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November 15, 2010

"Talking About Prosecutors"

The title of this post is the title of this intriguing looking article by Professor Alafair Burke, which is avaiable via SSRN. Here is the abstract:

This Article explores the narrative that the scholarly literature on wrongful convictions uses to talk about prosecutors. In the prevailing narrative of the wrongful conviction literature, stories of bad prosecutorial decision making in the cases against Genarlow Wilson, the Jena Six, and three Duke lacrosse players are merely high-profile examples of misconduct that happens every day in America’s prosecutors’ offices and courtrooms. What emerges from the current discourse on wrongful convictions is a language of fault — fault placed on prosecutors who fail to value justice at each turn of the proceedings.

Separate from the empirical question of how widespread intentional misconduct is among prosecutors, this Article questions the efficacy of fault-based rhetoric in a world in which prosecutors view wrongful convictions as statistical anomalies, their antagonists as uncommonly bad apples, and themselves as ethical lawyers.  The rhetoric of fault is counterproductive because it alienates the very parties who hold the power to initiate many of the most promising reforms of the movement.  In contrast, this Article suggests the use of a “no-fault” rhetoric that focuses on structural and cognitive impediments to neutral prosecutorial decision-making.  A “no-fault” rhetoric that emphasizes how even ethical prosecutors might inadvertently contribute to wrongful convictions carries the potential to fold prosecutors into the movement while simultaneously pressuring them to initiate self-focused reforms.

November 15, 2010 at 01:18 PM | Permalink

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Comments

This is a good idea. Similarly, I favor the adoption of a "no fault" rhetoric for criminal justice as a whole, that focuses on structural and cognitive impediments to neutral criminal decision-making. A “no-fault” rhetoric that emphasizes how even ethical individuals might inadvertently contribute to illegal conduct carries the potential to fold defendants into the movement while simultaneously pressuring them to initiate self-focused reforms.

Posted by: Anonymous | Nov 15, 2010 5:03:02 PM

The whole argument is a bit of a red herring. The first footnote announces "The focus here is on the traditional scholarly literature on wrongful convictions, as opposed to the wrongful convictions movement itself, where practicing lawyers and Innocence Projects have noted the advantages of a more inclusive rhetoric." Then the article proceeds to conflate the innocence movement and the cherrypicked scholarly literature he's critiquing. The reality is the folks on the front-lines working on these issues (as opposed to those engaged in academic navel gazing) years ago adopted more "inclusive rhetoric" focused on systemic errors instead of individual malfeasance.

That said, my experience is that while most false convictions result from honest error, a not-insignificant percentage stem from straight up misconduct by police or prosecutors. Another portion stems from police/prosecutorial arrogance and myopia, but not overt malice. The idea that criticizing behavior from the latter two categories excludes acknowledgment of the first makes little sense to me, just as criticizing a defense lawyer for ineffective assistance shouldn't be taken as criticism of all defense counsel. We had an exoneration recently in Texas (Anthony Graves) where the prosecutor had failed to disclose that his sole witness recanted the night before trial, only testifying because the DA threatened to prosecute his wife - should we refrain from criticizing such behavior just because Josh Marquis might take offense?

By criticizing intentional wrongdoing, says the author, "prosecutors who view themselves as ethical might conclude that the wrongful convictions movement is either focused on a small minority of indifferent prosecutors or falsely assuming that most prosecutors are indifferent." But in fact his argument is PRECISELY that most prosecutors are indifferent to examples of misconduct and consistently look past them in self-justifying ways - something he inexplicably blames on the innocence movement's rhetoric as opposed to the profession's failure to take responsibility for misconduct in its ranks.

The overall argument seems to be that prosecutors are so self-righteous and thin-skinned they've become stupid and thus immune to fact-based analysis. That seems to me to insult prosecutors more than does blaming the blameworthy like Nifong, etc..

Posted by: Gritsforbreakfast | Nov 16, 2010 9:24:15 AM

your right on a lot of it grits! But i disagree with this statment!

"The overall argument seems to be that prosecutors are so self-righteous and thin-skinned they've become stupid and thus immune to fact-based analysis. That seems to me to insult prosecutors more than does blaming the blameworthy like Nifong, etc.."

Sorry but right now the prosecutors REFUSE to admit they have a problem and that it SEEMS to be growing! They refuse to come forward and announce there is a problem and we need to work out some way to fix it. So they are hiding their heads in teh sands. Which would be bad enough but becasue of that REFUSAL they are HIDING the very CRIMINALS you named and OTHERS! That makes those crimes THEIRS as well just like anyone else who hides evidence of a crime or helps COVER IT UP!

Posted by: rodsmith | Nov 16, 2010 12:14:06 PM

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