24 February 2003

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"[A]sking prosecutors what we should do about wrongful convictions is like asking Hannibal Lecter what we should do about cannibalism."

That has got to be the quote of the week. Doubt I'll find anything better. This is a NY Times article which bases an anti-death penalty position on the following oral argument:

Judge Stith (Missouri Supreme Court): "Are you suggesting [that] even if we find Mr. Amrine is actually innocent, he should be executed?"

Frank A. Jung, an assistant state attorney general, replied, "That's correct, your honor."

Mr. Jung is to be commended for his frankness. In most cases he may be correct. Finality and the difficulty of reprosecuting and the desire not to bother the victims any further and the fact that most claims are frivolous stacks up pretty heavily on one scale when balanced against the possibility that someone is spending a couple years in prison for a crime he may not have committed on the other. The sheer number of cases and the relatively minor punishment makes reopening difficult to justify in those cases.

However, there comes a point where the punishment becomes so severe that the scales balance and eventually tip toward the convicted. I'm not sure exactly where that point is. I suspect that, since I'm the one who has to stare the convicted client in the face and tell him that - even though he's innocent - he cannot do anything about it because it would inconvenience the system, my balancing point would be low. I suspect a prosecutor, who has to face a rape victim and tell her that the person she identified as her attacker is going free because of DNA evidence, would have a high balancing point. Living in the real world, I expect that the balancing point set by courts and legislatures will be closer to what a prosecutor would prefer.

Nevertheless, executing the actually innocent is beyond the pale.

On the other hand, the prosecutors' point about clemency being the route to go rather than the courts may actually be correct: if the clemency system is somehow made entirely apolitical; if the clemency system provides an office capable of providing serious review and making informed, apolitical recommendations; if clemency can be made to expunge a conviction from the record of someone who is actually innocent. I have doubts about this happening but I've been wrong before. I know if I were governor you'd have to show me some awfully convincing evidence before I committed political suicide by pardoning convicted rapists and murderers or even commuting their sentences. In a political position my threshhold would probably be a lot higher than it is now. And I'm a defense attorney. Most of the people who seem to make the highest office in Virginia are prosecutors.

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