Author Archives: Martin Yant

Police dishonesty — during an investigation or in the courtroom — is undoubtedly a major cause of wrongful convictions. It’s hard to nail down what percentage of wrongful convictions are caused in whole or part by police dishonesty, though, for several reasons.

One is that the dishonesty, usually in the investigative stage, often goes undocumented. Another is that police and prosecutors are loath to ever admit to dishonesty in the courtroom, no matter how obvious it seems to others, and most judges look the other way.

But that could be changing. In a Florida case reported here by Boston attorney Howard Friedman, a judge refused to admit evidence obtained during a search initiated after a police officer gained access to the defendant’s home by lying. The cop said the defendant’s mother consented to the search once he got his foot in the door and she said she didn’t. The judge sided with the defendant’s mother because the cop was an admitted liar.

Friedman goes on to quote from an article in Police Chief magazine about eight common justifications police officers give for lying that can best be summarized by saying that the end justifies the means: It’s OK for the good guys to lie and cheat to beat the bad guys.

A lot of this problem starts with the kind of people attracted to law enforcement. I was reminded of this when I recently reviewed the personnel file of a detective who struck me as being particularly disingenuous when he testified at trial in a case I was reviewing.

The detective’s pre-employment psychological profile was telling. It concluded that he was “a person who had a rigid concept of right and wrong and by his own admission saw very few shades of gray.” The profile went on to note that the officer “basically had little sensitivity toward anyone other than himself.”

Despite that assessment (or perhaps, sadly, because of it), the applicant was not only hired but rapidly promoted to detective. So I wasn’t surprised to see, in reviewing one of his cases, that he twisted the facts when he interviewed the defendant’s co-workers to elicit the answers he wanted, nor to hear some of those co-workers speak of his intimidating follow-up visits before trial. The detective knew what the truth was, and he was willing to lie to prove it.

There are far too many people like that in law enforcement. As I argued in my 1991 book Presumed Guilty, it is important that police departments “attract a better mix of officers who can look at problems from a variety of perspectives” to avoid the type of tunnel vision that contributes to wrongful convictions. Two decades later, I see little evidence that is happening. Most cops still only see things in black and white even though there are lots of shades of gray in the world in which they operate. Miscarriages of justice are bound to follow as long as that continues.

Dozens of people have been convicted in recent years greatly because of cell-phone evidence prosecutors claimed put the accused near the scene of the crime at the time the offense was committed. In many cases, prosecutors have used the records from a single cell phone tower to win a conviction.

Defense attorneys often let this kind of testimony from cell-phone company technicians and government agents go unchallenged, but not anymore. An attorney’s attempt to challenge a murder conviction with the testimony of expert Manfred Schenk, who claims that cell-phone tower locating is “junk science,” was featured on this blog last week. The judge in that case didn’t buy Schenk’s testimony, but others are starting to.

In March, a Michigan judge said in a ruling that he was “quite impressed” with Schenk’s testimony and credentials. He said Schenk’s analysis “destroyed” the testimony of the state’s expert, an FBI agent with one week of training who placed the defendant near the crime scene. Despite that, the judge upheld the conviction because of the defendant’s recorded confession.

Schenk and his associates explain here why using the data from a single cell-phone tower to show a person’s location, as prosecutors often do, is bad science that leads to bad justice. This type of testimony has already led to acquittals at trial, and it could prove equally helpful in reversing wrongful convictions.

Investigators trying to identify the source of an unidentified person’s DNA left at a crime scene may soon be able to expand their searches well beyond traditional law-enforcement databases. Researchers at Mount Sinai School of Medicine say they have developed a method to derive enough DNA information from non-DNA sources to clearly identify individuals whose biological data are stored in massive research repositories around the world. They warn, however, that this could create major privacy issues. You can read more here.

The eye-opening 60 Minutes segment Sunday on the exoneration of Michael Morton in Texas rightly highlighted the role of DNA testing, the Innocence Project and Morton’s dedicated attorneys in freeing him. But as Kenneth F. Bunting points out here, the unsung hero in Morton’s exoneration was the public-records law through which Morton’s defense team first learned that the victim’s 3-year-old son told his grandmother that he had seen a strange man killing his mother.

It was also through a public-records request that the defense learned that the victim’s credit card had been used in another city after her murder, that a check made out to her was cashed with a forged signature nine days after the murder and that neighbors had seen a strange man in a green van in the area right before the victim was killed. These records were never made known to Morton’s defense team, in violation of the law and ethics rules.

Typically, the prosecutor’s and sheriff’s offices strongly resisted disclosure of these crucial records that ultimately helped lead to Morton’s exoneration. Law enforcement officials don’t like having their mistakes exposed in public, and they are trying mightily in many states to resist records requests and to neuter the laws that force the disclosure of embarrassing documents. Continue reading →

Police get lots of positive publicity for arresting alleged sexual predators caught in online stings. But there are lots of gray areasof the law behind the bright lights. Police sometimes cross the line into entrapment. They also arrest people for online fantasy sex in which in which there is no real victim.

Online participants apparently play roles, including that of juveniles, during these virtual encounters.  If the underage virtual partner turns out to be a cop, the other participant ends up in jail.

A common defense in such cases is that the defendant believed the “underage” virtual participant was an adult. That defense  hasn’t worked, generally, and those who used it received stiff prison terms. But a new study in Australia suggests that some defendants who say they could tell the underage parter was really adult may be telling to truth.

Forensic psychologist Karen Franklin gives the details here in her always timely blog.