Fostering Equity and Accountability in Georgia's Criminal Legal System Through Conviction Integrity Reforms

• Publication year: 2022

Fostering Equity and Accountability in Georgia's Criminal Legal System Through Conviction Integrity Reforms

E. Addison Gantt

Meagan R. Hurley

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Fostering Equity and Accountability in Georgia's Criminal Legal System Through Conviction Integrity Reforms^*

E. Addison Gantt^** Meagan R. Hurley^***

I. Introduction

An often-quoted excerpt from Berger v. United States¹ sums up the role of a prosecutor in the criminal legal system. The context is the federal system, but it applies across the board. It begins by explaining the duty of a prosecutor: to represent the sovereign, "whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."² Then, it turns to the real-world application of that role, instructing that prosecutors should present their cases with "earnestness and vigor" and, at times, "strike hard blows"—not "foul ones"—because, in the end, "It is as much his duty to refrain from improper methods calculated to produce a wrongful

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conviction as it is to use every legitimate means to bring about a just one."³

The next statement, however, is often overlooked. The Court went on to state that, because "the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed," inappropriate actions by the state "are apt to carry much weight against the accused when they should properly carry none."⁴ And, as Berger itself recognizes, there are instances when prosecutors cross the line.⁵ But even in cases where a prosecutor's actions comply with the letter of the law, the prosecutor can force an unjust result. For example, in post-conviction proceedings, "Judges are often obligated to enforce procedural rules, and [they] must often defer to discretionary decisions made by prosecutors," placing prosecutors in the driver's seat.⁶ In those cases,

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the decisions prosecutors make can tie the hands of the courts, and we have to rely on prosecutors to "exercise their discretion to seek justice—to do the right thing"—and let justice be done.⁷

Simply put, prosecutors are responsible for ensuring that the legal system operates with integrity and accountability. When prosecutors don't exercise their authority with care, wrongful and unjust convictions occur, and the system fails.

It should not be shocking that some prosecutors cross the line—they're human.⁸ And it should not be shocking—though the rate may be—that innocent people are convicted, often because our system is imperfect.⁹ But the fact remains that prosecutors' mistakes and misconduct shake the system in a way that the actions of others do not. We must ask ourselves how we should address the imperfections in our system in a way that makes it fair and equitable for everyone.

Our criminal legal system is not, and never will be, perfect, no matter what we do. That does not mean we should not strive for perfection. We should. But we must keep in mind that, as hard as we try, mistakes and misconduct will happen; how we address those issues defines how successful the system is. We need to encourage continuing conversations and collaboration between defense attorneys and

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prosecutors to foster integrity and accountability in systemic reform efforts, helping the arc of the moral universe bend toward justice.¹⁰ Each counterpart plays a pivotal role, and each side has a story to tell. Advocates owe it to one another to work together whenever possible to ensure that communities are served and that justice is done. We should strive to keep what works, eliminate what does not, and look for ways to improve an imperfect system designed for, and implemented by, imperfect humans.

With that in mind, this Article addresses the current state of the Georgia criminal legal system as it pertains to conviction integrity reforms and wrongful convictions. It does not tell the whole story, and it does not pretend to have any magical answers or solutions to deep-rooted issues. Instead, this Article is meant to be part of the patchwork of literature on Georgia criminal law that continues the conversation about where we are now and where we hope to be, contemplating ways to achieve a better system. First, it addresses the problem of wrongful convictions. Second, it examines the role of prosecutors in correcting wrongful convictions and the landscape of prosecutorial attitudes in Georgia. Finally, it considers the viability of different reform efforts. Although it is too early to tell where current trends will lead, we are optimistic about the potential for progress in Georgia's criminal legal system.

II. Prevalence and Problem of Wrongful Convictions

The most obvious example of a wrongful conviction is the conviction of a factually innocent person, but the term can be broader; it can also include a conviction, regardless of the defendant's factual innocence, in which procedural errors violated the defendant's rights.¹¹ Of course, not every error at trial will or necessarily should result in a wrongful conviction—the nature of the right and the nature of the violation matter in determining whether an error undermines confidence in the

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verdict.¹² In that sense, the broader definition of a wrongful conviction can be ambiguous. For purposes of this Article, though, the term is given its broader definition because, ultimately, the two situations often overlap.

According to the National Registry of Exonerations, 3,036 people have been exonerated in the United States since 1989, resulting in more than 26,700 years lost to wrongful incarceration.¹³ And although the exact rate of wrongful convictions is practically impossible to know, studies have estimated that the system gets it wrong anywhere from 4% to 6% of the time.¹⁴ If those percentages and Georgia's year-end count of incarcerated people are used, there were anywhere from 1,845 to 2,767 factually innocent people in Georgia's prisons in 2020.¹⁵ Certainly, people may disagree with these calculations, but whether these numbers are exact is not the point. The point is that innocent people are convicted, and Georgia's error rate is without a doubt higher than the forty-seven exonerations it has had since 1989.¹⁶ The state's relatively low number of exonerations likely can be attributed to several factors, including procedural barriers, lack of counsel, or a lack of new evidence, but a large part of the problem likely stems from indifference to post-conviction claims of innocence and injustice.

Six factors are generally considered the primary causes of wrongful convictions: (1) eyewitness misidentification; (2) official misconduct (3) invalid or inaccurate forensic evidence; (4) false accusations; (5) false

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confessions; and (6) inadequate legal defense.¹⁷ Other significant considerations impacting individual wrongful conviction factors are implicit bias, tunnel vision, and confirmation bias.¹⁸ Of the aforementioned factors, official misconduct—most often referring to misconduct by prosecutors and police—has been a leading contributor in about 55% of exonerations.¹⁹ In some jurisdictions, the rate is even higher.²⁰

Since 1925—the start of Georgia's year-end count of incarcerated people—the state's prison population, like prison populations across the nation, has grown exponentially.²¹ From 1925 until 1974, the population was below 10,000 and as low as 2,945.²² Since 1999, the state's prison population has been over 40,000 and as high as 54,281.²³ The 1,434% increase from 1925 to 2020 makes correcting wrongful convictions more critical than ever and raises important questions. Statistically speaking, the more convicted people there are, the more innocent people there will be in prisons.

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III. The Role of Prosecutors in Correcting Wrongful Convictions

A. National Developments

Nationally, many exonerations are the result of collaboration between prosecutors and defense counsel.²⁴ This method of producing exonerations makes sense given that prosecutors have a duty to further the ends of justice, the weight guilty verdicts and guilty pleas have,²⁵ and the limited avenues for post-conviction relief.²⁶

While studies vary on the prevalence of collaboration in exonerations, recent trends show that more and more prosecutors are receptive to the reality that wrongful convictions occur, and with alarming frequency. For example, the National Registry of Exoneration's 2020 report indicates that, for homicide cases, conviction integrity unit involvement has slowly ticked upwards since 2013: there were four exonerations in 2013, seventeen in 2014, and thirty-one in 2019.²⁷ According to the same report, conviction integrity unit exonerations in homicide cases account for "31% of all homicide exonerations since 2014."²⁸ When it comes to drug crime exonerations, however, the numbers tell a different

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story. Since 2014, 83% of drug crime exonerations have been the product of conviction integrity unit involvement.²⁹

Conviction integrity units are a relatively new concept, but are more frequently being implemented around the country.³⁰ In 2011, according to the National Registry of Exonerations, there were six conviction integrity units.³¹ That number quadrupled to twenty-four by 2015.³² As of early November 2021, there are ninety-three recognized conviction integrity units on the registry.³³ In 2014, the first federal conviction integrity unit was established in the District of Columbia.³⁴ Like the unit established in D.C., the vast majority of conviction integrity units are part of individual prosecutorial offices, functioning as divisions under the control of the chief prosecutor in each office.³⁵ But that is not always the case; at least one state, North Carolina, has a statewide program that functions as an independent state agency.³⁶ The...