Why we can’t trust the states to prevent wrongful convictions
Curtis Crosland maintained his innocence for his entire 34-year incarceration. After being convicted of murder, he filed nine petitions in state court, and three in federal court. He lost all of them, even though the case for his innocence was compelling. An investigator found witnesses who had identified the real perpetrator to police, but whose names were never turned over to Crosland’s lawyers. Another witness said the real killer had confessed to him.
Crosland was finally released in June when the Conviction Integrity Unit set up by Philadelphia District Attorney Larry Krasner examined Crosland’s file and found a trove of exculpatory evidence that Krasner’s four predecessors never disclosed.
Crosland is the 22nd person exonerated by Krasner since he took office in 2018. Another such person, Andrew Swainson, was denied a new trial three times in federal court.
The fact that it took the election of a fairly radical district attorney to unearth and act on these injustices is an indictment of the criminal justice system. But it isn’t an aberration. In 2006, when defense attorney Craig Watkins was elected district attorney of Dallas County, Texas, he set up one of the first conviction integrity units in the country. His office exonerated 35 people.
Dallas and Philadelphia have had some aggressive prosecutors over the years, but no more so than many other cities and jurisdictions. The main reason Watkins, Krasner and other reformist prosecutors have discovered so many wrongful convictions is pretty straightforward: They looked for them.
When Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, severely restricting the ability of federal courts to review state convictions, proponents argued that federal review was unnecessary because state courts, prosecutors and attorneys general could be trusted to prevent wrongful convictions.
It’s hard to overstate how wrong they were. Even as the law was being debated, the states themselves were further restricting access to their own courts, cutting funds for public defense and restructuring their judicial systems to limit appeals.
But it was the election of reformist prosecutors about a decade later that showed just how off-base the justifications for the federal law really were. The
new wave of prosecutors have not only exposed the misconduct and neglect of their predecessors, they’ve showed how the obsession with “finality” by courts and prosecutors’ obsession has collectively blinded them to injustice.
In a report about the exonerations during his tenure, Krasner’s office writes that prosecutors seeking exonerations have faced outright hostility from some judges, who seemed bewildered as to why his office would cooperate with defense lawyers, even in cases of a clear wrongful conviction. One federal judge even accused the office of ethical violations before later retracting the allegation.
Even the election of a reformist prosecutor often isn’t enough. In Missouri, a state with an abysmal history of wrongful convictions — including in death penalty cases — at least three men remain imprisoned despite the fact that the prosecutors in the jurisdictions where they were convicted have released the evidence of their innocence and the real killers have confessed.
How can that happen? Because the Missouri attorney general’s office, which handles post-conviction cases in the state, has a tradition of defending every conviction, regardless of merit. One infamous example involves Joseph Amrine. In 2001, a state supreme justice asked the prosecutor, “Are you suggesting ... even if we find that Mr. Amrine is actually innocent, he should be executed?” The prosecutor responded, “That is correct, your honor.”
The current Missouri attorney general, Eric Schmitt, has continued that aggressive tact. The three men who remain in prison despite local prosecutors conceding their innocence have no legal recourse because that decision is up to the attorney general, whose office has fought
to keep them incarcerated.
The Missouri Supreme Court says there’s nothing to be done. “This case is not about whether Johnson is innocent,” the court wrote in the case of Lamar Johnson. “This case presents only the issue of whether there is any authority to appeal.” ( Incredibly, 30 elected Missouri prosecutors submitted a brief not only arguing that Johnson should remain in prison despite his innocence, but that St. Louis District Attorney Kim Gardner behaved unethically when she asked a court to release him.)
Indeed, across the country, state attorneys general routinely defend bad convictions by default. They oppose DNA testing, and fight even when there’s overwhelming evidence of innocence or prosecutorial misconduct.
Next term, the U.S. Supreme Court will hear the case of Barry Jones, an Arizona man sentenced to death for the murder of his then- girlfriend’s daughter. As with the Missouri cases, the issue in Jones’s case isn’t whether the new evidence proves Jones’s innocence. The state is arguing that the federal courts are prohibited from even considering that question, and that the new evidence is irrelevant because Jones is procedurally barred from using it.
What’s truly astonishing is that the state would even make such an argument in the face of a clear injustice. And that exposes the lie at the heart of AEDPA’s restriction on federal court review — that state courts and state officials can be trusted to protect the innocent and respect the rights of the accused. The record is clear: They can’t.