Sunday, July 8, 2018

The Exoneration of Persons Convicted of Misdemeanors That Were Never Committed

There are a number of ways a person convicted of a crime can be exonerated. It can be proved that the person was not the perpetrator, for example by DNA testing of biological evidence left by the perpetrator of the crime excluding the defendant. There can be proof of an iron clad alibi – such as proof that the defendant was incarcerated or in another country when the crime was committed. It can be be proved that someone else committed the crime, for example by video evidence of the commission of the crime.

One way a person can be exonerated is by proof that the crime was never committed. For example, persons have been convicted of murder only for the supposed decedent to subsequently be proved to still be alive. And, unless one believes in witchcraft, one can safely assume that the 20 persons executed for witchcraft in Salem were convicted and killed by the state for crimes that were never committed.

Most attention to exonerations in the current innocent movement has been focused on persons proved innocent of serious felonies  -- homicides, sex crimes, and assaults – by DNA evidence. But, as described in an important and provocative law review article, THE INNOCENCE MOVEMENT AND MISDEMEANORS, 98 B.U. L. Rev. 779 (June 2018) by Jenny Roberts , the Co-Director of the Criminal Justice Clinic and Associate Dean for Scholarship, American University Washington College of Law, lab tests and video evidence have demonstrated that large numbers of persons have been convicted of misdemeanors, such as drug possession, often by guilty plea, for crimes which were never committed.

For example, lab tests have demonstrated that there were no illicit drugs. Videos have established that the charged crimes were not committed (such as by showing police planting evidence). As the article discusses, given the huge number of person who are arrested and convicted of misdemeanors, and the impact of such convictions, it might be helpful to direct far more resources to both identifying  such cases and dealing with the the police and prosecutorial practices which have enabled them.

I taught a wrongful conviction cause for a decade and, apart from a discussion of the Ramparts scandal at Los Angeles Police Department , did not even discuss the issue of exoneration of people convicted of misdemeanors. I strongly believe that this is article is worth reading as it raises numerous important questions regarding the meaning and significance of such exonerations and how we should respond to them to prevent future convictions of innocent persons.

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