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interview bennett gershman
Many prosecutors seem to be constitutionally opposed to granting new trials on the basis of DNA evidence. Why?

bennett gershman
Interview with Bennett Gershman, a former prosecutor. He discusses in this interview why the criminal justice system resists conceding errors and correcting mistakes.
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.

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 people.

Other professions are able to acknowledge mistakes, aren't they?

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. 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 wrong.

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 you?

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.

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