moran said, and many judges are former prosecutors who "don't want
to see the system opened up to scrutiny." In non-death penalty cases, which are not part of his study, "justice
is even more capricious," Moran said.
He has two clear goals. "I want to reframe the understanding of what it means to be wrongfully convicted. I think
that the public response to good faith mistakes or errors is much different than to the malicious planting of evidence,"
Moran said. "I can live with mistakes, but in general in our culture we have substituted the word 'mistake' for intentional
wrongdoing. . . . When someone in the criminal justice system, who is sworn to uphold the law, has broken the law, I want
to see them prosecuted, especially when their unlawful conduct send an innocent man to death row."