Wrongful Convictions: What Is To Be Done?

Identifying wrongful convictions and getting them vacated isn't easy, but it is essential.

We’re in the middle of a long-overdue, national conversation about criminal justice reform — and it’s only going to intensify, as we get closer to the 2020 election. Contenders for the Democratic presidential nomination are already facing scrutiny for their records on criminal justice — and in an interesting departure from politics as usual, they’re getting criticized more from the left than from the right, for being too harsh rather than too lenient on criminal defendants.

But criminal justice reform enjoys support from across the political spectrum these days. In December, President Donald Trump, who often sounds “law and order” themes, signed the First Step Act, a package of sentencing and prison-condition reforms.

(By the way, if you’re interested in these important issues, check out Emily Bazelon’s compelling new book, Charged: The New Movement to Transform American Prosecution and End Mass Incarceration (affiliate link), which I just reviewed for the New York Times.)

Reform is underway — but much work remains to be done. That was one overarching theme of the inaugural Kenneth P. Thompson Lecture on Race and Criminal Justice Reform, which I recently attended at NYU Law School — alma mater of the late Ken Thompson, former Brooklyn District Attorney (and the first African-American to serve in the role).

The “lecture” was actually a panel, featuring experts offering different perspectives on the justice system — a professor, a prosecutor, a defense lawyer, and a “jailhouse lawyer” turned exoneree. Moderated by Professor Rachel Barkow, a leading scholar of criminal law and procedure, it featured Patricia Cummings, Supervisor of the Conviction Integrity and Special Investigations Unit in the Philadelphia District Attorney’s Office; Nina Morrison, Senior Litigation Counsel at the Innocence Project; and Derrick Hamilton, who spent more than two decades in prison for a murder he did not commit. (Professor Ronald S. Sullivan Jr. of Harvard Law School was also slated to serve on the panel, but wasn’t able to make it; I wondered if maybe he was trying to lie low in light of the recent controversy surrounding his representation of Harvey Weinstein, but apparently his absence was due to illness, according to Barkow.)

Barkow opened the discussion by noting the rise of the conviction integrity unit (“CIU”), a division within a prosecutorial office charged with reviewing the correctness of past convictions. There are at least 45 such units around the country, and the number continues to grow.

Patricia Cummings, who currently heads the CIU in the Philadelphia District Attorney’s Office, identified some of the complexities and challenges of this work. She previously led the CIU in the Dallas District Attorney’s Office, and based on her experience in both offices, she stressed that CIUs can’t take a “one size fits all” approach. Lawyers working in a CIU must be sensitive to the particular conditions of their district and D.A.’s office. And in order to succeed, these lawyers need strong support from the D.A. who leads their office.

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Whether a CIU should even be housed in a prosecutor’s office is a fair question, with critics arguing that prosecutors can’t be trusted to police themselves. But Cummings, a former defense lawyer as well as a prosecutor, argued that prosecutors are in the best position to get this work done, noting that they have access to the files and other information needed to undertake this retrospective work.

Nina Morrison of the Innocence Project admitted that she was initially skeptical about whether CIUs could succeed, but experience has changed her perspective. She said that roughly a third of the exonerees she has represented would still be in prison if not for CIU lawyers and other prosecutors revisiting their offices’ work. She pointed out that prosecutors have the best access not only to historical case files, but also to new evidence that could exonerate — for example, a jailhouse informant identifying the true perpetrator of a crime for which someone else was convicted. She added that victims and witnesses are also more likely to trust prosecutors as opposed to other actors in the system when it comes to these sensitive investigations. Finally, she noted that prosecutors have credibility when they go before judges and argue that a defendant was wrongfully convicted — by their own office.

But CIU lawyers can’t do their important work without help. They need support from the district attorneys who lead their offices, to make sure that they receive adequate resources for this often very demanding work, and they need meaningful participation from the defense bar as well. (Morrison praised Ken Thompson on this score, noting that he fought hard to make sure his office’s CIU had adequate resources.)

What else do CIU lawyers need? A sense of fundamental fairness, according to Derrick Hamilton. He talked about the danger of conflicts of interest — what if a prosecutor handling conviction review worked on a case in some capacity, perhaps even just informally, or what if that prosecutor is friends with the prosecutors whose work is being reviewed? When he went through the CIU process, he found that the prosecutor reviewing his case was overly deferential to the judgments of the prosecutor who got him (wrongfully) convicted in the first place — and he had to get this prosecutor removed from the investigation.

Lawyers who work in conviction integrity units, even if motivated by a sense of fairness and furnished with adequate resources, can’t just wave a magic wand and get a wrongfully convicted defendant freed from prison. Specific procedures must be followed, and these procedures are governed by law.

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“We have to work within the laws of Pennsylvania,” explained Patricia Cummings of the Philadelphia District Attorney’s Office. “We might have a desire to help, but the law is restrictive in terms of our ability to go into court, say ‘this was wrong,’ and get it righted.” So one class of cases her office has prioritized are those featuring obvious wrongs, such as illegal sentences (e.g., a sentence of 40 years where the law only allowed for 20 — and yes, there are actually cases out there like that).

Sometimes her unit’s efforts to correct wrongful convictions have been rebuffed by judges. Cummings described the challenge this way: “How do we identify the cases where we really believe the wrong person was convicted, or the process was so fundamentally unfair that it should be undone? And then how do we go into court and convince the judges that it is legally and ethically the right thing to undo what happened in a given case?”

So the work of identifying wrongful convictions and getting them vacated is far from easy. But it must be done, and done well — at least in any justice system that purports to be about justice.


DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.