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The National Registry of Exonerations, an academic project that tracks and analyzes exonerations in the United States, published two reports yesterday. One is an annual summary called “Exonerations in 2016.” The second is a special report called “Race and Wrongful Convictions in the United States.” Together, these publications reinforce two critical lessons (which are also reflected in this blog’s annals): prosecutorial misconduct causes wrongful convictions, and it infects cases across the spectrum, from homicide prosecutions resulting in capital punishment to non-violent drug offenses.

According to the NRE summary, there were a record number of 166 exonerations in 2016. Importantly, this number increased even as the number of exonerations due to DNA testing declined from 2015. Indeed, DNA cases comprised just 10% of the 2016 total. One possibility is that increased public awareness of the role prosecutors play has required DAs to be more engaged with claims of wrongful conviction. Another is that judges and other actors in the criminal justice system have finally awoken to the reality that there is an epidemic of prosecutorial misconduct in this country.

Misconduct by itself demands accountability. But, for those whose concern for individuals caught up in our justice system extends only to the innocent, the “Race and Wrongful Convictions” report underscores the importance of combating prosecutorial misconduct in all cases:

Seventy percent of the murder prosecutions that led to exoneration included official misconduct that we know about. We have identified many different types of misconduct. The most common is concealing exculpatory evidence—often called “Brady violations” after the landmark 1963 Supreme Court case Brady v. Maryland—which occurred in just over half the cases. The next most common type is witness tampering—everything from misleading a witness at a lineup, to threatening a witness, to suborning perjury—which occurred in 31% of murder exoneration cases; followed by perjury by a state official, which happened in 11% of the cases.  

These numbers are jaw-dropping. Brady violations and perjury by state officials are not about technicalities; they are about getting to the truth. The NRE’s reports serve as a sharp rebuke to those seeking to narrow the circumstances under which the State’s suppression of exculpatory evidence results in a new and fair trial for the defendant. Soon the Supreme Court itself will weigh in on issues of prosecutorial misconduct and defendants’ due process rights. And the high-profile case it has chosen to hear could well end up in the Registry of Exonerations. Until accountability becomes a meaningful concept, one is left to wonder how many more wrongful convictions will be obtained by prosecutorial abuses right under our noses.

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