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Opinion / Analysis / Essays

MHC Prof Leads Debate on Wrongful Convictions

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 of Pennsylvania.

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."

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All articles © Eric Goldscheider

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