Wednesday, September 07, 2011

Fabricated Evidence in Criminal Cases

Although I offer this in no way as a defense of prosecutorial or police misconduct, it remains my impression that most police officers and prosecutors who engage in misconduct in order to convict a defendant do so under the belief that the defendant is guilty. (That can be a pretty low internal standard - I've met prosecutors for whom there is no meaningful distinction between "charged" and "guilty", under the rationalization "We wouldn't charge somebody who was innocent.") No matter how sincere the belief, though, it's unacceptable conduct. The point of the prosecution and trial is to prove that the evidence is sufficient - if it's not, the prosecutor should be trying to figure out how to find more bona fide evidence or how to build a better case.

Whatever the motive, there are degrees of police prosecutorial misconduct - planting evidence, intentionally "losing" evidence, tampering with evidence, coercing witnesses, rewarding witnesses, suppressing exculpatory evidence or information.... I cannot place them in an order of "least serious to most serious" as each act can potentially have a dramatically different impact depending upon the full facts of the case.

When I've encountered prosecutorial misconduct, my thoughts have ranged from, "Were you that desperate for a conviction," to "You knew that and you still thought the defendant should be tried for this offense". But in reading about supposed bite mark specialist Michael West, it is difficult for me to imagine that many of the prosecutors who utilized his service, and as his "reputation" grew, perhaps most, had a pretty good idea that they could count on him to fabricate evidence to convict people against whom they had no viable case. And we're talking about life sentences, even death sentences, resulting from West's fraud and fabrication.

When a medical examiner performs and documents an autopsy and finds no evidence of a bite mark, and the prosecutor brings in a "specialist" who not only manages to find bite marks but finds obvious marks that are not present in prior photographs and video, it's difficult for me to imagine that everybody in the prosecution doesn't know exactly what's going on.

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