National media USA Today reported a story with the headline, Wrongful convictions shine spotlight on judicial system. Story here. The story states,
Perjury, faulty eyewitness identification and prosecutorial misconduct are the leading reasons for wrongful convictions….
And it goes on to describe a registry of cases in which wrongful conviction was found. The story specifically notes that the registry does not include innocent people who plead guilty to avoid risk, or cases reversed on legal error, where new evidence could have shown innocence.
The story quoted Samuel Gross, the registry’s editor, a University of Michigan professor. “What this shows is that the criminal justice system makes mistakes, and they are more common than people think…..”
This is a theme I have noticed in my practice since the year 2000. And district court judges are very much part of this wrongful conviction rate. Really – do you think you are not?
Judges need to hold prosecutors accountable; in my experience, that just so rarely happens.
I’ve seen too many courtrooms run by prosecutors, too many prosecutors getting away with whatever they want, and too few judges willing to question them at all. Indeed, what I observe mostly is judges actively engaged in protecting prosecutors from any scrutiny.
It is very difficult to sue a criminal prosecutor. And it seems the Minnesota Lawyers Board refuses to prosecute them for ethics violations (more on that in another post). Criminal prosecutors are not some magic exception to human nature. So who is going to hold prosecutors accountable?
The registry appears to be telling us that perjury is a big problem. Gosh, do you think this could possibly include perjury by co-defendants who are convinced by prosecutors to testify against the guy they ‘want’ in exchange for a deal? Don’t you think it’s just interesting how often the ‘new’ testimony from a co-defendant matches precisely the prosecutor’s version of the case? Things like this need real scrutiny.
Judges are called upon to scrutinize prosecutors’ behavior within the case as it is occurring. Don’t wait until some post-conviction action, when the system is having to pay for a second look at the case. Looking the other way because the prosecutor’s conduct will help avoid a trial is not what the public demands of its judges.
If judges are not willing to do the job of scrutinizing criminal prosecutors (for whatever reason, more on that in another post), the system breaks down. Innocent lives are damaged (not to mention the lives of everyone in their family, their friends, their place of employment), and the public pays huge incarceration or probation costs, because someone was not willing to do their job.
Cases in which it has been proven that an innocent person was convicted are on the rise. But surely that is the tip of the proverbial iceberg.
Are we willing to take a look at this?