48 San Diego Law Review 401 (2011)
As this memorial volume illustrates, Fred Zacharias wrote insightfully on many aspects of the legal profession, covering a wide-range of ethical topics and analyzing many aspects of lawyers’ work. He was interested in the lives of lawyers and believed they owed a duty to society beyond an exclusive focus on individual clients’ interests.
This Article develops a question that intrigued Fred: Prosecutors’ duties postconviction to prisoners who might be innocent. Although Fred wrote about a panoply of questions that arise regarding the prosecutor’s duty to “do justice” after conviction, this Article will address one specific area of concern: how and why prosecutors resist allowing DNA testing and, more startlingly, deny the obvious implications of DNA evidence when that evidence exonerates the convicted.
As Fred himself noted, there may be legitimate reasons for prosecutors to deny access to DNA to every prisoner who so requests. Less easy to understand, however, are the confabulations and attenuated scenarios some prosecutors posit to argue that the accused is guilty despite DNA evidence that demonstrates no link to the crime (and sometimes incriminates a known offender).
This article argues that the psychological concept of denial goes a long way in explaining prosecutors’ conduct. Rather than portraying these prosecutors as megalomaniacal abusers of the adversary system who will protect their win-loss ratios at any cost, a theory of denial posits that prosecutors simply cannot face the fact of a wrongful conviction or its implications for the entire system of justice. Ironically, a prosecutor’s desire to do justice and her self-image as a champion of justice renders the fact of wrongful conviction particularly painful. As a result, some prosecutors go to incredible lengths to deny the obvious rather than facing the fact that the system failed and they may have contributed to the injustice.
Orenstein, Aviva A., "Facing the Unfaceable: Dealing with Prosecutorial Denial in Postconviction Cases of Actual Innocence" (2011). Faculty Publications. Paper 157.