Prosecutors and victims: why wrongful convictions matter.

• Author: Bishop, Jeanne
• Position: Symposium on the Center on Wrongful Convictions

TABLE OF CONTENTS INTRODUCTION I. WRONGFUL CONVICTIONS AND THE SOUL OF A PROSECUTOR A. The Commitment of the Accusers B. Solving the Problem of Prosecutorial Over-Commitment to Existing Convictions II. WRONGFUL CONVICTIONS AND THE SOUL OF VICTIMS A. The Commitment of the Victims B. The Problem of Wrongful Convictions for Victims 1. Wrongful Convictions Allow the Real Perpetrator to Escape Justice and Remain Free to Harm Another Victim 2. Wrongful Convictions Create a New, Innocent Victim- the Wrongfully Accused--and Cast Victims in the Role of Perpetrator 3. The Cost of Wrongful Convictions Drains Resources Which Could Be Spent Aiding Crime Victims CONCLUSION INTRODUCTION

At the symposium held to celebrate the work of Rob Warden, (1) there was a singular and moving moment in which Warden was thanked by those exonerated through his work with students. They stood as living witnesses not only to a problem, but to a solution--and to the power of one man's vision.

The dialogue about wrongful convictions naturally focuses on men and women like those who stood up that day as our hearts caught in our throats: those who are consigned to years in prison or even to a solemn promise of death despite the grievous errors that led to their convictions and sentences. Too often, though, our examination of the harm done by wrongful convictions starts and ends with the wrongfully convicted themselves. In the end, wrongful convictions matter, too, though, both to prosecutors and to crime victims--or at least they should. By ignoring these constituencies, advocates against wrongful convictions bypass groups that could be powerful allies for change. Just as importantly, by ignoring these interests to favor a simpler narrative, prosecutors and victims may both undermine the credibility of the criminal law process and miss out on a wholeness of heart that comes only with recognition of fuller and more complex realities.

In this article, we explore the complex interactions that prosecutors and victims have with wrongful convictions and ask that they be included in this important discussion.

For prosecutors, the motive to avoid wrongful convictions is at once deep and complicated. It is difficult to admit we are wrong; it is even more difficult when the thing we were wrong about was public and at the center of our work. Yet, that is what we are asking prosecutors to do when we ask them to work with those investigating a possible wrongful conviction. It is a right and fair thing to ask, because the integrity of convictions is in the ultimate interest of prosecutors, who need the public--as voters, jurors, and witnesses--to believe in and support their work.

Part of prosecutors' resistance to working with those investigating wrongful convictions comes from the deep emotional commitment they have to the convictions they have obtained. This commitment is a result of their role as the party obtaining the conviction. But it is also a result of the criminal process itself. For those who bring the accusations of society, a mistake can have a terrible human cost. The implications of being wrong as a prosecutor--that someone will spend years in prison because of your error-is nearly unthinkable. The nature of this sobering task, inherent to the weight of judgment, explains both why prosecutors should care about wrongful convictions and why they sometimes hide exculpatory evidence or cling to a conviction even after it has been proven wrongful. (2)

Despite this deep conflict, prosecutors must be part of the coalition to address wrongful convictions if the movement is to have a broad and deep impact. Harnessing the inherent integrity of prosecutors to serve the cause of avoiding wrongful convictions can be remarkably powerful, as shown by Dallas County District Attorney Craig Watkins and others. To spread this movement, other elected DAs must be convinced of the crucial interest of justice that is served by identifying wrongful convictions.

The impact of wrongful convictions on crime victims and their families is similarly complex. Wrongful convictions matter to crime victims and, in cases of murder, to the families of victims, for three reasons. First, locking up the wrong person means that the real perpetrator has escaped justice and remains free to commit a similar crime and harm someone else. Second, convicting an innocent person creates yet another victim of the real perpetrator's crime--the person wrongfully convicted--and casts the original victim into the uncomfortable role of perpetrator. Lastly, the money spent to compensate those who have been wrongfully convicted--often, rightly so, in the millions of dollars--could be spent aiding victims and their survivors, whose needs include counseling, restitution for damage done, and a host of other resources.

This article takes a step toward understanding the complicated interaction between prosecutors, crime victims, and bad outcomes, ft pays tribute to Rob Warden, someone who has worked with both prosecutors and victims in an effort to correct injustices and who has inspired us all to consider these relationships more closely. He understands the importance of each player in the drama of criminal law and cares deeply about the process as a whole. Our conviction that each part of the machine must be taken out and examined is an effort to reflect his meticulous focus and clear vision.

1. WRONGFUL CONVICTIONS AND THE SOUL OF A PROSECUTOR

   1. THE COMMITMENT OF THE ACCUSERS

      As Professors, (3) we teach often-difficult lessons: how to evaluate a grieving widow as a potential witness, how to analyze photos of dead and damaged bodies objectively, and how to assess the relevance of facts that are often shocking. One of the more difficult lessons we instill, though, is earthy and troubling: That all of criminal law is tragedy. Every bit of it is tragedy. When a prosecutor wins a case, it does not undo the crime; no one has ever been un-raped or un-murdered by a prosecutor. The best prosecutors can hope for is to avoid such outcomes in the future through incapacitation, deterrence, or rehabilitation. (4) It is difficult to be the person who is ground through the machinery of criminal law, but it is difficult and wearing to be the gears as well. (5)

      Prosecutors who are doing their job right cannot avoid that raw human tragedy. They see, close up, the harm suffered by victims. They see the humanity of the accused and the pain that imprisonment will surely cause him, his family, and all who depend on him. Doing that well, though--and with eyes wide open to the compounding tragedy all around--can, and should, be emotionally draining. Taking on both the tragedy of the crime and the tragedy of its consequences exacts a price; it tears at the soul, a pain that must be private.

      Piled on top of the heavy weight of tragedy and judgment for a conscientious prosecutor is the repulsive cost of being wrong. Being a prosecutor is comparable to being a surgeon, whose smallest slip-up can lead to death. For prosecutors, a mistake can lead to that same result (in death penalty states), or to a lesser but still terrible wrong: the lengthy incarceration of an innocent person. It is this element that must lead to the total commitment that some prosecutors have to their cases and convictions; the alternative to being right is too awful to consider.

      Adding to that commitment is the process itself. Consider the full scope of a case before too harshly condemning a prosecutor's commitment. (6)

      First, an investigator brings the case to the prosecutor. This initial meeting is often a sales pitch: The agent wants the prosecutor to take the case he has been working on. If it is declined, after all, the work so far will have been for naught. The relative ages and experience of the prosecutor and the investigator can further amplify this dynamic. It isn't unusual for the prosecutor to be new and young and the investigator to be a grizzled veteran (7)--and it can be quite convincing to face a man twenty years your senior who has a gun. If the prosecutor agrees to take a case against a specific defendant, it isn't just a commitment to the case; it is a commitment to that investigator. (8)

      From there, the prosecutor takes the case to the grand jury. (9) She will face those twenty three people and explain why, exactly, the named defendant should face trial, conviction, and punishment. (10) This is another commitment to the people in that room.

      Next, the prosecutor must deal with the defense attorney, who is trying to negotiate a plea or even convince the prosecutor to drop the case. If she stands firm, seeking a conviction and a tough sentence, this is yet another promise she has made, now to an adversary she will likely face again.

      After that is trial. The prosecutor will argue to the jury, facing them and pointing at the defendant while describing his wrongs. This is a public and thrilling moment: the essence of what we think of when we imagine criminal law or see it depicted in movies or television shows. The prosecutor in those moments shows no uncertainty; she can't. She is staking her own word on the outcome she is urging those jurors to create.

      Finally, sentencing is at hand. Now the prosecutor will describe the precise punishment that should be meted out. It is here that she will stand just a few feet from the condemned and lay out what should happen...