The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit
32 Pages Posted: 22 Aug 2008 Last revised: 31 Jan 2010
Date Written: February 1, 2009
This Article, which is part of a symposium on prosecutorial ethics, urges for a fuller realization of the minister of justice ideal for prosecutors in the post-conviction process where the factual innocence of a criminal defendant is in question. Specifically, to truly effectuate the minister of justice goal, prosecutors should take a more active part in rectifying wrongful convictions by considering the formation of internal post-conviction review boards or "innocence units" geared toward ferreting out potential wrongful convictions and assisting in presenting them to courts. Part I of this Article discusses the minister of justice ideal for prosecutors, as articulated by the U.S. Supreme Court and assorted codes of professional conduct, and the countervailing pressure on prosecutors to procure convictions at the trial level. Next, Part II examines the rules governing prosecutors' post-conviction duties to correct wrongful convictions (or rather the lack thereof) and explores how prosecutorial attitudes evolve in the aftermath of a conviction - how institutional, professional, and psychological incentives are normally aligned with preserving the integrity of that trial result. Part III of the Article then advocates for the creation of internal prosecutorial innocence units as a way of fulfilling the minister of justice ideal in the post-conviction sphere, emphasizing the ethical and moral obligations of prosecutors to facilitate the exoneration of the innocent, not to mention the practical benefits that would ensue. Ultimately, the establishment of these units would help to provide an appropriate legacy for Norm Maleng, the late King County prosecutor for whom this symposium is dedicated and who, by all accounts, embraced and embodied the minister of justice concept as few others have.
Keywords: innocence, wrongful convictions, prosecutors, prosecutorial ethics, post-conviction
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