Many prosecutors seem to be constitutionally opposed to granting new trials
on the basis of DNA evidence. Why?|
If the prosecutor agrees to look at new evidence, or agrees to some kind of
hearing, the prosecutor suggests doubt that the prosecution of this defendant
may not have been correct. And he can't let any doubt come into this case.
He's got to create the aura that this defendant is clearly guilty.
Interview with Bennett Gershman, a former prosecutor.
He discusses in
this interview why the criminal justice system resists conceding errors and
Why is this aura of infallibility so important?
Once the prosecutor suggests that there may have been a mistake, the prosecutor
is suggesting that his office has acted incorrectly, or possibly
unprofessionally. The prosecutor can't do anything that undermines the
public's confidence in the prosecutor's office. Once the public begins to
doubt that prosecutors convict guilty people-- that there may be mistakes or
errors in the system-- that undermines public confidence in the prosecutor. . .
The prosecutor may even lose his own position.
But what if the prosecutor who fought for the initial conviction is no
longer around and it's a new prosecutor in the job?
The office of the prosecutor is an institution. The prosecutor's office does
not want to acknowledge error. They won't acknowledge a mistake. They won't
acknowledge that innocent people have been convicted. They may acknowledge it
to themselves, or to the police. But this is a dirty secret that prosecutors
don't talk about in public. Many prosecutors know that they convict innocent
persons, but they're never going to admit that publicly. It could be political
suicide to say, "Yes, we make mistakes. Yes, innocent people are convicted.
We do the best we can, but no system is perfect." They can't say that.
But now DNA could effectively say it for them.
Some prosecutors would make the effort to determine if an innocent man was
convicted. But most prosecutors just don't do that. . . The prosecutor invests
months, and possibly years, in prosecuting a person, working with the police,
the witnesses, and the family, to engender confidence in all these people. The
prosecutor says to a jury, "This man is a horrible killer. Find him guilty.
Do the right thing." The prosecutor does not want to come back years later and
say to the judge, the witnesses, and the family, "We made a mistake. The man I
called a horribly subhuman beast is really innocent." He might let somebody
else do that, like the judge, or maybe the media. But that prosecutor doesn't
want to undermine our system of being certain that we don't convict innocent
Other professions are able to acknowledge mistakes, aren't they?
Our law enforcement culture is so adversarial, so combative, that we don't
allow acknowledgments of mistakes. We just don't do it. Prosecutors champion
the victims, the underdogs in society. When you acknowledge a mistake, you
show a certain weakness, and the prosecutor does not want to appear weak, or
confused, or uncertain. The prosecutor wants to project the image of toughness,
certainty, and confidence. . .
So, DNA evidence doesn't matter?
A lot of prosecutors don't want to know anything more. They've gotten the
conviction, they fought hard to preserve this conviction on appeal, the case is
over, the books are closed. They'll let somebody else raise any new evidence,
but they'll oppose it. They won't concede that an error was made. . . They
fight evidence with all their might right now. Thousands of defendants were
convicted before we had DNA evidence. The prosecutor will simply say, "My case
was proved correctly, the witnesses were honest and credible, and the appellate
courts said that the conviction should stand. That's our position today, and
we don't want to go into it anymore."
Is this a political position or a psychological state of mind?
[Prosecutors] are political officials. If the public thinks they are
pro-criminal, weak, and soft on crime, it'll hurt their chances for political
advancement. That's the political aspect when the prosecutor refuses to
entertain claims of innocence. . .There's a psychological aspect. There's the
idea that the prosecutor has put his professional life into the case. He
believes the defendant is guilty, and fought that case. He's not going to tell
the court, the media, and the public that he was wrong. If he does do that,
it's so unusual that the media will focus on that so much, that the prosecutor
is embarrassed in some parts of the community. . .
You seem critical of prosecutors. Are you anti-prosecutor?
I passionately loved my work as a prosecutor. I wish that more prosecutors
would see their role as both convicting guilty people, and also as serving the
cause of justice. I fear that, unfortunately, a lot of prosecutors don't see
the role of doing justice as part of their responsibilities. . . I'm impressed
by the courage and integrity of those few prosecutors who are the exceptions.
[But] prosecutors who refuse to look at this evidence are being dishonest.
They lack courage and integrity. But as political beings, they see their role
as not confessing to any kind of an error. They believe that they've done
everything properly and fairly, and a jury agreed. . .
What percentage of prosecutors are we talking about?
Virtually all local prosecutors are elected, and they're the ones prosecuting
these crimes of violence. Very few federal prosecutors were appointed to
prosecute the violent crimes. When I read cases involving very egregious
misconduct by prosecutors, I'm convinced that it's a serious problem-- that too
many prosecutors see their job as getting convictions, and vindicating the
public interest. . .
Even when they know they're innocent?
The prosecutor doesn't think the defendant is innocent. The judge and jury
found them guilty. The appellate courts reaffirmed the guilt. The prosecutor
believes, and knows to a certainty, that this defendant is guilty. . . He can't
bear to change his mind. Even if you gave him good reason, he'd say you're
And then DNA comes into the picture.
The prosecutor would say that the DNA evidence is not conclusive, that what's
conclusive is the eyewitness testimony, the confession, and other
circumstantial evidence showing that the defendant was guilty. This is the
conclusive evidence. The jury heard this evidence, and the jury convicted.
Some other person or body can argue that the DNA evidence is conclusive-- maybe
a judge, or maybe the governor, but not the office of the prosecutor.
And prosecutors believe it?
And they believe it. There may be some prosecutors who use some clearly
unethical misconduct to prosecute a person who they know to be innocent. That
has happened. But I'm talking about the prosecutor who has credible witnesses,
and confessions, or other evidence. I'm talking about the prosecutor who's
worked day and night focusing on this defendant's guilt, and preserving that
guilt. They're not about to come turn around, come into a court, and admit a
mistake. It's unrealistic to expect that.
Is the governor a safety net?
Governors very infrequently use their pardon or clemency powers. They might do
it for a very minor crime, say, maybe a 25-year jail sentence for selling an
ounce of marijuana. It's rare to see a governor pardoning or granting clemency
to a person who's been convicted of a horrible murder. Governors have the same
political considerations as prosecutors, maybe even more so.
So who cares about wrongful conviction?
Families, lawyers, and maybe some media care about wrongful convictions. But
prosecutors and governors don't want to project concern about criminals.
If prosecutors could hear you now, do you think they'd agree with
Some prosecutors would agree with me, and some would not. Some prosecutors are
so righteous, and so convinced of the defendant's guilt. But I think a lot of
people would agree with me. I was a prosecutor for ten years. I think I
know something of the mind-set here. For the American prosecutor, the system
is war. They see it as a total abstraction. They're going to win that war,
and it's combat to the death. They want the public to see the prosecutor as a
warrior in combat.
What about claims of actual innocence?
Is actual innocence really relevant? It certainly isn't relevant to many of
these prosecutors and to courts. I don't know how relevant it is to the
Supreme Court when reviewing these convictions. I don't know how relevant it
is to lawmakers who pass laws making it more difficult for defendants to raise
claims after conviction. . . Innocence is not a high priority. If other claims
have some merit, then innocence comes into the picture. But innocence by
itself has very little priority in the system of justice, in terms of the kinds
of claims that are made.
Can DNA help get a claim of actual innocence heard?
Innocence has very little relevance in post-conviction proceedings. It's very
rare that a claim of innocence by can win a release. . . It's so unusual to see
courts granting these DNA claims. When they do, it's partly due to the work of
the media, the aggressive work of defense lawyers, and, occasionally,
concessions from prosecutors. Several cases have been overturned. But
hundreds, maybe thousands of people are still languishing in jail who might
well be innocent.
The proof is there.
The proof might be available. The fact that they can't use it is a dark
story in our criminal justice system today. It's a serious imperfection that
needs to be exposed and corrected. I don't know how it will be done. . .
You have to remember the prosecutor's mind-set. The prosecutor has invested
his life, his profession, and his career in these cases. The crime is
horrible, and he's vindicating the victim's family. He does not want to
suggest a mistake, or suggest that the real killer or rapist is out there and
we haven't done anything to apprehend that person. It's politically safe, and
advantageous for the prosecutor to stand firm on the case, and the conviction.
. . It takes courage, integrity, and honesty to change. Many judges, just like
many prosecutors, lack these qualities. Some will help, but many won't.
speaking out ·
total system failure? ·
how far will it go? ·
tapes & transcripts ·
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