John P. Flannery, a for­mer fed­er­al pros­e­cu­tor and spe­cial coun­sel to the U.S. Senate and House Judiciary Committees, recent­ly not­ed the broad prob­lems in Virginia’s crim­i­nal jus­tice sys­tem that could lead to con­vict­ing the inno­cent:

We are con­vict­ing inno­cent peo­ple in Virginia because of false eye­wit­ness tes­ti­mo­ny, false con­fes­sions, over-eager snitch­es, faulty foren­sics, bad defense lawyers but also, and this is the worst of all, because of pros­e­cu­to­r­i­al mis­con­duct and police mis­con­duct. In this last cat­e­go­ry, what we often mean by mis­con­duct is that the gov­ern­ment is con­ceal­ing or destroy­ing evi­dence that is exclu­sive­ly with­in its pos­ses­sion that demon­strates, or tends to demon­strate, that the accused is inno­cent or his accusers are not reli­able.

The com­mon­wealth will fight to hold onto its infor­ma­tion, keep it con­fi­den­tial from the accused, even at the risk of con­vict­ing the inno­cent.… The best defense lawyer in the nation, igno­rant of a clien­t’s fac­tu­al inno­cence because the com­mon­wealth is sit­ting on the evi­dence of his inno­cence, is help­less to save his client from prison or death row. We know that the inno­cent have been con­vict­ed in Virginia because DNA evi­dence now allows us to exclude indi­vid­u­als as sus­pects in crimes — if the DNA evi­dence has been pre­served.

Arthur Lee Whitfield spent 22 years in prison for the dou­ble rape of two women in Norfolk with­in the same hour. Both women pos­i­tive­ly iden­ti­fied him. Whitfield plead­ed guilty to one of the charges to get a less­er sen­tence. The com­mon­wealth had destroyed the DNA. But one serol­o­gist had vio­lat­ed lab pro­to­col and saved a sam­ple that exon­er­at­ed Whitfield and impli­cat­ed anoth­er prison inmate for the crime. Former Independent Counsel Ken Starr is now fight­ing to save the life of death-row inmate Robin Lovitt, who is charged with killing an Arlington pool hall man­ag­er with a pair of scis­sors. DNA analy­sis of the scis­sors failed to link Lovitt to the mur­der. Starr has raised seri­ous ques­tions about the evi­dence, rely­ing on an inde­pen­dent audit of the state crime lab that revealed it was wrong in the case of anoth­er death-row inmate. But the court clerk has since destroyed the scis­sors, pre­clud­ing fur­ther DNA exam­i­na­tions.
…

We must reform a sys­tem that pro­vides less infor­ma­tion to a per­son accused of a crime than a par­ty would get if sued for a $200 bad debt in civ­il court. And we must reform the notion that a crim­i­nal pros­e­cu­tion is some sort of sport that is all about win­ning a con­vic­tion, rather than doing jus­tice. I was instruct­ed when sworn in as a fed­er­al pros­e­cu­tor of the enor­mous pow­er that had been del­e­gat­ed, that it could destroy an indi­vid­u­al’s life with a mis­spent word, and was fur­ther instruct­ed, in the words of for­mer Supreme Court Justice George Sutherland: ​“The [Prosecuting] Attorney is the rep­re­sen­ta­tive not of an ordi­nary par­ty to a con­tro­ver­sy, but of a sov­er­eign­ty whose oblig­a­tion to gov­ern impar­tial­ly is as com­pelling as its oblig­a­tion to gov­ern at all; and whose inter­est, there­fore, in a crim­i­nal pros­e­cu­tion is not that it shall win a case, but that jus­tice shall be done. As such, he is in a pecu­liar and very def­i­nite sense the ser­vant of the law, the twofold aim of which is that guilt shall not escape or inno­cence suf­fer. He may pros­e­cute with earnest­ness and vig­or — indeed, he should do so. But while he may strike hard blows, he is not at lib­er­ty to strike foul ones. It is as much his duty to refrain from improp­er meth­ods cal­cu­lat­ed to pro­duce a wrong­ful con­vic­tion, as it is to use every legit­i­mate means to bring about a just one.”

(Op-ed, Richmond Times-Dispatch, August 20, 2005). See New Voices.

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