Our criminal justice system is flawed.
Since 1989, DNA testing has exonerated more than 360 people who were convicted of crimes but later proven innocent through the magic bullet of science. Nearly 2,000 other wrongful convictions have also been overturned without the benefit of DNA technology during that period.
A close look at these cases reveals what went wrong in the first place and informs efforts to prevent future miscarriages of justice. The key factors in documented wrongful convictions include eyewitness misidentifications, weak forensic evidence, false confessions, informant testimony, ineffective assistance of defense counsel and prosecutorial misconduct.
Indeed, grave errors committed by our nation’s prosecutors, those erstwhile ministers-of-justice entrusted with the task of charging people with crimes and litigating those matters in court, have contributed to scores of wrongful convictions. In 2017 alone, official misconduct surfaced as a factor in 84 exonerations, typically in the form of prosecutors and/or police failing to disclose evidence before trial that exculpated the accused.
This is appalling. Prosecutors represent neither crime victims nor the police; they purportedly serve the people of their jurisdictions. And their only goal should be achieving justice rather than obtaining — or maintaining — convictions. Sadly, far too many prosecutors across the country fail to grasp, let alone embody, this minister-of-justice ethos.
Yet while prosecutors are part of the problem of wrongful convictions, they are also part of the solution. They are uniquely well-positioned to re-investigate dubious convictions secured in their jurisdictions and, given their stature and institutional role, to convince judges of the need to correct a mistake. Some district attorney’s offices have capitalized on this opportunity by establishing in-house “Conviction Integrity Units” (“CIUs”) to review old cases with signs of possible innocence and take proactive steps to rectify mistakes. As of 2017, there were 33 CIUs in the United States, more than double the total in 2013. CIUs played a role in 269 exonerations from 2003-2017, with more than 80 percent of them occurring since 2014.
But the news about CIUs isn’t all good. The overwhelming majority of CIU-assisted exonerations are clustered in four large, urban counties — those encompassing Brooklyn, Chicago, Dallas and Houston. It is fair to characterize many CIUs as “window dressing” that enlivens an office’s website without doing much to advance justice.
One challenge intrinsic to most CIUs is structural. It’s difficult for members of an organization to examine a case pursued and litigated by their own office with the requisite detachment and equanimity. Suggesting a peer or former colleague prosecuted an innocent person not only could produce awkward encounters around the water cooler, but professional ostracism as well. Accordingly, the psychological pressure to validate a co-worker’s vision of a case, which some scholars refer to as the power of “conformity effects,” can affect how CIUs approach, analyze and react to a questionable conviction. To counteract this problem, some academics have urged prosecutors to staff review committees with outsiders: retired judges, prosecutors, and defense lawyers. Without a “dog in the fight,” these criminal justice veterans might view innocence claims with clear eyes, or at least clearer ones than those possessed by insiders.
Salt Lake County District Attorney Sim Gill has taken this model to heart. In launching a new Conviction Integrity Unit in his office, Gill has assembled an advisory team that is a veritable hall-of-fame lineup of distinguished attorneys, among them, the former Chief Justice of the Utah Supreme Court, Christine Durham, and none of whom are employed in his office. With such a sterling group of legal eagles in place, the board has the potential to delve deeply into potential innocence cases, look at the facts objectively, and make recommendations unencumbered by office politics or formal ties to staff attorneys. Whether this model’s potential will be fulfilled remains to be seen. But it’s an innovative approach—and one that may ultimately elevate the Salt Lake County District Attorney’s Office into the elite and relatively small nationwide club of prosecutors committed to realizing the minister-of-justice ideal.
Daniel S. Medwed is University Distinguished Professor of Law and Criminal Justice at Northeastern University in Boston and Legal Analyst for WGBH, Boston’s local NPR and PBS affiliate. He previously taught at the University of Utah, S.J. Quinney College of Law, for eight years.