What’s the Prosecutor’s Duty When an Injustice Later Surfaces?

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In his latest New York Law Journal Ethics and Criminal Practice column, Adjunct Professor Joel Cohen poses moral and ethical questions about what actions prosecution offices and prosecuting attorneys should take to correct past justice system failures.

Should a prosecutor—any prosecutor—faced with a confession years later by one who credibly claimed he acted alone, publicly stick to his or her guns about the case, even after their own office has investigated and determined that the convictions should be vacated? Even if that prosecutor still personally believed in the defendants’ guilt?

Stroud and Fairstein are two ends of the spectrum for sure, and a description of their diametrically polar responses is designed merely to lay the framework for a discussion of a prosecutor’s ethical obligations when it appears that one convicted is innocent. And to be sure, to their credit, major prosecution offices in New York—for example, New York County and Kings County—have now institutionalized conviction integrity units to deal with wrongful conviction claims, although I was told, in response to my verbal requests, that they don’t have specific or published protocols that address precisely how to deal with new information that may lead to an exoneration. That aside, what are the ethical duties of prosecutors to deal with such situations?

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