Law Enforcement Commitment to Exonerating the Innocent Grows

by Dan Abrams

The following opinion was published by Lawyers.com on April 10, 2013.

As a regular observer of our criminal justice system, there are few things more maddening than to watch a prosecutor or other law enforcement officials simply refuse to say, “We got it wrong.” Despite overwhelming evidence of innocence, some police officers and district attorneys remain steadfast in having convictions stand or, at best, will cut deals to release defendants only if they plead no contest (often called an Alford plea), while maintaining their innocence. Yes, most district attorneys are elected officials and apologizing is anathema to pols, but DAs simply can’t behave like other politicians. Their power is too absolute, and the stakes too high.

So it was beyond heartening to see an announcement last week from the National Registry of Exonerations, a joint project of the University of Michigan and Northwestern University Law Schools, that in 2012 police and prosecutors assisted with exonerations at “record high levels,” and that, for the first time, law enforcement initiated or cooperated in more than half of those cases.

Growing Trend
This is a truly transformative period as we transition from a time where DNA testing was not (at least widely) available, to one where it regularly — even routinely — assists in convictions, forces plea deals, and can also help clear those falsely accused. Since 1989, 63 percent of sexual assault exonerations, for example, have included DNA evidence.

The report found that of the 63 known exonerations in 2012, law enforcement initiated or cooperated in 34 (54 percent). The previous high for assistance from the authorities, according to the report, was in 2008 (39 percent), and since 1989, officials have assisted, on average, in about 30 percent of those cases where defendants have been cleared.

That is not to ignore the reality that many defendants falsely maintain their innocence, thereby muddying the waters for the truly innocent. Nor in every one of the exoneration cases were the authorities unambiguously dead wrong. But in the overwhelming majority, as a result of everything from sloppy police work and overeager prosecutors, to inaccurate eyewitness testimony, false confessions and even guilty pleas, they just blew it.

Professor Samuel Gross, editor of the Registry, believes the numbers could reflect changes in state laws that allow for post-conviction DNA testing, as well as the increasing number of district attorneys’ offices that now have units devoted to ensuring the integrity of convictions.

Still a Long Way to Go
While the news is promising and comforting, there is a dark legal cloud that remains. The study also found that official cooperation was least likely where it is needed most, in cases with the most severe sentences — capital murder and mass child sex abuse cases — and far more likely in more minor robbery and drug cases.

In particular, those who support the death penalty should take note. The death penalty will become a relic of a bygone age if prosecutors keep “winning” death sentences for those proven innocent, and maybe even worse, then refuse to cooperate in ensuring that justice is served. What is basically a massive legal editing system is, and will remain, focused on death penalty cases, leading to greater scrutiny after trial. So it should come as no surprise that death sentences produce exonerations at nine times the rate of all homicide convictions. We just can’t get the death penalty wrong, and states around the country have abolished or suspended it for this very reason.

So kudos to law enforcement for mustering the courage to admit their mistakes and to attempt to remedy them, but we still have a ways to go.