[Peace-discuss] Malice in blunderland

[C. G. Estabrook]

[Interesting op-ed in today's NYT, with implications for citizens' 
police review boards in both Urbana and Champaign -- and elsewhere.  The 
best account of the case -- in fact a long FBI crime spree -- referred 
to in the first paragraph is probably the novel by the late George V. 
Higgins, At End of Day (which I think is also the best portrait of 
Boston in the '70s and '80s, with the possible exceptions of the films 
Mystic River and the soon-to-be released Gone Baby Gone).--CGE]

	August 2, 2007
	Op-Ed Contributor
	The Presence of Malice
	By RICHARD MORAN
	South Hadley, Mass.

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.

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

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