Monday, August 25, 2008

Wilson on Prosecutorial Ethics: What If The Defendant Seems Innocent But The Boss Says Convict?

Posted by Alan Childress

Melanie Wilson (Kansas) has published in the Northwestern U Law Review's Colloquy a brief article called Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn't Do It and the Boss Who Says That He Did.  Here is the text of her first paragraph:

The increasing prevalence of DNA testing has proven that, at times, our criminal justice system renders wrongful convictions.  Extrapolating from such significant errors, we can infer that smaller mistakes also occur.  Because criminal prosecution is not an exact science, like DNA evidence, prosecutors can disagree about aspects of a case—whether to reward a cooperating defendant with a sentence reduction, whether to indict a defendant under a mandatory minimum statute, and even whether a defendant is guilty of a crime.  This Essay examines the tension that arises when the prosecutor handling a case disagrees with her boss about one or more of these significant issues and offers an ethical solution for resolving such disputes that will not undermine a criminal defendant’s chances of justice.

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A prosecutor should not prosecute a defendant she believes is innocent. Let the boss try the case.

Posted by: W.R. Chambers | Aug 25, 2008 8:46:09 PM

Perhaps we could solicit David Luban's thoughts on her article given that her exemplar case is the same as the one he wrote about here: and cross-posted at this blog:

Posted by: Patrick S. O'Donnell | Aug 26, 2008 5:49:38 AM

Great links, Patrick, and esp the fantastic exchange of comments following the one at balkinization (as you noted). Thanks.

Posted by: Alan Childress | Aug 26, 2008 9:08:44 AM

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