The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-conviction Pulpit

• Publication year: 2021

THE PROSECUTOR AS MINISTER OF JUSTICE: PREACHING TO THE UNCONVERTED FROM THE POST-CONVICTION PULPIT

Daniel S. Medwed(fn*)

Abstract: This Article explores how the "minister of justice" theory of the American prosecutor has translated into practice in the post-conviction arena. Specifically, this vague theory, when coupled with a dearth of ethical rules and judicial guidance, has not gained traction in the post-conviction sphere, and few concrete principles exist to govern prosecutorial behavior after the conviction of a criminal defendant. This Article argues for a fuller realization of the minister-of-justice ideal for prosecutors in the post-conviction process where the factual innocence of a criminal defendant is in question. To truly effectuate the minister-of-justice goal, prosecutors should take a more active part in rectifying wrongful convictions by considering the formation of internal post-conviction "innocence units" geared toward ferreting out potential wrongful convictions and assisting in presenting them to courts.

INTRODUCTION. ............................................................................36

I. THE "MINISTER OF JUSTICE" MODEL PRIOR TO CONVICTION: IDEALS AND REALITY...............................39

A. Theory....................................................................................39

B. Practice...................................................................................44

II. PROSECUTORIAL OBLIGATIONS AND POSTCONVICTION CLAIMS OF INNOCENCE............................47

A. Resisting Innocence................................................................47

B. Counteracting the Resistance to Innocence............................53

III. THE INNOCENCE MOVEMENT AND PROSECUTORIAL ETHICS: THE CASE FOR PROSECUTORS TAKING GREATER STEPS TO FACILITATE THE RELEASE OF THE INNOCENT. ....................................................................58

A. The Merits of Prosecutorial Innocence Units.........................58

B. Current Innocence Unit Models.............................................61

CONCLUSION . .................................................................................66

INTRODUCTION

One of my law students recently had a job interview with a prosecutor's office. The interview seemed to be progressing nicely, in the student's estimation, until he was asked whether his previous experiences in the law had provided him with a chance to "taste blood." Silence reigned until the interviewer followed up by explaining his wish to hire only trial lawyers who had already tasted blood and liked it. This anecdote once again alerted me to the troubling disconnect between the "minister of justice" ideal of the American prosecutor and the on-the-streets reality of prosecutorial behavior. The image of the prosecutor as carnivorous aggressor in the adversarial den of the criminal courts is alive and well, not necessarily in such blatant form as the infamous "Two-Ton Contest" in Illinois-in which prosecutors vied to handle cases involving the heaviest criminal defendants in the hopes of becoming the first to convict four thousand pounds of flesh(fn1)-but rather in numerous, more subtle ways. That is, the institutional and societal acceptance of the view that the prosecutor's primary goal is "to convict" lingers, even in the face of evidence that wrongful convictions occur with disturbing regularity in the United States.

This notion of the American prosecutor as principally concerned with garnering and maintaining convictions not only contributes to the conviction of the innocent, but also makes it vastly harder for the wrongfully convicted to achieve freedom, a daunting undertaking even under perfect circumstances. After a defendant has been convicted, it becomes increasingly difficult to critically examine the underlying legitimacy of that result. Appellate courts are limited in the issues that they may consider during the direct appeal of criminal convictions, and generally entertain only those topics presented to the judge at trial.(fn2) The task of evaluating claims of factual innocence therefore typically falls into the realm of the collateral post-conviction process, such as writs of habeas corpus or coram nobis, or their statutory analogues.(fn3) States are notoriously suspicious of post-conviction innocence claims based on newly discovered evidence,(fn4) and the procedures in this area usually reflect this distrust by featuring stringent statutes of limitations, onerous burdens of proof, and deferential standards of appellate review.(fn5) A key variable, then, in the ability of a criminal defendant to have a chance for success on a post-conviction claim of innocence often lies in the nature of the prosecutor's response; prosecutorial openness to the possibility of the defendant's innocence may go a long way toward convincing the judge of the merits of that claim, if only to the extent of granting an evidentiary hearing.(fn6)

This Article argues for a fuller realization of the minister-of-justice ideal for prosecutors in the post-conviction process where the factual innocence of a criminal defendant is in question, and builds upon a previous piece that I wrote regarding the phenomenon of prosecutorial resistance to innocence claims. (fn7) Specifically, to truly effectuate the minister-of-justice goal, prosecutors should play a more active role in rectifying wrongful convictions by forming internal post-conviction "innocence units" geared toward ferreting out potential wrongful convictions and assisting in presenting these cases to courts.(fn8) Part I of this Article discusses the minister-of-justice ideal for prosecutors, as articulated by the U.S. Supreme Court and assorted codes of professional conduct, and the countervailing pressure on prosecutors to procure convictions at the trial level. Next, Part II examines the rules governing prosecutors' post-conviction duties to correct wrongful convictions (or rather, the lack thereof) and explores how prosecutorial attitudes evolve in the aftermath of a conviction-how institutional, professional, and psychological incentives are normally aligned with preserving the integrity of the trial result. Part III of the Article advocates for the creation of internal prosecutorial innocence units as a way of fulfilling the minister-of-justice ideal in the post-conviction sphere, emphasizing the ethical and moral obligations of prosecutors to facilitate the exoneration of the innocent, not to mention the practical benefits that would ensue. The establishment of these units would help to strengthen the legacy of Norm Maleng, the late King County prosecutor to whom this symposium is dedicated, and who, by all accounts, embraced and embodied the minister-of-justice concept as few others have.(fn9)

I. THE "MINISTER OF JUSTICE" MODEL PRIOR TO CONVICTION: IDEALS AND REALITY

A. Theory

For over 150 years, courts and scholars have consistently urged for the image of the American prosecutor as a "minister of justice," a person who, in effect, never loses a case, whether conviction or acquittal, as long as the outcome is fair. (fn10) Prosecutors in the United States represent "the people," not individual victims or the interests of special groups.(fn11) As a result, the prosecutor's role in the adversarial system differs substantially from that of the defense attorney; the prosecutor is a quasi-judicial officer. In 1935, the U.S. Supreme Court classified the prosecutor as the representative . . . of a sovereignty 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. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.(fn12)

This view of the prosecutor as a minister of justice has manifested itself in numerous rules of professional responsibility. For instance, the comments to Rule 3.8 of the Model Rules of Professional Conduct, a rule entitled "Special Responsibilities of a Prosecutor,"(fn13) state that "[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate."(fn14) Likewise, the American Bar Association's Criminal Justice Standards reflect this vision, asserting that "[t]he duty of the prosecutor is to seek justice, not merely to convict."(fn15) Even the guidelines put forth by the National District Attorneys Association, an organization devoted to the interests of prosecutors, proclaim that "[t]he primary responsibility of prosecution is to see that justice is accomplished."(fn16)

Judicial opinions from jurisdictions across the country have also endorsed the minister-of-justice model of prosecutorial behavior(fn17) and admonished prosecutors to strive against the conviction of the innocent so as to best emulate this ideal. (fn18) Notably, courts have created rules governing the disclosure of exculpatory evidence (Bra...