47 Pages Posted: 25 Sep 2010 Last revised: 11 Jul 2013
Date Written: 2011
As this memorial volume illustrates, Fred Zacharias wrote insightfully on many aspects of the legal profession, covering a wide-range of ethical topics and analyzing many aspects of lawyers’ work. He was interested in the lives of lawyers and believed they owed a duty to society beyond an exclusive focus on individual clients’ interests.
This Article develops a question that intrigued Fred: Prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.
As Fred himself noted, there may be legitimate reasons for prosecutors to deny access to DNA to every prisoner who so requests. Less easy to understand, however, are the confabulations and attenuated scenarios some prosecutors posit to argue that the accused is guilty despite DNA evidence that demonstrates no link to the crime (and sometimes incriminates a known offender).
This article argues that the psychological concept of denial goes a long way in explaining prosecutors’ conduct. Rather than portraying these prosecutors as megalomaniacal abusers of the adversary system who will protect their win-loss ratios at any cost, a theory of denial posits that prosecutors simply cannot face the fact of a wrongful conviction or its implications for the entire system of justice. Ironically, a prosecutor’s desire to do justice and her self-image as a champion of justice renders the fact of wrongful conviction particularly painful. As a result, some prosecutors go to incredible lengths to deny the obvious rather than facing the fact that the system failed and they may have contributed to the injustice.
Part I of this Article briefly summarizes two of Fred’s major articles on the subject of prosecutorial ethics. Part II documents the problem of postconviction DNA exonerations and prosecutors’ varied reactions. These reactions encompass everything from the prompt release of prisoners to the adamant refusal to acknowledge the relevance of the evidence . Part III attempts to add to the current explanations of why some prosecutors refuse to acknowledge errors even after DNA indicates a wrongful conviction. This Part explores, in addition to traditional explanations involving prosecutorial self-interest, incentive structure, and cognitive biases, the role of denial. Part IV examines the bigger picture of denial, looking at how refusal to accept DNA exonerations may mask deeper concerns about the criminal justice system. Finally, Part V draws on these (?) insights about prosecutorial denial to examine structural solutions, including possible changes to ethical codes, to the urgent problems posed by postconviction innocence.
Keywords: Prosecutor, DNA Exoneration, Denial, Cognitive Bias, Prosecutorial Ethics
Suggested Citation: Suggested Citation
Orenstein, Aviva, Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence (2011). San Diego Law Review, Vol. 48 (2011); Indiana Legal Studies Research Paper No. 176. Available at SSRN: https://ssrn.com/abstract=1682076