As of July 3, 2017, the National Registry of Exonerations (“Registry”) reports there have been 2,056 exonerations of criminal defendants in this country since 1989.


166 Exonerations in 2016


This past March, the Registry released its findings of exonerations in 2016. Included in the report was a record 166 exonerations recorded in 25 states, the District of Columbia, federal courts, and Puerto Rico.


Texas, Harris County Lead Nation in Exonerations


Texas led the nation with 58 exonerations, most coming out of Harris County. That’s 42 more than second place Illinois that had 16 exonerations. California, which has 11 million more people than Texas’s 28 million, recorded just 9 exonerations.


It is noteworthy that of Texas’s 58 exonerations, 48 of them were the result work done with the Harris County District Attorney Office’s Conviction Integrity Unit.


Wrongfully Incarcerated Spend Decades in Prison, While Offenders go Unpunished


When prosecutors fail to get it right, not only are people convicted of crimes they did not commit, and often forced to serve decades confined in prison, but those truly responsible for these often terrible offenses never get prosecuted.


Reversed or Vacated Not Same as Exonerations


In a recent Daily Beast article, Hella Winston, with the research assistance of Hin Hon(Jamie) Wong, examined 263 vacated murder convictions not reflected in the Registry’s 2000-plus exonerations. Winston explained why:


“A vacatur is not equivalent to a determination of actual innocence; convictions must be overturned not only when there is a finding of factual innocence, but also when a defendant’s constitutional rights have been violated, regardless of guilt or innocence.”


Winston goes on to point out that “very few wrongfully convicted” persons are ever able to “prove” their innocence. Of the 263 overturned murder convictions analyzed by Winston, prosecutors elected to retry only 48 of them, and all the defendants in those cases were acquitted.


Of the remaining 215 overturned murder convictions, prosecutors charged a new suspect in just 16 of those cases, or 7% of them, according to Winston’s research.  That means of the 263 vacated murder cases, there are 247 un-prosecuted murderers walking free.


Winston was able to identify 24 of these 247 cases in which prosecutors said investigations into the crimes were either “ongoing” or “open.” Whether or not the investigations have identified or targeted a new suspect “remains unclear” because, as Winston pointed out, prosecutors “refused to elaborate.”


The main reasons prosecutors gave as to why more of the vacated convictions were not retried against the original defendant(s) were either “erosion” or “insufficiency” of evidence.


Difficult to Charge Another Suspect After Reversal or Exoneration


Winston quoted Ron Kuby, a veteran criminal defense and civil rights attorney who has represented numerous wrongfully convicted people, as saying that prosecutors have little, if any, incentive to reopen a murder case after the conviction has been overturned.


“To charge a different suspect in the crime is as clear an admission of initial wrongdoing as it’s possible to make … and prosecutors will [admit wrongdoing] only when they are absolutely forced to do so, by a court. And even then, they may acknowledge that there was misconduct, or that the evidence was insufficient or tainted, but rarely do they say, ‘we had the wrong guy and let the actual killer [walk] free X number of years.’ It makes them look really bad.”


Prosecutors Invested in Narrative of Crime


Too many prosecutors become so invested in what Kuby said is their “narrative of the crime” that they refuse to admit “mistakes” were made, much less consider the actual innocence of a wrongfully convicted defendant in a murder case. Kuby pointed out these prosecutors feel like they have been “unfairly tarnished” by “shady defense attorneys” who secure the reversal of conviction.


“It is easier [to think] that you’re right and the defense lawyers and the judges were wrong because you don’t have to do any work,” Kuby told Winston, “and [they] can indulge in both self-pity and laziness. It’s a lot easier than going out and finding the real killer.”


Kuby is right, to a significant degree, but prosecutors have some legitimate strategic reasons for not retrying some vacated murder convictions, especially against a new defendant.


Former Brooklyn Assistant District Attorney Benjamin Schneider summed up the most important reason this way to Winston:


“[A vacated conviction] may doom a subsequent prosecution for the same offense, because the second defendant will offer the prosecution’s old, discredited evidence – and the fact that someone else’s conviction – to raise doubt about his own guilt.”


That certainly puts prosecutors looking at a trial of a second defendant between the proverbial rock and a hard place.


A prosecutor can only counter this defense, Schneider says, by “arguing that reasonable doubt has not been raised by the old evidence, because the old evidence was tainted and the first defendant was set free after years in prison. But the jury will learn that this prosecutor’s office put an innocent man in prison, for this very crime, by using tainted evidence.”


Important to Do It Right the First Time 


The points of view of both Kuby and Schneider underscore why it is so critically important to get it right at the first trial. And the duty to get it right rest exclusively in the prosecutor’s court. He or she has a solemn legal and ethical obligation to fairly present the evidence to a jury. There is no corner in the courtroom for cheating, lying, falsifying, or stretching the parameters of evidentiary rules simply to secure a conviction.


The reversals of the 263 murder convictions cited by Winston belong to the prosecution, not shady defense attorneys. There certainly may have been examples where defense attorneys did not perform as they should have, but at the end of the day a conviction overturned because of constitutional violations or prosecutorial misconduct rest squarely with the prosecution.


Interests of Justice Demands Prosecutorial Integrity from Moment of Arrest


The courtroom is not a stage for dramatics; it is a venue to seek and serve the interests of justice.


If prosecutors do it right the first time, there will be no need for a second time; there would be no need for Conviction Integrity Units like the one in the Harris County District Attorney’s Office. Prosecutorial integrity should begin at the moment of arrest, not post-conviction.


There are as many as 20,000 (or more) innocent people in the nation’s prison system because prosecutors (with the help of the police) did not get it right. Some of these wrongfully convicted people will die in prison for no other reason than rogue prosecutors wanted win at any costs.


Justice demands more, not less.


Justice is a shared responsibility: prosecutors, defense attorneys, and the courts.