Preliminary Review of the National Registry of Exonerations: Insights for Defense

Abstract

While summary attention has been given to wrongful convictions in the U.S during the past several decades, the focus has been primarily on DNA analysis not available at the time of conviction. Little attention has been given to the prevalence of wrongful convictions resulting from deficiencies in the adjudication process itself which far exceed the impact of DNA analysis in accounting for wrongful convictions. In September 2020, the National Registry of Exonerations reported that over half of the over 2,600 wrongful convictions resulting in exonerations since 1989 listed on the Registry were the result of “official misconduct” of law enforcement and prosecutors, with at least 15% of these exonerations entailing guilty pleas defendants had entered and a substantial number of exonerations entailing situations in which a crime was never committed. Historically, wrongful convictions have been deemed reflective of lack of competent defense. However, the recent Registry findings call into question the basic integrity of the criminal justice process, with inadequate defense as one of the contributing factors noted in less than 20% of the exonerations and as the sole factor in less than 5%. Keeping in mind that the exonerations listed on the Registry reflect a very small slice of the numerous wrongful convictions reported over the years due to the strict definitional requirements for Registry listing , these findings warrant urgent attention by all involved with the criminal justice process – professionals and lay citizens alike. This article focuses on the implications of these findings for defense service providers since they are most immediately connected with defendants at risk. Will full adherence to public defense performance standards alone – even if they can be fully adhered to – guard against wrongful convictions? Or is it now time to bring in other partners in the criminal justice process, including law enforcement and prosecution, to take responsibility for reviewing the standards of practice and canons of ethics that apply to their respective disciplines, identify and promptly redress noncompliance, with sanctions for violators, and take responsibility to work collaboratively with the defense to ensure the causes of wrongful convictions are eliminated insofar as they relate to conduct of any agency involved in the criminal justice process?