Jennifer asked for my thoughts on the apology of a Louisiana prosecutor for his role in convicting an innocent man in a death penalty case. The apology is powerful. He states, in part,

“In 1984, I was 33 years old. I was arrogant, judgmental, narcissistic and very full of myself. I was not as interested in justice as I was in winning. To borrow a phrase from Al Pacino in the movie “And Justice for All,” “Winning became everything.”
After the death verdict in the Ford trial, I went out with others and celebrated with a few rounds of drinks. That’s sick. I had been entrusted with the duty to seek the death of a fellow human being, a very solemn task that certainly did not warrant any “celebration.””

The apology is exactly what we say apologies should be: the prosecutor takes full responsibility, recognized the wrong he committed and makes no attempt to excuse the inexcusable.

The problem is there is no righting this wrong. The defendant spent 30 years on death row for a crime he did not commit due to an over-zealous prosecutor and poor defense services, the perfect storm that so often happens in our criminal justice system.

It is now very clear is that innocent people are regularly convicted of crimes in the United States. At this point over 329 people have been exonerated due to DNA evidence conclusively proving, after their convictions, that they were innocent. The National Registry of Exonerations, a project of the University of Michigan Law School, currently lists 1,570 exonerations including the DNA exonerations. It is likely that there are many more innocent people that have been unable to prove their innocence and/or who took plea deals in cases and never tried to prove they did not do it.

The Louisiana prosecutor failed to do his job the way it should be done as he failed to uncover and present exculpatory evidence. As he said,

“I apologize to the members of the jury for not having all of the story that should have been disclosed to them. I apologize to the court in not having been more diligent in my duty to ensure that proper disclosures of any exculpatory evidence had been provided to the defense.”

An apology after thirty years on Death Row is more than most exonerated defendants get from those who prosecuted them. In Texas, Michael Morton served 25 years for the murder of his wife, an act he did not commit. The prosecutor, Ken Anderson, was later convicted of criminal contempt for failing to turn over exonerating evidence to Michael Morton. He was sentenced to ten days in jail, to date the longest sentence any prosecutor has gotten for misconduct in an exoneration case. Ken Anderson never apologized and denied all wrong-doing. It would take too long to list the prosecutors who fight DNA testing, who maintain that they “got it right” after a DNA test proved otherwise, or who fight fair compensation after exonerations.

Unfortunately, the problem of overzealous prosecutors is deeply embedded into our criminal justice system. Prosecutors also suffer from the biases and heuristics that we all know skew both information gathering and decision-making.

The challenge is what should we do? I try to challenge my students to question themselves and not be so sure they are so right about everything. I think this is one hallmark of professionalism: to recognize that we don’t have all the answers and we don’t know everything. I also stress the reality that we all make mistakes and true professionals aren’t afraid to admit that and take responsibility. The prosecutor in Louisiana is therefore an example of everything I wish every law student and eventual lawyer will become: someone who can take responsibility for their mistakes and learn from them. I hope that this apology will be one that touches prosecutors far beyond the state of Louisiana and challenges them to be more cautious and critical about how they wield the tremendous power they hold. I also hope that it will encourage new prosecutors and current law students to be aware that they don’t know everything and to question what they might not know.

When I read the apology I was both impressed with the personal honesty and saddened that this is so rare. With over 1500 exonerations nationwide, we should have more apologies. Generally the media treats exonerations as single miscarriages of justice that don’t speak to wider problems and all too often the prosecutor is not a part of the story.   I think we are at the point where the general public recognizes that innocent people are convicted, but I don’t think the general public and media are yet talking about the structural reforms that we need to try to prevent these cases from happening.  The one bright side is that I do think we are starting to see changes in some states in terms of legislation.  In 2012, Texas passed an open-file discovery law in response to the Michael Morton case (and named it the Michael Morton Act).  Like all legislation, it could be better, but it is a marked improvement.