Tuesday, November 6, 2012
Keith Swisher (Phoenix School of Law) has posted Prosecutorial Conflicts of Interest in Post-Conviction Practice (Hofstra Law Review, Vol. 41, No. 1, 2013) on SSRN. Here is the abstract:
Prosecutors, our ministers of justice, do not play by the same conflict of interest rules. Other attorneys should not, and cannot, attack their prior work in transactional or litigation matters; nor should other attorneys represent clients in matters in which the attorneys themselves face disciplinary, civil, or criminal liability. When prosecutors have likely convicted an innocent person, however, prosecutors are asked to review their own prior work objectively and then to undo it. But they suffer from a conflict between their duty to justice and their duty to themselves - their duty to seek the release of the innocent person and their interest in avoiding embarrassment and liability for themselves and their offices. After I show a variety of ways these conflicts cause problems, I show that they can be solved or mitigated by simply restructuring the post-conviction review process.