Published at in March 2001

“Prosecutorial Infallibility” Fosters Unjust System

By Guest Editor David Swanson, JD Team member

The fact that innocent people are convicted of crimes in the United States is now widely known. This is largely due to the magic of DNA testing, and its powers are also widely recognized. But the number of DNA exonerations each year will soon stop increasing and begin decreasing. This is because DNA is more often being used to prevent wrongful prosecutions. However, the majority of cases involve no biological evidence. When state legislatures make exceptions to their laws to allow DNA testing for the accused and convicted, they are making exceptions to a fundamentally flawed system. Rather than addressing the unjust judicial system that DNA testing has laid bare, they are tacking DNA testing onto an unjust system in hopes of making it look presentable.

In Virginia, for example, the legislature has just passed an exception to its 21-day rule for DNA evidence. This means that if you produce any kind of evidence of your innocence other than DNA, but 21 days have passed since your conviction, you are still out of luck. And it means that underpaid state-appointed defense lawyers can be expected to remain grotesquely incompetent except that they will utilize DNA testing where possible. Earl Washington was recently freed after serving time on Virginia’s death row, because new DNA results could not be ignored. But the technology was not needed. Blood type testing proved Washington’s innocence 18 years ago, and his lawyer neglected to mention it at the trial. Appeals courts deemed this an insignificant mistake.

We need something more than DNA if we are going to protect innocent people. One thing that is absolutely necessary is the destruction of the idea of prosecutorial infallibility. Even if this idea only remains alive in the minds of prosecutors themselves, it continues to do enormous damage and to block possibilities for reform. Earl Washington’s trial lawyer has more or less admitted that he might have screwed up. The prosecutor has not. Neither have the police who elicited his
“confession.” The state can pardon and free a prisoner and nonetheless claim that he was guilty.

Of the 95 innocent people freed since 1973, I have not heard of any case other than that of Anthony Porter in Illinois (when another man’s confession helped produce a well publicized exoneration) in which the case was reopened and someone else prosecuted for the crime.

Some advocates for innocent people, opponents of the death penalty, and opponents of brutal incarceration think of prosecutors as eager to inflict suffering. Prosecutors are much more eager to appear infallible than they are to punish. They will take a plea bargain rather than risk losing a case, and they will let a guilty party go free rather than draw attention to a previous error — even one by a different prosecutor.

There may be another reason the state prefers not to draw attention to the person who may have committed the crime with which Washington was framed: he may have committed similar crimes years after the state could have identified him had it made a minimal effort. Publicizing this fact — that additional victims were created — would call into question the state’s routine zeal to prosecute someone, anyone, on behalf of a past victim.

Meanwhile, the former husband of the woman who was raped and murdered has lost faith in police and prosecutors. He believed what the police told him about Earl Washington, and has now expressed a desire that the real criminal be found and prosecuted. He is likely to be disappointed.

Some of the same advocates who helped Earl Washington have expressed a reluctance to push for prosecution of the real criminal. There may be a number of reasons. If you oppose the death penalty, it may be hard to push for prosecution of a capital crime. If you oppose our incarceration system, it may be hard to push for prosecution of any crime. However, not to do so is shortsighted. Unless the aura of prosecutorial infallibility is shattered, you will never land more than a glancing blow to the system. If it is shattered, great possibilities will open up.

I do not want to suggest that enough has yet been done for the innocent, or even for the innocent who have biological evidence to test. Many have not obtained testing that could be done. Some have been proven innocent and remain in prison. Some have been released but have not been compensated, much less received an apology. But the broad goal of the work of freeing innocent people has to be the restructuring of a system that produces, by most estimates, thousands of innocent convicts. This goal cannot be achieved unless activists push for the reopening of cases following exonerations.

A Report To Our Loyal Readers And Tribute to JD Team

Greetings Kind Readers.

You’ll notice that for this issue, I’ve given the editorial platform to David Swanson. I hope you’re as pleased as I am with what he says.

Giving the opportunity to various JD staff members to take on more aspects of JD is part of the plan for JD’s future. I have always said that JD belongs to those who care about it and who work for it.

A great example of this is the Prisoner Mail Team we just put together. In our long-ago beginning, I was the one handling everything, including prisoner mail. This soon became impossible, but it wasn’t until more than a year passed that we finally had Phyllis Lincoln to put everything in order and begin a program of replying to prisoner mail. Soon, it was too much for Phyllis as well, and Kay Ryder (on temporary leave right now) joined us. Soon, it was too much for both Phyllis and Kay, and we asked for volunteers among the staff. Blessedly, five of the staff volunteered. You will see their names on the contacts page.

One area where we are still not doing well is in getting together the group we need to do our large run. I hate to think that we may lose our grant because we don’t have someone to head up this project. Reality, however, bids us to face this possibility. We may need to later apply for another grant. In the meantime, a donor who wants to remain anonymous has given us a contribution toward building the funds we need for this important project. We always maintain hope, and this is what has kept us strong for more than three years now.

Yes, do you believe it? We’ve now been around for three years. In the business world, enterprises that last that long are said to have “made it.” In other words, they’re viable.

To judge by the loyalty and determination of this remarkable group we call the JD Team, we’ll keep on plugging away at injustice together.

JD Magazine not only belongs to the team members, but it also belongs to all those who support us, believe in us, and vote with their dollars by buying subscriptions or making donations. We’re in this together, and we are making a difference.

Thank you, loyal readers and thank you JD Staff.

Clara Alicia Thomas Boggs

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