E. Ineffective Defense Counsel
Most defendants are poor (indigent) and rely on government- paid assigned counsel or public defenders rather than retained lawyers. Indigent defense is chronically underfunded, making it difficult for competent attorneys to routinely provide adequate defense. Studies in several states have shown a higher proportion of defense lawyers in exoneration cases with poorer disciplinary records than average, offering proof that substandard lawyering is a cause of wrongful convictions. The U.S. Constitution requires effective assistance of counsel for defendants, but the Supreme Court’s standards for determining ineffective assistance are weak and require proof that attorney negligence caused a verdict. Only 38 of the first 200 (29%) DNA exonerees raised ineffective-assistance claims on appeal, reflecting the difficulty of making this kind of challenge, and only 4 received a reversal on ineffective-assistance grounds.
Egregious cases of defense attorney misconduct in court have ranged from sleeping or total unpreparedness to drunkenness and being high on drugs. Even ordinarily competent defense lawyers have failed to prevent the conviction of innocent clients in ways too numerous to catalogue. Among the most serious underlying problems are failures to adequately investigate case facts and failing to properly challenge prosecutors’ witnesses, including forensic experts. Although the wrongful conviction literature does not list ineffective assistance as the highest cause, in a sense there is a failure by the defense in every wrongful conviction.
F. Prosecutorial Misconduct
Prosecutorial misconduct, whether or not it leads to wrongful convictions, is common. In-court misconduct includes making inflammatory comments or mischaracterizing evidence to the jury, allowing witness perjury (suborning perjury), or permitting snitches to lie about their payoffs for testifying. Prosecutors have even been known to destroy evidence. The suppression of exculpatory evidence (that which points to innocence), in violation of Supreme Court rules, appears in many wrongful conviction cases. Suppressing exculpatory evidence is a cloudy issue because it is up to the prosecutor to determine in the first instance whether the evidence is exculpatory.
When DNA testing became standard in the 1990s, a large proportion of prosecutors, all of whom welcomed DNA as an investigation tool, strongly resisted postconviction, postappeal petitions by prisoners seeking to test DNA crime scene samples in storage. Such resistance added to the frustration and tragedy of actually innocent prisoners, and it delayed justice. In a few cases, any chance of getting to the truth was terminated when existing DNA samples in evidence lockers were deliberately destroyed after prisoners petitioned for testing.
Prosecutorial misconduct is especially significant because prosecutors are the most powerful figures in the criminal justice process, with great discretion as to whether to charge suspects or to dismiss cases. Before prosecutions are formally initiated, prosecutors have a judge-like role. They dismiss one quarter of all cases filed by police, often because they believe that the suspect is innocent. Two theories guide prosecutors in their discretionary decisions and in the way they prosecute their cases: the (1) adversary role and (2) the minister of justice role. In the adversary role a prosecutor can go forward with a case in which the evidence is equivocal, on the theory that it is up to the jury to decide whether a defendant is guilty beyond a reasonable doubt. As a minister of justice a prosecutor must be personally convinced that the defendant is guilty beyond a reasonable doubt. A problem with the adversary role is that prosecutors holding that view will tend to have a win-at-any-cost attitude, likely resulting in fewer dismissed cases, more aggressive trial tactics, more instances of misconduct, and greater opportunities of generating wrongful convictions. The minister of justice role requires the difficult human and institutional ability to balance vigorous prosecution with fairness and decency. This balance was captured in a 1940 speech to federal prosecutors made by Attorney General Robert Jackson, later a U.S. Supreme Court justice:
Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just. Although the government technically loses its case, it has really won if justice has been done.