Prosecutors Taking a Dive

The Anglo-American system of justice has always depended on having adversarial advocates to present both sides of any controversy. But what happens when a prosecutor “takes a dive” and joins a convicted defendant’s efforts to overturn his conviction? U. Utah Law Professor Paul Cassell has this op-ed in The Hill on that subject. He focuses particularly on the Glossip case from Oklahoma presently before the Supreme Court, in which he represents the victim’s family. See this post.

This is not to say that confessions of error are always inappropriate. Sometimes they are the right thing to do. The problem arises when political or ideological considerations enter into the picture. There is a strong basis for suspicion that is happening in the Glossip case, where the AG’s investigator never even asked the trial prosecutor about the meaning of cryptic notes that lie at the heart of the present case. In other cases, there is no doubt at all.

From the article:

The Glossip case mirrors an unfortunate trend. Recently other prosecutors have also confessed phantom or illusory “errors.” Earlier this year, the Third Circuit unanimously rejected Philadelphia District Attorney Larry Krasner’s confession of error in a death penalty case. The circuit affirmed a trial court order sanctioning the DA’s Office for failing to fully investigate the purported error and for misrepresenting that the office had properly informed the victim’s family what was happening.

Another example comes from a Texas death penalty case, in which a new Travis County DA was elected on an anti-death penalty platform. Just a few days later, the DA’s Office confessed error regarding Areli Escobar’s capital sentence for the rape and murder of Bianca Maldonado, his 17-year-old neighbor. The significance of that local prosecutor’s dubious admission remains pending before the Supreme Court to resolve, after it decides Glossip’s case.

A final example comes from Los Angeles, where George Gascón was elected district attorney with the help of significant outside campaign money. He then set about reversing capital judgments in the county by systematically conceding error regardless of the facts of particular cases. Gascón is running for reelection in November.

What appears to be motivating prosecutors to “take a dive” in these cases is that, at least in their jurisdictions, it’s good politics. But enmeshing victims’ families in unfounded litigation based on bogus errors is cruel. And the larger casualty is public confidence in the criminal justice system. The public sees headlines about prosecutors admitting errors and wrongly assumes that the system can’t be trusted to reach accurate results.

Gascón’s misdeeds may have been good politics during the Floyd delirium, but I’m not sure they remain so. The polls indicate he may well be cruising for a bruising eight days from today. That plus a (hopefully) landslide win for Proposition 36 and the recall of Alameda County’s woke DA would be powerful evidence that the political tide has indeed turned.