Quasi Judicial Prosecutors

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QUASI-JUDICIAL PROSECUTORS AND POST-CONVICTION CLAIMS OF INNOCENCE: GRANTING

RECUSALS TO MAKE IMPARTIALITY A REALITY

Rachel Pecker

TABLE OF CONTENTS

INTRODUCTION .............................................................................................................. 1610 I. THE SOURCE OF THE PROBLEM: THE INTERPLAY OF WRONGFUL

CONVICTIONS AND PROSECUTORIAL DISCRETION .............................................. 1612 A. Wrongful Convictions and Procedural Redresses ................................... 1612 B. The Powerful Role of Prosecutors ............................................................. 1617

1. Prosecutors and Prosecutorial Discretion .................................. 1617 2. Quasi-Judicial Prosecutors at the Helm of Post-Conviction

Claims of Innocence ...................................................................... 1620 C. Cognitive Biases .......................................................................................... 1622

II. CASE STUDIES: THOSE ALLEGING INNOCENCE AND PROSECUTORIAL RESISTANCE ............................................................................................................. 1624

A. Michael Morton .......................................................................................... 1624 B. Glen Tinney ................................................................................................ 1626 C. Anthony Graves .......................................................................................... 1627 D. Chad Heins ................................................................................................. 1629

III. THE PROBLEM: THE FAILURE OF EXISTING PROPOSALS AND INADEQUATE RECUSAL MECHANISMS .......................................................................................... 1630

A. The Failure of Existing Proposals to Fully Address Prosecutorial Biases Regarding Post-Conviction Claims of Innocence ........................ 1630

B. Inadequate Recusal Mechanisms ............................................................. 1635 1. Recusal of Judges ........................................................................... 1636 2. Recusal of Prosecutors .................................................................. 1639

Associate Editor, Cardozo Law Review. J.D., Benjamin N. Cardozo School of Law (expected May 2013); B.A., Wesleyan University (2005). For her warmth, patience, and invaluable edits, I bestow my gratitude to Professor Annie Decker. For suggesting this topic and modeling the type of lawyer I aspire to be, my thanks and admiration go to Nina Morrison. To Lauren Gottesman and Bill Yukstas, thank you for your feedback and so much more.


1610 C A R D O ZO L AW R E V I E W [Vol. 34:1609

3. Elusive Recusals: Unduly High Standards and Cultural Resistance ........................................................................................ 1640

IV. PROPOSAL: REMOVING PROSECUTORSUSING RECUSALS TO FURTHER THE PURSUIT OF JUSTICE ............................................................................................... 1642

A. Scope: Re-Envisioning Conflict of Interest ........................................... 1643 B. Pillars on Which Any New Recusal Standard Must Stand .................... 1644 C. The New Recusal Standard ....................................................................... 1646 D. The Standard in Action: Making Recusals a Reality .............................. 1647

CONCLUSION................................................................................................................... 1648

INTRODUCTION1

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.

Berger v. United States, 295 U.S. 78, 88 (1935)

After exhausting all other post-conviction appeals, petitioners who claim they were wrongfully convicted can pursue one final avenue to prove their innocence. They can pursue an actual innocence claim, provided for by state statute.2 Many actual innocence claims involve a request to seek DNA testing of crime scene evidence. This post-conviction litigation is often assigned to the prosecutors office that brought the case in the first place, and at times the same prosecutor who pursued the conviction of the petitioner at trial is reassigned to the case. However, post-conviction innocence statutes provide few guidelines to these prosecutors on how they should respond to the petitioners claim.

1 I would like to state at the outset that during the time in which I wrote this Note, I was a legal intern at the Innocence Project as part of a year-long legal clinic run by the Benjamin N. Cardozo School of Law. As this Note will go on to illuminate, this fact undoubtedly affects how I approach and view the subject. However, none of the information herein comes from the confidentialities I was privy to while working there. All information used comes from publically available sources. 2 See, e.g., FLA. STAT. 925.11 (2012) (post-sentencing DNA testing); id. 925.12 (DNA testing; defendants entering pleas); OHIO REV. CODE ANN. 2953.712953.81 (West 2012) (DNA testing of eligible inmates); TEX. CODE CRIM. PROC. ANN. art. 64.01.05 (West 2011) (motion for forensic DNA testing). Oklahoma is the only state that still lacks DNA access laws. Access to DNA Testing, THE INNOCENCE PROJECT, http://www.innocenceproject.org/fix/DNA-Testing-Access.php (last visited Jan. 24, 2013).


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The dearth of guidelines creates the problem addressed in this Note: prosecutors, even when acting in good faith, may be so entrenched in the belief that a petitioner is guilty that they cannot neutrally re-investigate the innocence claim alleged.

For example, if an attorney prosecuted the petitioner at trial, is it reasonable to expect that she can free herself from preconceived beliefs? Or, if a prosecutor campaigned for some subsequent office referring to the conviction now being contested, do the ramifications of undoing that conviction subconsciously inhibit her from fully and impartially re-investigating the innocence claim? What if an attorney worked for years resisting the petitioners innocence claim and request for DNA testing on appealcan that prosecutor be neutral in deciding how to proceed when DNA results subsequently exclude the petitioners DNA from the crime scene evidence?

The de facto answer to these questions has been yes: prosecutors are capable of fulfilling their obligation to see that justice is done.3 However, cognitive bias and cultural cognition research indicates that this switch is far more complex and perhaps psychologically impossible for prosecutors, or any human, to actually fulfill.4 Not necessarily because of willful misconduct, but rather because of propensities we all share, a prosecutor may be unable to bring fresh eyes to a case in which she had a prior stake.5 In other contexts, when judicial officers biases present such a conflict of interest, they may be removed from a case to ensure judicial fairness.

To ensure that the claims of individuals alleging their innocence be treated seriously, this Note argues that similar recusal rules should apply to prosecutors in innocence-based appellate cases. This Note argues that first, the current lack of guidelines for prosecutors in conjunction with prosecutorial bias fails to protect the rights of potentially wrongfully convicted individuals. Second, and as a result, new prosecutors should be assigned in all non-frivolous, innocence-based post-conviction claims where the current prosecutor has a stake in the outcome. This should be achieved through the use of a new, broader recusal standard. Recusal standards were created for just this reason: recognizing that conflicts of interest can impair attorneys abilities to fulfill their duties. 3 CANONS OF PROF'L ETHICS canon 5 (1908) (setting forth the oath prosecutors take to pursue justice). 4 See Alafair Burke, Neutralizing Cognitive Bias: An Invitation to Prosecutors, 2 N.Y.U. J.L. & LIBERTY 512 (2007) [hereinafter Burke, Neutralizing Cognitive Bias]; Alafair S. Burke, Talking About Prosecutors, 31 CARDOZO L. REV. 2119 (2010) [hereinafter Burke, Talking About Prosecutors]. 5 See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U. L. REV. 125, 14243 (2004) (noting the intellectual blinders that prosecutors adopt and internalize) [hereinafter Medwed, The Zeal Deal]; see also Fred C. Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 VAND. L. REV. 171 (2005).



Part I of this Note introduces the underlying problem: wrongful convictions, the vast discretion prosecutors yield in general, but more specifically in the post-conviction innocence-based setting, and the cognitive biases that affect prosecutors responding to claims of innocence. Part II presents case studies to illuminate how prosecutorial resistance is an impediment to seeking the truth in these cases. Part III reviews the failure of existing proposals to fully address this problem, and compares judicial versus prosecutorial recusal laws, as well as the strengths and weaknesses of using a recusal mechanism to address this problem. Part IV proposes a new recusal mechanism for prosecutors in the post-conviction innocence-based setting. This new standard upholds justice by ensuring that if an injustice has been committed in the form of a wrongful conviction, our judicial system is committed to righting that wrong.

I. THE SOURCE OF THE PROBLEM: THE INTERPLAY OF WRONGFUL CONVICTIONS AND PROSECUTORIAL DISCRETION

A. Wrongful Convictions and Procedural Redresses

In the last twenty-three years, more than 2000 people who were falsely convicted have been exonerated in the United States.6 Of these, 300 people have been exonerated through DNA testing.7 These facts defy common beliefsheld by the public and our judicial officersthat the wrongful conviction of innocent people is an extremely rare occurrence.8 Although these numbers might not sound large compared to the total prison population, the number represents the tip of the iceberg, and it is unclear how many wrongfully convicted petitioners there really are.9 Most petitioners who claim they have been wrongfully 6 See Pete Yost, Study: 2,000 Convicted Then Exonerated in 23 Years, ASSOCIATED PRESS, May 21, 2012. 7 Mission Statement, INNOCENCE PROJECT, http://www.innocenceproject.org/about/Mission-Statement.php (last visited Jan. 24, 2013). Before proven innocent and released, these exonerees served an average of thirteen years in prison, and some of them served as many as thirty-five years. How Much Time Did the Exonerees Serve in Prison, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/How_much_time_did_the_exonerees_serve_in_prison.php (last visited Jan. 24, 2013). 8 Schlup v. Delo, 513 U.S. 298, 321 (1995); see also Timothy P. OToole & Giovanna Shay, Manson v. Braithwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to Eyewitness Identification Procedures, 41 VAL. U. L. REV. 109, 137 (2006). 9 For a broader explanation on why we will never know how many people have been wrongful convicted, see BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG 1113 (2011); see also EDWARD CONNERS ET AL., CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL 20 (1996) (finding that in a study of over 10,000 cases in which the FBI compared DNA of the prime suspect with DNA from the crime scene, the DNA tests



convicted have a slim chance of ever proving their innocence.10 This is because only a fraction of criminal cases involve biological evidence that can be subjected to DNA testing.11 In addition, in those cases that do, biological evidence may get lost or destroyed after a conviction is securedmaking such evidence incapable of being tested.

Moreover, the number of nationwide exonerations reflects a relatively new phenomenon to which the law has yet to fully adapt. As one scholar has stated, once judges are satisfied that the basic requirements of due process are met (i.e., that a defendant received effective assistance of counsel, prosecutors met their evidentiary disclosure obligations, etc.), the principles of fairness and autonomy simply recede as priorities.12

How do wrongful convictions occur in the first place? Our justice system relies on peoplewitnesses, prosecutors, defense counsel, jurors, and judges. Like all things human, the system is fallible.13 In his book, Convicting the Innocent, Brandon Garrett analyzes the factors and reasons that led to the wrongful conviction of the first 250 exonerees in the U.S.14 In addition to many other factors,15 he concluded that prosecutorial misconduct occurred in at least 47% of the cases.16

exonerate the prime suspect in 20% of the cases); D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761 (2007) (applying rigorous methodology for rape-murder capital cases to determine that a minimum 3.3% wrongful conviction rate exists). 10 See Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 UDC/DCSL L. REV. 275, 285 (2004). 11 Most criminal cases do not involve biological evidence because, in the absence of a sexual assault or physical struggle, there will be no exchange of DNA, on the victim or at the crime scene. Thus, there will be no DNA to test. 12 GEORGE C. THOMAS III, THE SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE SYSTEM SACRIFICES INNOCENT DEFENDANTS 51 (2008). 13 Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit, 84 WASH. L. REV. 35, 47 (2009). 14 Garretts book eloquently and comprehensively reviews the findings of his extensive investigation of the first 250 exonerations. GARRETT, supra note 9. 15 Reasons for wrongful convictions include, but are not limited to: 1) eyewitness misidentification (which played a role in 76% cases), id. at 9; 2) false confessionswhich occur disturbingly frequently in the juvenile and mentally disabled populations (occurring in 16% of the 250 cases), id. at 18; 3) ineffective assistance of counsel; and 4) other factors, including faulty forensic science, informants or prisoner snitches, and the misconduct of other state officials. See State v. Henderson, 27 A.3d 872 (N.J. 2011) (reviewing and recommending a host of mechanisms by which to correct eyewitness misidentification); COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIS. CMTY. ET AL., NATL RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 12782 (2009) (describing forensic science disciplines and analyzing reasons for the lack the reliability and validity of science); Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1 (2009); Saul M. Kassin, Daniel Bogart & Jacqueline Kerner, Confessions That Corrupt: Evidence from the DNA Exoneration Case Files, 23 PSYCHOL. SCI. 41 (2012). 16 GARRETT, supra note 9, at 208. Of the first 250 exonerees, only 165 had written decisions. Id. Of those, 77 (or 47%) involved claims relating to the conduct of prosecutors. Id.; see also



However, as Professor Ellen Yaroshefsky explains, some of this misconduct is intentional, but more often it is not.17 Rather, it is the result of negligence, cognitive biases,18 as well as systemic challenges within prosecutors offices.19

All but one state now have statutes providing individuals with a mechanism to put forth their claim of actual innocence, including a request for DNA testing.20 For many petitioners, DNA testing may not have been available at the time of their trial, or their defense attorneys failed to request it. Seeking DNA testing, when DNA evidence is available, through these statutory mechanisms constitutes the first stage of post-conviction innocence-based litigation.21 At this point, the petitioners are often represented by innocence organizations, such as the Innocence Project or the Medill Innocence Project,22 or innocence units within defenders offices or law schools.23 The statutes often USA TodayJustice in the Balance, ADVOCATE BLOG, http://advocateky.blogspot.com/2011/08/usa-today-justice-in-balance.html (last updated Aug. 20, 2011) (indexing articles from the USA Today investigation of 201 criminal cases in which federal judges found that prosecutors broke the rules). 17 Ellen Yaroshefsky, Keynote Address: Enhancing the Justice Mission in the Exercise of Prosecutorial Discretion, 19 TEMP. POL. & CIV. RTS. L. REV. 343, 348 (2010) (citing Understand the CausesGovernment Misconduct, INNOCENCE PROJECT, http://www.innocenceproject.org/understand/Government-Misconduct.php (last visited Jan. 25, 2013)). 18 Cognitive bias refers to the human tendency for people to interpret evidence through the lens of their existing beliefs so that they devalue inconsistent information while valuing information that confirms their beliefs. Burke, Talking About Prosecutors, supra note 4, at 213334. 19 Yaroshefsky, supra note 17, at 348. 20 Oklahoma is the only state still lacking DNA access laws. See supra note 2. 21 DNA testing claims and exonerations are most often litigated in state courts, and states provide the ultimate relief. The average statute includes standard language such as, a reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through DNA testing at the time of the original prosecution. See Model Statute for Obtaining Post-Conviction DNA Testing, INNOCENCE PROJECT, http://www.innocenceproject.org/docs/model/Access_to_Post_Conviction_DNA_Testing_Model_Bill.pdf (last visited Jan. 25, 2013). They often also include that the evidence sought to be tested still exists, was subject to a chain of custody ensuring its integrity, and was not previously tested or, if previously tested, can be subject to additional testing not previously done. Id. 22 The Innocence Project is a non-profit legal clinic affiliated with Benjamin N. Cardozo School of Law. Created by Barry Scheck and Peter Neufeld in 1992, the project is dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice. See Mission Statement, INNOCENCE PROJECT, supra note 7. The Medill Innocence Project (the Medill Justice Project as of December 2012) is a similar organization affiliated with Northwestern Universitys Medill School of Journalism. However, the Medill Innocence Project does not limit its cases to those involving DNA. See What We Do, MEDILL JUSTICE PROJECT, http://mip.medill.northwestern.edu/about (last visited Jan. 25, 2013). See also NATL REGISTRY OF EXONERATIONS, http://exonerationregistry.org (last visited Jan. 24, 2013), which is a national database assembled by the University of Michigan Law School and Center on Wrongful Convictions at Northwestern University School of Law. The registry also includes at least 1170 additional defendants whose convictions were thrown out due to police scandals. 23 Since the foundation of the Innocence Project, innocence organizations have sprung up



require the petitioner to show in some manner that there is newly discovered exculpatory evidence or evidence that could not have been tested at the time of trialeither scientifically or because it was not yet known.24 In some cases, prosecutors agree that the petitioners innocence is a possibility and thus consent to DNA testing. However, prosecutors oppose the request for DNA testing just as often as they approve it: according to the Innocence Project, prosecutors consented to post-conviction DNA testing in less than half the cases in which courts eventually ordered DNA testing and DNA testing ultimately exonerated an inmate.25 If a prosecutor resists the request, the claim must be litigated in court, which can delay the petitioners DNA testing for months, years, or even permanently.26 Ultimately, however, the decision lies with the judge to order testing and she may grant DNA testing for the petitioner over a prosecutors objections.

Once DNA testing is grantedwhether through a prosecutors consent or a court orderresults may indicate that evidence from the crime scene included a petitioners DNA, excluded a petitioners DNA, or were inconclusive (because the evidence was too degraded or was insubstantial).27 If the tests include the petitioner, and the defense

throughout the country and are often housed at law schools, journalism schools, and defenders offices. See Innocence Network Member Organizations, INNOCENCE NETWORK, http://www.innocencenetwork.org/members (last visited Jan. 25, 2013). Many of these, unlike the Innocence Project, take cases that do not include DNA. Id. Of the first 250 exonerees, 77% of them sought DNA testing by contacting an innocence project. GARRETT, supra note 9, at 225. 24 See, e.g., FLA. STAT. 925.11 (2012); OHIO REV. CODE ANN. 2953.712953.84 (West 2012); TEX. CODE CRIM. PROC. ANN. art. 64.03 (West 2011). In habeas corpus proceedings, in order to demonstrate actual innocence, a petitioner must present new reliable evidence that was not presented at trial and show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 324, 32728 (1995). Where the defendant pleaded guilty, the standard nonetheless remains the same. Id. 25 Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA Exonerations, 35 NEW. ENG. L. REV. 639, 640 (2001). However, in a comprehensive study of the first 250 exonerations, Garrett found that in the 210 cases for which information on DNA testing had been obtained, prosecutors consented to DNA testing in 81% of cases and opposed it in 19%. GARRETT, supra note 9, at 227. This statistic is misleading, however, because Garrett adds the caveat that some prosecutors consented only after years of requests. How to categorize these cases in which prosecutors did not consent for years likely explains the difference between Garretts and Neufelds statistics. In addition, in 49% of cases (which mirrors the Innocence Projects statistic), the exoneree had to obtain a judges order to obtain DNA testingshowing that the prosecutor did not promptly consent or the judges order would not have been necessary. Id. 26 See Houston v. Partee, 978 F.2d 362, 36465 (7th Cir. 1992) (finding that a prosecutors denial of the existence of exculpatory evidence led to convicted defendants sitting in jail for years longer than they should have or needed to). For instance, see the case of Michael Morton in Texas, infra Part II.A. Also in Texas, death row inmate Hank Skinner has fought for DNA testing for ten years to prove his innocencetesting which still has not been granted. Brandi Grissom, DNA Exonerations Continue, but Not for One Man, N.Y. TIMES, Nov. 6, 2011, at A31. 27 If a defendants DNA is included, her DNA profile is consistent with the DNA profile from the crime scene evidence, and thus the defendant is a possible source. If a defendants



counsel and prosecutor believe the tests confirm her guilt and foreclose alternative theories of the crime postulated, both sides will likely drop the case once and for allputting closure on any remaining doubt surrounding the petitioners conviction.28

When the tests exclude the petitioner, the scientific possibility of innocence triggers the second stage of post-conviction innocence claims. The petitioner may argue that the DNA exclusion, along with other factors indicating that the original conviction is not reliable, collectively prove the petitioners innocence.29 In some cases, not only does the DNA exclude the petitioner, but by entering DNA into a national database with millions of genetic profiles from other convicted felons, the true perpetrator who committed the crime is also identified.30

A prosecutor may then examine the result and opt to join the defense in requesting the prisoners release and exoneration. Alternatively, a prosecutor may contest the petitioners innocence claim. She may put forth a new theory of the crime in which the petitioner was, instead, still a co-conspirator with the actual person whose DNA was identified. There are, in fact, many cases in which a prosecutor has fought a petitioners release despite DNA evidence indicating innocence.31 For instance, in the case of defendant Juan Rivera, the DNA is excluded, the defendants DNA profile is inconsistent with the profiles found on the crime scene evidence, so that the defendant cannot be the donor of the biological material. However, exclusion is not synonymous with innocence: for example, a defendant may be excluded from semen found in a rape victim, but evidence found elsewhere at the crime scene may include the defendant, resulting in retaining her as a suspect. See KATHRYN M. TURMAN, OFFICE OF VICTIMS OF CRIME, U.S. DEPT OF JUSTICE, OVC BULLETINUNDERSTANDING DNA EVIDENCE: A GUIDE FOR VICTIM SERVICE PROVIDERS 45 (2001), available at http://www.ovc.gov/publications/bulletins/dna_4_2001/dna8_4_01.html. In addition, the ramifications of an inclusion depend on the number of loci (locations on the DNA strand) examined and how common or rare the resulting DNA profile is in the general population. As a result, an inclusion does not necessarily indicate that the defendant is guilty of the crime; for instance, it could have been the defendants sibling or another person with similar DNA. See id. at 4. 28 The Innocence Project indicates that in a five-year period, DNA testing proved innocence in 43% of cases while confirming guilt in 42% of cases, and 15% of those cases were inconclusive. How Often Do DNA Tests Prove Innocence in Your Cases, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/How_often_do_DNA_tests_prove_innocence_in_your_cases_Does_testing_ever_prove_guilt.php (last visited Jan. 25, 2013). In more than 40% of all DNA exoneration cases, law enforcement authorities identified the actual perpetrator based on the same DNA test results excluding the wrongfully convicted. Id. 29 For example, see the cases of Michael Morton and Chad Heins, infra Parts II.A & II.D. 30 See Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, FED. BUREAU OF INVESTIGATION, http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet (last visited Jan. 25, 2013). Of the first 250 exonerees cases, 45% identified the real perpetrator usually through the CODIS (Combined DNA Index System) database. GARRETT, supra note 9, at 221. 31 See Erica Goode, When DNA Evidence Suggests Innocent, Some Prosecutors Cling to Maybe, N.Y. TIMES, Nov. 16, 2011, at A19; Adam Liptak, Prosecutors Fight DNA Use for Exoneration, N.Y. TIMES, Aug. 29, 2003 at A1 (noting that although DNA testing proved that biological evidence could not have come from two defendants, prosecutors continued to



prosecutor asserted that the 11 year-old murder victim was sexually active, against evidence to the contrary, to explain why the DNA of sperm found inside her did not match Rivera, who was convicted of raping and killing her.32 Such opposition extends the litigationwhile the petitioner remains imprisoned.

B. The Powerful Role of Prosecutors

1. Prosecutors and Prosecutorial Discretion

Prosecutors choose whether to pursue a petitioners conviction in furtherance of their primary responsibility: administering justice. Their role is essentially judicialthe prosecution of the guilty and the protection of the innocent.33 The role is unique in our judicial system: while other lawyers are beholden only to their clients wishes, prosecutors are tasked with pursuing justice on behalf of the public. A prosecutors role is both a luxury because of their resulting discretion, and also a burden because of the wider spectrum of interests they must consider: the people, the government, the community at large, the crime victims, the defendant, their bosses, etc.34 The prosecutor thus

challenge their innocence claims); Steve Mills & Andy Grimm, Prosecutors Vacate Charges for 5 Who Served Years for Rape, Killing of 14-Year-Old Girl: Decision Means Freedom for 3 Still Jailed After DNA Testing Pointed to Another Man in 1991 Dixon Case, CHI. TRIB., Nov. 4, 2011, at 1; Dena Potter, Attorneys Say DNA Proves Innocence in Rape, CHARLESTON GAZETTE & DAILY MAIL, Dec. 14, 2012, at 9A; see also the case of Michael Morton, infra Part II.A. 32 Lisa Black, Under Fire, Lake County Prosecutor Retiring, CHI. TRIB., Dec. 8, 2011, at 5. In a similar case, prosecutors argued that the DNA of semen found in an allegedly sexually inactive 16 year-old girl must have come from a secret consensual lover and thus, the defendant whose DNA was not found in her could still have been guilty. Andrew Martin, The Prosecutors Case Against DNA, N.Y. TIMES, Nov. 27, 2011, 6 (Magazine), at 44. 33 Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (quoting Griffin v. United States, 295 F. 437, 43940 (3d Cir. 1924)). 34 H. Richard Uviller, The Neutral Prosecutor: The Obligation of Dispassion in a Passionate Pursuit, 68 FORDHAM L. REV. 1695, 1697 (2000). Laurie Levenson describes this tension as follows:

[D]efense lawyers have it easy. They have a duty to a client or clientsflesh and blood people who they have to be able to look at and say, I did my best for you . . . . [But as] others have written, whom does the prosecutor talk to in the dead of night? To whom does he or she promise loyalty? To the Constitution? To the defendant, promising that his constitutional rights will be respected? To the victim, but only so long as the victim does not interfere too much with the prosecutors exercise of discretion? To the public, but only so much as the prosecutor can divine what the publics interests really are? With the responsibility to exercise discretion, prosecutors know who gets their undivided loyaltythemselves.

Laurie L. Levenson, Conflicts over Conflicts: Challenges in Redrafting the ABA Standards for Criminal Justice on Conflicts of Interest, 38 HASTINGS CONST. L.Q. 879, 880 (2011).



occupies a dual role, being obligated, on the one hand, to furnish that adversary element essential to the informed decision of any controversy, but being possessed, on the other, of important governmental powers that are pledged to the accomplishment of one objective only, that of impartial justice. Where the prosecutor is recreant to the trust implicit in his office, he undermines confidence, not only in his profession, but in government and the very ideal of justice itself.35

In a recent Illinois exoneration, the district attorney resisted a finding of innocence after DNA excluded five male defendants who had falsely confessed to the crime when they were teenagers. She explained, [a]s a prosecutor, I have a duty to the victims in this case.36 Another prosecutor explained, [t]he taxpayers dont pay us for intellectual curiosity. They pay us to get convictions.37 Thus, in reality, these responsibilities can lead prosecutors to feel more accountable to one of these interest groups rather than to justice for all.

Prior to trial, prosecutors neutrally investigate the case to determine whether there is credible evidence to try the potential defendant. However, once the trial has begun, prosecutors and defense attorneys are permitted to be zealous advocates.38 Yet, although they may be advocates, they are still required to be disinterested:39 the U.S. Supreme Court has stated that any scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision, raising serious constitutional concerns about fairness.40

The requirement to be disinterested is significant because it is a check on prosecutors tremendous power.41 Prosecutors alone 35 Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159, 1218 (1958). 36 See Goode, supra note 31. 37 Martin, supra note 32. 38 Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987). 39 See Berger v. United States, 295 U.S. 78, 84 (1935) (holding that the prosecutor had been impermissibly ruthless and unrelenting in his efforts to convict the defendant, overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense). 40 Marshall v. Jerrico, Inc., 446 U.S. 238, 24950 (1980). 41 Angela Davis, Film Review, Mississippi Innocence and the Prosecutors Guilt, 25 GEO. J. LEGAL ETHICS 989, 997 (2012) (listing the decisions that prosecutors alone make). As Robert Jackson, former U.S. Attorney General, stated:

The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated, and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. . . . [A] prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. . . . It is his realmin which the prosecutor picks some person who he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offensethat the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal.



determine which cases they will try, thus affecting the cases a judge hears in the first place. Prosecutors choose which sentences to pursue, including whether to seek the death penalty. They decide whether to try a juvenile as an adult, for which sentencing is more severe, or as a juvenile, for which rehabilitation is still the primary penological goal. Prosecutors also have the power to offer plea deals in which defendants may choose a lesser sentence in return for pleading guilty, instead of risking a harsher sentence if they proceed to, and are found guilty at, trial.42

Because of the breadth of prosecutors decision-making authority, the Supreme Court and others have referred to prosecutors as judicial or quasi-judicial officers.43 ABA Model Code of Professional Conduct Rule 3.8 Comment 1 supports this view: [a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.44 For these reasons, Senior Judge John L. Kane Jr., a federal district court judge in Denver, believes that prosecutors have grown more powerful then judges.45 At the same time, despite the scope of prosecutors authority, prosecutors powers are not fully judicial as they do not make the final decision on litigated issues nor are they required to be neutral at all times.

Robert Jackson, U.S. Attorney Gen., Address to the Second Annual Conference of U.S. Attorneys (Apr. 1, 1940), in 24 J. AMER. JUD. SOC. 18 (1940), available at http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/the-federal-prosecutor/. 42 One study notes that 95.4% of adjudicated federal criminal cases involve guilty or nolo contendere pleas. Jennifer L. Mnookin, Uncertain Bargains: The Rise of Plea Bargaining in America, 57 STAN. L. REV. 1721, 1722 (2005); see also BUREAU OF JUSTICE STATS., U.S. DEPT OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS tbl. 5.22 (2010), available at http://www.albany.edu/sourcebook/pdf/t5222010.pdf (finding that as of 2010, 87,418 of 98,311 federal prosecutions, or 89%, resulted in plea deals). Another study found that in some jurisdictions, 99% of adjudicated criminal cases are guilty pleas. Julian A. Cook, III, All Aboard! The Supreme Court, Guilty Pleas, and the Railroading of Criminal Defendants, 75 U. COLO. L. REV. 863, 866 n.17 (2004). 43 Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (The prosecuting attorney is an officer of the court, holding a quasi judicial position. . . . [H]is office is vested with a vast quantum of discretion which is necessary for the vindications of the public interest. (quoting Bauers v. Heisel, 361 F.2d 581, 590 (3d Cir. 1966))). 44 MODEL RULES OF PROFL CONDUCT R. 3.8 cmt. 1 (2012). 45 Richard A. Oppel Jr., Sentencing Shift Gives New Clout to Prosecutors, N.Y. TIMES, Sept. 26, 2011, at A1. Similarly, Richard E. Myers II, a former assistant U.S. Attorney, expressed, [w]e now have an incredible concentration of power in the hands of prosecutors, and in the wrong hands, the criminal justice system can be held hostage. Id.



2. Quasi-Judicial Prosecutors at the Helm of Post-Conviction Claims of Innocence

As a minister of justice, the goal of a prosecutor is to reach an outcome in which the public can have confidence.46 At trial and in direct appeals, the adversarial process ensures this goal is met. Trials are presumed fair because a prosecutors zealous efforts to convictbased on an investigation that led her to believe the defendant was guiltyis balanced against the defense counsels efforts to achieve a not-guilty verdict. On appeal, ordinarily a prosecutor then automatically defends the conviction which she has no reason to believe is faulty.

However, in the post-conviction innocence-based setting, the prosecutors role is different. The petition for post-conviction relief still involves an adversarial setting like all other appeals: the starting point is that a jury found the petitioner guilty, and as a result, the state should not be any less zealous, or more neutral, than they are at earlier stages of litigation. Defense counsel represents one side, and a prosecutors role as an advocate is still necessary to represent the other, with the ultimate decision left to the judge. But post-conviction innocence-based appeals are not like other appeals: that most criminal defendants are guilty does not mean that all are. Prosecutors automatically defending the conviction may fail to address that the petitioner may actually be innocent and the result of earlier proceedings was wrong.

At this stage, similar to the investigation a prosecutor undertakes when considering the case for the first time pre-trial, prosecutors must determine anew if it is possible the conviction is wrongthat the innocence claim is feasible. Bennett L. Gershman suggests that a prosecutors obligation pre-trial is to approach each case with a healthy skepticism and to assume an active role in confirming the truth of the evidence of guilt and investigating contradictory evidence of innocence.47 Many have described the difficulty of this obligation as one of switching sides.48 The tension between the dual responsibilities of a prosecutor49to free the innocent and convict the guiltyare

46 MODEL RULES OF PROFL CONDUCT R. 3.8 cmt. 1 (2012) (A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.). 47 Bennett L. Gershman, The Prosecutors Duty to Truth, 14 GEO. J. LEGAL ETHICS 309, 342, 348 (2001). 48 In contrast, many European countries use an inquisitorial system: the court (not the prosecutor) directly supervises the investigation of a case and post-conviction review is readily available. See Paul J. Saguil, Improving Wrongful Conviction Review: Lessons from a Comparative Analysis of Continental Criminal Procedure, 45 ALBERTA L. REV. 117 (2007). 49 The dual responsibility has been described as follows:

The public prosecutor must recall that he occupies a dual role, being obligated, on the one hand, to furnish that adversary element essential to the informed decision of any controversy, but being possessed, on the other, of important governmental



elevated: a prosecutor is suddenly confronted with the heightened risk that her own, or her offices, actions contributed to an innocent person being imprisoned, or alternatively, that her own actions could cause a guilty person to go free.

Furthermore, although the ABA Standards for Criminal Prosecutions address best practices of prosecutorial conduct at almost all stages, they stop after sentencingwell before the post-conviction stage.50 As a result, there is a void on agreed-upon best practices between the prosecutor and defense communities and a lack of guidelines that results in prosecutors having even more discretion. Prosecutors powers are also enlarged at this stage because they have exclusive control over the evidence in question.51 Their willingness to assist the defense, to consent to DNA testing, and to facilitate post-conviction investigations changes the outcome of a case by greatly affecting the speed of the litigationthe number of years the post-conviction innocence litigation takes, resources expended, and the number of years a potentially innocent person stays wrongfully imprisoned.52

Because a judge does not have the time to, nor is it her role to, investigate a case, she relies on a prosecutors recommendations and most often defers to the prosecutors arguments.53 This may be because, absent investigation and neutral presentation of the facts by the prosecutor, judges will defer to their professional awareness that the great majority of criminal defendants are guilty.54 The above attributes: an ability to direct the course of the litigation, plus a lack of guidelines in this setting, arguably make a prosecutors role even more akin to a judge.

powers that are pledged to the accomplishment of one objective only, that of impartial justice. Where the prosecutor is recreant to the trust implicit in his office, he undermines confidence, not only in his profession, but in government and the very ideal of justice itself.

Professional Responsibility: Report of the Joint Conference, supra note 35, at 1218. 50 Zacharias, supra note 5, at 174. 51 There are certain reforms addressing this fact, yet, none of them eliminate its existence. For example, Freedom of Information Act requests can be used to obtain documents from the prosecutors office. Some prosecutors offices also now have an open file policy. However, in the case of DNA testing, the materials remain largely in state control and cannot be tested without the prosecutors approval or the judges order over the prosecutors refusal. 52 See Judith A. Goldberg & David M. Siegel, The Ethical Obligations of Prosecutors Involving Post-Conviction Claims of Innocence, 38 CAL. W. L. REV. 389, 41011 (2002); Zacharias, supra note 5, at 18687. 53 Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 997 (2006) ([T]here is a systemic failing in which prosecutors make the key decisions in criminal matters without a judicial check and without any of the structural and procedural protections that govern other executive agencies.). 54 Susan A. Bandes, Protecting the Innocent as the Primary Value of the Criminal Justice System, 7 OHIO ST. J. CRIM. L. 413, 422 (2009) (quoting Samuel R. Gross, The American Advantage: The Value of Inefficient Litigation, 85 MICH. L. REV. 734, 744 (1987)).



C. Cognitive Biases

Internally held beliefs and biases influence all humans. Alafair Burke, Susan Bandes, and others explain how prosecutors are affected by cognitive bias. 55 Cognitive biasrelated to and also known as confirmation bias, tunnel vision, belief perseverance, ego-centric bias, and, in this context as, conviction psychology56refers to the idea that a person unconsciously seeks and understands information in a way that supports her existing beliefs and hypotheses.

Cognitive bias can play a very helpful role in our lives. It can enhance our decision-making by helping us determine how to orient ourselves on issues, which social groups to align with, and how to navigate the world around us.57 However, it can also frustrate our decision-making. People are disposed to impute knowledge and expertise to others with whom they share a cultural affinity. And they are more likely to note, assign significance to, and recall facts supportive of their cultural outlooks than facts subversive of them.58 As a result, people subconsciously may not see, or may choose to ignore, evidence that does not support their preexisting expectations.59 As Professor Maroney has explained,

If it looks like something that implicates the culture of the office in some deeper way than one bad apple, you want a fresh set of eyes. . . . Defending a conviction sometimes serves justice and sometimes it doesnt. But it cant just be because you want to preserve your self-image or preserve your conviction record.60

In the judicial system, cognitive bias is not unique to prosecutors, though nor are they immune from it.61 The Supreme Court has 55 Burke, Neutralizing Cognitive Bias, supra note 4, at 51620; Burke, Talking About Prosecutors, supra note 4, at 213335; see also Dan M. Kahan et al., They Saw a Protest: Cognitive Illiberalism and the Speech-Conduct Distinction, 64 STAN. L. REV. 851 (2012). 56 See, e.g., Susan Bandes, Loyalty to Ones Convictions: The Prosecutor and Tunnel Vision, 49 HOW. L.J. 475, 479 (2000); Alafair S. Burke, Improving Prosecutorial Decision-Making: Some Lessons of Cognitive Science, 47 WM. & MARY L. REV. 1587, 159091, 159394 (2006); Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291, 309, 328; Kahan et al., supra note 55. 57 See Kahan et al., supra note 55. 58 Id. at 859 (citing Dan M. Kahan et al., Cultural Cognition of Scientific Consensus, 14 J. RISK RES. 147 (2011)). The same study found that even when people are genuinely committed to principles of neutrality, they are still likely to disagree on a given issue depending on the views of the cultural group to which they define themselves. Id. 59 Id. 60 Brad Heath, Did Prosecutors Taint Memphis Murder Trial? Death-row Convicts Attorneys Allege Misconduct, USA TODAY, Aug. 17, 2011, at 1A. 61 Cognitive bias is also a hazard for judges, police investigators, defense attorneys, and other officials. Even scientists are affected by the cultural context within which they work. A recent study on fingerprint analysis found that analysts were vulnerable to extraneous influences, which misled their conclusions. When analysts knew that they were comparing



acknowledged that it is even difficult for judges to free themselves from past experiences62 and to maintain calm detachment.63 Police investigations, for example, are also affected by cognitive bias:

If the police honestly, but incorrectly, believe X committed the crime, they will not look for Y, the real culprit. In addition, they will become myopic in analyzing evidence and interviewing witnesses, viewing every detail they uncover from the perspective of an officer who believes that he [or she] knows who did it. . . . [T]hen prosecutors may become entrenched in the [belief] that the defendant did it.64

Similarly, cognitive bias can lead prosecutors to uphold their colleagues (other prosecutors) decisions, as they would want those prosecutors to do for them.65 They may be affected by their world view, their self-identity as prosecutors, or by what they have believed to be the truth for so long, that it is difficult, if not impossible, for them to reexamine the case with fresh eyes.66 Thus, for a host of reasons in which cognitive bias plays a role,67 it may be difficult for even well-intentioned prosecutors to fingerprints from a crime scene and those of the suspect, they were more likely to find a match than when they did not know what they were comparing. Itiel E. Dror & David Charlton, Why Experts Make Errors, 56 J. OF FORENSIC IDENTIFICATION 600 (2006). 62 In re Murchison, 349 U.S. 133, 13738 (1955) ([A] judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused. . . . As a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place . . . .). 63 Mayberry v. Pennsylvania, 400 U.S. 455, 46566 (1971) (holding that a judge necessarily becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.); see also Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 884 (2009) ([T]here is a serious risk of actual bias . . . when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds . . . .); Jennifer Robennolt & Matthew Taksin, Can Judges Determine Their Own Impartiality?, 41 MONITOR ON PSYCHOL. 24, 24 (2010) (explaining that judges, like all people, believe they are objective, see themselves as more ethical and fair than others, and experience a bias blind spot, the tendency to see bias in others but not in themselves); Andrey Spektor & Michael Zuckerman, Judicial Recusal and Expanding Notions of Due Process, 13 U. PA. J. CONST. L. 977 (2011). 64 Melanie D. Wilson, An Exclusionary Rule for Police Lies, 47 AM. CRIM. L. REV. 1, 1718 (2010). 65 Catherine Ferguson-Gilbert, It Is Not Whether You Win or Lose, It Is How You Play the Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for Prosecutors?, 38 CAL. W. L. REV. 283, 294 (2001) (Prosecutors who do not want to get caught up in the scorekeeping, conviction-seeking mentality often do anyway because being the whistle blower is against the prosecutors own self-interest in promotions or career advancement.). 66 Bandes, Loyalty to Ones Convictions, supra note 56; see also Laurie L. Levenson, Essay, Post-Conviction Death Penalty Investigations: The Need for Independent Investigators, 44 LOY. L.A. L. REV. S225, S237 (2011). 67 Bandes, Loyalty to Ones Convictions, supra note 56. There are many other reasons that prosecutors may be hesitant to overturn convictions on which they and/or their peers workedall of which are permeated by cognitive bias: 1) they may fear that investigating an innocence claim may unearth a history of similar mistakes made in other casesor may open the floodgates to more innocence claims being filed; 2) they may uphold their colleagues (other prosecutors) decisions as they would want those prosecutors to do for them; 3) they may fear estrangement by their peer group if they reinvestigate or question the validity of a prior



be neutral and seek the truth when doing so conflicts with their prior beliefs, and personal and professional interests.

II. CASE STUDIES: THOSE ALLEGING INNOCENCE AND PROSECUTORIAL RESISTANCE

Looking at individual cases help us understand the unique role of prosecutors in this setting.68 The first two case studies show how prosecutorial resistance unduly prolonged (in the case of Michael Morton) and continues to prolong (in the case of Glen Tinney) claims of actual innocence. Although a motion to recuse, or remove, the prosecutor was filed in each case, each was denied. The third case, that of Anthony Graves, is one in which the trial prosecutor was recused from representing the State in the later innocence proceedings, and the newly appointed prosecutor ultimately concluded that she agreed with the defense: the petitioner was innocent. The last case, that of Chad Heins, shows how, absent a request for recusal, new prosecutors took over the appellate post-conviction appeal, providing fresh eyes to the innocence claim that the original prosecutors might not have.

A. Michael Morton

In 1986, 32-year-old Christine Morton was found murdered in her suburban home near Austin, Texas.69 Although her husband Michael Morton claimed his wife was still alive when he left for work that morning, he was convicted of her murder in February, 1989.70 The Innocence Project accepted Michaels case in 2000. In 2005, the Innocence Project filed a motion requesting DNA testing of evidence

conviction; 4) they may fear confronting the family of the victims if a horrific crime is reopened; 5) their promotions or performance evaluations may be based on the number of convictions they obtain or they may fear that their reputation will be at stake; 6) similarly, their supervisors overall conviction numbers may be used to justify the offices budget and the office may also want to avoid appearing soft on crime; 7) innocence claims financially expose the State to liability if exonerees prevail; and 8) post-conviction innocence claims disturb finalitya bedrock of our justice systemand thus expose the system as fallible. See, e.g., id.; Bruce Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 OHIO ST. J. CRIM. L. 467 (2009); Medwed, The Zeal Deal, supra note 13. 68 The following cases were brought to my attention through my work at the Innocence Project and through email correspondence with Innocence Network members regarding recusal motions. 69 Pamela Colloff, The Innocent Man, Part I, TEX. MONTHLY, Nov. 2012, at 128, available at http://www.texasmonthly.com/story/innocent-man-part-one; see also Know the Cases: Michael Morton, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Michael_Morton.php (last visited Jan. 25, 2013). 70 Know the Cases: Michael Morton, INNOCENCE PROJECT, supra note 69.



from the crime sceneevidence that included a bloody bandana.71 In response, the prosecutor John Bradley filed a motion to deny testing and dismiss the appeal.72 Litigation over testing lasted six years as Bradley continued to oppose DNA testing because, as he asserted, Morton was simply desperate and grasping at straws.73 Eventually, the Texas Court of Criminal Appeals granted testing, reversing a lower courts denial.74

In June, 2011, DNA results on the bandana confirmed that it contained blood and hair from the victim, Christine Morton, as well as blood from an unknown male perpetrator, who was not Michael Morton.75 Still, the prosecutor intimated that he would oppose Mortons exoneration despite the DNA: Morton still could have committed the crime with an accomplice. The Innocence Project then filed a motion to recuse the prosecutoralleging in part that because the prosecutor had so steadfastly fought DNA testing and Mortons possible innocence for six years, because he was the mentee of the trial prosecutor, and because of other comments insinuating deep hostility for Mortons lawyers, he could not impartially fulfill his duty to reinvestigate the case in light of the DNA findings.76 The motion was denied from the bench without a written decision.77 Shortly thereafter, the blood of an unknown male from the bandana matched in the national DNA database to a known convicted felon who was subsequently arrested for the crime.78 Only then did the prosecutor agree to release Morton. As Mortons attorney John Raley explained, Although Mr. Bradley did not try the case that wrongfully sent Michael to prison and let the murderer go free, because he fought testing for so many years, he is largely responsible, in my opinion, for adding the last six years and eight months to Michaels tragic story.79 Morton was released on October 3, 2011six years after DNA testing was first requested, and twenty-four years after being imprisoned.

71 Id. 72 Pamela Colloff, The Innocent Man, Part II, TEX. MONTHLY, Dec. 2012, at 168 [hereinafter Colloff, Innocent Man, Part II], available at http://www.texasmonthly.com/story/innocent-man-part-two. 73 Brandi Grissom, Morton Case Is Focus of Williamson County DA Race, THE TEX. TRIB. (May 16, 2012), http://www.texastribune.org/2012/05/16/michael-morton-case-central-heated-wilco-da-race/. 74 Colloff, Innocent Man, Part II, supra note 72. 75 Know the Cases: Michael Morton, INNOCENCE PROJECT, supra note 69. 76 Motion to Recuse Williamson County District Attorney and for Appointment of Special Prosecutor, State v. Michael Morton, Case No. 86-452-K26 (Aug. 17, 2011), available at www.innocenceproject.org/docs/2011/Morton_Motion_to_Recuse.pdf. 77 Jordan Smith, New Evidence Points to Trouble for Wilco D.A., AUSTIN CHRON. (Aug. 26, 2011), http://www.austinchronicle.com/news/2011-08-26/new-evidence-points-to-trouble-for-wilco-d-a/. 78 Know the Cases: Michael Morton, INNOCENCE PROJECT, supra note 69. 79 Brandi Grissom, supra note 73.



B. Glen Tinney80

In 1992, a severely mentally ill man, Glen Tinney, confessed to a 1988 murder while he was in prison for a non-violent crime.81 The victim had been murdered while at work in his store during daylight. Although Mr. Tinney confessed, some police officers agreed that his confession could not be true, as it did not match the known facts of the crime in significant ways.82 In making their own determination, the prosecutor and his investigator chose to personally interrogate and officially accept the confession on the record.83

In 2009, after doing their own investigation, the Ohio Innocence Project filed a Motion to Withdraw Tinneys Guilty Plea (or his confession), with attached exhibits and affidavits casting doubt on Tinneys guilt (the case involved no DNA).84 The motion included an affidavit by Lieutenant John Wendling detailing the evidence obtained during the investigation, the inconsistencies of Tinneys confession, and Lieutenant Wendlings conclusion that Mr. Tinney was innocent.85

A complex series of events followed, which included impermissible ex parte communications: the judge spoke to the Lieutenant about the case when he saw him at a restaurant;86 and afterwards, he forewarned the prosecutor that he was planning to grant Mr. Tinneys motion.87 The prosecutor then offered Mr. Tinney a deal to plead guilty to a lesser offense in exchange for being released. However, the Ohio Innocence Project confirmed that Mr. Tinney was not interested in pleading guilty for a crime he alleges he did not commit.88 The prosecutor and Ohio 80 See Lou Whitmire, Mansfielder Who Confessed to 1988 Murder May Be Released, MANSFIELD NEWS J., Mar. 31, 2011, available at http://truthinjustice.org/tinney.htm. 81 Brief of Defendant-Appellant at 1, Ohio v. Tinney, No. 2011-CA-0041 (Ohio Ct. App. July 9, 2011). 82 Tinney confessed to killing a man with a different weapon than the police knew was used, at a different time of day, on a different part of his body, and to stealing items that the victims wife says he never possessed. Id. 83 Id. at 45, 7. 84 Id. at 10. 85 Id. at 2829. 86 Id. at 10. In May 2010, the judge on the case ran into Lieutenant Wendling in town and asked the lieutenant if his opinion remained the same, to which the lieutenant gave a resounding yes. The judge then called the prosecutors, but not the defense (seemingly in contradiction to his own ethical and legal duties), and indicated that he planned to grant Tinneys Motion to Withdraw. The following day, the prosecutors went to the judges chambers and met with him in person. A month later, the judge denied Tinneys Motion to Withdraw. The lieutenant has said, Ive said it all the time and I still say that he didnt commit the crime. He admitted things that did not happen. Defendants Response to the States Motion for Voluntary Recusal and Defendants Motion for Appointment of a Special Prosecutor at 23, Ohio v. Tinney, Case No. 92-CR-239H (Ohio Ct. Com. Pl. July 2010). 87 Brief of Defendant-Appellant at 3, Ohio v. Tinney, No. 2011-CA-0041 (Ohio Ct. App. July 9, 2011). 88 Defendants Response to the States Motion for Voluntary Recusal and Defendants



Innocence Project discussed holding an evidentiary hearing, to which the prosecutor indicated that he would call himself and his investigator as witnesses.89

The prosecutor subsequently filed a motion to recuse the judge for improper ex parte communications (with the lieutenant, despite the prosecutors own role in ex parte communications with the judge, as well).90 The judge responded that he would not recuse himself on the basis that the prosecutor was only filing the motion to forestall an anticipated adverse decision in the case.91 Despite the judges comments, the judge recused himself shortly thereafter without explanation.92

In front of a newly appointed judge, Mr. Tinneys counsel filed a renewed Motion to Withdraw the Guilty Plea, and now also filed a Motion to Recuse the Prosecutor.93 The motion alleged that, in part, the recusal was necessary because the Prosecutor planned to call himself as a witness, which is an impermissible conflict of interest.94 The judge denied the Motion to Recuse, writing [t]he court is persuaded that the prosecutor is not taking a position against defendants release in this case which violates the Code of Professional Conduct.95 However, he did grant the Motion to Withdraw the Guilty Plea based on all the facts pointing to Mr. Tinneys innocence.96 However, the State, led by the same prosecutor who secured Mr. Tinneys conviction and was not recused, appealed the decision.97 The case is still pending.98 Until it is finalized, Mr. Tinney remains in prison.

C. Anthony Graves

In 1992, Anthony Graves was convicted of murdering a 45-year-old woman, the womans daughter, and her four grandchildren.99 In Motion for Appointment of a Special Prosecutor at 34, Ohio v. Tinney, Case No. 92-CR-239H (Ohio Ct. Com. Pl. July 2010). 89 Id. 90 Id. at 4. 91 Id. 92 Email from Karla Hall, Attorney of the Ohio Innocence Project (Nov. 29, 2011, 5:40 PM EST) (on file with author). 93 Defendants Response to the States Motion for Voluntary Recusal and Defendants Motion for Appointment of a Special Prosecutor, supra note 88. 94 Id. at 811. 95 Decision and Orders on Pending Motion at 3, Ohio v. Tinney, Case No. 92-CR-239 D (Ct. Com. Pl. of Richland Cnty. Mar. 25, 2011). 96 Id. 97 State v. Tinney, 2012-Ohio-72 (Ohio Ct. App. 2012). 98 Mark Caudill, Tinney Hearing Likely on Hold Until December, MANSFIELD NEWS J., Nov. 8, 2012. 99 Harvey Rice, How Siegler Unmade Case, She and a Colleague Independently Concluded that Graves Was No Killer, HOUSTON CHRON., Dec. 16, 2010, at A1; Brian Rogers & Cindy George, After Years on Death Row, Hes an Innocent Man: Prosecutor Exonerates Graves, Says



2006, a federal appeals court vacated his capital murder conviction and ordered a new trial because the prosecutors elicited false statements from witnesses, withheld other statements in violation of Brady v. Maryland,100 and a different death row inmate continuously asserted Gravess innocence up until his own execution.101 As retrial proceedings began, defense lawyers argued for the removal of the prosecutor Joan Scroggins who had been one of the prosecutors in Gravess original trial. The defense argued that by virtue of violating her ethical obligations as a prosecutor by suppressing exculpatory statements, Scrogginss continued presence would deny Graves a fair retrial.102 The judge granted the recusal motion with little explanation.103 Another former state district judge speculated that in doing so, the judge was likely enforcing the Texas Code of Criminal Procedure provision which requires prosecutors not to convict but to see that justice is done.104 The District Attorney Renee Mueller then voluntarily disqualified her entire office, stating they could not proceed without Scroggins, and hired an independent attorney, Kelly Siegler, to act as a special prosecutor.105

Siegler is a highly esteemed prosecutor who had successfully obtained nineteen death row convictions.106 In her preparation to retry the case, Siegler and a veteran state trooper poured over evidence and interviewed more than fifty witnesses.107 Through their investigation, they found that the main witness in the case had recanted,108 as well as other signs of prosecutorial misconduct and fabrication. As described by Siegler, much to her own disbelief, they independently concluded that Graves was innocent.109 They recommended to the District Attorney that the case not be retried.110 Graves was exonerated in 2010 after 18 years in prison, 12 of those on death row. The original appellate prosecutor, removed from the case, remains convinced of Gravess guilt.111

No Evidence Ties Him to 92 Massacre Graves, HOUSTON CHRON., Oct. 28, 2010, at A1. 100 373 U.S. 83 (1963). 101 Erika McDonald, Capital Conviction Tossed Because Prosecutors Concealed EvidenceThe Anthony Graves Story, JUST. DENIED, no. 34, Fall 2006, at 34. 102 Cindy George, Prosecutor off Retrial of Graves in 92 Slayings, HOUSTON CHRON., Dec. 13, 2006, at B1. 103 Id. 104 Id. 105 See Rice, supra note 99. 106 Id. 107 Id. 108 Id. 109 Id. 110 Id. 111 Id.



D. Chad Heins

On April 17, 1994, Tina Heins was brutally murdered in the apartment she shared with her husband, who was away that night, and her husbands brother, Chad Heins, who was at home.112 Heins alleged that due to alcohol and a sleep disorder, he slept through the murder and knew nothing about it.113 Besides his presence, no blood, clothes, fingernail scrapings, hair, nor a murder weapon implicated Heins. The prosecution sought the death penalty, and although the jury found Heins guilty, they recommended life in prison instead.114

In 2003, the Innocence Project and the Innocence Project of Florida took his case and filed a motion for DNA testingwhich was granted over the prosecution's objections. By 2005, two rounds of DNA testing revealed that DNA under the victims fingernails matched the DNA profile of hair found on the victims bedboth belonging to a single, unknown male who was not Chad Heins.115 Then-State Attorney Harry Shorstein removed the original trial prosecutors from the case and appointed new assistant prosecutors within his office. He explained that for all appeals, he routinely removed [the original prosecutor] and sought other assistants to look at it.116 He compiled a team, including himself, to join the assistant district attorneys already assigned to the case. I did want fresh opinions. I was a trial lawyer, he explained, but I always sought out, on difficult cases, assistants to take a fresh look, to test me.117 He described his and the other three lawyers reinvestigation of the case as anguishing.

The court vacated Heinss conviction in 2006.118 The assistant prosecutors on the case recommended retrying him.119 In preparing for retrial, those prosecutors sought more DNA testing on their own.120 This round of testing corroborated earlier findings: semen on the victims bed sheets also matched the same unknown, male profile 112 Know the Cases: Chad Heins, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Chad_Heins.php (last visited Feb. 1, 2013). 113 Although it is difficult to imagine anyone sleeping through a murder, this was not the only case where the defendant has made this claim. See Brandi Grissom, DNA Exonerations Continue, but Not for One Man, N.Y. TIMES, Nov. 5, 2011, at A31 (referring to Hank Skinner). 114 Press Release, Innocence Project, Ten Years After Chad Heins Was Wrongly Convicted of Murder, Florida Judge Vacates Conviction, Citing New DNA Evidence (Dec. 14, 2006), available at http://www.innocenceproject.org/Content/Ten_Years_After_Chad_Heins_Was_Wrongly_Convicted_of_Murder_Florida_Judge_Vacates_Conviction_Citing_New_DNA_Evidence.php. 115 Know the Cases: Chad Heins, INNOCENCE PROJECT, supra note 112. 116 Telephone Interview with Harry Shorstein, Former State Attorney, Fourth Judicial Circuit Court of Florida (Dec. 9, 2011) (on file with author). 117 Id. 118 Id. 119 Id. 120 Id.



discovered under the victims fingernails and on hairs in the victims bed.121

Although Shorstein cannot personally completely shake the idea that Heins might have been involved, he recognized that such a feeling, given the lack of proof of his involvement, was not the standard by which a prosecutor should make a decision to prosecute a murder case.122 Ultimately, Shorstein dropped the charges.123 The Innocence Project deems Heins as having been in exonerated in 2007, after nearly 11 years in prison.124 Shorstein objects to that categorization: he believes that Heins was released because the evidence did not rise to the level of warranting a new prosecution, and not because his innocence was proved.125 One of the original trial prosecutors who was removed from the case, now the elected State Attorney of Shorsteins former office, still believes Heins is guilty.126

III. THE PROBLEM: THE FAILURE OF EXISTING PROPOSALS AND INADEQUATE RECUSAL MECHANISMS

A. The Failure of Existing Proposals to Fully Address Prosecutorial Biases Regarding Post-Conviction Claims of Innocence

Because courts tend to view post-conviction prosecutorial abuses and decision-making as isolated occurrences and the result of character failure of individual prosecutors,127 legislators, and judges have been slow to create new guidelines and procedures to address the prosecutors role in this field despite the burgeoning attention this issue has received in recent years. As a result, scholars and local district attorneys offices have stepped in with proposals. These proposals have not been widely adopted, have shortcomings, and have resulted in little uniform change.

A 2008 amendment to the American Bar Association (ABA) Model Rules of Professional Conduct, Rule 3.8(g) and (h), provides prosecutors with guidance as to appropriate conduct in the post-conviction setting.128 Specifically, the new portions of Rule 3.8, Special

121 Id. 122 Id. 123 Id.; see also Know the Cases: Chad Heins, INNOCENCE PROJECT, supra note 112. 124 Know the Cases: Chad Heins, THE INNOCENCE PROJECT, supra note 112. 125 Email from Harry Shorstein, Former State Attorney, Fourth Judicial Circuit Court of Florida (Jan. 2, 2013, 20:07 EST) (on file with author). 126 Telephone Interview with Harry Shorstein, supra note 116. 127 Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 WIS. L. REV. 399, 400. 128 MODEL RULES OF PROFL CONDUCT R. 3.8(g)(h) (2008).



Responsibilities of a Prosecutor, impart: (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose the evidence to an appropriate court or

authority, and (2) if the conviction was obtained in the prosecutors jurisdiction, (A) promptly disclose that evidence to the defendant unless a

court authorizes delay, and (B) undertake further investigation, or make reasonable efforts

to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutors jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.129

The ABA rules offer clear guidelines for prosecutors regarding their duties to reinvestigate the case. However, these rules are only recommendations, not binding law even for those states that have adopted them.130 Only five states have thus far adopted these specific guidelines.131 There are also no consequences for a prosecutor who chooses not to follow the guidelines.

A 2010 draft of the revised ABA Standard for Criminal Justice, which was not instituted, also included a new section, standard 3-7.1, Post-trial Motions, addressing this issue:

The prosecutor should conduct a fair evaluation of post-trial motions, determine their merit, and respond accordingly. The prosecutor should not oppose motions that the prosecutor believes are correct, or solely for the purpose of preserving a conviction.132

129 Id. (emphasis added). 130 The ABA is a voluntary bar association without lawmaking powers. See Consumer FAQs, AM. BAR ASSN, http://www.americanbar.org/groups/professional_responsbility/resources/resources_for_the_public/consumer_faqs.html (last visited Feb. 1, 2013). It creates ethical guidelines, which states often incorporate and adopt into their own laws. See id. Once adopted by a state, they set the minimum guidelines that practitioners should follow. See Green & Yaroshefsky, supra note 67, at 472 n.28 (citing CRIMINAL JUSTICE SEC., AM. BAR ASSN, REPORT TO THE HOUSE OF DELEGATES (2008), available at http:// www.abanet.org/leadership/2008/midyear/sum_of_rec_docs/hundredfiveb_105B_FINAL.doc). 131 Idaho has adopted rule 3.8(g) and (h) in full. Colorado, Tennessee, and Wisconsin have adopted (h) and modified (g), and Delaware has adopted a hybrid of (g) and (h). See David Keenan et al., Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 YALE L. J. ONLINE 203, 231 n.134 (2011). 132 AM. BAR. ASSN, STANDARDS FOR CRIMINAL JUSTICE 3-7.1 (Draft 2010) (emphasis added).



This standard would have imposed a new duty on prosecutors to evaluate motions, though do no more. However, this new standard has yet to be adopted by the ABA or any state. Had the prosecutor in Michael Mortons case undertaken any such investigation it may have prevented the six-year delay in Mortons exoneration. Alternatively, given the prosecutors subconscious biases, it might not have.

A second proposal, put forth by Daniel Medwed, H. Richard Uviller, and others, involves the creation of internal Innocence or Conviction Integrity units within prosecutors offices.133 Post-conviction, innocence-based appeals automatically get assigned to the attorneys in these units, rather than a district attorney through the ordinary assignment process.134 For example, in Dallas, Texas, District Attorney Craig Watkins created such a unit in 2007.135 The Unit hired new lawyers without a personal interest in protecting particular convictions,136 to ensure the accuracy of the investigation, rather than solely uphold convictions.137 Similarly, the goal of the North Carolina Actual Innocence Commission was to look at each case with a fresh eye. . . . We are not trying to prove things one way or the other. We have no axe to grind. We are searching for the factual historical truth.138

However, these units require both financial resources and the political will of a leader who is willing to admit the need for new, neutral prosecutorstwo factors that have prevented, and will likely continue to prevent, their adoption around the country. Furthermore, even these separate units do not necessarily obviate conflicts of interests if they remain under the supervision of the same District Attorney who was originally involved with the case.139 Nor have any of these units hired

133 See Medwed, The Prosecutor as Minister of Justice, supra note 13, at 3738; Uviller, supra note 34, at 170405. 134 See Medwed, supra note 13, at 5253. 135 See Conviction Integrity Unit, DALLAS CNTY. DIST. ATTORNEYS OFFICE, http://dallasda.co/webdev/?page_id=73 (last visited Feb. 1, 2013). 136 Green & Yaroshefsky, supra note 67, at 49495. The Unit has reviewed more than 400 cases in which individuals had requested DNA testing but had been denied by the courts and rebuffed by previous prosecutors. See id. at 494 & n.169. 137 See id. at 495. 138 Id. at 495 n.174 (quoting Telephone Interview with Michael Ware, Dir. of the Conviction Integrity Unit (July 14, 2008)); see also Douglas H. Ginsburg & Hyland Hunt, The Prosecutor and Post-Conviction Claims of Innocence: DNA and Beyond?, 7 OHIO ST. J. CRIM. L. 771, 78992 (2010) (reviewing systems similar to the North Carolina Commission that have been created in Canada and the United Kingdom). 139 See Application for Permission to Appeal from Denial of Rule 9 Application at 24, Rimmer v. Texas, CCA No. W2009-02371-CCA-R9-PD (Tenn. 2010) (seeking recusal of the trial prosecutor, alleged to have presented false testimony regarding eyewitness identification of the defendant, who supervises the post-conviction prosecutor as well as the entire prosecutors office), available at https://s3.amazonaws.com/s3.documentcloud.org/documents/73622/rimmer-application-for-permission-to-appeal.pdf; see also Brad Heath, Did Prosecutors Taint Memphis Murder Trial?; Death-row Convicts Attorneys Allege Misconduct, USA TODAY, Aug. 17, 2011, at 1A.



defense attorneys to work alongside prosecutorswhich might help balance inherent biases.140 Empirical research needs to be done to determine if innocence claims have different cumulative outcomes in these units than in normal offices.

A third proposal by Bennett Gershman suggests that post-conviction prosecutorial functions be outsourced entirely, not merely to separate internal units of the same prosecutors office.141 This would ensure that the cases newly assigned prosecutors have no loyalty to colleagues in obtaining and maintaining the conviction under reinvestigation.142 For instance, in Anthony Gravess case, hiring an outside prosecutor fulfilled this goal.143 Utah has implemented this proposal by housing all post-conviction innocence-based proceedings within the State Attorney Generals office.144 However, other states have not rushed to copy this model.145

Fourth, George Thomas III goes so far as to propose that there should be a department of criminal law specialists who both prosecute and defend casesthereby attacking the problems of tunnel vision and ingrained loyalties head on.146 This would force attorneys to engage alternative views and understand a fuller sense of the stakes not only for the other side, but for all those affected by the system, including victims, victims families, and defendants families.147 Alternatively, he also suggests that investigators should work for judges, not prosecutors.148

Fifth, Alafair Burke has proposed that District Attorneys offices implement educational training modules designed to teach prosecutors 140 See Jeffrey L. Kirchmeier et al., Vigilante Justice: Prosecutor Misconduct in Capital Cases, 55 WAYNE L. REV. 1327, 136869 (2009) (citing Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 WM. & MARY L. REV. 1587, 161326 (2006)). 141 See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 45558 (1992). However, it is also possible that many employees in an Attorney Generals office have also previously worked in prosecutors offices. 142 Id. at 45758. 143 See McDonald, supra note 101, at 3. 144 See Medwed, The Zeal Deal, supra note 5, at 176 n.265. 145 This may be because there is still pushback from prosecutors offices that see this as a trespass on their own authority. Telephone Interview with Harry Shorstein, supra note 116 (explaining that as the elected official, it is the District Attorneys responsibility and privilege to make decisions about who will try a case, and a judge overruling those decisions violates the separation of powers). In addition, and more problematically, Attorney General offices may only hire prosecutors to review post-conviction innocence claimsrather than hiring prosecutors and defense lawyers, which would increase confidence in the process exponentially. See NY Attorney General to Review Wrongful Convictions, WALL ST. J., Apr. 11, 2012, at A20. Lastly, beyond the necessary political will of the district attorney, this approach also requires that the Attorney Generals office be willing to divert some of their own financial and staff resources to these cases. 146 See THOMAS, supra note 12, at 19091. 147 Bandes, supra note 54, at 427. 148 See id. at 429.



about cognitive bias to help them understand their own unconscious biases.149 These trainings would have to be either legislatively required or welcomed by those being trainedwhich requires an acknowledgement of prosecutorial bias, which many prosecutors are unwilling to accept in the first place.150 There is no evidence that such educational materials exist or have been implemented. However, other areas of the law, such as the credibility of eyewitness identification, have recently developed to recognize the role that bias and social sciences play in the law.151 These breakthroughs may indicate that the legal profession is, slowly but surely, willing to recognize new cognitive biases that were previously dismissed.

Lastly, former director of the Public Defender Service for D.C. and Professor Angela Davis and others have called for disciplinary measures to hold prosecutors accountable for official misconduct as well as for delaying justicethereby deterring such behavior in the future.152 However, despite numerous calls for prosecutorial discipline in different areas over the years, external discipline remains aspirational.153 Bar Associations have examined very few cases, and of those they have, most end in only verbal reprimand.154 It seems that one of the few prosecutors to be punished for ethical misconduct, including for charges of withholding evidence from the defense, is the prosecutor who tried the infamous Duke Lacrosse Case,155 although criminal actions against the prosecutor in Michael Mortons case, discussed above, are also being brought.156 149 See Burke, Neutralizing Cognitive Bias, supra note 4, at 52223. 150 See Telephone Interview with Harry Shorstein, supra note 116. 151 For instance, although our justice system was slow, until recently, to acknowledge the role that implicit bias plays in eyewitness identification, many jurisdictions and police departments now recognize, and have implemented trainings, how subconscious biases affect peoples perceptions of the facts. Compare Perry v. New Hampshire, 132 S. Ct. 716 (2012) with State v. Henderson, 27 A.3d 872 (N.J. 2011). 152 See Angela J. Davis, The Legal Professions Failure to Discipline Unethical Prosecutors, 36 HOFSTRA L. REV. 275 (2007); see also Joy, supra note 127; Robert Barnes, Prosecution on the Docket, WASH. POST, Oct. 31, 2011, at A17. In response to this ongoing and widespread misconduct Barry Scheck and other innocence advocates have proposed a national dialogue with prosecutors in an effort to find ways to investigate and sanction prosecutors who break the rulesin order to change and stop prosecutorial misconduct culture. Barnes, supra. 153 See Davis, supra note 152; see also Connick v. Thompson, 131 S. Ct. 1350 (2011). 154 See Davis, supra note 152, at 29192. 155 In that case, the prosecutor was disbarred after rushing to accuse the defendants, Duke Lacrosse players, see id. at 298, despite contradictory evidence in his investigation, for providing a suspect with a suggestive photo identification procedure, see Duff Wilson & Jonathan D. Glater, Files from Duke Rape Case Give Details but No Answers, N.Y. TIMES, Aug. 25, 2006, at A1, among other unethical acts, see Laurie L. Levenson, High-Profile Prosecutors & High-Profile Conflicts, 39 LOY. L.A. L. REV. 1237, 1251 n.55 (2006). 156 The Innocence Project took the initiative to request that the State of Texas order a full investigation into the possible prosecutorial criminal misconduct that took place in Michael Mortons case. See Chuck Lindell, Morton Lawyers Put Prosecution on Defense, AUSTIN AM. STATESMAN, Dec. 7, 2011, at A1; see also Brandi Grissom, Judge Asks for Court of Inquiry into



Although prosecutorial accountability is an important pursuit, there is also value in removing the rhetoric around fault and blame. In the post-conviction setting, as Alafair Burke has emphasized, prosecutors should not be removed only for active wrongdoing, but rather for their human inability to look at the case with fresh eyes.157 Thus, this Note thus focuses less on criminal sanctions than on the deterring and preventing unnecessary delays of justice.

Despite successes in a case-by-case or locality-by-locality basis, these proposals have failed to gain traction, only addressing the problem on an ad-hoc basis. And while the ABA Model rules provide proactive guidelines to prosecutors on what is expected of them, they do not address the issue of bringing fresh eyes to a case in the way that independent conviction integrity units, or judges (rather than prosecutors) investigating the case, do. As a result, the majority of those alleging their innocence nationwide have not benefited from these proposals.

B. Inadequate Recusal Mechanisms

Recusal and disqualification procedures158 exist to remove judges and attorneys, particularly prosecutors, from cases to ensure that a petitioner is afforded her Constitutional right to a fair trial in a fair tribunal.159 The idea behind such procedures is that conflicts of interest inevitably arise in which a party is so embroiled in a controversy that she may be unable to act fairly and objectively in fulfilling her duty.160 Historically, recusal only applied to judges.161 Over time, however,

Morton Prosecutor, TEX. TRIB. (Feb. 10, 2012), http://www.texastribune.org/2012/02/10/judge-decide-former-prosecutor-court-inquiry/. It made its own fact finding and an exhaustive presentation to the court on why action should be taken against the prosecutor. See Lindell, supra. As Chuck Lindell, a journalist covering the Morton case closely noted, the request is groundbreaking: it has never been attempted in the nations 284 other exoneration casesn

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