Jan 16, 2016

UW Innocence Project in Washington Post: Justice System Is Flawed, Error-prone

Update: The District Attorney's office from a Wisconsin county up north from which I obtained the district attorneys' oath is contradicted by a subsequent email and the Dept of Administration's (DoA) email which, citing statute, point out the Wisconsin DAs' oath reads: "I, the undersigned, who have been elected to the office of District Attorney of ____________________ County, but have not yet entered upon the duties thereof, swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Wisconsin, and will faithfully discharge the duties of said office to the best of my ability. So help me God."
Keith A. Findley, co-director of the Wisconsin Innocence Project at the University of Wisconsin Law School, has a column critical to Wisconsin jurists of good faith, intellectual honesty and "humility" in the Washington Post this weekend.

Findley's column should be read by every Wisconsin prosecutor, as should the district attorneys' oath of office, particularly, the clause reading, "that I will administer justice without respect, [meaning with no prejudice] to persons ... ," [Wisconsin Statute 757.02, regarding oath of office for justices and judges, typically borrowed for use of the oath of office for district attorneys].

Writes Findley:
[W]hile most police, prosecutors, defense lawyers and judges are good, honest people who do their best to achieve justice, they do sometimes fail and even, on occasion, cross the line into misconduct in their zeal to secure what they perceive to be a just outcome.

Wrongful conviction doesn’t only mean an innocent person ends up in prison. It also means a guilty person goes free. When the system fails, there is no justice for victims and their loved ones.

We have known for decades that the system is prone to error. Since the advent of forensic DNA testing in the late 1980s, at least 337 people, who each have spent an average of 14 years in prison, have been proved innocent by DNA evidence. According to the National Registry of Exonerations hosted by the University of Michigan Law School, exonerations based on all types of evidence, not just DNA, amount to at least 1,728 people who have been exonerated of serious crimes since 1989. The number is continually growing.

By presenting these issues in human terms, 'Making a Murderer' has done a service by forcing us to look beyond the numbers to remind us that each such case is a real human tragedy that affects real people with real lives. It reminds us that eyewitnesses sometimes make mistakes, that forensic science is not always all that scientific, and that, contrary to what a prosecutor in the [Brendan] Dassey trial disingenuously told the jury, innocent people do indeed sometimes confess.

Concludes Findley with numerous solutions, writing in part: "We must make the system more responsive to post-conviction claims of injustice and less bound by blind obedience to finality."

To translate for the lay reader, no district attorney should ever protect a conviction that he knows incarcerates an innocent woman, or a conviction that clearly fails the burden of beyond-a-reasonable-doubt-to-a-moral-certainty.

When our system comes to that, we are no longer a country of laws, we have become what Glenn C. Loury aptly terms a "leviathan."

To borrow from Robert H. Jackson's address 75 years ago, "While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst," (U.S. DoJ).

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