Prosecutors and Wrongful Convictions: ‘Pay Now or Pay Later’

Three big-city prosecutors who have formed special units to review—and correct—errors made by their offices say a “cultural shift” is necessary to persuade politicians, police and their own attorneys that it is more important to avoid mistakes than to simply win convictions.

Three big-city prosecutors who have formed special units to review—and correct—errors made by their offices say a “cultural shift” is necessary to persuade politicians, police and their own attorneys that it is more important to avoid mistakes than to simply win convictions.

“My pitch to (county) commissioners is ‘pay now or pay later,’” says Kim Ogg, the District Attorney for Texas’ Harris County, noting that settlements for civil rights suits or wrongful convictions often end up costing more than the money spent on units dedicated to reviewing faulty cases after they’ve already happened.

prosecutors

Brooklyn NY District Attorney Eric Gonzalez and Harris County DA Kim Ogg

“It requires changes in every aspect of our policies and practices that support the search for the truth.”

According to Brooklyn (NY) District Attorney Eric Gonzalez, the Conviction Review Unit formed by his predecessor Ken Thompson has sent signals to both young assistant district attorneys and veteran lawyers in his office that their job performances will no longer just be tied to the number of convictions they win.

“It’s a cultural shift,” says Gonzalez. “They get as much credit for pointing out errors and mistakes as for securing trial convictions.”

In Baltimore, where investigators are now looking into thousands of cases—some of them years old—which may have involved wrongful or illegal behavior by police, State’s Attorney Marilyn Mosby tells her prosecutors that the “only way to better the system is to learn from errors.”

All three elected prosecutors, speaking at the John Jay/Harry Frank Guggenheim Symposium on Crime in America at John Jay College last week, said it was often an uphill battle to get the resources to fund an approach that is far from popular among justice and law enforcement professionals.

And they made clear that one of the primary values of such conviction reviews was to prevent mistakes from being repeated in future cases.

“When I was a young prosecutor, I was taught that there are no wrongful executions or exonerations in Texas, and that no one in prison was innocent,” said Ogg, who was elected DA last year in Harris County, which includes Houston.

But, she added, prosecutors across America should now be governed by a mindset that “we’re responsible for cases forever, and to ensure the integrity of convictions forever.”

She added that the “worst fear” of any prosecutor should be that someone is wrongfully convicted in their jurisdiction.

“We are the guardians of constitutional protection,” she said. “Without public trust, people won’t participate (and they) will take justice in their own hands.”

Ogg, whose office recently vacated thousands of convictions that were discovered to be the result of faulty evidence or the misuse of lab tests, said she was in the midst of persuading the 94 separate law enforcement jurisdictions in her county to adapt better evidence collection and storage methods—“one police chief at a time.”

“I haven’t had to invoke the nuclear option, which is to say you can present me a case, but I won’t necessarily try it,” she said, noting that her targets included police unions, which resist having their members singled out for justice system errors.

In Brooklyn, where the alleged misconduct of a detective put into doubt hundreds of cases, the Conviction Review Unit now occupies an entire floor of attorneys who do nothing but review old cases, with an annual budget of more than a million dollars.

“Not only do we have to get (wrongfully convicted) people out of prison, we have to learn the lessons about what can wrong in the justice system,” Gonzalez said.

“I tell (our City Council) at budget hearings that every time someone is wrongfully convicted, it’s a very expensive mistake,” said Gonzalez. “So give us the money to make sure we get it right the first time.”

Marilyn Mosby

Baltimore State’s Attorney Marilyn Mosby

He added: “Public safety is paramount, but we also have the obligation to do justice.”

Mosby said her office of 212 prosecutors was already working on 50,000 cases a year, so it was a “political” challenge to persuade state and local authorities to dedicate separate resources to conviction reviews.

“You have to think outside the box,” said Mosby, who recently secured a $219,000 grant from the Innocence Project in partnership with the city’s defense attorney bar to help pay for the city’s conviction integrity unit.

Mosby said it was equally important to develop resources to help exonerated individuals navigate their path back to civilian society.

She cited one case in which a person died three months after being released from prison after 17 years for a murder he didn’t commit.

“There’s nothing in place (now) to help those who were wrongfully exonerated,” she said.

Ogg said she had also won support from victims’ groups.

“I never met a victim yet who wanted the wrong person prosecuted,” she said.

TCR Deputy Editor Victoria Mckenzie contributed to this report. The complete panel can be viewed here. Readers’ comments are welcome.

from https://thecrimereport.org