Innocence, Integrity, and Rule Reform

Nora Freeman Engstrom

In Should Prosecutors Be Expected To Rectify Wrongful Convictions?, Bruce Green makes a compelling argument for why the titular question should be answered with a resounding “yes.”

To understand what is at stake, it’s best to start with a few statistics:

The National Registry of Exonerations identifies more than 3,000 wrongly convicted individuals who have been exonerated since 1989—likely a tiny fraction of the innocent men and women who have been made to serve time. Black individuals are up to 19 times more likely to be wrongly convicted of certain crimes than their white counterparts. Also chilling, “official misconduct”—most often involving the concealment of exculpatory evidence by prosecutors or their investigators—is present around 40% of the time.

Official misconduct can—and sometimes does—occur even after conviction, either in the form of outright deception or prosecutors’ failure to act, when confronted with evidence of the inmate’s innocence. This, too, happens with unnerving frequency. Consider Andrew Swainson. He was wrongly convicted of first-degree murder in 1989, and prosecutors refused to reopen their investigation even after a key witness recanted his testimony. In another case, the Manhattan DA’s office initially ignored an informant’s admission that he and another gang member, not the convicted defendants, were responsible for a shooting. And more recently, prosecutors in Wayne County, Michigan opposed Davontae Sanford’s motion to reverse his conviction, even after another man confessed to the murders. It took Sanford another eight years to be exonerated.

No one likes the idea of innocent people serving time for crimes they did not commit. So what explains this troubling prosecutorial resistance?

A few culprits spring to mind: Once they have attained a conviction, prosecutors, like lots of people, might be overly confident in their own judgment and reluctant to admit error.¹ Cognitive dissonance likely kicks in; prosecutors think they are careful and competent, and they are, understandably, reluctant to admit that, as to this defendant at that time, they blew it—to devastating effect.² And, an admission of fault sometimes comes with scrutiny, harsh judgment, and potentially an after-the-fact civil rights claim—and that’s apt to be unpleasant.³

Aside from all that, there are also institutional reasons for prosecutors’ resistance: Prosecutors might want to discourage frivolous post-conviction claims.⁴ They might believe that denying the existence of wrongful convictions promotes public confidence in criminal processes. And they might believe that opening the door to wrongful conviction claims undercuts the important finality interest of victims, delaying recovery and closure.

Recognizing that (1) even after conviction, some prosecutors do come across solid evidence of defendants’ innocence, and (2) left to their own devices, some prosecutors need a push to do the right thing, in February 2008, the ABA took action. In particular, the ABA’s House of Delegates added two new provisions to Model Rule of Professional Conduct 3.8, the rule that sets forth the “Special Responsibilities of a Prosecutor.” Considered in tandem, these new ethical obligations help to promote post-conviction disclosure.

Rule 3.8’s new Subsection (g) is triggered “[w]hen a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted”—i.e., evidence that an eyewitness’s identification was off or a forensic report was unreliable. Regardless of where the conviction occurred, the prosecutor must disclose the information to the court or other appropriate authority—and, if the conviction occurred in the prosecutor’s jurisdiction, the prosecutor must also disclose the information to the defendant and “undertake further investigation, or make reasonable efforts to cause an investigation” to determine whether the conviction was wrongfully obtained.

Subsection (h) then kicks in at the end of the above reinvestigation. It directs the prosecutor to “seek to remedy the conviction” if there is clear and convincing evidence that the defendant did not commit the offense.

The logic and humanity of 3.8(g) and (h) are undeniable. And it’s a credit to the ABA (and to Professor Bruce Green, who was instrumental in the provisions’ passage) that, fifteen years after Subsections (g) and (h) sailed through the ABA’s House of Delegates, twenty-four states have adopted these provisions in some form.⁵

Yet, in other states, acceptance has stalled, running aground on the shoals of prosecutorial opposition. Most prominently, the U.S. Department of Justice, which did not oppose the ABA’s passage of the provisions, has gone on record urging states to reject them.⁶

It is this prosecutorial opposition that motivates, and lies at the heart, of Should Prosecutors Be Expected To Rectify Wrongful Convictions?. In particular, in the piece, which is essentially a reply to the provisions’ critics, Green lays out four arguments frequently voiced in opposition to 3.8(g) and (h). Then, in a methodical and lawyerly fashion, Green proceeds to demolish those arguments.

First, Green considers—and rebuts—critics’ contention that rectifying wrongful convictions isn’t in prosecutors’ job description.⁷ Prosecutors, Green argues, as officers of the executive branch, have a special duty to ensure that the state does not punish innocent people. When it’s not filing letters opposing Rule 3.8(g) and (h), the DOJ has even conceded as much: “We are responsible not only for enforcing the law, but for upholding the Rule of Law. We are responsible for protecting civil rights and for pursuing justice for all Americans.”

Second, Green considers—and answers—critics’ argument that prosecutors are too biased to fulfill their 3.8(g) and (h) responsibilities. Here, Green points out, if there is a problem of bias, it’s easily overcome because, when carrying out a reinvestigation, an office can simply assign prosecutors who did not work on the original case.

Third, Green addresses the claim, voiced by some critics, that Rule 3.8(g) and (h) are overkill, as prosecutors can be counted on to rectify wrongful convictions even without the Rule’s say-so.⁸ Here, one counter is easy: The incontrovertible evidence suggests that at least some prosecutors need a push. Then, Green further asserts that, even if the provisions do merely codify existing practices, they’re still important, as they express a commitment to justice and signal to current and future prosecutors that rectifying wrongful convictions is an essential part of the prosecutorial role. (P. 725.)

Fourth and finally, Green tackles critics’ claim that Rule 3.8(g) and (h) are unduly burdensome⁹ and will force prosecutors to fritter away “time and resources that are limited and, in some cases, entirely unavailable.”¹⁰ (P. 726.) Countering this argument, Green observes that the provisions are subject to a high evidentiary trigger—only evidence that creates a “reasonable likelihood” that the defendant did not commit the offense may qualify. And, fatal for this “unduly burdensome” argument, prosecutors in the twenty-four states that have adopted Rules 3.8(g) and (h) have not reported that the provisions hinder their work.

Green’s message is clear: In the United States, we’ve got to do a much better job preventing and correcting wrongful convictions. And, while codifying Rule 3.8(g) and (h) is no panacea, it is a step in the right direction. With half the states fully on board, these provisions—and the values they embody—sit at a crossroads. Coming at this critical juncture, Green explains why jurisdictions that haven’t adopted Rules 3.8(g) and (h) ought to take a second look.

Further, as a proud alum of the Criminal Division of the DOJ, embedded within Green’s fine piece, I saw one additional message. The piece, that is, offers a blunt wake up call to the Garland DOJ, which publicly voices certain commitments—including that it will “pursu[e] justice for all Americans”—but has resisted critical efforts to ensure that prosecutors, when confronted with evidence of wrongful convictions, are duty-bound to take easy, common-sense steps. When it comes to Rule 3.8(h) and (g), it’s high time, in other words, for the DOJ to reevaluate its position.

1. For an excellent short primer on overconfidence bias and its pernicious effects, see David Shariatmadari, Daniel Kahneman: ‘What Would I Eliminate If I Had a Magic Wand? Overconfidence’, Guardian (July 18, 2015).
2. For cognitive dissonance, see Kristin Wong, Why It’s So Hard to Admit You’re Wrong, N.Y. Times (May 22, 2017).
3. While prosecutors are entitled to absolute immunity, see Imbler v. Pachtman, 424 U.S. 409 (1976), wrongfully convicted defendants still have some routes to recovery.
4. Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 Ohio St. J. Crim. L. 467, 475-76 (2009).
5. A compilation of enacting jurisdictions appears in Green’s piece at P. 706, note 34.
6. See, e.g., Letter from Jenny A. Durkan, U.S. Att’y, U.S. Dep’t of Just., to Clerk of the Sup. Ct. of the State of Wash. (Apr. 28, 2011),  [hereinafter DOJ Washington Letter].
7. In its letter opposing the enactment of Rule 3.8(g) and (h) in Washington State, for example, the DOJ fell back on the notion that “[t]here is no reason why the rules of professional conduct should treat a prosecutor who is a stranger to the case any differently than any other member of the bar.” DOJ Washington Letter, supra note 6, at 3.
8. See, e.g., Letter from Matthew Schneider & Andrew B. Birge, U.S. Att’ys, E. & W. Dists. of Mich., to the Judges of the Mich. Sup. Ct. (Aug. 30, 2018). In other states, the DOJ has opposed the rule because there’s insufficient evidence that, in that particular jurisdiction, “an innocent prisoner was kept in prison because a prosecutor knew of and suppressed post-conviction evidence of innocence.” DOJ Washington Letter, supra note 6, at 2. Yet, that absence of evidence is hardly reassuring because the whole point of Rule 3.8(g) is to bring that information, which is otherwise easily suppressed, to light. The idea that, in the absence of a mechanism to promote disclosure, information hasn’t been disclosed is not a solid indication that problematic information does not exist.
9. DOJ Washington Letter, supra note 7, at 6 (“One likely consequence of adoption of these new Rules would be that prosecutors, and their resources, will be diverted from prosecuting crime to investigating convicts’ claims of ‘new’ evidence . . . .”).
10. While Green does not explicitly make this point, it’s also worth noting that critics’ third and fourth arguments are internally inconsistent. It can’t simultaneously be true that (1) one needn’t enact Subsections (g) and (h) because prosecutors already take these salutary steps and also (2) enacting Subsections (g) and (h) will be too burdensome because it thrusts on prosecutors a new and weighty set of responsibilities.