Convicting the Innocent: Aberration or Systemic Problem?

In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily determining whether a defendant has meaningful access to justice in this country, the promise of equal justice remains illusory. Providing defendants access to competent counsel with the time and resources to meaningfully test the prosecution's case is a badly needed step that would enhance the fairness and reliability of our criminal justice system. It is, however, just one step in fixing a "broken system." For even the presence of a capable defense lawyer does not necessarily ensure that the innocent will, in fact, go free. Contrary to popular wisdom, our system of justice does not overprotect criminal defendants, thereby minimizing the conviction of the innocent. Rather, our state criminal justice systems, as they currently operate, inadequately protect those wrongfully accused of crimes. Part I of this Article begins by examining the uneven right to counsel in this country. Wealthy defendants - and surprisingly, indigent defendants in some better funded jurisdictions - generally receive representation that is substantially better than that accorded most other defendants. For many indigent defendants and most of the working poor, however, the lawyers who represent them do not have the time or resources to effectively challenge the prosecution's case. Ultimately, overworked or inept lawyers increase the likelihood that innocent defendants will plead or be found guilty. It is not just bad lawyering, however, that produces wrongful convictions. Rather, other systemic practices and pressures contribute to such convictions. To illustrate this, Part II of the Article focuses on Arizona v. Youngblood, a case in which Larry Youngblood, despite the assistance of competent counsel, was convicted and imprisoned for seven years for a rape he did not commit. Yet for many Americans, the lessons of the Youngblood case and other DNA exonerations are not easily grasped. Quite simply, many Americans harbor myths about the actual workings of the criminal justice system that in turn create or influence attitudes about the system. Part III of the Article explores some of these common myths and corresponding attitudes and exposes systemic shortcomings and practices that need to be addressed if we are to minimize the number of innocent persons who will be wrongfully convicted. Fixing the system, however, will not be easy. Self interest and deeply held views about the criminal justice system create barriers to learning the lessons of the DNA exonerations and other cases of wrongful convictions. Indeed, some even refuse to acknowledge the existence of any significant systemic problems, arguing that the number of innocent persons wrongfully convicted has been grossly exaggerated. Others contend that the costs of improving the system outweigh the marginal benefits gained by freeing a few more innocent persons. Part IV of the Article responds to those critics and discusses the extent to which entrenched attitudes and narrow perspectives create barriers that impede meaningful systemic reforms. Finally, the Article concludes by identifying steps that can and should be taken to improve the criminal justice system and thereby minimize convicting the innocent.