Comment: Prosecutors can free the innocent they put in prison

Washington state needs conviction integrity units to reconsider the cases of those who are wrongly convicted.

By Daniel Medwed and Samuel Magaram / For The Herald

It’s impossible to answer this question with precision. But, extrapolating from several studies that estimate the erroneous conviction rate nationwide at between 3 percent and 5 percent, Washington could be incarcerating upwards of 1,600 innocent people.

Even if we don’t know the precise figure, we do know this: In a state rightfully proud of its progressivism, nearly nothing is being done to free them. This must change.

Take the case of Deron Parks.

Convicted of sexually assaulting a teenage boy and sentenced to life in prison, Parks secured his freedom only after petitioning the Washington state Supreme Court for a new trial. In the petition, Parks provided sworn statements from three witnesses that his appointed trial attorney failed to interview. They confirmed not only that Parks wasn’t there when the rape allegedly occurred, but also that the alleged victim had threatened Parks with false accusations.

The puzzling aspect of Parks’s saga is not why he was convicted in the first place; rather, it is why prosecutors fought to keep him in prison so tenaciously and for so long in the face of compelling evidence of his innocence. The prosecutor who opposed Parks’ petition is still convinced of Parks’ guilt, explaining recently that she “believed the victim, and his account of what happened seemed credible.” This certitude illustrates the psychological factors and organizational pressures that prevent well-meaning prosecutors from recognizing wrongful convictions.

Although judges are empowered to release wrongfully convicted persons, it is really prosecutors who can set the innocent free. Law professors Bruce Green and Ellen Yaroshefsky explain that “[t]he legal process holds out little hope for wrongfully convicted defendants … in the absence of help from prosecutors” to “evaluate, investigate, and respond to new exculpatory evidence.”

Despite this responsibility, prosecutors often treat claims of innocence with skepticism, explaining away exculpatory evidence and zealously defending convictions. Prosecutors have even been known to defend convictions when DNA tests conclusively prove a prisoner’s innocence. Why? Evidence is subjective, and institutional biases blinker prosecutors. They tend to view a conviction as confirmation that their decision to bring charges was correct, and they avoid contemplating the prospect that they put an innocent person in a prison cell.

These psychological factors are compounded by prosecutorial cultures that prize winning and defending convictions. Structural barriers are to blame, too. Appeals prosecutors are typically charged with reviewing innocence claims, a task to which these attorneys, more accustomed to legal wrangling than investigatory work, may be ill-suited.

Recognizing these obstacles to objectivity, reform-minded prosecutors around the country have created conviction integrity units (“CIUs”) dedicated to reviewing innocence claims. Composed of specialized attorneys and investigators, CIUs are experts at the fact-intensive and convention-defying work of innocence. They know how to reinvestigate old cases, find long-lost witnesses, and scrutinize musty forensic reports. If a CIU determines that an innocence claim has merit, it will help exonerate the prisoner.

These units are insulated from many of the psychological biases and bureaucratic dynamics that thwart objectivity. While appellate prosecutors may view their role as principally to defend convictions, CIU prosecutors are oriented toward dispassionate reinvestigation. Rather than perceive a conviction as confirmation of their own past decisions, they approach a conviction as a potential miscarriage of justice.

Today, nearly sixty such units exist from Dallas to Detroit. Yet Washington state has none.

It’s a testament to their effectiveness that CIUs nationwide were responsible for more than one-third of all post-conviction exonerations in recent years, even though the vast majority of prosecutors’ offices lack such units. Put another way: offices without CIUs are not doing enough to correct wrongful convictions. Those include the 39 prosecutor’s offices in each of Washington’s counties.

After eight years in prison, Parks won his freedom. But hundreds and possibly thousands of other innocent Washingtonians, many black and brown, remain behind bars with little hope of justice. If Washington is to address mass incarceration, freeing the innocent is a good place to start.

Daniel Medwed is University Distinguished Professor of Law and Criminal Justice at Northeastern University School of Law in Boston. He is a nationally recognized expert on wrongful convictions and post-conviction remedies. Samuel Magaram is a third-year law student at Harvard Law School. He is a Washington native from Mercer Island.

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