04 Feb 2014 at 6:10 PM

Alex Kozinski, Crime, Texas, Trials

Instances Of Known Prosecutor FAILS Are On The Rise

By Elie Mystal

Uhh… my bad.

The big news in “Justice” today is a new report from Professor Samuel R. Gross of the University of Michigan Law School showing that exonerations of convicted criminals are on the rise. Gross used data from the National Registry of Exonerations to determine that 87 prisoners were freed from wrongful convictions last year, the highest number in decades.
In a way, that’s good news. More exonerations suggest that more resources are being spent going back over closed cases and freeing people based on new or better evidence. But the report is also chilling proof that our criminal justice system gets things wrong, all the time, and innocent people go to jail because of it.
Instead of being obsessed with conviction rates, state bars might want to look into prosecutorial f**k-up rates. Because it is better that ten guilty persons escape than that one innocent suffer…

The report looks at some of the mistakes made that led to wrongful convictions. From the WSJ Law Blog:

As in previous years, most of those wrongfully convicted had been accused of homicide and sexual assault. Perjury and false accusation were the most common causes of false convictions in exonerations in 2013, according to the report. They played a role in nearly two-thirds of the cases. Dozens of cases also involved official misconduct and mistaken eyewitness identification.

Another study from American University found that it’s usually not just one mistake that leads to a wrongful conviction. There are often a number of errors that result in an innocent person going to jail:

“Our conclusion is that erroneous convictions are more about system failure than individual causes,” the study said. They “occur when errors are compounded rather than rectified, often as a result of tunnel vision.” Examples included “a prosecutor who had serious doubts about a witness’s story but did not share these with a superior or the defense, and a defense attorney who did not have the time or energy to investigate the witness’s story,” the study said.

I don’t think it’s going to surprise anybody that Texas leads the states in the number of innocent people who needed to be set free.
We can blame the system, sure. It takes a village to screw over a child. But the system is being run by people, and those people can be held accountable. Prosecutors who wrongly put people in jail, while making multiple errors, no less, should face some kind of punishment for being bad at their jobs. Zeal isn’t the only trait we should want from prosecutors. We should also value caution. We should also value truth-seeking. Putting witnesses who perjure themselves on the stand should have some kind of negative professional consequence for the lawyer. Instead, as Chief Judge Alex Kozinski of the Ninth Circuit puts it in the foreword to a forthcoming book on prosecutorial misconduct, “Sanctions against prosecutors who violate Brady are practically unheard-of and professional discipline is non-existent.”
Professor Gross’s report says that 17% of the people who were freed last year actually pleaded guilty to their crimes. THAT SEEMS LIKE A LOT. That seems like a lot of bullying and intimidation by the state to convince people that they’re better off pleading to a crime they didn’t commit instead of trying to maintain their innocence until the other side proves their guilt.
And, of course, these exonerations are only the wrongful convictions that we know about. They’re only the ones that were botched so badly that the state has to say “whoops, our bad.” How many innocent people are really lying in jail right now? Some? A lot? Entirely too many?
Prosecutors like to talk about “personal responsibility” — well, maybe it’s time for them to take some. If you railroad an innocent person into incarceration, that should be a great indication that you are bad at your job.
Criminal Exonerations at All-Time High [WSJ Law Blog]