New Scholarship Spotlight: Prosecution (Is) Complex


Alafair S. Burke

Alafair S. Burke

Alafair S. Burke has posted the above titled-article, a book review of Prosecution Complex, on SSRN.  Download here.  The abstract says:

Post-conviction DNA testing has led to the exoneration of nearly three hundred defendants. As the number of exonerations grows, we are in an era where the once unthinkable is now undeniable. We convict the innocent. We imprison the innocent. We place the innocent on death row. Daniel Medwed brings this reality to life in his captivating book, Prosecution Complex, which carefully documents the myriad ways that prosecutors can contribute to wrongful convictions at every stage of a criminal case. From the charging decision to plea bargaining to trial to post-conviction, Medwed argues, prosecutors face an “ongoing schizophrenia” as they seek to balance dual roles in the criminal justice system, trying to serve both as zealous advocates for the government and as neutral ministers of justice.

This book essay offers three lessons that can be gleaned from Medwed’s central thesis that prosecutors must struggle to balance their dual roles as advocates and ministers of justice. Two of these lessons are for prosecutors: 1) that the protection of justice means not only the protection of the innocent, but also the fostering of a fair process, and 2) that prosecutors can mitigate the possibility that they will contribute to a wrongful conviction by seeking out contrary voices that foster neutral decision-making. The third lesson, aimed at the wrongful convictions movement, is to avoid a language of fault, which has a tendency to focus reform efforts on intentional misconduct and to signal to virtuous prosecutors that they need not worry that they may contribute to a wrongful conviction. Prosecution Complex is a significant book that should be read by any scholar, lawyer, or layperson who cares about criminal justice. But its most essential audience is prosecutors themselves, who hold the key to the most feasible and important reforms in the prevention of erroneous convictions.


4 responses to “New Scholarship Spotlight: Prosecution (Is) Complex

  1. Reblogged this on Upside Down.

  2. This sounds like profound food for thought. Not having read the book, I’ll reserve judgement, but it looks like it ‘may not’ address the fundamental issues of what personal motivations drive prosecutors – like being re-elected to political office.
    Guess I should read the book.

  3. “Prosecution (is) complex”… It is NOT complex in Arizona, where there is no presumption of innocence or due process, because of Victim’s Rights (controlled by the DA’s office) and lack of respect for the U.S. Constitution and peoples’ rights.

    The formula for “easy” convictions:
    (see WITCH HUNT documentary in the news today, decades later)… How many prosecutors followed Kern County DA Ed Jagels “formula” for “easy” convictions, for decades? Entrenched power, arrogance and disregard for the men, women, children and their families?)

    Step 1. Starts with falsely accusing a person of a non-violent crime; the police interrogate and write the police report; get their (false) narrative into the media for the “guilty-by-media” verdict (for an easy plea bargain) and to horrify the public; the detective fails to follow established protocol for investigation (because detectives are allowed to lie); then the detective/PD hold the defendant non-bondable for weeks, while the prosecutors (elected DA) poison the internet with these cases and get their “easy” conviction for a non-violent crime. Pre-trial services recommend bond between $1,800 – 8,000.00, yet the prosecutor sets it at $100,000. Defendant gets released on over $100,000 cash bond for an alleged crime that never happened (no blood, no domestic violence call, no one died. no 911 call, yet SWAT team was used.

    Lawyers collect their obscene upfront, non-refundable legal fees = case done. Drag it out for years so it looks like someone actually worked on the case, when nothing was done. Pretend there is an appeals process, when in fact the state can drag their heels for years while prosecutors/lawyers move on and up the career chain. The state dumps the case in the federal court knowing AEDPA has gutted the Writ of Habeas, and few make it there to ever be heard.

    What is complex: Overturning the wrongful conviction, and holding those responsible for the wrongful conviction, accountable. The Exoneration Registry with over 1,700 exonerees castes doubt on the integrity of the justice system, that has unfolded daily since 2012. Re-educating the public.

    Maricopa County, Arizona: Search the Matt Bandy case, national TV attention on ABC 20/20 Matt Bandy case and DA Maricopa County Attorney Andrew Thomas; and articles about Matt Bandy by Rachel Alexander (Thomas’ prosecutor “blogging queen” 2007, paid for by the taxpayers).

    What is complex: Is how a prosecutor can overwhelm the courts, jails, prisons and people’s and families lives for generations to come. Note. Andrew Thomas bragged about his 200,000 felony cases in one term in office (2005-2010). He was disbarred April 2012 for abuse of power, along with his chief “charging” officer ex-DCA Lisa Aubuchon, and his “internet blogging queen”, ex-DCA Rachel Alexander, sanctioned. See Arizona Supreme Court Disciplinary website April 2012 to hear the months long, daily hearings. Should be a case study in all law schools.

    The book that is needed is one that describes how the prosecutors work to make cases complex in an adversarial justice system, where all the resources and power are on one side, against a man, woman or child that has never been in the criminal justice system and never had a criminal life style. But, all this is lucrative and expedient for those driving wrongful convictions, especially against the non-violent.

    So who’s going to dismantle the sick game played on the innocent in America for centuries in a politicized justice system, where bias, bigotry, racism and hatred drive it? Welcome to the enlightened 21st century.

    Who is going to abolish AEDPA and the draconian “scarlet letter” International Megan’s Law, passed without public dialog? Hillary, Bernie or Trump?

    • My comment addressed the title, “Prosecution (Is) Complex”, which might take this in a different direction then the book I have yet to read.

      To solve anything we have address the culture which is wired in the prosecutors’ DNA – bias, arrogance, the love of power and money, over seeking fair justice. I haven’t run into what you describe as a “virtuous” prosecutor, or we wouldn’t be here 10 years later with ‘new evidence” and exculpatory evidence that was known at the time of the police interview of the children, 2004, and 2006 at mountains of new evidence grew, and was ignored along the way, by many officials who chose to to nothing, and destroyed an innocent mother, her child, her family, her once good name, her profession, and her future and legacy.

      The “virtuous” prosecutor (a unicorn) will be the one who does his job as minister of justice, “rights the wrong” of the wrongful conviction and exonerates the prisoner, and does not play games to retry someone, like was done to Debra Milke, AZ, whose conviction was overturned, but the DA took two more years of her life before she was exonerated – knowing full well he would lose, while wasting taxpayers money and depriving Debra of being with her dying mother, after 25 years. Address that with other prosecutors and see how they would have handled the case — after it was overturned at the federal level, 9th Circuit Court of Appeals. Start with a CLE 101 class in “double jeopardy”.

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