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When Prosecutors are Dead Wrong

by ELAINE CASSEL

Recently I exchanged emails with CounterPuncher Bruce Jackson, SUNY Distinguished Professor and Samuel P. Capen Professor of American Culture at SUNY Buffalo and editor of The Buffalo Report. We were communicating about the use of narrative in court trials. I shared with him my belief that the prosecution and the defense put forth the best “story,” or version of the facts, that will convince a jury either to convict or acquit. Sometimes the “right” story wins–and justice is done. Just as often, I believe, the “wrong” story prevails, and innocent people are convicted.

Given this adversarial system that puts the lawyers in charge of the evidence that the jury hears, it is no surprise that guilty people are acquitted and innocent people convicted. The availability of sophisticated DNA tests had been expected to bring factual accuracy to criminal trials. DNA tests, in some cases, can rule out a suspect as the perpetrator. But, ironically, DNA testing, which has led to the release of scores of people from prison, even death row, is becoming a victim of its own success. Prosecutors are sick of releasing people based on DNA tests that tend to exonerate them.

So what are they doing? As reported in an editorial in The New York Times, they are doing whatever they can to keep those exonerated in prison or retry them without the DNA evidence. Ignorantly, some prosecutors point to eyewitnesses who can “swear” they saw the victim “do it,” this in spite of extensive research about eyewitnesses testimony that shows it to be among the least reliable of courtroom evidence. The Department of Justice even went so far as to write guidelines for the use of eyewitnesses evidence, which, if adhered to, would reduce the number of falsely accused and convicted persons.

These guidelines are not, sad to say, mandatory. And prosecutors loathe to free an innocent person will scour around for someone willing to swear they saw the accused “do it.”

Some states make prosecutors’ jobs easy by having an extremely limited time period within which a convict can bring up evidence of innocence. Virginia has a 21-day rule that guarantees that no one can have his day in court to present new exculpatory evidence. Such evidence is often not available for years. Convicts have no access to physical evidence used against them; few have the money to afford legal counsel and the DNA tests themselves.

If the 4th (unreasonable searches and seizures), 5th (due process of law), 8th (prohibition against cruel and unusual punishment) and 14th (equal protection of the laws) amendments to the Constitution mean anything, they mean that our system ought to do anything within its power to keep innocent people from being found “guilty” and locked away or executed.

It is a disgraceful state of affairs when prosecutors vow to do all they can to keep innocent people behind bars. When they prefer convictions to justice, and finality–even if dead wrong–to truth.

 

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