POSTCONVICTION INNOCENCE REVIEW IN THE AGE OF PROGRESSIVE PROSECUTION.

• Author: Webster, Elizabeth

INTRODUCTION

A growing number of prosecutors are running and winning elections on criminal justice reform platforms of progressive prosecution. (1) For many of these progressive prosecutors, correcting wrongful convictions is a key platform issue. (2) Whereas the twentieth century prosecutor may have blocked defendants' access to postconviction DNA testing and opposed innocence claims, (3) the twenty-first century progressive prosecutor is lauded for inviting innocence claims and implementing a unit to review them. (4) Legal scholarship has only recently begun to explore these developments. (5)

Much of the recent research has focused on the high-profile efforts of district attorneys implementing conviction integrity units (CIU)--also known as conviction review units (CRU). (6) Considering the rapid rise and innovation of CIUs, (7) this scholarly emphasis is more than justified. Still, many small to medium-sized and under resourced jurisdictions may not find it feasible to create, staff, and fund a standing CIU. (8) Indeed, they may not have the caseload to justify one. (9) Given the realities of limited resources and variable caseloads, how are prosecutors' offices developing standards and practices to address postconviction innocence review? What criteria are they adopting for accepting or rejecting cases to review?

I explore answers to these questions through semi-structured interviews with twenty prosecutors (nine working in conviction integrity units) who have proactively assisted with an exoneration. I examine how prosecutors adopt legal standards, how they evaluate both forensic and non-forensic new evidence of innocence, and how and when they acknowledge innocence--all in the context of the highly discretionary postconviction arena. (10) Findings suggest that prosecutors have adjusted to twenty-first century expectations of postconviction justice in different ways. While some have adapted well beyond the DNA revolution, (11) others continue to define innocence claims as those that can be subjected to some type of postconviction forensic testing and/or that can establish the identity of the actual perpetrator. (12) Prosecutors' postconviction determinations take on special significance as DNA technology advances, (13) outdated forensic disciplines face newfound scrutiny, (14) and recantation evidence increasingly contributes to overturning known wrongful convictions. (15)

The interviews reported here shed light on postconviction prosecution from those in the vanguard. Results report a variety of progressive actions that prosecutors are taking to correct wrongful convictions. These include: 1) adopting an interests of justice mindset rather than requiring affirmative proof of innocence; 2) evaluating innocence claims with a broad view of what could be dispositive, not only forensic evidence like DNA and fingerprints, but also new witnesses and recantations; 3) conducting active reinvestigations independent of law enforcement when necessary; 4) viewing DNA, and other forensic evidence, in the larger context of the total investigation representing one piece of a puzzle rather than the sole factor in determining innocence; and 5) participating in reevaluation of past convictions featuring faulty forensic testimony and outdated forensic methods.

I begin by describing the study and explaining how findings might shed light on progressive prosecution in the postconviction stage. In Part II, I discuss progressive prosecution as it relates to the creation and rising popularity of conviction integrity units and also for prosecutors' postconviction standards of case review and dismissal. In Part III, I report some of the key points of variation between prosecutor respondents in their postconviction innocence review standards and practices. In Part IV, I analyze what this variation suggests about the future of postconviction innocence review and the challenges that twenty-first century prosecutors will face in their postconviction decision making.

1. THE PROSECUTOR INTERVIEWS

   Interviews for this study were conducted between April 2016 and November 2018 with participating prosecutors who had assisted with at least one exoneration case as listed by the National Registry of Exonerations ("NRE"), an open source online database tracking US exoneration cases since 1989. (16) The NRE definition of exoneration depends upon evidence of innocence, but not an explicit declaration of innocence. (17) Defendants may have been pardoned, acquitted, posthumously exonerated, or had their cases dismissed by a prosecutor or a judge. (18) In order to be eligible for this study, however, prosecutors must have made some proactive attempt to help bring about the exoneration. Therefore, all prosecutor respondents had either recommended that the case be dismissed, joined in a defense motion to dismiss, or recommended that the defendant receive a pardon. In addition, some prosecutor respondents initiated a reinvestigation, paid for postconviction DNA testing, publicly apologized to the defendant, and more.

   Cases not eligible for the study would include those in which prosecutors appealed court decisions to retry a case after new evidence of innocence emerged or unsuccessfully retried the case but the defendant was acquitted. The prosecutors in this sample have all participated in pro-active dismissals, not the re-active dismissals that a prosecutor might recommend after appeals have been lost and the option to re-prosecute is no longer an option. This type of reactive dismissal would not qualify as prosecutorial assistance.

   Prosecutors' conviction review efforts have extended beyond reviewing actual innocence claims as well. Some CIUs have broadened their focus to include cases of excessive sentencing, or cases in which a "serious violation of a defendant's rights" has occurred. (19) While these efforts qualify as progressive prosecution, prosecutor interviewees were not asked to speak about them, therefore, this study limits its focus to only those cases featuring a claim of innocence and an exoneration as recognized by the NRE.

   Prosecutor respondents come from jurisdictions all over the U.S., and of varying sizes. As is indicative of the profession, (20) 18 of 20 prosecutors (90%) were white and 13 of 20 were male (65%). All had at least ten years of experience as attorneys, though not necessarily in prosecution. In fact, 6 of the 20 respondents had previous experience as defense attorneys, due in part to the common practice of appointing former defense attorneys to head the district attorney's office conviction integrity unit. (21) See full demographics for prosecutor respondents in table 1.

   During sixty- to ninety-minute interviews, prosecutors were asked to speak about their office's handling of a specific exoneration case in detail. Specifically, "what evidentiary issues were under review?" Not all prosecutors chose to do so; some wished to reference a larger set of exoneration cases, for example, all of those secured under the conviction integrity unit, others refrained out of concern for potential civil litigation involving the exonerated defendant. Demographics about the fifteen cases discussed in detail appear in table 2. In addition, all prosecutors were asked about their postconviction innocence review in general, specifically, "Could you summarize the criteria that the office uses to decide how to respond to postconviction evidence of innocence?" and "Does your office have a procedure for investigating claims of actual innocence?" (22)

2. PROGRESSIVE POSTCONVICTION PRACTICES IN INNOCENCE REVIEW

   What does it mean for a prosecutor to be "progressive"? A series of articles addressing the topic provide guidance, but not an explicit definition. (23) Sklansky's The Progressive Prosecutor's Handbook argues that there is "no roadmap" for newly elected progressive district attorneys, but suggests that there is a mandate including racial justice, addressing and correcting wrongful convictions, greater accountability for police and prosecutors, and reducing mass incarceration. (24) By using the term "progressive prosecution," I mean to refer to prosecutors embracing this mandate. I focus on progressive prosecutorial actions--namely, the progressive act of assisting a wrongfully convicted defendant in achieving their exoneration, rather than on progressive prosecutorial politics. As for a broader definition, progressive prosecutors--whether they are established or newly elected--recognize the need for criminal justice reforms, and they seek out innovative solutions.

   Traditionally, prosecutors have resisted acknowledging errors and facilitating efforts to overturn false convictions. (25) In a study of 260 wrongful conviction cases, Gould and Leo find that the same evidence that might compel a prosecutor to reconsider taking a case to trial would be considered insufficient evidence for postconviction relief. (26) They write,

   Judges, prosecutors, and law enforcement are requiring proof of another suspect's involvement or exculpatory DNA results to exonerate an innocent defendant. Yet these same officials are willing to consider other forms of exculpatory evidence when releasing an innocent suspect following charges but prior to conviction. It is not as if the defendants are any more innocent of the crime prior to trial than after conviction. Rather, the badge of guilt conveyed by a conviction seems to make officials unwilling to consider multiple types of exculpatory evidence or actively pursue the matter on their own. (27) The authors identify eighteen different categories of people who played a "significant role" in bringing about the 260 exonerations; prosecutors played a significant role in only nine percent of these cases. (28) My own study of prosecutorial assistance from a sample of 1,610 exonerations listed by the NRE finds that prosecutors provided some level of assistance in about one-third of the cases and provided...