Police misconduct as a cause of wrongful convictions.

Author:Covey, Russell
Position:I. Introduction into IV. Actually Innocent Rampart and Tulia Exonerees E. Method of Conviction, p. 1133-1162


This study gathers data from two mass exonerations resulting from major police scandals, one involving the Rampart division of the L.A.P.D., and the other occurring in Tulia, Texas. To date, these cases have received little systematic attention by wrongful convictions scholars. Study of these cases, however, reveals important differences among subgroups of wrongful convictions. Whereas eyewitness misidentification, faulty forensic evidence, jailhouse informants, and false confessions have been identified as the main contributing factors leading to many wrongful convictions, the Rampart and Tulia exonerees were wrongfully convicted almost exclusively as a result of police perjury. In addition, unlike other exonerated persons, actually innocent individuals charged as a result of police wrongdoing in Rampart or Tulia only rarely contested their guilt at trial. As is the case in the justice system generally, the great majority pleaded guilty. Accordingly, these cases stand in sharp contrast to the conventional wrongful conviction story. Study of these groups of wrongful convictions sheds new light on the mechanisms that lead to the conviction of actually innocent individuals.


    Police misconduct causes wrongful convictions. Although that fact has long been known, little else occupies this corner of the wrongful convictions universe. When is police misconduct most likely to result in wrongful convictions? How do victims of police misconduct respond to false allegations of wrongdoing or to police lies about the circumstances surrounding an arrest or seizure? How often do victims of police misconduct contest false charges at trial? How often do they resolve charges through plea bargaining? While definitive answers to these questions must await further research, this study seeks to begin the inquiry. Specifically, this study attempts to improve our understanding of the intersection of police misconduct and criminal justice, and, more generally, to contribute to the ever-growing bank of knowledge about wrongful convictions.

    What we do know about wrongful convictions comes largely from studies of cases terminating in exonerations. These exoneration studies have produced a rich dataset from which several factors that contribute to wrongful convictions have been identified. While critically important, this dataset has significant limitations, chief of which is selection bias. The vast majority of the exonerations studied to date occurred in rape cases following DNA testing and murder cases often involving the death penalty. Such cases, comprising a tiny sliver of the criminal justice system workload, are relatively unrepresentative of the vast majority of felony convictions. As a result, and as researchers compiling these datasets acknowledge, the most closely analyzed data on wrongful convictions does not capture a representative sample of the probable distribution of wrongful convictions that occur. (1)

    Drawing on new empirical data, this article adds to the wrongful convictions dataset by assessing another group of exonerees--those exonerated following revelations of systemic police and/or prosecutorial misconduct. Specifically, this Article examines two high-profile scandals that saw the wrongful conviction and later formal exoneration of large numbers of persons. To date, little attention has been paid to such exonerees. This, I argue, has affected perceptions of the scope and nature of the wrongful conviction problem. The profile of persons exonerated following revelations of major police misconduct varies dramatically from that of the typical capital murder or DNA exoneree. The defendants in the mass exoneration cases were convicted of different types of crimes, faced less severe punishments, and were far more likely to plead guilty than other exonerated defendants. Using extant data, earlier exoneration studies have found that the primary cause of the wrongful convictions in those studies is witness misidentification. (2) Based on those findings, some commentators and reform-minded organizations have drawn the conclusion that witness misidentification is, in general, the leading cause of wrongful convictions. (3) While the former claim was correct at the time those observations were made, the latter generalization likely was not warranted. The data we currently have is simply too limited to permit any accurate generalizations about how frequently wrongful convictions occur, or which contributing factors generate them, in specific or even rough proportion. (4)

    Moreover, as one of the nation's leading experts on exonerations, Professor Samuel Gross, has frequently emphasized, the primary causes of wrongful convictions are almost certainly crime-specific. (5) That is, the factors that tend to cause wrongful convictions in rape cases are different from those that cause wrongful convictions in murder cases, and different from the causes of wrongful convictions in burglary cases, assault cases, and drug cases. The next generation of research must approach wrongful convictions in a more fine-grained manner.

    To that end, this study gathers data from two mass exonerations resulting from major police scandals. These exonerations are starkly different than most of the exonerations previously studied. In the "mine-run" cases (if there is such a thing) resulting in individual exonerations, often as a result of DNA testing, several contributing factors, ranging from eyewitness misidentification to false confessions to faulty forensic evidence and testimony, have been identified. In contrast, wrongful convictions in the mass exoneration cases are tied together by a single dominant causal factor: police misconduct. Prior exoneration studies have not focused on this group of exonerees, nor, by and large, have they incorporated data from these cases into the datasets. (6) This Article does just that. The experiences of those wrongfully convicted as a result of police misconduct differ from other exonerees in interesting and potentially important ways. The exonerations resulting from the Rampart and Tulia police scandals raise the profile of police misconduct as a known cause of wrongful convictions. In addition, the tendency of exonerees in these cases to plead guilty rather than go to trial confirms what many have long suspected: that the problem of wrongful convictions is not limited to the small number of cases in which innocent defendants unsuccessfully contest their guilt in a jury trial.

    The article proceeds as follows: Part II describes the Rampart and Tulia cases in detail, and sets forth the circumstances leading to mass exonerations in those cases. Part III provides a brief description of data about wrongful convictions that has been generated in the literature to date. Part IV begins by describing the data used in this study. It then examines the Rampart and Tulia exonerations in more detail, identifying a subset of "actually innocent" exonerees in these cases that can be compared with exonerees in other studies. Part IV then undertakes a closer analysis of the circumstances and mechanisms that led to convictions of innocent Rampart and Tulia defendants. One of the most interesting contrasts between the mass exoneration cases studied here and other instances of wrongful conviction is that, as compared to other groups of exonerees, the great majority here pleaded guilty. Part V takes a closer look at this critically important phenomenon and offers some hypotheses as to why innocent defendants plead guilty in these cases at such a high rate. Disturbingly, the evidence suggests that the factors at work here--coercive penalties for contesting guilt at trial, coupled with few effective defense strategies and unsympathetic forums--may describe the prevailing conditions for a large number of, perhaps even most, criminal defendants. Part VI considers various types of police misconduct, documenting the prevalence of both "procedural perjury" and "substantive perjury," and the fine line between them. Part VI then compares the experiences of actually innocent exonerees with those who the evidence suggests, though wrongfully convicted, were probably not actually innocent. Based on this comparative data, it finds evidence that innocence does dissuade some defendants from pleading guilty, but that any "innocence effect" has only a minor impact on guilty plea rates. Part VII briefly concludes.


    On December 16, 1997, the L.A.P.D. arrested police officer David Mack on charges of stealing $722,000 from a Los Angeles area Bank of America. Three months later, the department fired two other officers, Brian Hewitt and Daniel Lujan, for severely beating a handcuffed prisoner in an interrogation room. (7) The common thread was that all three officers were either former or current members of the Rampart CRASH, or Community Resources Against Street Hoodlums, unit. (8) Rampart is an area covering 7.9 square miles to the northwest of downtown Los Angeles. (9) It is the most densely populated portion of Los Angeles, with 36,000 people per square mile, and is widely known as a locus of gang activity. (10) At the same time, the Rampart CRASH unit had a reputation for operating in a largely autonomous fashion with little to no oversight. (11) The arrest of Officer Mack and termination of Officers Hewitt and Lujan motivated L.A.P.D. Chief of Police Bernard C. Banks to form a special task force to investigate the Rampart CRASH unit. (12)

    Then, on March 2, 1998, six-and-a-half pounds of cocaine disappeared from an evidence room in Los Angeles. (13) Within a week, the special task force investigators honed in on Los Angeles police officer Raphael Perez, a member of Rampart CRASH, as the primary suspect. A year later, trial on the charge ended with a hung jury. (14) Shortly thereafter, Perez cut a deal with prosecutors, agreeing to cooperate with a government investigation of police...

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