Law Schools: Add Wrongful Conviction to Core Curriculum

“Like many people, I [once] accepted one of the myths,” said Jeffrey Rosen, the New Republic’s legal affairs editor and law professor at George Washington University. The Los Angeles Times called Rosen “the nation’s most widely read and influential legal commentator.” A legal book author, he is a summa cum laude graduate of Harvard College, was a Marshall Scholar at Oxford University, and is a Yale Law School graduate. One of his specialty areas is criminal procedure. Yet, he recently humbly admitted that he’d gained a new understanding about our criminal justice system, namely, that it convicts the innocent far more often then most imagine.

Rosen was speaking about one of the myths in False Justice: Eight Myths that Convict the Innocent: “Our System Almost Never Convicts an Innocent Person.” He was also referencing University of Virginia Law Professor Brandon Garrett’s book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.

“It’s impossible to maintain that position after you review the statistics in both of these books,” Rosen said.

Rosen had read both books in preparation to lead a discussion on wrongful criminal conviction at Georgetown Law last September 15 (2011). The event, reported here in Georgetown Law, was part of the Law Center’s annual Constitution Day, which celebrates and lifts up the Constitutional sacred rights that require our ongoing interpretation, diligence, and protection. Hosted by the Constitution Project, both books received the organization’s 2011 Constitutional Commentary Award.

The fact that Rosen could gain a new understanding on a subject in which he is a nationally recognized expert is not as surprising as one might think. The lessons of DNA, first used in a criminal case in the U.S. in 1989, are relatively recent. It has taken time, research, analysis, and the study of nearly 300 DNA-proven wrongful convictions to identify the lessons of DNA.

Even now as they have prompted best practices in criminal procedure that could reduce wrongful conviction, many practicing prosecutors, defense attorneys, judges, legislators, and law professors, are unaware of the scope of, contributors to, and remedies for miscarriages of justice.

My husband, Jim Petro, was into his fourth decade as an attorney and was Attorney General of Ohio when he was confronted with a wrongful conviction that changed his thinking, his advocacy, and his perspective on the justice system.

In the past two decades, we have observed a rash of reports of wrongful conviction. We no longer view these as anecdotal or unpreventable rare incidents of human error. Those who have focused on tragic miscarriages of justice, now know that wrongful conviction is not rare, nor is it simply human error. The contributors to and remedies for wrongful conviction are being debated in legislatures throughout the nation.

Our book False Justice is featured in three current law school publications (spring 2012 publications of Case Western Reserve Law’s In Brief, the previously mentioned article in Georgetown Law, and University of Cincinnati Law Professor Mark Godsey’s article in the Ohio State Journal of Criminal Law), an indication of the growing importance of the issue. Continuing legal education courses and forums such as the excellent one (here) at the Rochester Institute of Technology are also raising the topic.

All of these are critically important efforts to reach and educate practicing attorneys, judges, and legislators.

However, the lessons of wrongful conviction should not be lost on the next generation of lawyers. When I have asked law professors and deans of law schools if their curriculum includes wrongful conviction, the answer has been no. Some have said that wrongful conviction is sometimes included in legal ethics discussions, which is extremely important…perhaps the most critical issue of all.

Justice John Marshall Harlan referenced¹ a classic legal question when he stated that a “fundamental value determination of our society” is that it is “far worse to convict an innocent man than to let a guilty man go free.” Tragically, this is not an either/or proposition, for when we convict an innocent person, we do both.

For all law graduates who aspire to become defense attorneys, prosecutors, judges, or legislators, the lessons of DNA-proven wrongful conviction are among the most important to be considered. They get to the very core of our overarching American commitment to provide justice for all, and they certainly should be in the core curriculum of every law school.

¹In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)(Harlan, J. concurring).