SJ Quinney College of Law, University of Utah
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Abstract

Buoyed by advances in forensic science, the number of postconviction exonerations has significantly risen in the American criminal justice system over the last twenty years. The ethical obligations of prosecutors faced with such claims, however, have not kept pace. Most efforts within district and U.S. attorneys’ offices have been incremental at best, and even those few prosecutors’ offices with more robust “conviction integrity units”—units that affirmatively investigate claims of actual innocence and seek to mitigate the likelihood of wrongful convictions in the first place—suffer from various structural defects. Often a prosecutor’s default posture when faced with a claim of actual innocence is to defend the guilty verdict as quickly and efficiently as possible.

There is good reason for prosecutors to be skeptical of inmate innocence claims. Those prisoners who raise postconviction claims of actual innocence largely lose, and rightfully so; for many, perhaps most, pursuing habeas relief is a matter of routine that follows the exhaustion of appeals. But however understandable prosecutors’ skepticism, it comes at a cost: the actually innocent often are grouped together with the frivolous filers and face the same mountain of prosecutorial noncooperation notwithstanding the merits of their claims. This is the new “prosecutor’s dilemma”: how to honor the commitment to doing justice by way of postconviction review without wasting precious resources on frivolous petitions.

This Article provides a framework to assist prosecutors in separating the actually innocent from the masses of nonmeritorious postconviction challenges, and in ratcheting down the prosecutorial zeal reflexively associated with these challenges. The proposed framework, called “tiered review,” takes a pragmatic approach to postconviction review, setting up a multistage process by which prosecutors weed out meritless postconviction petitions early on and then apply increasingly intensive levels of scrutiny to the claims of innocence. Under tiered review, a prosecutor’s office investigates a petitioner’s innocence claim if that person can point to some new evidence (broadly defined) of innocence, drops its opposition to the petitioner’s claim should that investigation demonstrate a “reasonable likelihood of innocence,” and affirmatively supports the petitioner’s exoneration effort where the investigation yields “clear and convincing evidence” that the petitioner was wrongfully convicted. Drawing on extensive interviews with prosecutors from conviction integrity units in Dallas County, Texas; Harris County, Texas; New York County, New York; Santa Clara County, California; and Cook County, Illinois, tiered review illustrates how changes in office culture and the structure of postconviction review can mitigate inherent biases that make objective postconviction review so challenging. And while the proposal discussed below does not purport, as no proposal can, to eliminate the prosecution of the innocent entirely or to discover every convicted innocent, it does provide a feasible mechanism whereby prosecutorial zeal and discretion can be directed toward the most ethical and professionally responsible ends.

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