Fresh out of Harvard Law School, Daniel S. Medwed began his practice in tax, trust and estates.
"I knew I was in trouble when my girlfriend now wife asked me what I did during the day. I couldn't remember," said Medwed, now a professor at the University of Utah's College of Law. "I knew then I had to go into criminal law. Even today she introduces me as a recovering tax lawyer."
Since then, Medwed has blazed a unique trail in the field of criminal defense law. He's a board member of directors for the Innocence Network and the Rocky Mountain Innocence Center. In 2008, the 43-year-old native of Cambridge, Mass., helped draft and pass a factual innocence bill for the state of Utah, which created a procedure for prisoners to prove their innocence even without DNA evidence. The law also allowed compensation for wrongfully-convicted inmates who subsequently proved their innocence.
Medwed's new book, Prosecution Complex, published by New York University Press, works from the maxim of 18th-century English judge and jurist William Blackstone that, "It's better that ten guilty persons escape than one innocent suffer." Medwed's intent is to show where the nation's criminal justice system has gone wrong, and how we can get it right, his exploration set against the contemporary backdrop in which United States prisons hold more people than were housed in Stalin's gulags.
Since the dawn of DNA testing in 1989, more than 250 inmates have been exonerated, with New York-based Innocence Project helping to exonerate 154. But as Medwed's book reveals, there's no sure way to determine how many people sit in prison wrongfully convicted at "the tip of the innocence iceberg."
"What's incredible is learning that the only way they could survive in prison was to be forgiving of people involved in the original case that convicted them," Medwed said. "The lesson I've taken is to translate my outrage into reform into changes that will get us closer to justice."
Your book outlines three key points in which wrongful convictions take placepre-trail, trial and post-conviction. At what point are mistakes most common, and at what point are the mistakes most easily avoided?
Pre-trial mistakes might have the greatest ripple effects. If you charge someone with a crime, even though the evidence is very weak, that sets the case in motion. If a prosecutor does not turn over all exculpatory evidence, it creates a situation where the defendant may be enticed by a plea-bargain. Otherwise, it's unclear how many mistakes occur prior to trial because so many of these decisions occur behind closed doors. It's my hunch is that a lot of these cases have their origins in those early decisions. It's hard to say which are most common, because we don't necessarily have a record of pre-trial decision. That's in part because more than 90 percent of cases result in plea-bargains.
Trial errors are easier to detect, because there's a public record. But it's hard to say whether they're the most common. So many are resolved before trial.
Once someone's charged with a crime, and if the defense does not have access to all evidence against him or her, it's hard to resist the temptation of a plea bargain. Frankly, we don't know how many innocent people plead guilty.
Your book points out that prosecutors have evolved more as legal professionals hell-bent on convictions for victims rather than "ministers of justice" in the interests of society. How, and exactly when, do you think this change took place?
It's difficult to pin-point, but the modern era, and the media's lure under which many prosecutors operate, has created a lot of pressure in the last few decades. There's also been a growth in criminal statutes. Very few legislators score points by repealing criminal laws. Prosecutors, the overwhelming majority of them, want to do justice. They come into the profession wanting to do the right thing. But there are so many pressures cultural, institutional, and political and psychological that come into bear in prosecution.
Take for example, political pressures. Prosecutors have limited budgets. They're financially strapped, like all government offices. One way to justify a higher budget is to show that your success with high conviction rates. It's much harder to show, and more nuanced to demonstrate, that you're successful when you decline to charge a case. It's harder to show you're being tough on crime. Conviction rates become the coin of the realm. The American system of places a premium on winning.
The adversarial nature of the system is partially to blame. Defense lawyers are told one thing: Be zealous advocates for your client. Prosecutors are told two things: be zealous advocate and be ministers of justice. ... It's hard for many of us, whatever our occupation, to simultaneously wear two hats. It's a very difficult thing psychologically. So the thrust of my book is to suggest gradual or incremental changes to ease some of these pressures, and basically help prosecutors in their effort to do the right thing. The bad apples among prosecutors are really very few and far between. What we need is a system that helps them do the right thing more often.
Harvard Law School professor William J. Stuntz in "The Collapse of American Criminal Justice" famously wrote that one reason so many people in our country are incarcerated is that our Constitution places a premium on process and procedure in place of an overall sense of justice. He favored France's Declaration of the Rights of Man as a sometimes superior document, which sounds scandalous to American ears.
Right now there's a debate between the revolutionary approach to criminal law and the evolutionary approach. I'm in the evolutionary camp. I believe in the American system, but believe we need incremental reform so its ideal can be realized. Other scholars have argued for the revolutionary approach. They've looked abroad to continental Europe. They think we should have more of a civil law approach, where the power of prosecutors is more limited and the process is not adversarial but inquisitorial, where the judge plays a more interventionist role. I'm not sure interventionist judges would be an improvement on zealous advocates. My view is that we're all human. Humans suffer from innate cognitive biases. We need to be aware of those biases and set up systems to counter-act them. One benefit of our adversarial system is that at the trial system there's at least a lot of transparency. As long as we can set up some review structures and minor changes, we can improve the system immeasurably.
What are the most important review structures you'd implement?
The most important reform is to create internal review committees in prosecutors' offices to evaluate major decisions. At a newspaper you have editors whom you bounce your ideas off. Prosecutors should have review committees inside the office to review cases. Just knowing that review committees exist would force the prosecutor to review the case, evidence, and reasons for the case in a way that's helpful. Likewise the prosecutors should be made to validate that decision in a roomful of peers.
The counter argument I've gotten is that of cost and time. Prosecutors have tremendous case loads. How can they set up these committees? My response is that, being a realist, maybe not every case deserves every type of evaluation. But perhaps those that bear the hallmark of the innocent do. These hallmarks involve potential eyewitness identification, dubious forensic evidence, possible false confessions and the use of jail-house informants. Cases involving some of these factors could be scrutinized at each stage.
Our current political climate talks a lot about fidelity to the Constitution, but when it comes to criminal trials and the war on terror we almost never talk about specific Amendments, such as the Sixth Amendment. The common complaint is that the Constitution is read only as a document that confirms the previously held political convictions of right or left, but how can we reignite a discussion about court-room justice?
One thing that transcends the political, I believe, is that no one wants an innocent person behind bars. That serves neither the left or right, and it devalues the legitimacy of our criminal justice system.
How would you answer someone who points to cases such as O.J. Simpson and Casey Anthony cases where most agree the guilty walked in a conversation about people wrongfully convicted and sentenced?
High-profile cases of acquittals are not representative of our justice system. That's because they occur under the media glare, or involve a wealthy defendant. Many defendants are represented by underpaid attorneys and without the resources to mount various defenses. Undoubtedly some factually guilty people are acquitted because the jury did not find reasonable doubt. As disheartening as it may seem, that's the cost of a constitutional democracy, but one's willingness to accept that proposition depends on your willingness to accept Blackstone's proposition. Some people may not accept that. I acknowledge that.
University of Utah law professor Daniel S. Medwed reads from his book Prosecution Complex: America's Race to Convict and its Impact on the Innocent.
When • Wednesday, April 18, 7 p.m.
Where • The King's English Bookshop, 1511 S. 1500 East, Salt Lake City
Info • Free. Call 801-484-9100 or visit http://www.kingsenglish.com for more information.