NCPA - National Center for Policy Analysis

New Legal Theory: Ignore Evidence of Innocence

February 24, 2003

As DNA and other evidence has become available to call into question guilty verdicts in capital cases, increasing numbers of death row inmates and their lawyers have been petitioning the courts to set aside their convictions. But some lawyers and state officials are beginning to argue that there must come a time when cases can be closed.

  • Recently a judge on the Missouri Supreme Court asked a prosecutor, the state's assistant attorney general, if he was suggesting that a condemned man should be executed even if new evidence were introduced establishing his innocence, the prosecutor replied: "That's correct, your honor."
  • Later, Missouri's attorney general defended that reply with the question: "Is the state required to prove every day that someone committed an offense beyond a reasonable doubt?"
  • For a variety of reasons, many prosecutors' frustrations with postconviction claims of innocence is rising.
  • They argue that many claims of innocence are frivolous, that the convict knows he has nothing to lose, and is simply "playing the lottery."

They also claim that victims and their families need "closure," and that reopening a case is like reopening a wound.

Legal experts are hopeful this may be a passing phenomenon. DNA testing at the outset of a prosecution in now routine, so that more recent convictions cannot be subject to such challenges on this basis.

Not all prosecutors, of course, are opposed to reopening cases upon new evidence. Mary Jo White, who was the United States attorney in Manhattan for almost a decade, says the government has an obligation to "move heaven and earth" to exonerate the innocent -- and not to do so is "indefensible and uncivilized."

Source: Adam Liptak, "Prosecutors See Limits to Doubt in Capital Cases," New York Times, February 24, 2003.


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