The prosecutor as minister of justice: Preaching to the unconverted from the post-conviction pulpit

Washington Law Review

Volumn 84, Issue 1, 2009, Pages 35-66

  Medwed, Daniel S ^a  

^a UNIVERSITY OF UTAH   (United States)

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EID: 65349188215     PISSN: 00430617     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (222)

1. See, e.g., Maurice Possley & Ken Armstrong, The Flip Side of a Fair Trial, CHI. TRIB., Jan. 11, 1999, at 1 (discussing the nature of the "Two-Ton Contest" within the State's Attorney's Office for Cook County).
2. See, e.g., URSULA BENTELE & EVE CARY, APPELLATE ADVOCACY: Principles and Practice 77 (4th ed. 2004) ("At all levels of appellate review, it is a fundamental rule that the appellate court is bound strictly by the record of the evidence adduced in the trial court. [T]he next most important limitation on an appellate court's scope of review is the general rule that any legal issue raised on appeal must have been 'preserved.' That is, the issue must first have been presented to the trial court.").
3. See generally Daniel S. Medwed, California Dreaming? The Golden State's Restless Approach to Newly Discovered Evidence of Innocence, 40 U.C. DAVIS L. REV. 1437 (2007) [hereinafter Medwed, California Dreaming] (discussing California's approach to post-conviction innocence claims based on newly discovered non-DNA evidence);
4. Daniel S. Medwed, Introduction to Beyond Biology: Wrongful Convictions in the Post-DNA World, 2008 UTAH L. REV. 1 (2008) (introducing a symposium on wrongful convictions unrelated to DNA evidence);
5. Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 ARIZ. L. REV. 655 (2005) [hereinafter Medwed, Up the River] (analyzing state approaches to newly discovered non-DNA evidence claims);
6. Kathy Swedlow, Don't Believe Everything You Read: A Review of Modern "Post-Conviction " DNA Testing Statutes, 38 CAL. W. L. REV. 355,382-84 (2002) (critiquing state post-conviction statutes governing DNA testing).
7. See, e.g., People v. Sutton, 15 P. 86, 88 (Cal. 1887) (suggesting that claims of newly discovered evidence should be "regarded with distrust and disfavor").
8. See generally Medwed, Up the River, supra note 3 (describing the procedures through which post-conviction claims of innocence are typically litigated in state courts).
9. See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. REV. 125, 128 (2004) ("[W]here post-conviction innocence claims are unrelated to DNA testing, such as those involving statements by previously unknown witnesses or confessions by the actual perpetrator, the prosecution can influence how courts will resolve the claims by deciding whether to cooperate with the defense." (internal citations omitted));
10. see also Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 OHIO ST. J. CRIM. L. (forthcoming 2009) (manuscript at 22, on file with author) ("a court is more likely to grant relief if the prosecutor joins in a defendant's motion to set aside his conviction based on new evidence.").
11. See Paul Parker & Ben Coate, Whose Justice? Prosecution and Defense Reactions to Capital- Case Reversals, 29 JUST. SYS. J. 367,379-80 (2008) (explaining the results of an empirical study of reactions to exonerations and noting that "overall the data here seem to support Medwed's argument about the commitment that prosecutors have to a particular outcome");
12. see generally Medwed, supra note 6 (examining issues related to prosecutorial resistance to post-conviction innocence claims). Several other scholars have addressed the nature of prosecutors' post-conviction ethical obligations in the context of innocence and have recommended, in general, that prosecutors should do more to promote justice than the rules currently seem to require.
13. See generally Judith A. Goldberg & David m. SIEGEL, The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence, 38 CAL. W. L. REV. 389 (2002) (exploring the ethical obligations of prosecutors in the realm of post-conviction innocence claims);
14. Fred C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 VAND. L. REV. 171 (2005) (analyzing the issues surrounding the post-conviction ethical obligations of prosecutors, including situations related to innocence claims). In addition, Bruce Green and Ellen Yaroshefsky are currently working on an interesting article on this topic.
15. See Green & Yaroshefsky, supra note 6.
16. I have raised this idea before, and I wish to develop and refine it further in this Article. See Medwed, supra note 6, at 175-77 (suggesting that district attorneys' offices consider creating postconviction units).
17. See, e.g., Jim Brunner, Maleng Leaves a Living Legacy, THE SEATTLE TIMES, May 25, 2007, at A1 (noting that U.S. District Court Judge Ricardo Martinez recalls that "Maleng often told his prosecutors, 'Our job is to do justice, and that doesn't necessarily mean a conviction.'"). Norm Maleng advocated for, among other innovations, alternatives to incarceration for certain non-violent criminal offenders and helped to create a specialized drug court in King County to address the particular issues wrought by drug addiction. Id. Shortly before his death, Maleng wrote in a foreword to a report released by the American Bar Association's Ad Hoc Innocence Committee that "[t]he next step is to instill in every prosecutor's office, police agency, and crime laboratory an unwavering ethic to seek the truth through the most reliable methods available. This carries with it the obligation to refrain from using investigative techniques that may yield questionable results." ABA CRIMINAL JUSTICE SECTION'S AD HOC COMM. TO ENSURE THE INTEGRITY OF THE CRIMINAL PROCESS, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY ix (Paul Giannelli & Myrna Raeder eds., 2006).
18. The American prosecutor's obligation to seek justice is traceable as far back as George Sharwood's 1854 "Essay on Professional Ethics." J. George Sharwood, An Essay on Professional Ethics (F.B. Rothman 5th ed. 1993) (1854). See also Jane Campbell Moriarty, "Misconvictions," Science, and the Minister of Justice, 86 NEB. L. REV. 1,21-22 n.l 17 (2008).
19. See Angela Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 57-58 (1998) (discussing how this populist model evolved in the 1820s as a way of making the government accountable to the electorate).
20. Berger v. United States, 295 U.S. 78, 88 (1935); see also Banks v. Dretke, 540 U.S. 668, 696 (2004) ("We have several times underscored the 'special role played by the American prosecutor in the search for truth in criminal trials.'").
21. This is the sole rule in the Model Rules of Professional Conduct addressing the unique responsibilities of the prosecutor. See Myrna S. Raeder, See No Evil: Wrongful Convictions and the Prosecutorial Ethics of Offering Testimony by Jailhouse Informants and Dishonest Experts, 76 FORDHAM L. REV. 1413, 1429 (2007);
22. Hans P. Sinha, Prosecutorial Ethics: The Duty to Disclose Exculpatory Material, PROSECUTOR, Jan.-Mar. 2008, at 20 ("Viewing the Rules of Professional Conduct as a pyramid, Rule 3.8 would constitute the summit of this pyramid. Not only does this rule speak specifically to the unique responsibilities of the prosecutor, but recognizing the uniqueness and power of prosecutors, it is also the only rule drafted specifically for one segment of the profession.").
23. MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 1 (2008).
24. CRIMINAL JUSTICE STANDARDS COMMITTEE, ABA STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE FUNCTION, Standard 3-1.2(c) (3d ed. 1993) [hereinafter ABA STANDARDS FOR CRIMINAL JUSTICE];
25. see also id. at 3-1.2(b) ("The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions").
26. NAT'lDIST. ATTORNEYSASS'N, NATIONAL PROSECUTION STANDARDS1.1 (2ded. 1991).
27. See, e.g., In re Peasley, 90 P.3d 764, 772 (Ariz. 2004) (observing that a prosecutor's interest "is not that it shall win a case, but that justice shall be done" (internal quotations omitted)); State v. Pabst, 996 P.2d 321, 328 (Kan. 2000) ("A prosecutor is a servant of the law and a representative of the people. We are unable to locate an excuse for a prosecutor's failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas."); State v. Young, 755 A.2d 547, 548 (Me. 2000) ("As we have noted previously, prosecutors are held to a higher standard regarding their conduct during trial because they represent the State. and because they have an obligation to ensure that justice is done, as opposed to merely ensuring that a conviction is secured."); Hosford v. State, 525 So.2d 789, 792 (Miss. 1988) ('"A fearless and earnest prosecuting attorney. is a bulwark to the peace, the safety and happiness of the people [I]t is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of the fair trial to which he is entitled "' (quoting Adams v. State, 30 So.2d 593, 596 (Miss. 1947))); Jeschke v. State, 642 P.2d 1298, 1303 (Wyo. 1982) (noting that prosecutors must be mindful that their duty is to pursue justice, not merely to convict).
28. See, e.g., Bailey v. Commonwealth, 237 S.W. 415, 417 (Ky. 1922) ("[T]he duty of a prosecuting attorney is not to persecute, but to prosecute, and that he should endeavor to protect the innocent as well as to prosecute the guilty."); Hurd v. People, 25 Mich. 405, 416 (1872) ("The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent.").
29. See generally Brady v. Maryland, 373 U.S. 83 (1963) (the seminal case creating this duty). A defendant's access to "Brady material" is treated as a constitutional right.
30. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 55 (1988) (describing the constitutionally guaranteed right of access to exculpatory evidence).
31. See, e.g., Mooney v. Holohan, 294 U.S. 103, 112-13 (1935);
32. see generally ROBERT M. BLOOM, RATTING: THE USE AND ABUSE OF INFORMANTS IN THE AMERICAN JUSTICE SYSTEM (2002) (describing the issues related to the use of jailhouse informants at criminal trials, including the problem of perjury);
33. Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. CIN. l. REV. 645 (2004);
34. Raeder, supra note 13;
35. Melanie D. Wilson, Prosecutors "Doing Justice" Through Osmosis-Reminders to Encourage a Culture of Cooperation, 45 AM. CRIM. l. REV. 67 (2008).
36. See, e.g., Caldwell v. Mississippi, 472 U.S. 320,332-33 (1985);
37. People v. Greenwall, 22 N.E. 180, 182 (N.Y. 1889) ("The district attorney representing the majesty of the people, and having no responsibility except fairly to discharge his duty, should put himself under proper restraint, and should not, in his remarks in the hearing of the jury, go beyond the evidence, or the bounds of reasonable moderation.");
38. see also Charles l. Cantrell, Prosecutorial Misconduct: Closing Argument in Oklahoma, 31 OKLA. CITY U. l. REV. 379,379 (2006) (discussing "[t]he persistent and ongoing problem of prosecutorial misconduct during final arguments in criminal cases" and attributing it to "built-in pressures of the legal system that allow and even encourage it");
39. Bennett l. Gershman, Misuse of Scientific Evidence by Prosecutors, 28 OKLA. CITY U. l. REV. 17, 35 (2003) ("When courts criticize prosecutors for misconduct, they often are referring to the prosecutor's unfair closing argument"). For a comprehensive account of the subject, see Bennett Gershman's excellent treatise, BENNETT l. GERSHMAN, PROSECUTORIAL MISCONDUCT (2d ed. 1999).
40. See, e.g., ABA STANDARDS FOR CRIMINAL JUSTICE, supra note 15, Standard 3-3.11(a) ("A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused."); id. Standard 3-3.1(a) ("A prosecutor ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but the prosecutor has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies.");
41. see also MODEL RULES OF PROF'L CONDUCT R. 3.8(d) (1998) (mandating that the prosecutor in a criminal case "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense "). Regardless of the rules of professional responsibility, state disciplinary organizations are notoriously reluctant to sanction prosecutors even upon judicial findings of misconduct.
42. See ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 147 (2008) ("[S]ome of the language of [Model Rule] 3.8 is vague and subject to interpretation, providing very little clear guidance to prosecutors and making it difficult to sustain complaints against prosecutors before disciplinary authorities.");
43. Angela J. Davis, The Legal Profession's Failure to Discipline Unethical Prosecutors, 36 HOFSTRA L. REV. 275, 277 (2007) ("The Supreme Court has recommended that prosecutors be referred to the relevant disciplinary authorities when they engage in misconduct. However, for reasons that remain unclear, referrals of prosecutors rarely occur. Even when referrals occur, state bar authorities seldom hold prosecutors accountable for misconduct.");
44. Paul C. Giannelli & Kevin C. McMunigal, Prosecutors, Ethics, and Expert Witnesses, 76 FORDHAM L. REV. 1493, 1518 (2007) ("As many commentators have recognized, disciplinary sanctions for Brady violations appear to be illusory.");
45. Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 Wis. L. REV. 399, 427 (2006) ("Bar disciplinary authorities should implement a system to review reported instances of prosecutorial misconduct and, when they deem it appropriate, conduct investigations or recommend discipline.");
46. Samuel J. Levine, Taking Ethical Obligations Seriously: A Look at American Codes of Professional Responsibility Through a Perspective of Jewish Law and Ethics, 57 CATH. U. L. REV. 165, 170 (2007) ("[T]he discretionary nature of many of the rules often provides lawyers the opportunity to disregard ethical deliberation without fear of serious consequences.").
47. See, e.g., R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us About a Prosecutor's Ethical Duty to "Seek Justice," 82 NOTRE DAME L. REV. 635, 637 (2006) ("'Justice' is an example of a highly generalized axiom of behavior-it does not set forth permissible and impermissible conduct, and it does not set out criteria for how prosecutors are supposed to determine what is just.");
48. Joy, supra note 22, at 408 ("Yet, the history of ethics rules directed toward prosecutors demonstrates that the ethics rules generally have been limited to nonspecific pronouncements that the prosecutor has 'special' responsibilities, different from other lawyers, and that the prosecutor should 'seek justice.'");
49. Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 50 (1991) (contending that the "high-minded but overly general 'justice' rule masks the difficulty of regulating" conduct by prosecutors);
50. see also United States v. Agee, 597 F.2d 350, 371 (3d Cir. 1979) (Gibbons, J., dissenting) (urging for firm requirements to minimize prosecutorial misconduct, and noting that judicial "tongue clicking" about prosecutorial misconduct "has been notoriously ineffective"). One of the most egregious contemporary examples of a prosecutor's failure to do justice, and the inability of the rules of ethics to adequately deter prosecutorial misbehavior, is Mike Nifong's performance in the Duke lacrosse case.
51. See, e.g., Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice," 76 FORDHAM L. REV. 1337, 1338 (2007) ("The ethics rulings resulting from this case regarding the established charges of improper pretrial statements by Nifong, his failure to disclose DNA evidence that tended to negate guilt, and his deceptive statements to the trial court, lawyers, and the bar are instructive. However, broad generalization from the rulings is likely to be of limited value because the factors that produced this disaster in combination with the clarity of proof will likely not be seen again soon.");
52. Robert P. Mosteller, Exculpatory Evidence, Ethics, and the Road to Disbarment of Mike Nifong: The Critical Importance of Full Open-File Discovery, 15 GEO. MASON L. REV. 257, 257 (2008) ("As global as Nifong's ethics violations were, the case illustrates the importance of specific duties rather than broad precepts for the imposition of professional discipline.").
53. See Cassidy, supra note 23, at 637;
54. Bruce A. Green, Prosecutorial Ethics as Usual, 2003 U. ILL. L. REV. 1573, 1597 (2003) (characterizing Model Rule 3.8 as "woefully incomplete");
55. Joy, supra note 22, at 410-11 (observing that the first set of professional ethics rules passed by the American Bar Association in 1908 contained little guidance for prosecuting and noting that except for a "statement condemning the suppression of evidence of innocence, the 1908 Canons did not define what it meant to do justice, or how the prosecutor should reconcile their zealous representation of the government's interest in a conviction with justice for the accused").
56. See Cassidy, supra note 23, at 637-39 (discussing various proposals for channeling prosecutorial discretion). The lack of guidance may be especially troublesome given the well- chronicled expansion of prosecutorial power in recent decades. See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 395 (1992) ("[A]s the prosecutor's investigating, charging, convicting, and sentencing powers have escalated, the 'inherent inequality' between the prosecutor and the defendant has intensified, making the adversary system almost obsolete."); Bruce A. Green & Fred C. Zacharias, "The U.S. Attorneys Scandal" and the Allocation of Prosecutorial Power, 69 OHIO ST. L.J. 187, 188 (2008) ("The centralization of authority within DOJ that the recent firings [of six U.S. attorneys] exemplify can be seen as a mechanism that facilitates abuse of government power because it enables the Attorney General and other high-ranking DOJ officials to enforce prosecutorial decisions that promote partisan objectives, either out of sympathy for the President's interests or in direct response to White House importuning.").
57. See supra notes 23-25 and accompanying text; infra notes 27-29 and accompanying text. For an interesting essay in support of the broad "do justice" obligation,
58. see Samuel J. Levine, Taking Prosecutorial Ethics Seriously: A Consideration of the Prosecutor's Ethical Obligation to "Seek Justice" in a Comparative Analytical Framework, 41 HOUS. L. REV. 1338, 1340 (2004) ("[T]he prosecutor's broad ethical obligation to seek justice serves as a workable and, indeed, appropriate standard for prosecutorial ethics.").
59. See, e.g., Bruce A. Green, Why Should Prosecutors "Seek Justice "?, 26 FORDHAM URB. L.J. 607, 616 (1999);
60. Joy, supra note 22, at 420 ("[Tjhere is room for much more guidance and clearer ethical obligations for prosecutors.");
61. see also Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837, 897 (suggesting that prosecutors' offices should create and publicize their internal policies concerning discretionary decision-making);
62. Joy, supra note 22, at 424-25 ("Implementing internal policies that value ethical conduct, and implementing and enforcing internal discipline when those norms are violated, would go a long way toward addressing the issue of prosecutorial misconduct. Internal controls, though, are unlikely to be enough.").
63. See generally Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual ingredient of any program to induce proper prosecutorial conduct.");
64. Leslie c. Griffin, The Prudent Prosecutor, 14 GEO. J. LEGAL ETHICS 259, 293 (2000) ("New prosecutors need thorough orientation programs; these should be followed up with adequate re-training.").
65. See generally Cassidy, supra note 23.
66. See, e.g., Goldberg & Siegel, supra note 7, at 409 ("The number of convictions obtained may be a measure of a prosecutor's individual success or failure."). The desire to "win" is intertwined with the pressure to offer plea bargains and avoid the time, risk, and expense of trial. This pressure, in turn, could lead to the conviction of the innocent.
67. See, e.g., F. Andrew Hessick III & Reshma Saujani, Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. PUB. L. 189, 190 (2002) ("[T]he incentives to a plea bargain are powerful enough to blind the prosecutor to the defendant's actual culpability.").
68. See, e.g., Erwin Chemerinsky, The Role of Prosecutors in Dealing with Police Abuse: The Lessons of Los Angeles, 8 VA J. SOC. POL'Y & L. 305, 321 (2001) ("Promotions within the Los Angeles District Attorney's office often include consideration of conviction rates.");
69. Erik Luna, System Failure, 42 AM. CRIM. L. REV. 1201, 1213 (2005) ("In general, front-line prosecutors are evaluated for promotion (and thus higher salary and prestige) by their win-loss record, while chief prosecutors will be reelected or retained based on, inter alia, the rate and number of convictions obtained by their office.");
70. Catherine Ferguson-Gilbert, Comment, It Is Not Whether You Win or Lose, It Is How You Play the Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for Prosecutors?, 38 CAL. W. L. REV. 283, 293 (2001) ("Promotions for subordinate prosecutors depend on their 'scores' for convictions.").
71. See Ferguson-Gilbert, supra note 31, at 290.
72. See Bennett L. Gershman, The Prosecutor's Duty to Truth, 14 GEO. J. LEGAL ETHICS 309, 350 n.223 (2001) (noting the pressure prosecutors face to justify their budgets);
73. Moriarty, supra note 10, AT 23 ("In reality, however, protecting the innocent from conviction does not stand on equal footing with convicting the guilty-it is doubtful that any elected prosecutor campaigned on the notion of cases he did not prosecute.").
74. See davis, supra note 22, AT 166-69 (describing the electoral process for prosecutorial offices across the country);
75. Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. & Criminology 717, 734 (1996) (noting that over ninety-five percent of state and local prosecutors are elected);
76. Green & Yaroshefsky, supra note 6 (manuscript at 21) ("Releasing convicted defendants is rarely a route to political popularity.").
77. See, e.g., BARRY SCHECK ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION and OTHER DISPATCHES FROM THE WRONGLY CONVICTED 246 (2000) (noting that prosecutorial misconduct occurred in forty-two percent of the initial batch of sixty-two DNA exonerations).
78. Medwed, supra note 6, at 138.
79. See id.
80. See Susan Bandes, Loyalty to One's Convictions: The Prosecutor and Tunnel Vision, 49 How. L.J. 475, 479 (2006) (discussing the effect of tunnel vision on prosecutors); Dianne L. Martin, Lessons About Justice from the "Laboratory" of Wrongful Convictions: Tunnel Vision, the Construction of Guilt and Informer Evidence, 70 UMKC L. REV. 847, 848 (2002) (observing that tunnel vision is a recurring cause of wrongful convictions in common law jurisdictions). For a detailed analysis of the wide-ranging effect of tunnel vision in the criminal justice system, see generally Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. REV. 291 (2006).
81. See Findley & Scott, supra note 38, at 327-31.
82. Id. at 330 ("Prosecutors see the evidence generated by the police investigation, but often do not see the evidence about alternative suspects who were rejected too quickly, about eyewitnesses who failed to identify the defendant, or about other discontinuing evidence that police dismissed as insignificant.").
83. See, e.g., Judith L. Maute, "In Pursuit of Justice" in High Profile Criminal Matters, 70 FORDHAM L. REV. 1745, 1747 (2002) ("Overzealous prosecutors may become too closely aligned with law enforcement personnel and forensics witnesses who are willing to shade or falsify their testimony in order to obtain a conviction.").
84. See, e.g., George T. Felkenes, The Prosecutor: A Look at Reality, 7 Sw. U. L. REV. 98, 99 (1975) ("The work environment of the prosecutor places on him demands that are often ambiguous and conflicting. The strains of maintaining public support and acting effectively in prosecuting suspects make this highly visible government position vulnerable to numerous compromises. One such compromise is the 'conviction psychology' attributed to some prosecutors.").
85. See, e.g., Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecutorial Discipline Seriously, 8 D.C. L. REV. 275, 275-76 (2004) (discussing the prosecutorial misconduct involved in the wrongful convictions of Dennis Fritz and Ron Williamson in Oklahoma).
86. See The Innocence Project, Understand the Causes: Government Misconduct, http://www.innocenceproject.org/understand/Government-Misconduct.php (last visited Feb. 11, 2009), permanent copy available at http://www.law.washington.edu/wlr/notes/ 84washlrev35n44.pdf.
87. See, e.g., FELIX FRANKFURTER, THE CASE OF SACCO AND VANZETTL: A CRITICAL ANALYSIS FOR LAWYERS AND LAYMEN 108 (Little, Brown, & Co. 1927) ("All systems of law, however wise, are administered through men, and therefore may occasionally disclose the frailties of men. Perfection may not be demanded of law, but the capacity to correct errors of inevitable frailty is the mark of a civilized legal mechanism.").
88. For an updated listing of DNA exonerations, see The Innocence Project, Know the Cases, http://www.innocenceproject.org/know/ (last visited Feb. 11, 2009), permanent copy available at http://www.law.washington.edu/wlr/ notes/84washlrev35n46a.pdf.
89. See also BARRY SCHECK & PETER NEUFELD, 200 Exonerated: TOO MANY WRONGLY CONVICTED (2007), www.innocenceproject.org/200/ip-200.pdf, permanent copy available at http://www.law.washington.edu/wlr/notes/84washlrev35n46b. pdf (analyzing the first two-hundred DNA exonerations in the United States).
90. See, e.g., Death Penalty Overhaul: Hearing Before the S. Comm. on the Judiciary, 107th Cong. (2002) (statement of Barry Scheck, Co-Founder, The Innocence Project), available at 2002 WL 1335515 ("The vast majority (probably 80%) of felony cases do not involve biological evidence that can be subjected to DNA testing."); Nina Martin, Innocence Lost, S.F. MAG., Nov. 2004, at 78, 105 ("[O]nly about 10 percent of criminal cases have any biological evidence-blood, semen, skin-to test.").
91. See supra notes 4-5 and accompanying text.
92. See generally Medwed, supra note 6.
93. As Fred Zacharias explains: A prosecutor who learns of even fully exculpatory evidence does not have personal authority to release a convicted defendant. The ordinary procedure for adjusting a conviction is for a defendant to bring a motion to vacate the judgment and for a new trial (with or without the prosecutor's blessing). Only once a court grants that motion does the prosecutor regain the discretion to dismiss or to negotiate a result that she had before conviction. Zacharias, supra note 7, at 185-86.
94. See Green, supra note 27, at 638 n.133 (mentioning that prosecutors often respond defensively to post-conviction innocence claims by discounting the legitimacy of the purported newly discovered evidence);
95. Zacharias, supra note 7, at 186-87 ("[A] prosecutor's consent to a motion for a new trial may have a persuasive effect on a judge making these determinations.");
96. see generally Medwed, supra note 6 (analyzing prosecutorial resistance to post-conviction innocence claims).
97. See Medwed, supra note 6, at 129 n. 15.
98. See id. at 129 n. 18.
99. See, e.g., Daniel S. Medwed, The Innocent Prisoner's Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings, 93 IOWA L. REV. 491, 523-38 (2008) (discussing the case of Bruce Dallas Goodman in Utah and the manner in which prosecutors responded to DNA results signaling that Goodman was not the source of semen in a case prosecuted as a rape-murder).
100. See, e.g., Goldberg & Siegel, supra note 7, at 407 ("First, innocence-based claims for postconviction review are premised on the notion that the trial result was factually incorrect, not that the trial process was somehow unfair. The existing constitutional obligations for prosecutors to disclose evidence or information. have all been based on the constitutional guarantee of due process under the fourteenth amendment").
101. Id. See also Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002) (finding no Brady violation for failing to turn over "old" evidence for "new" testing in post-conviction sphere).
102. See Zacharias, supra note 7, at 173 ("Prosecutorial discretion is at its height in the postconviction context because legislators and professional code drafters have not focused on postconviction issues.").
103. See id. at 174 ("The American Bar Association's Standards for Criminal Prosecutions, for example, address prosecutorial conduct at all stages through sentencing, but then stop.")
104. See supra note 33 and accompanying text.
105. See, e.g., Chemerinsky, supra note 31, at 312 ("In speaking to many assistant District Attorneys, I heard the constant complaint about the sheer volume of cases and how difficult it was for them to do anything but try to process them as effectively as possible.").
106. See, e.g., Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and Postconviction DNA Testing, 151 U. PA. L. REV. 547, 606 (2002) (noting that the U.S. Supreme Court has emphasized that "finality is essential to both the retributive and deterrent functions of the criminal law and to the interests of victims of crimes in obtaining closure");
107. see also Green & Yaroshefsky, supra note 6 (manuscript at 42) ("There is a legitimate interest in something approximating 'finality' in the criminal process, which would be seriously undercut by a standard calling for prosecutors to try to secure a convicted defendant's release whenever new evidence raises no more than a reasonable doubt about guilt, rather than some genuine likelihood of innocence.").
108. See, e.g., George C. Thomas III et al., Is It Ever Too Late for Innocence? Finality, Efficiency, and Claims of Innocence, 64 U. PITT. L. REV. 263, 294 (2003) ("If there were no way at some point to impose a sentence with finality, prisoners would endlessly search for scraps of new evidence and
109. In a sense, it also undercuts the jury's role. See, e.g., Lee v. Moore, 213 So.2d 197, 198 (Ala. 1968) (commenting in a civil case that courts should be reluctant to grant motions for a new trial "because the verdict of a jury results from one of the most precious rights in our system of government, that is, the right of trial by jury").
110. See Medwed, supra note 6, at 148-50.
111. Id.
112. See, e.g., Adam Liptak, Prosecutors See Limits to Doubt in Capital Cases, N.Y. TIMES, FEB. 24, 2003, at Al, permanent copy available at http://www.law.washington.edu/wlr/notes/ 84washlrev35n66.pdf (noting that Jennifer Joyce, circuit attorney for St. Louis, Missouri, "saw a 'steady trickle' of 'deceitful and sadistic' motions" where "[t]he defendant knows he is guilty. and he wants to play the lottery").
113. See Medwed, supra note 6, at 153 (discussing how prosecutors often campaign on tough-on- crime platforms).
114. See, e.g., Goldberg & Siegel, supra note 7, at 409 ("Prosecutors may be perceived as being 'soft' on crime or sympathetic to defendants if they assist with, or fail to object to, postconviction testing."). As Abbe Smith has noted, "In order not to be played for a fool, taken for a ride, considered a sucker-a nightmarish reputation for a prosecutor-prosecutors often become suspicious, untrusting, disbelieving." Abbe Smith, Can You be a Good Person and a Good Prosecutor?, 14 GEO. J. LEGAL ETHICS 355,384 (2001).
115. See, e.g., Alafair Burke, Neutralizing Cognitive Bias: An Invitation to Prosecutors, 2 N.Y.U. J.L. & LIBERTY 512, 515 (2007) ("A growing literature seeks to attribute poor prosecutorial decision making to a set of information-processing biases that we all share, rather than exclusively to ethical or moral lapses. [Prosecutorial resistance to defense claims of innocence can be viewed as deep (and inherently human) adherences to the 'sticky' presumptions of guilt that result from various forms of cognitive bias."). bombard courts with petitions to reopen cases.").
116. Medwed, Up the River, supra note 3, at 701-02;
117. see also Moriarty, supra note 10, at 25 ("It may be that the system asks too much of a lawyer to both play the game and call a foul on himself during it. The first problem, of course, is in the need for second-guessing oneself in the heat of competition, requiring prosecutors to question continually whether the investigation has nabbed the right person.").
118. Alafair S. Burke, Improving Prosecutorial Decision-Making: Some Lessons of Cognitive Science, 47 WM. & MARY L. REV. 1587, 1593-94 (2006) (discussing the confirmation bias, which appears comparable to the status quo bias);
119. see also Findley & Scott, supra note 38, at 308 (discussing confirmation bias and noting that "[different researchers use slightly different labels for related and sometimes overlapping conditions and effects"); id. at 309 ("Confirmation bias, as the term is used in psychological literature, typically connotes the tendency to seek or interpret evidence in ways that support existing beliefs, expectations, or hypotheses.").
120. Burke, supra note 71, at 1593-94 (describing the phenomenon of selective information processing). Burke also raises a number of other fascinating cognitive biases that may affect prosecutorial decision-making, including "belief perseverance" (in which people embrace a theory even long after countervailing evidence suggests that it should be abandoned);
121. see also Findley & Scott, supra note 38, at 314-16 (discussing the presence of belief perseverance in many wrongful convictions).
122. See Green & Yaroshefsky, supra note 6 (manuscript at 29) ("But it is likely that, despite what is known about cognitive biases, prosecutors' offices ordinarily refer new evidence to the trial prosecutor who obtained the conviction if he is still in the office, on the theory that he best knows the case and is therefore best qualified to determine whether the evidence is new, credible and significant.");
123. see generally Medwed, supra note 6, at 143-44 ("Admittedly, there is limited data pertaining to how prosecutors' offices across the country handle post-conviction motions administratively.").
124. See Medwed, supra note 6, at 143-44.
125. See id.
126. This may be intertwined with the "egocentric bias." See infra note 79 and accompanying text. Individuals may be particularly wary of second-guessing their initial decisions after those decisions have received external validation-for instance, through trial results and affirmation on direct appeal. See Findley & Scott, supra note 38, at 319 (discussing the "reiteration effect," whereby one's confidence in a claim increases after that claim has been repeated and affirmed).
127. See Medwed, Up the River, supra note 3, at 702-03;
128. see also Findley & Scott, supra note 38, at 309 (mentioning how the confirmation bias can be "amplified" when the initial hypotheses stemmed from "a person of superior status in a team effort"). Moreover, a prosecutor who disagrees with a superior's vision of a case could face a difficult ethical conundrum.
129. See, e.g., Benjamin Weiser, Doubting Case, City Prosecutor Aided Defense, N.Y. TIMES, June 23, 2008, at A1 (discussing the saga of an assistant prosecutor in New York City who questioned his superiors' decision to challenge a post-conviction innocence claim and, instead, surreptitiously assisted the defense).
130. See Medwed, Up the River, supra note 3, at 702-03.
131. Id. at 701.
132. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) ("[T]he duty to disclose [exculpatory material] is ongoing.");
133. Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976) (observing that prosecutors should notify authorities of information that "casts doubt upon the correctness of the conviction");
134. Smith v. Roberts, 115 F.3d 818, 820 (10th Cir. 1997) ("We also agree, and the State concedes, that the duty to disclose is ongoing and extends to all stages of the judicial process.");
135. State v. Bennett, 81 P.3d 1, 9 (Nev. 2003) (indicating that the duty to disclose exculpatory evidence extends to post-conviction proceedings). Contra Grayson v. King, 460 F.3d 1328, 1337 (11th Cir. 2006) ("Imbler does not suggest that the prosecution maintains an ongoing due process obligation to inform the defense of after-acquired evidence that might cast doubt on a conviction. [I]t is the suppression of evidence before and during trial that carries Brady's constitutional implications." (emphasis in original));
136. Gibson v. Superintendent of N.J. Dep't of Law & Pub. Safety, 411 F.3d 427, 444 (3d Cir. 2005) (suggesting that the Brady duty does not continue after trial).
137. See, e.g., Sewell v. State, 592 N.E.2d 705, 708 (Ind. Ct. App. 1992) ("Brady is implicated in post-conviction requests for forensic tests only where a conviction rests largely upon identification evidence and advanced technology could definitively establish the accused's innocence.");
138. Dabbs v. Vergari, 570 N.Y.S.2d 765, 768 (N.Y. Sup. Ct. 1990) ("[W]here evidence has been preserved which has exculpatory potential, that evidence should be discoverable after conviction.");
139. Jenner v. Dooley, 590 N.W.2d 463, 471-72 (S.D. 1999) (holding that the government must allow for DNA testing in compelling cases based on principles of "elementary fairness"). The U.S. Supreme Court recently agreed to hear a case from Alaska in which a major issue concerns whether defendants have a limited federal constitutional right to have access to biological evidence for post-conviction DNA testing.
140. See District Attorney's Office v. Osborne, U.S. Supreme Court, (Nov. 3, 2008), available at http://www.supremecourtus.gov/qp/08-00006qp. pdf, permanent copy available at http://www.law.washington.edu/wlr/notes/ 84washlrev35n81.pdf (listing the questions presented in the case).
141. See Brian T. Kohn, Brady Behind Bars: The Prosecutor's Disclosure Obligations Regarding DNA in the Post-Conviction Arena, 1 CARDOZO PUB. L. POL'Y & ETHICS J. 35 (2003);
142. Kreimer & Rudovsky, supra note 61. Contra Zacharias, supra note 7, at 192 ("Brady and its progeny alone do not establish a prosecutorial duty to make genetic samples available for testing or to conduct DNA testing. Nevertheless, the DNA issue is sui generis. Prosecutors' willingness to release the samples for testing and/or to authorize government testing therefore assumes particular significance.").
143. Zacharias, supra note 7, at 190 (observing that, while there is "superficial support for the notion that the obligation to disclose is perpetual," "no court has directly applied Brady to the postconviction context, and most courts agree that Brady's applicability is unsettled even with respect to the period in which direct appeals are still pending").
144. But see id. at 190-91 (conceding that disclosure may be required when a prosecutor obtains possession of exculpatory evidence that directly pertains to an element of a properly filed collateral claim).
145. See supra note 46 and accompanying text (discussing the series of DNA exonerations since 1989);
146. see also Am. Bar Ass'n, Criminal Justice Section, Report to the House of Delegates (Feb. 2008) (recommending the addition of new paragraphs (g) and (h) to Rule 3.8) (on file with the author), permanent copy available at http://www.law.washington.edu/wlr/notes/ 84washlrev35n84.pdf [hereinafter "ABA Report"];
147. Stephen A. Saltzburg, Changes to Model Rules Impact Prosecutors, 23 CRIM JUST. 1, 13 (2008) ("The additions to Rule 3.8 reflect the longstanding concern among prosecutors, defense counsel, judges, and academics about the risk that any criminal justice system, even working at its best, may produce wrongful convictions, and the importance of remedying such convictions in the face of important newly discovered evidence.").
148. MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 1 (2008); see also Saltzburg, supra note 84, at 1 (discussing the amendments to comment 1 of Rule 3.8).
149. MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 1.
150. Id.R. 3.8(g).
151. Id.
152. Id.R.3.8(h).
153. Id. R. 3.8 cmt. 8;
154. see also id. R. 3.8 cmt. 9 ("A prosecutor's independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h), though subsequently determined to have been erroneous, does not constitute a violation of this Rule.").
155. See Green & Yaroshefsky, supra note 6 (manuscript at 6) (noting that "state courts have not yet adopted these rules"). These amendments, however, are derived from similar provisions adopted by the New York State Bar Association.
156. See ABA Report, supra note 84, at 1. Moreover, there is a petition currently pending before the Wisconsin Supreme Court to enact a slightly modified version of these amendments.
157. See Petition, In the Matter of the Amendment of Supreme Court Rules Chapter 20 Rules of Professional Conduct for Attorneys, No. 08-24 (Wis. 2008), available at http://www.wicourts.gov/supreme/docs/0824petition. pdf, permanent copy available at http://www.law.washington.edu/wlr/notes/ 84washlrev35n91a.pdf. And in Colorado, the state Supreme Court Standing Committee on the Rules of Professional Conduct approved the creation of a subcommittee to consider whether Rules 3.8(g) and (h) should be recommended for adoption to the Supreme Court.
158. See Colo. Supreme Court Standing Comm. on the Rules of Prof 1 Conduct, Meeting Agenda (Aug. 21, 2008), available at http://www.courts.state.co.us/userfiles/File/ Court-Probation/Supreme-Court/ Committees/Rules-of-Professional-Conduct-Committee/8.21.08-meeting-agenda(l). pdf, permanent copy available at http://www.law.washington.edu/ wlr/notes/84washlrev35n91 b.pdf.
159. See Saltzburg, supra note 84, at 13 ("Despite the widespread support for the Criminal Justice Section recommendation, not everyone was persuaded that sections (g) and (h) provided clear enough guidance to prosecutors.");
160. see also id. at 14 (addressing some of the concerns regarding the amendments' vagueness).
161. Indeed, it serves as a welcome signal that attorneys and scholars perceive a need for greater regulation of prosecutorial behavior, and it is an about-face from the recent reticence to amend the model rules accordingly. See, e.g., ABA Report, supra note 84, at 3 ("The obligations to avoid and rectify wrongful convictions, to which the proposed provisions give expression, is the most fundamental professional obligation of criminal prosecutors.");
162. Green, supra note 24, at 1574-75 (observing that the Ethics 2000 Commission that examined the Model Rules was "less inclined to augment prosecutors' special responsibilities" and that "the existing provisions of Rule 3.8 do not adequately cover the full range of troubling prosecutorial conduct"). Additionally, the amendments suggest that prosecutors who violate the new provisions may be subject to disciplinary action.
163. See, e.g., ABA Report, supra note 84, at 5 ("Further, it is important not simply to educate prosecutors but to hold out the possibility of professional discipline for lawyers who intentionally ignore persuasive evidence of an unjust conviction.").
164. See, e.g., Green & Yaroshefsky, supra note 6 (manuscript at 43) ("As the executive branch official best positioned to assess whether a convicted defendant is factually innocent, the prosecutor has primary responsibility for correcting error and abdicates this responsibility when she fails to take reasonably available measures to rectify wrongful convictions.").
165. See Zacharias, supra note 7, at 210 ("A prosecutor who knows for a fact that a convicted defendant is innocent should take some action. No conception of the prosecutor's role-as an advocate, defender of the public trust, or protector of victims-would countenance the prosecutor's participation in keeping a clearly innocent person incarcerated.");
166. see also supra notes 84-90 and accompanying text.
167. In Bruce Green and Ellen Yaroshefsky's excellent discussion of this issue, they define the "key question" as "how convinced the prosecutor must be of the defendant's innocence or how doubtful she must be of the convicted defendant's guilt to call for her to rectify an apparent injustice through whatever judicial or executive process is available." Green & Yaroshefsky, supra note 6 (manuscript at 46); see also Id. (manuscript at 42-48).
168. For a listing of innocence projects, see The Innocence Project, About Us: Other Projects, http://www.innocenceproject.org/about/Other-Projects.php (last visited Feb. 12, 2009), permanent copy available at http://www.law. washington.edu/wlr/notes/84washlrev35n97.pdf.
169. See Daniel S. Medwed, Actual Innocents: Considerations in Selecting Cases for a New Innocence Project, 81 NEB. L. REV. 1097, 1098 n.3 (2003).
170. See Medwed, supra note 54, at 551 nn.289-90.
171. Medwed, supra note 98, at 1100-01.
172. Id.
173. Id.
174. Id. at 1105-06 (discussing how, considering the scarcity of resources, innocence projects must find the best cases as efficiently as possible).
175. See generally id. (discussing the challenges innocence-project supervisors encounter in trying to utilize students effectively).
176. Id. at 1115 (mentioning that innocence projects may benefit from referrals from attorneys in the community as a means of finding good cases to investigate).
177. See, e.g., Laurie L. Levenson, Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors, 26 FORDHAM URB. L.J. 553, 567 (1999) ("[I]n any given case it is often the prosecutor who possesses the information that can lead to the fairest and most expeditious decision.").
178. See Medwed, supra note 6, at 175.
179. See Burke, supra note 69, at 525-26 ("A 'fresh look' by attorneys unassociated with initial sticky charging decisions may dilute the biasing effects of selective information processing and belief perseverance.").
180. See Medwed, supra note 6, at 175.
181. See supra notes 6 & 51 and accompanying text (describing how prosecutorial responses to innocence claims can affect the courts' impressions of their merits).
182. See supra note 77-78 and accompanying text.
183. See Medwed, supra note 6, at 176. Indeed, many prosecutors could find the prospect of these units threatening given that their mere presence signals that individual prosecutors may lack the ability to do justice on their own.
184. See, e.g., David Meier, The Prosecution's Perspective on Post- Conviction Relief in Light of DNA Technology and Newly Discovered Evidence, 35 NEW ENG. L. REV. 657, 657-58 (2001) (quoting a prosecutor commenting that "I would like to think that there is no need to establish an innocence unit or an innocence project in a prosecutor's office. On the contrary, ensuring that only the guilty are convicted is what a prosecutor should be doing, day in and day out.").
185. See supra notes 67-68 and accompanying text.
186. See Medwed, supra note 6, at 176.
187. See id. ("Housing post-conviction units with the state attorney general's office could be an efficient alternative to the placement of these divisions in county prosecutorial offices, and might minimize the potential for intra-organizational resentment by creating greater distance between trial and post-conviction prosecutors." (internal citations omitted)).
188. See, e.g., Christopher A. Bracey, Truth and Legitimacy in the American Criminal Process, 90 J. CRIM. L. & CRIMINOLOGY 691, 693 (2000) (reviewing WILLIAM PIZZI, TRIALS WITHOUT TRUTH (1999)) ("[T]he American trial system is fundamentally 'weak,' according to Professor Pizzi, because it privileges fairness norms at the expense of 'truth.'" (internal citation omitted)).
189. See Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA Exonerations, 35 NEW ENG. L. REV. 639, 641 (2001) ("Increasingly, progressive-minded prosecutors around the country are setting up their own 'innocence projects.'");
190. Zacharias, supra note 7, at 198-200. Contra Meier, supra note 112, at 657.
191. See Mark Lee, The Impact of DNA Technology on the Prosecutor: Handling Motions for Post-Conviction Relief, 35 NEW ENG. L. REV. 663, 663-67 (2001) (describing how the Suffolk County (Boston, Mass.) District Attorney's Office fields requests for DNA testing from inmates).
192. For examples of some of these programs, see Medwed, supra note 6, at 126 nn.3-4; Zacharias, supra note 7, at 198-200.
193. See Medwed, supra note 6, at 126 n.3.
194. See Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 FORDHAM L. REV. 1453, 1481 n.188 (2007); Office of the County of Santa Clara Dist. Att'y, Innocence Project, http://www.santaclara-da.org (follow "District Attorney's Office Directory" hyperlink; then follow "District Attorney Departments" hyperlink; then follow "Innocence Project" hyperlink) (last visited Feb. 12, 2009), permanent copy available at http://www.law.washington.edu/wlr/notes/84washlrev35nl21.pdf.
195. See supra note 47 and accompanying text.
196. See Ronald F. Wright & Marc L. Miller, Dead Wrong, 2008 UTAH L. REV. 89, 95 (2008) ("While some may hope that newcomers to the prosecutor's office like Craig Watkins will increase chances for cooperation with the innocence movement, their hope founders upon another reality about American prosecutors: opportunities to work with newcomers come rarely.").
197. For an official description of the Conviction Integrity Unit, see Dallas County Dist. Att'y Conviction Integrity Unit, http://www.dallasda.com/ conviction-integrity.html (last visited Feb. 12, 2009), permanent copy available at http://www.law.washington.edu/wlr/notes/ 84washlrev35nl24.pdf. 125. Id.
198. Id.
199. Id.
200. See, e.g., Jennifer Emily, In First Year as Dallas County DA, Watkins Shifts Focus from Winning to Justice, DALLAS MORNING NEWS, Dec. 30, 2007, at Al, permanent copy available at http://www.law. washmgton.edu/wlr/notes/84washlrev3Snl28.pdf.
201. Id.
202. E-mail from Natalie Roetzel, Executive Director, Innocence Project of Texas, to Daniel S. Medwed, Associate Professor of Law, S.J. Quinney College of Law (Nov. 18,2008, 9:32 MST) (on file with author), permanent copy available at http://www.law.washington.edu/wlr/notes/ 84washlrev37nl30.pdf (mentioning that there have been eight formal exonerations since Craig Watkins took office, with several additional exonerations pending).
203. See, e.g., Jennifer Emily, Dallas County District Attorney: 3 More Inmate DNA Tests Approved, DALLAS MORNING NEWS, May 24, 2008, at B11, permanent copy available at http://www.law.washmgton. edu/wb/notes/84washIrev35nl31.pdf.
204. See Emily, supra note 128, at Al.
205. See Steve McGonigle & Jennifer Emily, A Blind Faith: 18 of 19 Local Cases Overturned by DNA Relied Heavily on Unreliable Testimony, DALLAS MORNING NEWS, Oct. 12, 2008, at 1A, permanent copy available at http://www.law.washington.edu/wlr/notes/84washlrev37nl33.pdf. Indeed, Dallas County's tally of DNA exonerations is higher than that of all of the other cities and counties in Texas combined. Id. (noting that "[s]eventeen exonerations have occurred elsewhere in Texas").
206. See Emily, supra note 128, at Al.
207. See, e.g., Jennifer Emily, Dallas County DA's Office Gets Grant for DNA Tests, DALLAS MORNING NEWS, June 6, 2008, at B2, permanent copy available at http://www.law. waslungton.edu/wlr/notes/ 84washlrev35nl35.pdf.
208. See Wright & Miller, supra note 123, at 93 (describing the bad reputation of Watkins's predecessor, Bill Hill, and noting that "[i]t is easier to accept scrutiny of closed cases if they were investigated and prosecuted under your predecessor in office. This is doubly true if your predecessor was a political opponent.");
209. see also Ashley McAndrew, A Day in the Life of Government Lawyers: Karen Wise, Assistant District Attorney, Dallas, 70 TEX. B.J. 516, 517 (2007) (quoting Wakins as saying, "Dallas district attorneys before me were more about convictions, convictions at all cost. They were less concerned with the actual crime problems affecting Dallas.");
210. Sylvia Moreno, New Prosecutor Revisits Justice in Dallas, WASH. POST, Mar. 5, 2007, at A4, permanent copy available at http://www.law.washington.edu/wlr/notes/84washlrev35nl36.pdf ("Most of the exonerations date to cases tried in the 1980s under Dallas' legendary law-and-order district attorney, Henry Wade."); Emily, supra note 128 (describing 14 cases cleared through DNA testing under Watkins).
211. See supra note 136 and accompanying text. Another prominent example of an incoming prosecutor aggressively helping to exonerate prisoners wrongfully convicted during a predecessor's regime occurred in New Orleans when Eddie Jordan replaced long-time District Attorney Harry Connick, Sr. See Medwed, supra note 6, at 161-64. One observer, a public defender, expressed skepticism that Jordan would remain open to post-conviction innocence claims, commenting that "Jordan is a lot more relaxed listening to criticism of old cases because they weren't handled under his tenure by people he hired and trained and supported. The real test will come when people from his administration get socked with these kinds of criticisms and complaints about cases handled under his watch." Michael Perlstein, Open to Appeal: Convicted Criminals Say DA Policy Change Gives Them Fair Shot, TTIMES-PLCAYUNE (New Orleans), July 20, 2003, at National 1, permanent copy available at http://www.law.washington.edu/wlr/notes/ 84washlrev35nl37.pdf.
212. See Green & Yaroshefsky, supra note 6 (manuscript at 49) ("Where there is no independent state body to investigate new exculpatory evidence, a large, urban office such as that of Dallas County can create an independent internal unit. Smaller prosecutors' offices can pool their resources to create a unit to investigate claims from each of their counties, or they can seek the agreement of the state attorney general's office to review such claims.").
213. See, e.g., Andrea Weigl et al., Easley Signs Law Creating Innocence Panel, NEWS & OBSERVER (Raleigh, N.C.), Aug. 4, 2006, at B5, permanent copy available at http://www.law.washington. edu/wlr/notes/84washlrev35nl39.pdf.
214. Id.
215. Id.
216. See generally Lissa Griffin, The Correction of Wrongful Convictions: A Comparative Perspective, 16 AM. U. INT'L L. REV. 1241 (2001);
217. David Horan, The Innocence Commission: An Independent Review Board for Wrongful Convictions, 20 N. ILL. U. L. REV. 91 (2000).
218. See Robert C. Schehr, The Criminal Cases Review Commission as a State Strategic Selection Mechanism, 42 AM. CRIM. L. REV. 1289, 1299, 1299 n.40 (2005) (listing the twelve states). In contrast, virtually all of these other innocence commissions are bipartisan associations of law-enforcement specialists, academics, retired judges, politicians, and community activists charged not with the goal of rectifying existing miscarriages of justice but rather with conducting reviews of previously overturned wrongful convictions, isolating the problems in those cases, and recommending systemic changes.
219. See, e.g., Keith A. Findley, Learning from Our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions, 38 CAL. W. L. REV. 333, 351-53 (2002) (citing the benefits of such commissions);
220. Barry C. Scheck & Peter J. Neufeld, Toward the Formation of "Innocence Commissions " in America, 86 judicature 98, 98-105 (2002) (same).
221. See Medwed, supra note 54, at 552-53 (discussing innocence commissions as potential bodies for investigating innocence claims raised by prisoners during parole hearings). Professors Green and Yaroshefsky suggest that the creation of independent innocence commissions, such as North Carolina's, might be preferable to the formation of prosecutorial innocence units.
222. See Green & Yaroshefsky, supra note 6 (manuscript at 49) ("One question is who should investigate and evaluate new evidence. Research on cognitive bias suggests that this responsibility should not be entrusted to the prosecutor who secured the conviction, and ideally, should not be entrusted to that prosecutor's office. It would be preferable for states to adopt systems of review that, as in England, Canada and North Carolina, entrust investigations and evaluations to independent bodies which have internal, graduated processes for responding to new, exculpatory evidence.").