THE PROSECUTOR AS A FINAL SAFEGUARD AGAINST FALSE CONVICTIONS: HOW PROSECUTORS ASSIST WITH EXONERATION.

• Author: Webster, Elizabeth

1. LEGAL MECHANISMS FOR SEEKING RELIEF FROM FALSE CONVICTION A. Detecting Procedural Errors, Not Factual Ones B. Belated Review of New Exculpatory Evidence C. Assumption of Impartiality D. The Prosecutor as a Pathway to Exoneration II. METHODOLOGY A. Strengths and Limitations III. FINDINGS A. Selecting The Prosecutor Tasked With Innocence Review 1. Conviction Integrity Units 2. Appellate Divisions 3. Other Approaches B. Screening Decisions C. Determining The Outcome IV. DISCUSSION A. Reforms for Prosecutors' Offices B. Reforms for the Postconviction Appeals Process CONCLUSION Legal scholars have devoted significant scholarly attention to explaining why prosecutors reject postconviction evidence of innocence. (1) Indeed, some prosecutors have appealed postconviction defense motions exhaustively--even in the face of forensic evidence of innocence--rather than acknowledge a factual error. (2) Yet, recent years have seen an undeniable shift. Prosecutors have always had the authority, the ethical obligation, and the investigative tools to identify false convictions. (3) Now it seems that some have the political will to remedy them as well. As of 2018, the National Registry of Exonerations (NRE) reported that a total of 344 exonerations had been achieved with the assistance of Conviction Integrity Unit prosecutors. (4) Conviction Integrity Units (CIUs), also commonly known as Conviction Review Units (CRUs) among other titles, investigate claims of innocence and wrongful conviction claims through a separate unit in the chief attorney's office. (5) The rapid emergence of CIUs, (6) and the hundreds of exonerations that have followed, demonstrate this shift.

   Scholars have welcomed the newly created CIUs; (7) yet, aside from their existence, little is known about them. Even less is known about prosecutors' postconviction efforts outside the context of CIUs. What are the circumstances that foster prosecutors' assistance with exoneration? What processes have prosecutors' offices developed to uncover false convictions? (8) How do they decide which innocence claims have merit? The answer to these questions could enhance and encourage prosecutors' postconviction cooperation both within and outside the context of the CIU. It could contribute to a more holistic understanding of the additional resources still required to ensure the discovery of false convictions.

   Therefore, the present study illuminates both CIU processes and the efforts of prosecutors reviewing individual innocence claims. I conducted semi-structured interviews with twenty prosecutors whose assistance had been instrumental to a post-2005 exoneration and also with nineteen defense attorneys who had worked with cooperative prosecutors on cases culminating in exoneration since 2005. I asked these thirty-nine respondents about their experiences and decision-making structures in specific exoneration cases as well as their impressions of postconviction practices writ large.

   I found that postconviction decisions--such as which prosecutor should be tasked with reviewing innocence claims, how to screen and evaluate innocence claims, and how to decide the outcome of a case--reflect decision-making at several levels. Using organizational accident theory, (9) we can conceptualize the following three levels: the top level of "the organization" establishes the organizing principles for postconviction innocence review; in this application it refers to the legal structure of the postconviction appeals process established by the courts and lawmakers. These organizing principles are then communicated through "the workplace"--the district attorney and her executive team. The executive team establishes policies reflective of the larger organization. Finally, there is "the worker"--the individual prosecutor--who operates the machine. The worker's decisions are influenced and moderated by both the organization and the management. (10)

   In the postconviction stage, executive-level decisions drive the decision-making process. Unlike earlier-stage decisions--such as declining to prosecute or dismissing a case pre-trial--the decision to dismiss a false conviction remains at the discretion of the elected chief attorney. (11) Furthermore, the line prosecutor's decision to recommend exoneration reflects executive decisions about how to process innocence claims. At the same time, judicial and legislative decisions regarding the rules and procedures of the postconviction stage influence both line prosecutor and executive decisions. (12) Teasing out these layers of decision-making is more than a theoretical exercise. It carries implications for reforms of both policy (in the crafting of legislation and court rules) and in practice (in the processing of innocence claims through the prosecutor's office).

   The Article proceeds in four parts. Part I discusses the legal mechanisms for seeking relief from false conviction and places prosecutors' role in reviewing postconviction innocence claims against the backdrop of the failings of the postconviction appeals process for the actually innocent. Part II describes the qualitative research methodology. Part III reports the study findings according to a sequence of salient decisions marking an innocence claim's route through the prosecutor's office. The sequence begins with deciding how to route innocence claims through the prosecutor's office, next, how to screen them, and finally, how to make outcome decisions. In each part, I demonstrate how individual prosecutors' postconviction decisions are informed and influenced by the office hierarchy and the postconviction appellate system. Part IV concludes with a discussion of the prosecutor's role as a safeguard against false convictions as well as the policy implications of these findings.

1. LEGAL MECHANISMS FOR SEEKING RELIEF FROM FALSE CONVICTION

   Much like other "high-risk fields" (13) (e.g. business, medicine, aviation), criminal justice system processes are complex and capable of producing serious accidents. High-risk fields must, therefore, develop safeguards to prevent and protect against accident. As James Doyle writes, criminal justice system safeguards, or "screens" may include a "police supervisory screen, a crime lab screen, a prosecutorial barrier, a grand jury process, an advisory trial screen, and an appellate review screen." (14) The appellate process operates as a late-stage safeguard against the possibility that accidents have occurred but have not yet been discovered. CIUs have also been credited with providing safeguards to correct false convictions (15) even after they have occurred. Although the question of the prevalence of false convictions remains a subject of scholarly debate, (16) it is generally agreed upon that not all false convictions have been (or will ever be) discovered. (17) After all, criminal justice system accidents are less obvious than a plane crash, a market crash, or a dead patient. As such, criminal justice system accidents may pass undetected more readily than they do in other high-risk fields. Moreover, overturning false convictions presents the risk of false exoneration--a false negative. (18) Further, in the pursuit of alternative suspects, attorneys risk producing a second false positive should the reinvestigation falsely accuse an innocent person. (19) Discovering and correcting organizational accidents in the criminal justice system therefore presents unique complexities. It is within this high-risk field of complexity that prosecutors' offices improvise systems for uncovering and correcting "accidents" of false convictions.

   Prosecutors' role in detecting false convictions can best be understood against the backdrop of the failings of judicial review, for it is partly because of appellate system inadequacy that falsely convicted defendants have taken to prevailing upon prosecutors for relief. (20) The legal scholarship suggests that judicial review is ill-equipped to identify the factually innocent for at least three reasons: 1) an overemphasis on procedural, rather than factual errors; 2) belated review of new exculpatory evidence; and 3) an assumption of judicial impartiality. This relationship between judicial postconviction review and prosecutorial postconviction review demands a closer examination than it has received in previous legal scholarship. Scholars have suggested that prosecutors provide safeguards against false conviction not otherwise available through judicial review. (21) Therefore, I begin with an overview of appellate failings before turning to a discussion of prosecutors' postconviction responses to innocence claims, both supportive and oppositional.

   1. DETECTING PROCEDURAL ERRORS, NOT FACTUAL ONES

      Findley and Scott aptly summarize the limitations of the appellate review process, writing, "One of the most startling revelations to newcomers to the justice system is that appeals have almost nothing to do with guilt or innocence. Appellate courts, as a matter of principle, decide legal questions and focus on process, not the accuracy of factual determinations." (22) Historically, the purpose of the appeals process was not to remedy factual errors (as clemency was intended to accomplish) (23) but rather to correct procedural ones. (24)

      Judicial review often results in default findings of "harmless error" or procedural justifications for denying the claim. (25) Brandon Garrett's study of 200 DNA exoneration cases found that courts reviewing the cases on appeal often identified errors as harmless. (26) The reversal rate for the DNA exonerations--in which defendants had later been forensically cleared--was indistinguishable from a matched comparison group of rape and murder convictions. (27) Put simply, the defendants later revealed to be actually innocent were no more likely to receive relief than any other appellant.

      Moreover, the U.S. Supreme Court has yet to resolve the issue of whether freestanding actual innocence claims...