When innocent people are falsely convicted of crimes and later freed, in more than half of the cases, misconduct by police and prosecutors played a contributing role.
That’s the primary theme of a new report, “Government Misconduct and Convicting the Innocent,” released today by the National Registry of Exonerations, which has been tracking all known exonerations in the United States for the past 30 years. Every year they release a report documenting trends in exonerations, how often DNA evidence plays a role in determining an innocent person is behind bars, problems with eyewitness testimony, and of course, misconduct by officials.
This new report drills into all of the exonerations they’ve archived up until February 2019. That’s 2,400 cases. These are people who have been convicted of crimes, sentenced, then later cleared based on new evidence showing their innocence.
In 54 percent of these cases, misconduct by officials contributed to a false conviction. The more severe the crime, the more likely misconduct played a role when an innocent person was convicted.
Police and prosecutors, in general, engaged in misconduct at about equal rates, 35 percent for cops, 30 percent for prosecutors at the state level. In drug cases, though, cops were four times more likely to have engaged in misconduct than prosecutors. When it came to federal cases, prosecutors engaged in misconduct at rates more than twice as often as police. In white-collar cases, federal prosecutors engaged in misconduct seven times as much as police.
The most common type of misconduct involved concealing exculpatory evidence, which is evidence that suggests the defendant is not guilty. The National Registry of Exonerations found that evidence was deliberately concealed in 44 percent of the cases that ultimately resulted in exonerations. The 218-page report documents the many ways that police and prosecutors break the rules in order to get convictions, from fabricating evidence and manipulative conduct during interrogations to fraudulent forensics and flat-out lying in court.
After a jury convicted Jamal Trulove, then 25, of first degree murder in February 2010, then-San Francisco District Attorney Kamala Harris praised the “brave witness who stepped forward from the crowd.” Harris was then running for attorney general of California and in her campaign bragged about her high conviction rates as the San Francisco DA. Harris echoed what her deputy prosecutor Linda Allen said repeatedly to the jury: Priscilla Lualemaga, the only eyewitness to testify at trial about the July 2007 homicide of Seu Kuka, did so at great risk of retaliation. “She’ll never get her life back,” Allen said, adding that Lualemaga testified knowing that “maybe [she’ll] get killed over being a witness because she saw someone else kill someone.”
Lualemaga’s identification of Trulove as the shooter who killed Kuka on a sidewalk in San Francisco’s Sunnydale housing project was the critical evidence against him. For prosecutors to win, the jury had to believe Lualemaga’s claim that just before 11 p.m. on July 23, 2007 she saw the shooting from a second-floor window when the street below was shrouded in darkness.
The jury also had to believe Lualemaga saw the shooter despite a poor vantage point of the crime scene; her failure to pick Trulove from a photo wall she had viewed with police for hours; her evolving memory of the shooting over time; and the benefits the prosecution provided to Lualemaga and her family that would eventually total over $60,000 in living expenses. Yet the prosecution argued that Lualemaga’s testimony was credible because it came at profound personal risk.
But there was no evidence corroborating the prosecutor’s suggestion that, as a court of appeal later described it, there were “assassins lurking on defendant’s behalf.”
There was also no physical or forensic evidence that inculpated Trulove, and no other witnesses said he was the shooter. Trulove insisted from the beginning that he was innocent.
The case’s glaring flaws didn’t matter: in October 2010, Trulove, then a young father, aspiring actor, and hip-hop performer who had appeared on the VH1 reality television show “I Love New York 2,” was sentenced to 50 years to life.
Four years later, in 2014, a California Court of Appeal overturned his conviction based on the prosecutor’s repeated attempts to exaggerate Lualemaga’s credibility. The state’s claim that Lualemaga risked retaliation for testifying in the Trulove case was, the court said, a “yarn … made out of whole cloth.” The prosecution “did not present a scintilla of evidence at trial that defendant’s friends and family would try to kill Lualemaga if she testified against him,” the court said, and that misconduct, combined with Trulove’s trial counsel’s failure to object, gave him the right to a new trial.
In 2015, the same prosecutor at the San Francisco DA’s office retried Trulove, but he was acquitted and walked free for the first time since his 2008 arrest. In April 2018, a federal civil jury awarded Trulove $10 million, finding that San Francisco police officers fabricated evidence against him and withheld exculpatory evidence. In March, the city’s Board of Supervisors approved a $13.1 million payment to settle the suit.
Additionally, the ruling stated that despite identifying “widespread violations” by analysts conducting these searches, a judge still approved the warrantless surveillance program for another year.
California is one of only five states that does not have a formal process for decertifying bad cops to keep them from finding patrol work. And it looks like it’s going to stay that way.
In the middle of a massive push for policing reforms in America, law enforcement unions have defeated S.B. 731, a California bill that would have created a commission to hear cases of cops who have engaged in misconduct and determine whether they’d be stripped of their certifications.
Introduced for the first time in 2019 by state Sen. Steven Bradford (D-Gardena), S.B. 731 passed the California Senate unanimously but didn’t make it to the California Assembly floor before the legislative session ended Tuesday.
The Associated Press notes that law enforcement unions scrambled to lobby lawmakers to stop Bradford’s bill from progressing without numerous changes. A representative from police unions in Los Angeles and San Francisco told the A.P. the bill was “deeply flawed.”
Several law enforcement unions in the state say they want a process in place to decertify bad cops. They even made a web page to insist that they support things like a database of officers who have been fired for misconduct, and “a fair, reasonable and workable decertification process.” But they object to Bradford’s commission because only three of the nine members would be police officers. Four of the other members would be members of nonprofit or academic institutions and community-based organizations that have experience on “issues related to police misconduct.” One member would be a citizen who has been a survivor of police misconduct (or a relative of somebody who did not survive misconduct). And one would be an attorney with “experience involving oversight of police officers.” Police unions determined that this newly created board would be, in the Associated Press’s words, “inherently biased against officers.”
Why would we assume that people with experience in issues related to police misconduct would be inherently biased against the police officers their commission reviews? Does that also mean the officers on the commission would be biased in favor of the cops?