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Police Misconduct and Poor Legal Representation: A Case Study of the Wrongful
Imprisonment of Malcolm Alexander
James T. Jones
Department of English; Angelo State University
ENGL 1301: English Composition
Professor Elizabeth SoRelle
February 19, 2023
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Abstract
According to the National Registry of Exonerations (2021), between the years of 1989
and 2021, courts released 2,795 inmates from prison because DNA or other evidence proved
their innocence (p. 2). Wrongful incarceration can occur for a variety of reasons, from intentional
police misconduct to unreliable eyewitness identification. Malcolm Alexander represents one of
the 2,795. In November of 1980, the state of Louisiana sentenced Alexander to life imprisonment
for an aggravated assault and rape. Prosecutors based their case on the victim’s eyewitness
testimony (Innocence Project, 2022, para. 1). Alexander has always claimed his innocence, and
in 1996, the Innocence Project took his case. In 2013, advancements in DNA allowed for a
breakthrough and in light of the new evidence, Jefferson Davis Parish vacated Alexander’s
sentence and set him free after 38 years in prison (para. 7). This report explores what led to
Alexander’s wrongful conviction.
Keywords: Malcolm Alexander, Detective O’Neil De Noux, Attorney Joseph Tosh,
wrongful incarceration, police bias, police misconduct, DNA, lineups, photo arrays, legal
misconduct
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Case Study of Malcolm Alexander
In November of 1980, the state of Louisiana sentenced Malcolm Alexander to life
imprisonment for an aggravated assault and rape that took place in 1979. Prosecutors based their
conviction on the victim’s eyewitness testimony (Innocence Project, 2022, para. 1). Alexander
has always claimed his innocence and in 1996, the Innocence Project took his case. After a
thorough investigation, Alexander’s new legal team found disturbing evidence: the actions of the
police were suspect; his lawyer from the first trial did not fulfill his duty adequately defending
his client; and a district clerk had destroyed important evidence that could have been used for
DNA analysis (para. 5). In 2013, advancements in DNA allowed for a breakthrough in his case.
Scientists tested Alexander's hair and found that Alexander’s DNA did not match the DNA found
at the crime scene (para. 6). In light of the new evidence, Jefferson Davis Parish vacated
Alexander’s sentence and set him free after 38 years in prison (para. 7). What led to his wrongful
conviction in the first place? Problems with police procedures regarding eye-witness testimony,
police bias and possible misconduct, and legal malpractice ultimately led to a wrongful
conviction.
The eyewitness procedures were flawed from the beginning. First, Detective O’Neil De
Noux, the lead investigator, used two different forms of visual identification: a photo array and a
live lineup. However, research reveals that using two different identification methods creates “a
bias so that the suspect, even if innocent, is more likely to be selected in the second
identification. The suspect may seem familiar not from having committed the crime, but merely
from having been seen previously” (Lin, Roediger, & Strube, 2019, para. 1). Therefore, using
both a photo array and a live lineup put Alexander at a greater risk for being falsely identified.
Even more problematic is that Alexander was the only person who appeared in both the photo
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array and the lineup. Seeing his face twice, the victim would have been more likely to recognize
him and select him (para. 13). In addition, the officers waited too long (four months) between the
crime itself and the first photo array. Significant delays “contribute to people’s tendency to make
a positive identification and their willingness to maintain their decisions, regardless of accuracy”
(para. 22). From the outset, the police created an environment in which the victim would likely
choose Alexander as the perpetrator.
In addition to problems in police procedures, De Noux allowed his personal bias to
influence the investigation. He included Alexander as a suspect simply because he already knew
him. In 1980, a woman had accused Alexander of raping her, but the police dismissed the case
when they discovered that the woman was making a false claim in order to extort money from
Alexander (Innocence Project, 2022, para. 3). Even though the police had no evidence to tie
Alexander to the current crime for which he was later convicted, De Noux decided to add
Alexander’s mugshot to the photo array (para. 4). Brewer and Doyle (2021) found that
“investigators will likely treat a positive suspect identification as indicative of probable guilt, and
perhaps narrow the focus of their investigation to gather whatever evidence they can against that
suspect, often to the exclusion of other possibilities” (p. 182). This personal bias may have led
De Noux to not only direct the investigation toward Alexander but also to take a step further and
persuade the victim into changing her testimony. In the first photo array, the victim did not
confidently identify Alexander as her rapist; De Noux marked her response as “tentative” in his
notes (Innocent Project, 2022, para. 4). Three days later, because De Noux was at court,
Detective Marco Nuzzoliloo conducted the physical lineup. Nuzzoliloo checked off “possible”
and then wrote “tentative” next to the box (National Registry of Exonerations, 2019, para. 14).
When De Noux returned from court (three hours later) and in contradiction to normal police
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procedure, he conducted his own private interview: “When he [De Noux] emerged, he reported
that [the victim] had now said she was more than 98 percent sure that Alexander was her
attacker” (para. 15). In one day, then, the victim’s confidence moved from tentative to almost
positive.
The change in the victim’s surety is problematic, especially given the second interview,
but were De Noux’s actions malicious? Official police misconduct occurs when police
intentionally “trick, persuade or force a witness to testify to something that she might have seen,
if the officer does not care whether she actually did” (Gross, et al., 2021, p. 67). We have no
record of what De Noux said to the victim to cause such a dramatic change; however, later
events also appear to undermine the integrity of the police. During the trial itself, De Noux
testified that the victim was never “tentative” and that she “without hesitation identified the
photograph of Malcolm Alexander as the man who perpetrated the rape on her” (National
Registry of Exonerations, 2019, para. 9). His statement directly contradicts his own notes. In
addition to De Noux’s problematic testimony, the parish court destroyed key evidence. Four
years after the crime, a deputy clerk destroyed boxes of evidence, including key materials in
Alexander’s case, materials which could have been used for DNA blood analysis (para. 23). In
Louisiana, the Obstruction of Justice Act (1984) makes destruction of evidence in police custody
a crime. However, convictions only occur if the tampering is an “intentional alteration,
movement, removal, or addition of any object or substance either” (Section A, part 1). The court
reported the destruction as accidental. We will never know the intent of the deputy clerk or De
Noux because the state never investigated them. Overall, however, their actions remain highly
suspect.
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Worse than potential police misconduct, however, was the behavior of Alexander’s
attorney, Joseph Tosh. Alexander did not use a public defender; in fact, he paid for his attorney
(Innocence Project, 2022, para. 1). Unfortunately, he chose an attorney who failed him miserably.
Tosh missed court appointments, did not file a motion to suppress the eye-witness testimony, did
not petition for the blood analysis evidence, and even though he promised to appeal the
conviction, he never did (para. 1). In addition, Tosh failed to “make an opening statement, did
not call any witnesses for the defense, failed to adequately cross-examine the state’s witnesses
about the identification and presented a closing argument that was a mere four pages of the
87-page transcript” (para. 3). Ultimately, after a series of other debacles in unrelated cases, the
state of Louisanna disbarred Tosh (para. 7).1 Unfortunately, poor legal representation is not
grounds for a retrial: “Strictly speaking, misconduct by defense attorneys is not ‘official
misconduct’ because even public defenders, who are employed by the government, represent the
defendants not the state” (Gross, et al., 2021, p. 42). Tosh could have saved Alexander from very
questionable police conduct. Ironically, the state did not recognize the negligence of Tosh until
the Orleans Parish District Attorney, Paul Connick, Jr., publicly acknowledged the failure in
2018. Connick wrote that “after an extensive investigation … I agreed … that the defense
attorney during the day-long trial 37 years ago provided ineffective representation in violation of
his [Alexander’s] constitutional rights” (National Registry of Exonerations, 2019, para. 30).
Sadly, Alexander was a victim of both the police and his own legal defense.
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Tosh wasn’t disbarred until 1999, 19 years after he defended Alexander. More than 50
clients had submitted complaints against him, arguing that he took fees but did nothing at all to
defend them (National Registry of Exonerations, 2019, para. 13).
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Today, Alexander is fighting for compensation from the state of Louisiana for his
long-suffering in prison. Alexander lost in one court but has been granted an appeal by another
(“Freed Prisoner,” 2022, para. 1). Alexander spent 38 years of his life imprisoned for a crime he
did not commit. While the police conduct in the case was unacceptable, an average lawyer could
have successfully defended his client. Tosh should have argued for suppression of the
contradictory eye-witness testimony, and he should have insisted on blood test evidence, physical
evidence that could have proven Alexander’s innocence. However, Tosh didn’t even provide
basic legal services. The only punishment for the lawyer was to lose his license, but the ultimate
punishment for his client was life in prison. States should compensate the victims for time spent
if the courts expunge their sentences. Organizations like the Innocence Project can help rectify
the miscarriage of justice, but not all inmates have advocates. Overall, the first step must be the
education of citizens regarding current problems in our legal system. We simply cannot turn a
blind eye to those who fall through the cracks. In order to maintain the integrity of our
democracy, we all must champion for the release of the falsely imprisoned.
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References
Brewer, N. & Doyle, J. (2021). Changing the face of police lineups: Delivering more information
from witnesses. Journal of Applied Research in Memory and Cognition, 10(2), 180-195.
https://doi.org/10.1016/j.jarmac.2020.12.004
Freed prisoner seeks compensation for tossed rape verdict. (2022, September 8). U.S. News.
https:://www.usnews.com/news/us/articles/2022-09-08/freed-prisoner-seeks-compensatio
n-for-tossed-rape-verdict#:~:text=A%20ruling%20in%20Alexander's%20favor,the%20In
nocence%20Project%20New%20Orleans
Gross, S.R., Possley, M.J., Roll, K.J., & Stephens, K.H. (Eds.) (2020). Government misconduct
and convicting the innocent: The role of prosecutors, police and other law enforcement.
National Registry of Exonerations. https://dx.doi.org/10.2139/ssrn.3698845
Innocence Project. (2022). Malcolm Alexander.
https://innocenceproject.org/cases/malcolm-alexander/
Lin, W., Roediger, H.L., & Strube, M.J. (2019). The effects of repeated lineups and delay on
eyewitness identification. Cognitive Research, 4(16).
https://doi.org/10.1186/s41235-019-0168-1
National Registry of Exonerations. (2021, June 14). 25,000 years lost to wrongful convictions.
https://www.law.umich.edu/special/exoneration/Documents/25000%20Years.pdf
National Registry of Exonerations. (2019), May 24). Malcolm Alexander.
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5274
Obstruction of Justice Act, 14 LA § 1301 et seq. (1984).