CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, August 31, 2018

Bazelon on Innocence-Denying Prosecutors

Lara Abigail Bazelon (University of San Francisco - School of Law) has posted Ending Innocence Denying: Changing the Narrative About What it Means to Be a Good Prosecutor on SSRN. Here is the abstract:
Prosecutors, the most powerful actors in the criminal justice system, also have the most difficult job: they must be “ministers of justice.” A prosecutor’s core mission is to vindicate the truth, however messy and inconvenient, rather than strive to “win” by accumulating a track record of convictions. When evidence comes to light suggesting that a wrongful conviction has occurred, a prosecutor’s ethical obligation—that “justice shall be done”—requires admitting to a terrible mistake and working to undo it. Many conscientious prosecutors accept this responsibility and confess error. But too many do not. There is a select but significant class of prosecutors who are innocence deniers. Racially, ethnically, geographically, and politically diverse, they are Republicans and Democrats, men and women. What innocence deniers have in common is a mindset: they insist, in the face of overwhelming evidence to the contrary, that wrongfully convicted people are in fact guilty. These prosecutors actively work to delay justice or to deny it altogether. Some are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators, even when there is evidence to convict them. 

Much has been written about how to change the culture that leads to the reflexive doubling-down on wrongful convictions by prosecutors: public shaming in judicial opinions, more rigorous ethical training in law school and on the job, and sharper oversight by state bars. These measures are necessary, they are insufficient. To curtail innocence-denying, the narrative must change about what it means to be a “good prosecutor,” historically defined as “tough on crime” fighter whose overriding goal is to obtain and preserve convictions. This mindset pits a prosecutor’s self-interest in getting and preserving guilty verdicts against his or her ethical obligations, which require confessing error and reversing course where credible evidence of innocence exists. 

The explosion of public interest in true crime wrongful conviction stories as told through various media has challenged the traditional narrative. As a consequence, the public is better informed about what local prosecutors do and more likely to vote in these down-ballet races. This, in turn, has led to important, if nascent reform, including the election of reformers who defeated innocence-denying incumbents based on progressive platforms, including a commitment to revisit wrongful conviction cases. In this article, I argue that these “good prosecutor” stories, as they accumulate, can be woven into a coherent and compelling meta-narrative that propels the movement toward electing progressive prosecutors and puts an end to innocence denying. It is important to tell stories of innocence denying to expose the problem and make it increasingly indefensible as a practice. But to truly change the narrative, it is also important to elevate the work of prosecutors who do the right thing. In the new exoneration narrative, the prosecutor who fights to free the wrongfully convicted person shares in the hero acclaim. When the new exoneration narrative becomes predominant, prosecutors who embrace their ethical obligations and correct miscarriages of justice will have everything to gain because the voters will see them as courageous and just. Innocence deniers by contrast, will be rendered unelectable.

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