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There are innocent people in jail. No one knows exactly how many there are, but everyone knows there are some. This is, sadly, an unavoidable consequence of how our system works. Ask Johnny Williams, Ronald Ross, or Frederick Mardlin. They know. Thirteen years ago, Williams was convicted of sexually assaulting a 9-year-old girl. In 2006, Ross was convicted of attempted murder and sentenced to 25 years to life. And in 2007, Mardlin was convicted of arson after a fire burned down his home in Michigan. Within the last thirty-days, each has had his conviction dismissed - all were wrongfully convicted. And they are not alone.

Since 1989, there have been 1,077 exonerations entered into the National Registry of Exonerations -- an average of forty-five exonerations a year, or one every eight days. In all likelihood that number vastly underestimates the actual number of exonerations that occur each year. Other than the National Registry of Exonerations, which is a non-government project sponsored by the law schools at the University of Michigan and the Northwestern, there is no official record keeping system for exonerations. Nor is there any systematic way to locate them. And while high-profile exoneration cases receive widespread attention and are easy to register, many low-profile exonerations occur below the radar. Indeed, the National Registry of Exonerations reports that there is “no doubt the vast majority” of low profile exonerations have been missed. Even the most conservative estimates regarding the number of wrongful convictions are troubling. For instance, United States Supreme Court Justice Antonin Scalia's estimate that the wrongful conviction rate is only .027% is illustrative when considered in the context of transportation. Roughly 8,618 flights arrive or depart Philadelphia International Airport each week. If two of those flights crashed every week – roughly .027% of flights – the airport would close immediately; no one would have confidence that he or she was adequately protected.  Similarly, public confidence in the criminal justice system can only be preserved if effective measures are taken to ensure that both the incidence of wrongful conviction is minimized and wrongful convictions, once identified, are quickly remedied.

Indeed, many of our core assumptions about the reliability of the trial and pre-trial process have been, and continue to be, called into question. For instance, the historical hallmark of criminal trials, eyewitness identification, has been shown to be significantly less reliable than previously thought. Similarly, over the last two decades, the reliability of a confession, which United States Supreme Court Justice Kennedy once described as, “[a]part, perhaps, from a videotape of the crime, [the most] damaging [evidence] to a criminal defendant’s plea of innocence[,]” has been seriously undermined. On the other hand, institutional and technological change has increased the capacity for post-conviction determinations of innocence. Moreover, with further passage of time and the likely development of tools and methods of even greater sophistication, some forms of scientific evidence will become even more reliable.  

Yet prosecutors - those in the best, and often only, position to remedy a wrongful conviction - encounter few concrete obligations in the post-conviction setting in general and in the realm of innocence claims in particular. Moreover, an individual prosecutor’s incentives at the post-conviction state weigh heavily against taking actions that benefit convicted defendants - no matter the subsequent developments. For instance, prosecutors with huge case loads are inevitably pulled toward current work, not to reevaluating or otherwise tinkering with completed cases. Second, reexamining a conviction may involve confronting a prosecutor’s own error or undermining the reputation of a colleague who erred. Third, when new information reflects prior prosecutorial misconduct, a prosecutor may be particularly reluctant to raise new questions out of fear that doing so could hurt the office politically, or engender a law suit.

Where a workplace creates a conflict between ethical behavior and institutional values, or implicitly condones or overlooks unethical behavior that advances institutional goals, ethical behavior tends to lose out. Indeed, Pennsylvania’s Advisory Committee on Wrongful Convictions reported that “[the] failure to disclose [exculpatory] evidence is the single most common form of prosecutorial misconduct.” Thus, the starting point for improving our system is the promulgation of an effective rule defining the ethical obligations of prosecutors. The offices of our prosecutors are uniquely placed to shape and guide moral intuitions of their employees for better or worse. They provide systematic feedback through the provision of incentives and disincentives that convey the norms of acceptable and unacceptable behavior. These institutions shape ethical behavior by rewarding or punishing awareness of ethical conflict, and by rewarding or punishing those who take the initiative to confront such conflicts.

The American Bar Association - the group mostly responsible for establishing the ethical requirements of lawyers - has promulgated two rules to address this very issue. The shorter of the two states, "When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction." Though the rule simply requires prosecutors to fulfill their normal duties as both advocates and ministers of justice in the the context of new post-conviction evidence, only seven states have formally adopted the rule.

Much of the reluctance stems from the vehement objections of prosecutors themselves, specifically the United States Department of Justice. Specifically, it is alleged that the proposed rules are an "attempt to …. tell district attorneys how to investigate their cases." They also question the clarity of the proposed amendments, arguing that the rules leave too much up to interpretation and are therefore too dangerous to be adopted. Moreover, they argue that "one likely consequence of adopting these new Rules would be that prosecutors, and their resources, will be diverted from prosecuting crime to investigating convict's claims of 'new' evidence or to defend their law licenses." There is simply no evidence to support these arguments. Moreover, the proposed amendments actually protect prosecutors who make an “independent judgment, made in good faith."

At least one state Supreme Court has said, "“[i]t is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, he or she should stimulate efforts for remedial action." The proposed rules provide necessary and clear guidance to prosecutors who must make difficult decisions as ministers of justice when faced with new evidence related to a prior conviction. For the foregoing reasons, the proposed amendments should be adopted or similar action be taken to address the problem of innocent people wrongfully convicted serving time in jail.

Originally posted to HawksLoveDoves on Thu Mar 14, 2013 at 01:32 PM PDT.

Also republished by Justice Gone Wrong and Community Spotlight.

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