Guest Editorial: The Presence of Malice

Richard Moran
Professor of Sociology and Criminology, Mount Holyoke College

New York Times op-ed, August 2, 2007, reprinted with the written permission of Richard Moran and the New York Times

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.

Is the prison pendulum reaching its extreme?

And how does a new lactation station fit in?

Those of you who grew up here in the San Francisco Bay Area may remember the corny old radio ad for the Winchester Mystery House. “Keeeeeep buillllllding,” a spooky female voice moaned. According to the lore, the owner of the 19th-century mansion kept adding room after bizarre room until, after 38 years, she finally died.

The current prison construction frenzy reminds me of that wacky homeowner. The other day, I was evaluating a prisoner in a building designed as a gymnasium, now crammed wall-to-wall with metal bunk beds and sardine-like prisoners. The place reeked of stale sweat, but it wasn’t from the rehabilitative exercise for which it was designed. In such situations, I frequently find myself conducting my interviews in the broom closet, or even in the guards' bathroom.

California’s prisons now hold 172,000, twice their designed capacity. And we don’t even rank among the top three states per capita. You probably know the stats – with 2.2 million people (1 out of every 136 adults) behind bars or on probation, the United States ranks tops in the world for imprisoning its citizens.

Yet, like the owner of the Winchester Mystery House, California's governor wants to build more.

The state is already spending more than half a billion dollars a year on overtime pay for correctional staff, with some staff earning as much as $212,179. That, of course, doesn't include construction workers.

And, lest the supply side dry up, more and more behaviors are being criminalized.

You’ve probably heard about the two 13-year-olds up in Oregon who are all over the blogosphere this week because they faced 10 years in prison and lifetime registration as sexual predators for running down the school hallway, slapping other kids on the butts.

If that case seems bizarre, it’s one of many. I’ve posted previously about similar cases:

• The 6-year-old Florida girl who was handcuffed, arrested, and hauled off to jail for throwing a temper tantrum in class.

• The 45-year-old Georgia mother of five who was forced to register as a sex offender and lost her home and custody of her children because she let the 17-year-old boyfriend of her pregnant 15-year-old daughter move into the family home.

But in the face of this madness, I’m the eternal optimist.

I’m feeling encouraged by the growing public awareness – books, newspaper exposes, editorials, and blog posts galore about the economic and social costs of incarceration.

I’m encouraged that the federal judiciary is standing up to California’s governor. A recently appointed judicial panel, concerned about inadequate physical and mental health care for prisoners due to the overcrowding, is poised to cap the prisoner population here.

A sane society would take steps to help paroling prisoners, so that they don’t immediately return to prison for “technical” violations as they do here in California. And it would reinvest the enormous savings into our public schools, once the envy of America and now a national disgrace.

Pondering these issues the other day as I strolled into the infamous San Quentin State Prison, I realized that one of the guard stations had been replaced by something quite incongruous – a lactation station.

I want to see that incongruity as an omen. A sign that the prison pendulum – and the underlying incarceration mania in America – may be reaching its maximum swing.

But maybe it's not. Maybe it's just another adaptation to living in a prison-centric culture.

Wikipedia has a nice overview of prison issues in the United States.

Criminal justice collapse portends future crises

Do you remember the stories coming out of New Orleans during the Katrina disaster, about prisoners being held in the flooded county jail with no access to judges or attorneys?

That was just the beginning. Katrina literally washed away the criminal justice system in New Orleans. With no courts or prosecutors and only a handful of defense attorneys remaining, thousands of prisoners were shipped out to state prisons, where they languished for months. Many were in custody for minor offenses such as not paying traffic tickets. Most, not surprisingly, were indigent minorities. They were lost in the system, doing what came to be known as "Katrina time."

Then came mass detentions of looters and other law-breakers. By the time the flood waters receded, the backlog of cases awaiting trial was in the thousands. And it was many months before even a single jury trial took place.

New Orleans is now the uncontested murder capital of the country. And with the criminal justice system still reeling, the district attorney's office came under sharp fire last month for dropping murder charges against a man accused of massacring five teenagers.

The collapse of the criminal justice system and the denial of Constitutional rights to indigent citizens is catalogued in a Duke Law Journal article now available online. After describing the scope of the disaster, the article makes recommendations for safeguarding the provision of criminal justice during future crises.

The story about the quintuple-murder suspect is featured in the July 31 issue of the L.A. Times. (You need an online subscription to read it, but the subscription is free.)

photo credit: Pratt, "Katrina damage" (Creative Commons license)

A youth club in every 'hood?

That's the new plan out of Great Britain, whose young people have the highest rates of drinking, drug use, gang membership, and fighting in all of Europe.

But just having a center at which to congregate may not do the trick. Youths need organized activities and mentorship.

So says the Institute for Public Policy Research, a British think tank. Research by the Institute determined that young people who participated in organized activities at age 16 were less likely to be depressed, living in poverty, or incarcerated as adults.

The research is available online, as is a BBC report and commentary.

Court interpreters increasingly needed

The proliferation of languages spoken in the United States has created a new and costly challenge for courts: How to provide an interpreter to each criminal defendant who claims to need one.

The challenge is garnering headlines with the dismissal of charges against a Liberian man accused of raping a 7-year-old relative. A court-appointed psychiatrist recommended that the defendant, Mahamu Kanneh, be given an interpreter. But his native language is Vai, which is spoken by only about 100,000 people in West Africa.

One interpreter tearfully left the courtroom because “she found the facts of the case disturbing,” according to a Washington Post story on the case, and a second was “rejected for faulty work.” The case was finally dismissed because a replacement could not be found in time to provide Kanneh with a speedy trial. The prosecutor's office in Montgomery County, Maryland, is appealing the dismissal.

Court interpreters and linguists say the case demonstrates the need for a national database of interpreters.

The full story is in the July 22 Washington Post.

Rape prosecution - an uphill battle

I’ve come across several stories lately pertaining to the difficulty of prosecuting rape cases. Many of you readers will have heard about the recent Nebraska trial in which the judge forbade witnesses – including the alleged victim – from using the word rape (or related words such as “victim,” “assailant,” or “sexual assault kit”). That trial resulted in a hung jury.

You are less likely to have heard about international data coming out of New Zealand, Australia, Great Britain, Scotland, and elsewhere about astonishingly low rape conviction rates in recent years. For example, data from Victoria, NZ indicate that only one of six rapes reported to police proceeds to prosecution and less than one-fourth of those result in a rape conviction. With only a tiny proportion of rapes being reported in the first place, this attrition has led to what some call the “virtual decriminalization” of sexual violence.

While these stories were coming across my desk this month, I happened to be in the middle of a provocative analysis by law professor and former sexual assault prosecutor Andrew Taslitz. Rape and the Culture of the Courtroom uses social science research to explain why rape prosecutions remain so difficult, despite the rape reform laws of the 1980s. Through linguistic analysis of actual cases, Taslitz shows how subtle innuendos, proxies, and other linguistic devices can cue jurors to place the victim into certain cultural narratives, such as that of “slut” or “scorned woman” – in other words, “liar.”

Taslitz’ linguistic analysis jives with my experiences in court. When I’ve been retained as an expert for the government (prosecution) in rape cases in which the defense was consent, I’ve been amazed at how rarely jurors convict even when the evidence is pretty solid and the woman has no plausible reason to lie. Taslitz emphasizes that even jurors who are consciously pro-feminist may fall prey to appeals to subconscious cultural scripts about virtuous womanhood.

Taslitz’ blueprint for legislative reforms includes such controversial ideas as allowing rape victims to present their stories in an uninterrupted narrative, using “intermediaries” rather than defense attorneys to question the victims, and having linguistic experts explain to jurors the effects of subconscious biases on decision-making.

My full review of the book is on Amazon.

The Nebraska trial of Pamir Safi, an Army reservist, is featured at Time Magazine’s online site.

Photo credit: fabbio (Creative Commons license).