Learning from Mistakes

Abstract

Much of the attention following the reversal of a defendant’s wrongful conviction focuses on the role that police or prosecutors played in perpetuating the injustice. To the extent that a public defender’s role is considered, it is often limited to claims of ineffective assistance of counsel. This Article challenges the conventional wisdom that a public defender’s role in a wrongful conviction is limited to just their own ineffective practice during legal representation. It also interrogates the common understanding that the public defender’s duty to provide competent representation ends after a wrongfully convicted defendant is exonerated.

Although every exoneration has its own unique facts and story, collectively they provide a lens in which to examine how public defenders reflect upon their own involvement in such miscarriages of justice. The medical, military, and aviation sectors have adopted sentinel event reviews to broadly examine the behaviors and actions that took part in any event that leads to loss of life or physical harm. Perhaps due to its adversarial underpinnings, the criminal justice system has yet to adopt similar large-scale reviews. In the absence of an expansive review of how each component of the criminal process failed to uphold systemic integrity both separately and in concert, professional and ethical rules require the public defender to create one reviewing its own actions.

The public defender assigned to a case has much to learn from a conviction’s reversal - whether the reversal occurred because a defense attorney fell short of their constitutional obligation, a prosecutor failed in their duty to perform as a minister of justice, or if unrealized evidence eventually shows that a defendant was convicted despite being factually innocent. After uncovering the inadequacy of the current methods public defenders rely on to identify and learn from these system failures, this project describes a more adequate reaction to these reversals. This improved reaction would include more direct involvement by the trial attorneys in appellate work, greater action by public defender system leadership to address the official misconduct of other government actors, and a more formalized review by disciplinary boards of appellate reversals. By adopting such methods of review, the public defender would more clearly mirror other entities tasked with protecting the public from significant harm and reduce the systemic brittleness that permits repeat failures in the criminal justice system.

Keywords: criminal law, criminal procedure, legal ethics, professional responsibility, poverty law