Quasi Judicial Prosecutors

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QUASI-JUDICIAL PROSECUTORS AND POSTCONVICTION CLAIMS OF INNOCENCE: GRANTING

RECUSALS TO MAKE IMPARTIALITY A REALITY
Rachel Pecker
TABLE OF CONTENTS
INTRODUCTION .............................................................................................................. 1610
I.
THE SOURCE OF THE PROBLEM: THE INTERPLAY OF WRONGFUL

CONVICTIONS AND PROSECUTORIAL DISCRETION .............................................. 1612
A. Wrongful Convictions and Procedural Redresses ................................... 1612
B. The Powerful Role of Prosecutors ............................................................. 1617
1. Prosecutors and Prosecutorial Discretion.................................. 1617
2. Quasi-Judicial Prosecutors at the Helm of Post-Conviction
Claims of Innocence ...................................................................... 1620
C. Cognitive Biases .......................................................................................... 1622
II. CASE STUDIES: THOSE ALLEGING INNOCENCE AND PROSECUTORIAL

RESISTANCE ............................................................................................................. 1624
A. Michael Morton.......................................................................................... 1624
B. Glen Tinney ................................................................................................ 1626
C. Anthony Graves .......................................................................................... 1627
D. Chad Heins ................................................................................................. 1629
III. THE PROBLEM: THE FAILURE OF EXISTING PROPOSALS AND INADEQUATE
RECUSAL MECHANISMS .......................................................................................... 1630
A. The Failure of Existing Proposals to Fully Address Prosecutorial
Biases Regarding Post-Conviction Claims of Innocence ........................ 1630
B. Inadequate Recusal Mechanisms ............................................................. 1635
1. Recusal of Judges ........................................................................... 1636
2. Recusal of Prosecutors .................................................................. 1639
Associate Editor, Cardozo Law Review. J.D., Benjamin N. Cardozo School of Law
(expected May 2013); B.A., Wesleyan University (2005). For her warmth, patience, and
invaluable edits, I bestow my gratitude to Professor Annie Decker. For suggesting this topic and
modeling the type of lawyer I aspire to be, my thanks and admiration go to Nina Morrison. To
Lauren Gottesman and Bill Yukstas, thank you for your feedback and so much more.
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Elusive Recusals: Unduly High Standards and Cultural

Resistance........................................................................................ 1640
IV. PROPOSAL: REMOVING PROSECUTORSUSING RECUSALS TO FURTHER THE

PURSUIT OF JUSTICE ............................................................................................... 1642
A.
B.
C.
D.
Scope: Re-Envisioning Conflict of Interest ........................................... 1643

Pillars on Which Any New Recusal Standard Must Stand.................... 1644
The New Recusal Standard ....................................................................... 1646
The Standard in Action: Making Recusals a Reality .............................. 1647
CONCLUSION................................................................................................................... 1648
INTRODUCTION 1
The United States 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.
Berger v. United States, 295 U.S. 78, 88 (1935)
After exhausting all other post-conviction appeals, petitioners who

claim they were wrongfully convicted can pursue one final avenue to
prove their innocence. They can pursue an actual innocence claim,
provided for by state statute. 2 Many actual innocence claims involve a
request to seek DNA testing of crime scene evidence. This postconviction litigation is often assigned to the prosecutors office that
brought the case in the first place, and at times the same prosecutor who
pursued the conviction of the petitioner at trial is reassigned to the case.
However, post-conviction innocence statutes provide few guidelines to
these prosecutors on how they should respond to the petitioners claim.
1 I would like to state at the outset that during the time in which I wrote this Note, I was a
legal intern at the Innocence Project as part of a year-long legal clinic run by the Benjamin N.
Cardozo School of Law. As this Note will go on to illuminate, this fact undoubtedly affects how
I approach and view the subject. However, none of the information herein comes from the
confidentialities I was privy to while working there. All information used comes from publically
available sources.
2 See, e.g., FLA. STAT. 925.11 (2012) (post-sentencing DNA testing); id. 925.12 (DNA
testing; defendants entering pleas); OHIO REV. CODE ANN. 2953.712953.81 (West 2012)
(DNA testing of eligible inmates); TEX. CODE CRIM. PROC. ANN. art. 64.01.05 (West 2011)
(motion for forensic DNA testing). Oklahoma is the only state that still lacks DNA access laws.
Access to DNA Testing, THE INNOCENCE PROJECT, http://www.innocenceproject.org/fix/DNATesting-Access.php (last visited Jan. 24, 2013).
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The dearth of guidelines creates the problem addressed in this Note:

prosecutors, even when acting in good faith, may be so entrenched in
the belief that a petitioner is guilty that they cannot neutrally reinvestigate the innocence claim alleged.
For example, if an attorney prosecuted the petitioner at trial, is it
reasonable to expect that she can free herself from preconceived beliefs?
Or, if a prosecutor campaigned for some subsequent office referring to
the conviction now being contested, do the ramifications of undoing
that conviction subconsciously inhibit her from fully and impartially reinvestigating the innocence claim? What if an attorney worked for years
resisting the petitioners innocence claim and request for DNA testing
on appealcan that prosecutor be neutral in deciding how to proceed
when DNA results subsequently exclude the petitioners DNA from the
crime scene evidence?
The de facto answer to these questions has been yes: prosecutors
are capable of fulfilling their obligation to see that justice is done. 3
However, cognitive bias and cultural cognition research indicates that
this switch is far more complex and perhaps psychologically impossible
for prosecutors, or any human, to actually fulfill. 4 Not necessarily
because of willful misconduct, but rather because of propensities we all
share, a prosecutor may be unable to bring fresh eyes to a case in
which she had a prior stake. 5 In other contexts, when judicial officers
biases present such a conflict of interest, they may be removed from a
case to ensure judicial fairness.
To ensure that the claims of individuals alleging their innocence be
treated seriously, this Note argues that similar recusal rules should apply
to prosecutors in innocence-based appellate cases. This Note argues that
first, the current lack of guidelines for prosecutors in conjunction with
prosecutorial bias fails to protect the rights of potentially wrongfully
convicted individuals. Second, and as a result, new prosecutors should
be assigned in all non-frivolous, innocence-based post-conviction
claims where the current prosecutor has a stake in the outcome. This
should be achieved through the use of a new, broader recusal standard.
Recusal standards were created for just this reason: recognizing that
conflicts of interest can impair attorneys abilities to fulfill their duties.
3 CANONS OF PROF'L ETHICS canon 5 (1908) (setting forth the oath prosecutors take to
pursue justice).
4 See Alafair Burke, Neutralizing Cognitive Bias: An Invitation to Prosecutors, 2 N.Y.U. J.L.
& LIBERTY 512 (2007) [hereinafter Burke, Neutralizing Cognitive Bias]; Alafair S. Burke, Talking
About Prosecutors, 31 CARDOZO L. REV. 2119 (2010) [hereinafter Burke, Talking About
Prosecutors].
5 See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims
of Innocence, 84 B.U. L. REV. 125, 14243 (2004) (noting the intellectual blinders that
prosecutors adopt and internalize) [hereinafter Medwed, The Zeal Deal]; see also Fred C.
Zacharias, The Role of Prosecutors in Serving Justice After Convictions, 58 VAND. L. REV. 171
(2005).
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Part I of this Note introduces the underlying problem: wrongful

convictions, the vast discretion prosecutors yield in general, but more
specifically in the post-conviction innocence-based setting, and the
cognitive biases that affect prosecutors responding to claims of
innocence. Part II presents case studies to illuminate how prosecutorial
resistance is an impediment to seeking the truth in these cases. Part III
reviews the failure of existing proposals to fully address this problem,
and compares judicial versus prosecutorial recusal laws, as well as the
strengths and weaknesses of using a recusal mechanism to address this
problem. Part IV proposes a new recusal mechanism for prosecutors in
the post-conviction innocence-based setting. This new standard upholds
justice by ensuring that if an injustice has been committed in the form
of a wrongful conviction, our judicial system is committed to righting
that wrong.
I. THE SOURCE OF THE PROBLEM: THE INTERPLAY OF WRONGFUL
CONVICTIONS AND PROSECUTORIAL DISCRETION
A.
Wrongful Convictions and Procedural Redresses
In the last twenty-three years, more than 2000 people who were
falsely convicted have been exonerated in the United States. 6 Of these,
300 people have been exonerated through DNA testing. 7 These facts
defy common beliefsheld by the public and our judicial officersthat
the wrongful conviction of innocent people is an extremely rare
occurrence. 8 Although these numbers might not sound large compared
to the total prison population, the number represents the tip of the
iceberg, and it is unclear how many wrongfully convicted petitioners
there really are. 9 Most petitioners who claim they have been wrongfully
6 See Pete Yost, Study: 2,000 Convicted Then Exonerated in 23 Years, ASSOCIATED PRESS,
May 21, 2012.
7 Mission Statement, INNOCENCE PROJECT, http://www.innocenceproject.org/about/
Mission-Statement.php (last visited Jan. 24, 2013). Before proven innocent and released, these
exonerees served an average of thirteen years in prison, and some of them served as many as
thirty-five years. How Much Time Did the Exonerees Serve in Prison, INNOCENCE PROJECT,
http://www.innocenceproject.org/Content/How_much_time_did_the_exonerees_serve_in_
prison.php (last visited Jan. 24, 2013).
8 Schlup v. Delo, 513 U.S. 298, 321 (1995); see also Timothy P. OToole & Giovanna Shay,
Manson v. Braithwaite Revisited: Towards a New Rule of Decision for Due Process Challenges to
Eyewitness Identification Procedures, 41 VAL. U. L. REV. 109, 137 (2006).
9 For a broader explanation on why we will never know how many people have been
wrongful convicted, see BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL
PROSECUTIONS GO WRONG 1113 (2011); see also EDWARD CONNERS ET AL., CONVICTED BY
JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH
INNOCENCE AFTER TRIAL 20 (1996) (finding that in a study of over 10,000 cases in which the
FBI compared DNA of the prime suspect with DNA from the crime scene, the DNA tests
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convicted have a slim chance of ever proving their innocence. 10 This is

because only a fraction of criminal cases involve biological evidence that
can be subjected to DNA testing. 11 In addition, in those cases that do,
biological evidence may get lost or destroyed after a conviction is
securedmaking such evidence incapable of being tested.
Moreover, the number of nationwide exonerations reflects a
relatively new phenomenon to which the law has yet to fully adapt. As
one scholar has stated, once judges are satisfied that the basic
requirements of due process are met (i.e., that a defendant received
effective assistance of counsel, prosecutors met their evidentiary
disclosure obligations, etc.), the principles of fairness and autonomy
simply recede as priorities. 12
How do wrongful convictions occur in the first place? Our justice
system relies on peoplewitnesses, prosecutors, defense counsel, jurors,
and judges. Like all things human, the system is fallible. 13 In his book,
Convicting the Innocent, Brandon Garrett analyzes the factors and
reasons that led to the wrongful conviction of the first 250 exonerees in
the U.S. 14 In addition to many other factors, 15 he concluded that
prosecutorial misconduct occurred in at least 47% of the cases. 16
exonerate the prime suspect in 20% of the cases); D. Michael Risinger, Innocents Convicted: An
Empirically Justified Factual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761
(2007) (applying rigorous methodology for rape-murder capital cases to determine that a
minimum 3.3% wrongful conviction rate exists).
10 See Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline
Seriously, 8 UDC/DCSL L. REV. 275, 285 (2004).
11 Most criminal cases do not involve biological evidence because, in the absence of a sexual
assault or physical struggle, there will be no exchange of DNA, on the victim or at the crime
scene. Thus, there will be no DNA to test.
12 GEORGE C. THOMAS III, THE SUPREME COURT ON TRIAL: HOW THE AMERICAN JUSTICE
SYSTEM SACRIFICES INNOCENT DEFENDANTS 51 (2008).
13 Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted
from the Post-Conviction Pulpit, 84 WASH. L. REV. 35, 47 (2009).
14 Garretts book eloquently and comprehensively reviews the findings of his extensive
investigation of the first 250 exonerations. GARRETT, supra note 9.
15 Reasons for wrongful convictions include, but are not limited to: 1) eyewitness
misidentification (which played a role in 76% cases), id. at 9; 2) false confessionswhich occur
disturbingly frequently in the juvenile and mentally disabled populations (occurring in 16% of
the 250 cases), id. at 18; 3) ineffective assistance of counsel; and 4) other factors, including
faulty forensic science, informants or prisoner snitches, and the misconduct of other state
officials. See State v. Henderson, 27 A.3d 872 (N.J. 2011) (reviewing and recommending a host
of mechanisms by which to correct eyewitness misidentification); COMM. ON IDENTIFYING THE
NEEDS OF THE FORENSIC SCIS. CMTY. ET AL., NATL RESEARCH COUNCIL, STRENGTHENING
FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 12782 (2009) (describing
forensic science disciplines and analyzing reasons for the lack the reliability and validity of
science); Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and
Wrongful Convictions, 95 VA. L. REV. 1 (2009); Saul M. Kassin, Daniel Bogart & Jacqueline
Kerner, Confessions That Corrupt: Evidence from the DNA Exoneration Case Files, 23 PSYCHOL.
SCI. 41 (2012).
16 GARRETT, supra note 9, at 208. Of the first 250 exonerees, only 165 had written decisions.
Id. Of those, 77 (or 47%) involved claims relating to the conduct of prosecutors. Id.; see also
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However, as Professor Ellen Yaroshefsky explains, some of this

misconduct is intentional, but more often it is not. 17 Rather, it is the
result of negligence, cognitive biases, 18 as well as systemic challenges
within prosecutors offices. 19
All but one state now have statutes providing individuals with a
mechanism to put forth their claim of actual innocence, including a
request for DNA testing. 20 For many petitioners, DNA testing may not
have been available at the time of their trial, or their defense attorneys
failed to request it. Seeking DNA testing, when DNA evidence is
available, through these statutory mechanisms constitutes the first stage
of post-conviction innocence-based litigation. 21 At this point, the
petitioners are often represented by innocence organizations, such as
the Innocence Project or the Medill Innocence Project, 22 or innocence
units within defenders offices or law schools. 23 The statutes often
USA TodayJustice in the Balance, ADVOCATE BLOG, http://advocateky.blogspot.com/2011/08/
usa-today-justice-in-balance.html (last updated Aug. 20, 2011) (indexing articles from the USA
Today investigation of 201 criminal cases in which federal judges found that prosecutors broke
the rules).
17 Ellen Yaroshefsky, Keynote Address: Enhancing the Justice Mission in the Exercise of
Prosecutorial Discretion, 19 TEMP. POL. & CIV. RTS. L. REV. 343, 348 (2010) (citing Understand
the CausesGovernment Misconduct, INNOCENCE PROJECT, http://www.innocenceproject.org/
understand/Government-Misconduct.php (last visited Jan. 25, 2013)).
18 Cognitive bias refers to the human tendency for people to interpret evidence through
the lens of their existing beliefs so that they devalue inconsistent information while valuing
information that confirms their beliefs. Burke, Talking About Prosecutors, supra note 4, at
213334.
19 Yaroshefsky, supra note 17, at 348.
20 Oklahoma is the only state still lacking DNA access laws. See supra note 2.
21 DNA testing claims and exonerations are most often litigated in state courts, and states
provide the ultimate relief. The average statute includes standard language such as, a
reasonable probability that the petitioner would not have been convicted or would have
received a lesser sentence if favorable results had been obtained through DNA testing at the
time of the original prosecution. See Model Statute for Obtaining Post-Conviction DNA
Testing, INNOCENCE PROJECT, http://www.innocenceproject.org/docs/model/Access_to_Post_
Conviction_DNA_Testing_Model_Bill.pdf (last visited Jan. 25, 2013). They often also include
that the evidence sought to be tested still exists, was subject to a chain of custody ensuring its
integrity, and was not previously tested or, if previously tested, can be subject to additional
testing not previously done. Id.
22 The Innocence Project is a non-profit legal clinic affiliated with Benjamin N. Cardozo
School of Law. Created by Barry Scheck and Peter Neufeld in 1992, the project is dedicated to
exonerating wrongfully convicted people through DNA testing and reforming the criminal
justice system to prevent future injustice. See Mission Statement, INNOCENCE PROJECT, supra
note 7. The Medill Innocence Project (the Medill Justice Project as of December 2012) is a
similar organization affiliated with Northwestern Universitys Medill School of Journalism.
However, the Medill Innocence Project does not limit its cases to those involving DNA. See
What We Do, MEDILL JUSTICE PROJECT, http://mip.medill.northwestern.edu/about (last visited
Jan. 25, 2013). See also NATL REGISTRY OF EXONERATIONS, http://exonerationregistry.org (last
visited Jan. 24, 2013), which is a national database assembled by the University of Michigan
Law School and Center on Wrongful Convictions at Northwestern University School of Law.
The registry also includes at least 1170 additional defendants whose convictions were thrown
out due to police scandals.
23 Since the foundation of the Innocence Project, innocence organizations have sprung up
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require the petitioner to show in some manner that there is newly

discovered exculpatory evidence or evidence that could not have been
tested at the time of trialeither scientifically or because it was not yet
known. 24 In some cases, prosecutors agree that the petitioners
innocence is a possibility and thus consent to DNA testing. However,
prosecutors oppose the request for DNA testing just as often as they
approve it: according to the Innocence Project, prosecutors consented to
post-conviction DNA testing in less than half the cases in which courts
eventually ordered DNA testing and DNA testing ultimately exonerated
an inmate. 25 If a prosecutor resists the request, the claim must be
litigated in court, which can delay the petitioners DNA testing for
months, years, or even permanently. 26 Ultimately, however, the decision
lies with the judge to order testing and she may grant DNA testing for
the petitioner over a prosecutors objections.
Once DNA testing is grantedwhether through a prosecutors
consent or a court orderresults may indicate that evidence from the
crime scene included a petitioners DNA, excluded a petitioners
DNA, or were inconclusive (because the evidence was too degraded or
was insubstantial). 27 If the tests include the petitioner, and the defense
throughout the country and are often housed at law schools, journalism schools, and
defenders offices. See Innocence Network Member Organizations, INNOCENCE NETWORK,
http://www.innocencenetwork.org/members (last visited Jan. 25, 2013). Many of these, unlike
the Innocence Project, take cases that do not include DNA. Id. Of the first 250 exonerees, 77%
of them sought DNA testing by contacting an innocence project. GARRETT, supra note 9, at 225.
24 See, e.g., FLA. STAT. 925.11 (2012); OHIO REV. CODE ANN. 2953.712953.84 (West
2012); TEX. CODE CRIM. PROC. ANN. art. 64.03 (West 2011). In habeas corpus proceedings, in
order to demonstrate actual innocence, a petitioner must present new reliable evidence that
was not presented at trial and show that it is more likely than not that no reasonable juror
would have found [him] guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 324,
32728 (1995). Where the defendant pleaded guilty, the standard nonetheless remains the
same. Id.
25 Peter Neufeld, Legal and Ethical Implications of Post-Conviction DNA Exonerations, 35
NEW. ENG. L. REV. 639, 640 (2001). However, in a comprehensive study of the first 250
exonerations, Garrett found that in the 210 cases for which information on DNA testing had
been obtained, prosecutors consented to DNA testing in 81% of cases and opposed it in 19%.
GARRETT, supra note 9, at 227. This statistic is misleading, however, because Garrett adds the
caveat that some prosecutors consented only after years of requests. How to categorize these
cases in which prosecutors did not consent for years likely explains the difference between
Garretts and Neufelds statistics. In addition, in 49% of cases (which mirrors the Innocence
Projects statistic), the exoneree had to obtain a judges order to obtain DNA testingshowing
that the prosecutor did not promptly consent or the judges order would not have been
necessary. Id.
26 See Houston v. Partee, 978 F.2d 362, 36465 (7th Cir. 1992) (finding that a prosecutors
denial of the existence of exculpatory evidence led to convicted defendants sitting in jail for
years longer than they should have or needed to). For instance, see the case of Michael Morton
in Texas, infra Part II.A. Also in Texas, death row inmate Hank Skinner has fought for DNA
testing for ten years to prove his innocencetesting which still has not been granted. Brandi
Grissom, DNA Exonerations Continue, but Not for One Man, N.Y. TIMES, Nov. 6, 2011, at A31.
27 If a defendants DNA is included, her DNA profile is consistent with the DNA profile
from the crime scene evidence, and thus the defendant is a possible source. If a defendants
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counsel and prosecutor believe the tests confirm her guilt and foreclose
alternative theories of the crime postulated, both sides will likely drop
the case once and for allputting closure on any remaining doubt
surrounding the petitioners conviction. 28
When the tests exclude the petitioner, the scientific possibility of
innocence triggers the second stage of post-conviction innocence
claims. The petitioner may argue that the DNA exclusion, along with
other factors indicating that the original conviction is not reliable,
collectively prove the petitioners innocence. 29 In some cases, not only
does the DNA exclude the petitioner, but by entering DNA into a
national database with millions of genetic profiles from other convicted
felons, the true perpetrator who committed the crime is also identified. 30
A prosecutor may then examine the result and opt to join the
defense in requesting the prisoners release and exoneration.
Alternatively, a prosecutor may contest the petitioners innocence claim.
She may put forth a new theory of the crime in which the petitioner was,
instead, still a co-conspirator with the actual person whose DNA was
identified. There are, in fact, many cases in which a prosecutor has
fought a petitioners release despite DNA evidence indicating
innocence. 31 For instance, in the case of defendant Juan Rivera, the
DNA is excluded, the defendants DNA profile is inconsistent with the profiles found on the
crime scene evidence, so that the defendant cannot be the donor of the biological material.
However, exclusion is not synonymous with innocence: for example, a defendant may be
excluded from semen found in a rape victim, but evidence found elsewhere at the crime scene
may include the defendant, resulting in retaining her as a suspect. See KATHRYN M. TURMAN,
OFFICE OF VICTIMS OF CRIME, U.S. DEPT OF JUSTICE, OVC BULLETINUNDERSTANDING
DNA EVIDENCE: A GUIDE FOR VICTIM SERVICE PROVIDERS 45 (2001), available at
http://www.ovc.gov/publications/bulletins/dna_4_2001/dna8_4_01.html. In addition, the
ramifications of an inclusion depend on the number of loci (locations on the DNA strand)
examined and how common or rare the resulting DNA profile is in the general population. As a
result, an inclusion does not necessarily indicate that the defendant is guilty of the crime; for
instance, it could have been the defendants sibling or another person with similar DNA. See id.
at 4.
28 The Innocence Project indicates that in a five-year period, DNA testing proved
innocence in 43% of cases while confirming guilt in 42% of cases, and 15% of those cases were
inconclusive. How Often Do DNA Tests Prove Innocence in Your Cases, INNOCENCE PROJECT,
http://www.innocenceproject.org/Content/How_often_do_DNA_tests_prove_innocence_in_
your_cases_Does_testing_ever_prove_guilt.php (last visited Jan. 25, 2013). In more than 40% of
all DNA exoneration cases, law enforcement authorities identified the actual perpetrator based
on the same DNA test results excluding the wrongfully convicted. Id.
29 For example, see the cases of Michael Morton and Chad Heins, infra Parts II.A & II.D.
30 See Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA
Index System, FED. BUREAU OF INVESTIGATION, http://www.fbi.gov/about-us/lab/biometricanalysis/codis/codis-and-ndis-fact-sheet (last visited Jan. 25, 2013). Of the first 250 exonerees
cases, 45% identified the real perpetrator usually through the CODIS (Combined DNA Index
System) database. GARRETT, supra note 9, at 221.
31 See Erica Goode, When DNA Evidence Suggests Innocent, Some Prosecutors Cling to
Maybe, N.Y. TIMES, Nov. 16, 2011, at A19; Adam Liptak, Prosecutors Fight DNA Use for
Exoneration, N.Y. TIMES, Aug. 29, 2003 at A1 (noting that although DNA testing proved that
biological evidence could not have come from two defendants, prosecutors continued to
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prosecutor asserted that the 11 year-old murder victim was sexually

active, against evidence to the contrary, to explain why the DNA of
sperm found inside her did not match Rivera, who was convicted of
raping and killing her. 32 Such opposition extends the litigationwhile
the petitioner remains imprisoned.
B.
1.
The Powerful Role of Prosecutors
Prosecutors and Prosecutorial Discretion
Prosecutors choose whether to pursue a petitioners conviction in

furtherance of their primary responsibility: administering justice. Their
role is essentially judicialthe prosecution of the guilty and the
protection of the innocent. 33 The role is unique in our judicial system:
while other lawyers are beholden only to their clients wishes,
prosecutors are tasked with pursuing justice on behalf of the public. A
prosecutors role is both a luxury because of their resulting discretion,
and also a burden because of the wider spectrum of interests they must
consider: the people, the government, the community at large, the
crime victims, the defendant, their bosses, etc. 34 The prosecutor thus
challenge their innocence claims); Steve Mills & Andy Grimm, Prosecutors Vacate Charges for 5
Who Served Years for Rape, Killing of 14-Year-Old Girl: Decision Means Freedom for 3 Still
Jailed After DNA Testing Pointed to Another Man in 1991 Dixon Case, CHI. TRIB., Nov. 4, 2011,
at 1; Dena Potter, Attorneys Say DNA Proves Innocence in Rape, CHARLESTON GAZETTE &
DAILY MAIL, Dec. 14, 2012, at 9A; see also the case of Michael Morton, infra Part II.A.
32 Lisa Black, Under Fire, Lake County Prosecutor Retiring, CHI. TRIB., Dec. 8, 2011, at 5. In
a similar case, prosecutors argued that the DNA of semen found in an allegedly sexually
inactive 16 year-old girl must have come from a secret consensual lover and thus, the defendant
whose DNA was not found in her could still have been guilty. Andrew Martin, The Prosecutors
Case Against DNA, N.Y. TIMES, Nov. 27, 2011, 6 (Magazine), at 44.
33 Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (quoting Griffin v. United States, 295
F. 437, 43940 (3d Cir. 1924)).
34 H. Richard Uviller, The Neutral Prosecutor: The Obligation of Dispassion in a Passionate
Pursuit, 68 FORDHAM L. REV. 1695, 1697 (2000). Laurie Levenson describes this tension as
follows:
[D]efense lawyers have it easy. They have a duty to a client or clientsflesh and
blood people who they have to be able to look at and say, I did my best for you . . . .
[But as] others have written, whom does the prosecutor talk to in the dead of night?
To whom does he or she promise loyalty? To the Constitution? To the defendant,
promising that his constitutional rights will be respected? To the victim, but only so
long as the victim does not interfere too much with the prosecutors exercise of
discretion? To the public, but only so much as the prosecutor can divine what the
publics interests really are? With the responsibility to exercise discretion,
prosecutors know who gets their undivided loyaltythemselves.
Laurie L. Levenson, Conflicts over Conflicts: Challenges in Redrafting the ABA Standards for
Criminal Justice on Conflicts of Interest, 38 HASTINGS CONST. L.Q. 879, 880 (2011).
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occupies a dual role, being obligated, on the one hand, to furnish that
adversary element essential to the informed decision of any
controversy, but being possessed, on the other, of important
governmental powers that are pledged to the accomplishment of one
objective only, that of impartial justice. Where the prosecutor is
recreant to the trust implicit in his office, he undermines confidence,
not only in his profession, but in government and the very ideal of
justice itself. 35
In a recent Illinois exoneration, the district attorney resisted a finding of

innocence after DNA excluded five male defendants who had falsely
confessed to the crime when they were teenagers. She explained, [a]s a
prosecutor, I have a duty to the victims in this case. 36 Another
prosecutor explained, [t]he taxpayers dont pay us for intellectual
curiosity. They pay us to get convictions. 37 Thus, in reality, these
responsibilities can lead prosecutors to feel more accountable to one of
these interest groups rather than to justice for all.
Prior to trial, prosecutors neutrally investigate the case to
determine whether there is credible evidence to try the potential
defendant. However, once the trial has begun, prosecutors and defense
attorneys are permitted to be zealous advocates. 38 Yet, although they
may be advocates, they are still required to be disinterested: 39 the U.S.
Supreme Court has stated that any scheme injecting a personal interest,
financial or otherwise, into the enforcement process may bring
irrelevant or impermissible factors into the prosecutorial decision,
raising serious constitutional concerns about fairness. 40
The requirement to be disinterested is significant because it is a
check on prosecutors tremendous power. 41 Prosecutors alone
Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159, 1218 (1958).
See Goode, supra note 31.
37 Martin, supra note 32.
38 Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987).
39 See Berger v. United States, 295 U.S. 78, 84 (1935) (holding that the prosecutor had been
impermissibly ruthless and unrelenting in his efforts to convict the defendant, overstepp[ing]
the bounds of that propriety and fairness which should characterize the conduct of such an
officer in the prosecution of a criminal offense).
40 Marshall v. Jerrico, Inc., 446 U.S. 238, 24950 (1980).
41 Angela Davis, Film Review, Mississippi Innocence and the Prosecutors Guilt, 25 GEO. J.
LEGAL ETHICS 989, 997 (2012) (listing the decisions that prosecutors alone make). As Robert
Jackson, former U.S. Attorney General, stated:
35
36
The prosecutor has more control over life, liberty, and reputation than any other
person in America. His discretion is tremendous. He can have citizens investigated,
and, if he is that kind of person, he can have this done to the tune of public
statements and veiled or unveiled intimations. . . . [A] prosecutor stands a fair chance
of finding at least a technical violation of some act on the part of almost anyone. . . .
It is his realmin which the prosecutor picks some person who he dislikes or desires
to embarrass, or selects some group of unpopular persons and then looks for an
offensethat the greatest danger of abuse of prosecuting power lies. It is here that
law enforcement becomes personal.
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determine which cases they will try, thus affecting the cases a judge
hears in the first place. Prosecutors choose which sentences to pursue,
including whether to seek the death penalty. They decide whether to try
a juvenile as an adult, for which sentencing is more severe, or as a
juvenile, for which rehabilitation is still the primary penological goal.
Prosecutors also have the power to offer plea deals in which defendants
may choose a lesser sentence in return for pleading guilty, instead of
risking a harsher sentence if they proceed to, and are found guilty at,
trial. 42
Because of the breadth of prosecutors decision-making authority,
the Supreme Court and others have referred to prosecutors as judicial or
quasi-judicial officers. 43 ABA Model Code of Professional Conduct Rule
3.8 Comment 1 supports this view: [a] prosecutor has the responsibility
of a minister of justice and not simply that of an advocate. 44 For these
reasons, Senior Judge John L. Kane Jr., a federal district court judge in
Denver, believes that prosecutors have grown more powerful then
judges. 45 At the same time, despite the scope of prosecutors authority,
prosecutors powers are not fully judicial as they do not make the final
decision on litigated issues nor are they required to be neutral at all
times.
Robert Jackson, U.S. Attorney Gen., Address to the Second Annual Conference of U.S.
Attorneys (Apr. 1, 1940), in 24 J. AMER. JUD. SOC. 18 (1940), available at http://www.robert
hjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/the-federalprosecutor/.
42 One study notes that 95.4% of adjudicated federal criminal cases involve guilty or nolo
contendere pleas. Jennifer L. Mnookin, Uncertain Bargains: The Rise of Plea Bargaining in
America, 57 STAN. L. REV. 1721, 1722 (2005); see also BUREAU OF JUSTICE STATS., U.S. DEPT OF
JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS tbl. 5.22 (2010), available at
http://www.albany.edu/sourcebook/pdf/t5222010.pdf (finding that as of 2010, 87,418 of 98,311
federal prosecutions, or 89%, resulted in plea deals). Another study found that in some
jurisdictions, 99% of adjudicated criminal cases are guilty pleas. Julian A. Cook, III, All Aboard!
The Supreme Court, Guilty Pleas, and the Railroading of Criminal Defendants, 75 U. COLO. L.
REV. 863, 866 n.17 (2004).
43 Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (The prosecuting attorney is an
officer of the court, holding a quasi judicial position. . . . [H]is office is vested with a vast
quantum of discretion which is necessary for the vindications of the public interest. (quoting
Bauers v. Heisel, 361 F.2d 581, 590 (3d Cir. 1966))).
44 MODEL RULES OF PROFL CONDUCT R. 3.8 cmt. 1 (2012).
45 Richard A. Oppel Jr., Sentencing Shift Gives New Clout to Prosecutors, N.Y. TIMES, Sept.
26, 2011, at A1. Similarly, Richard E. Myers II, a former assistant U.S. Attorney, expressed,
[w]e now have an incredible concentration of power in the hands of prosecutors, and in the
wrong hands, the criminal justice system can be held hostage. Id.
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Quasi-Judicial Prosecutors at the Helm of Post-Conviction

Claims of Innocence
As a minister of justice, the goal of a prosecutor is to reach an

outcome in which the public can have confidence. 46 At trial and in
direct appeals, the adversarial process ensures this goal is met. Trials are
presumed fair because a prosecutors zealous efforts to convictbased
on an investigation that led her to believe the defendant was guiltyis
balanced against the defense counsels efforts to achieve a not-guilty
verdict. On appeal, ordinarily a prosecutor then automatically defends
the conviction which she has no reason to believe is faulty.
However, in the post-conviction innocence-based setting, the
prosecutors role is different. The petition for post-conviction relief still
involves an adversarial setting like all other appeals: the starting point is
that a jury found the petitioner guilty, and as a result, the state should
not be any less zealous, or more neutral, than they are at earlier stages of
litigation. Defense counsel represents one side, and a prosecutors role
as an advocate is still necessary to represent the other, with the ultimate
decision left to the judge. But post-conviction innocence-based appeals
are not like other appeals: that most criminal defendants are guilty does
not mean that all are. Prosecutors automatically defending the
conviction may fail to address that the petitioner may actually be
innocent and the result of earlier proceedings was wrong.
At this stage, similar to the investigation a prosecutor undertakes
when considering the case for the first time pre-trial, prosecutors must
determine anew if it is possible the conviction is wrongthat the
innocence claim is feasible. Bennett L. Gershman suggests that a
prosecutors obligation pre-trial is to approach each case with a healthy
skepticism and to assume an active role in confirming the truth of the
evidence of guilt and investigating contradictory evidence of
innocence. 47 Many have described the difficulty of this obligation as
one of switching sides. 48 The tension between the dual responsibilities
of a prosecutor 49to free the innocent and convict the guiltyare
46 MODEL RULES OF PROFL CONDUCT R. 3.8 cmt. 1 (2012) (A prosecutor has the
responsibility of a minister of justice and not simply that of an advocate.).
47 Bennett L. Gershman, The Prosecutors Duty to Truth, 14 GEO. J. LEGAL ETHICS 309, 342,
348 (2001).
48 In contrast, many European countries use an inquisitorial system: the court (not the
prosecutor) directly supervises the investigation of a case and post-conviction review is readily
available. See Paul J. Saguil, Improving Wrongful Conviction Review: Lessons from a
Comparative Analysis of Continental Criminal Procedure, 45 ALBERTA L. REV. 117 (2007).
49 The dual responsibility has been described as follows:
The public prosecutor must recall that he occupies a dual role, being obligated, on
the one hand, to furnish that adversary element essential to the informed decision of
any controversy, but being possessed, on the other, of important governmental
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elevated: a prosecutor is suddenly confronted with the heightened risk

that her own, or her offices, actions contributed to an innocent person
being imprisoned, or alternatively, that her own actions could cause a
guilty person to go free.
Furthermore, although the ABA Standards for Criminal
Prosecutions address best practices of prosecutorial conduct at almost
all stages, they stop after sentencingwell before the post-conviction
stage. 50 As a result, there is a void on agreed-upon best practices
between the prosecutor and defense communities and a lack of
guidelines that results in prosecutors having even more discretion.
Prosecutors powers are also enlarged at this stage because they have
exclusive control over the evidence in question. 51 Their willingness to
assist the defense, to consent to DNA testing, and to facilitate postconviction investigations changes the outcome of a case by greatly
affecting the speed of the litigationthe number of years the postconviction innocence litigation takes, resources expended, and the
number of years a potentially innocent person stays wrongfully
imprisoned. 52
Because a judge does not have the time to, nor is it her role to,
investigate a case, she relies on a prosecutors recommendations and
most often defers to the prosecutors arguments. 53 This may be because,
absent investigation and neutral presentation of the facts by the
prosecutor, judges will defer to their professional awareness that the
great majority of criminal defendants are guilty. 54 The above attributes:
an ability to direct the course of the litigation, plus a lack of guidelines
in this setting, arguably make a prosecutors role even more akin to a
judge.
powers that are pledged to the accomplishment of one objective only, that of
impartial justice. Where the prosecutor is recreant to the trust implicit in his office,
he undermines confidence, not only in his profession, but in government and the
very ideal of justice itself.
Professional Responsibility: Report of the Joint Conference, supra note 35, at 1218.
50 Zacharias, supra note 5, at 174.
51 There are certain reforms addressing this fact, yet, none of them eliminate its existence.
For example, Freedom of Information Act requests can be used to obtain documents from the
prosecutors office. Some prosecutors offices also now have an open file policy. However, in
the case of DNA testing, the materials remain largely in state control and cannot be tested
without the prosecutors approval or the judges order over the prosecutors refusal.
52 See Judith A. Goldberg & David M. Siegel, The Ethical Obligations of Prosecutors
Involving Post-Conviction Claims of Innocence, 38 CAL. W. L. REV. 389, 41011 (2002);
Zacharias, supra note 5, at 18687.
53 Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 997
(2006) ([T]here is a systemic failing in which prosecutors make the key decisions in criminal
matters without a judicial check and without any of the structural and procedural protections
that govern other executive agencies.).
54 Susan A. Bandes, Protecting the Innocent as the Primary Value of the Criminal Justice
System, 7 OHIO ST. J. CRIM. L. 413, 422 (2009) (quoting Samuel R. Gross, The American
Advantage: The Value of Inefficient Litigation, 85 MICH. L. REV. 734, 744 (1987)).
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C.
[Vol. 34:1609
Cognitive Biases
Internally held beliefs and biases influence all humans. Alafair

Burke, Susan Bandes, and others explain how prosecutors are affected
by cognitive bias. 55 Cognitive biasrelated to and also known as
confirmation bias, tunnel vision, belief perseverance, ego-centric
bias, and, in this context as, conviction psychology 56refers to the
idea that a person unconsciously seeks and understands information in
a way that supports her existing beliefs and hypotheses.
Cognitive bias can play a very helpful role in our lives. It can
enhance our decision-making by helping us determine how to orient
ourselves on issues, which social groups to align with, and how to
navigate the world around us. 57 However, it can also frustrate our
decision-making. People are disposed to impute knowledge and
expertise to others with whom they share a cultural affinity. And they
are more likely to note, assign significance to, and recall facts supportive
of their cultural outlooks than facts subversive of them. 58 As a result,
people subconsciously may not see, or may choose to ignore, evidence
that does not support their preexisting expectations. 59 As Professor
Maroney has explained,
If it looks like something that implicates the culture of the office in
some deeper way than one bad apple, you want a fresh set of
eyes. . . . Defending a conviction sometimes serves justice and
sometimes it doesnt. But it cant just be because you want to
preserve your self-image or preserve your conviction record. 60
In the judicial system, cognitive bias is not unique to prosecutors,

though nor are they immune from it. 61 The Supreme Court has
55 Burke, Neutralizing Cognitive Bias, supra note 4, at 51620; Burke, Talking About
Prosecutors, supra note 4, at 213335; see also Dan M. Kahan et al., They Saw a Protest:
Cognitive Illiberalism and the Speech-Conduct Distinction, 64 STAN. L. REV. 851 (2012).
56 See, e.g., Susan Bandes, Loyalty to Ones Convictions: The Prosecutor and Tunnel Vision,
49 HOW. L.J. 475, 479 (2000); Alafair S. Burke, Improving Prosecutorial Decision-Making: Some
Lessons of Cognitive Science, 47 WM. & MARY L. REV. 1587, 159091, 159394 (2006); Keith A.
Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006
WIS. L. REV. 291, 309, 328; Kahan et al., supra note 55.
57 See Kahan et al., supra note 55.
58 Id. at 859 (citing Dan M. Kahan et al., Cultural Cognition of Scientific Consensus, 14 J.
RISK RES. 147 (2011)). The same study found that even when people are genuinely committed to
principles of neutrality, they are still likely to disagree on a given issue depending on the views
of the cultural group to which they define themselves. Id.
59 Id.
60 Brad Heath, Did Prosecutors Taint Memphis Murder Trial? Death-row Convicts
Attorneys Allege Misconduct, USA TODAY, Aug. 17, 2011, at 1A.
61 Cognitive bias is also a hazard for judges, police investigators, defense attorneys, and
other officials. Even scientists are affected by the cultural context within which they work. A
recent study on fingerprint analysis found that analysts were vulnerable to extraneous
influences, which misled their conclusions. When analysts knew that they were comparing
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acknowledged that it is even difficult for judges to free themselves from

past experiences 62 and to maintain calm detachment. 63 Police
investigations, for example, are also affected by cognitive bias:
If the police honestly, but incorrectly, believe X committed the crime,
they will not look for Y, the real culprit. In addition, they will become
myopic in analyzing evidence and interviewing witnesses, viewing
every detail they uncover from the perspective of an officer who
believes that he [or she] knows who did it. . . . [T]hen prosecutors
may become entrenched in the [belief] that the defendant did it. 64
Similarly, cognitive bias can lead prosecutors to uphold their colleagues

(other prosecutors) decisions, as they would want those prosecutors to
do for them. 65 They may be affected by their world view, their selfidentity as prosecutors, or by what they have believed to be the truth for
so long, that it is difficult, if not impossible, for them to reexamine the
case with fresh eyes. 66 Thus, for a host of reasons in which cognitive bias
plays a role, 67 it may be difficult for even well-intentioned prosecutors to
fingerprints from a crime scene and those of the suspect, they were more likely to find a
match than when they did not know what they were comparing. Itiel E. Dror & David
Charlton, Why Experts Make Errors, 56 J. OF FORENSIC IDENTIFICATION 600 (2006).
62 In re Murchison, 349 U.S. 133, 13738 (1955) ([A] judge cannot be, in the very nature of
things, wholly disinterested in the conviction or acquittal of those accused. . . . As a practical
matter it is difficult if not impossible for a judge to free himself from the influence of what took
place . . . .).
63 Mayberry v. Pennsylvania, 400 U.S. 455, 46566 (1971) (holding that a judge necessarily
becomes embroiled in a running, bitter controversy. No one so cruelly slandered is likely to
maintain that calm detachment necessary for fair adjudication.); see also Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 884 (2009) ([T]here is a serious risk of actual bias . . . when a
person with a personal stake in a particular case had a significant and disproportionate
influence in placing the judge on the case by raising funds . . . .); Jennifer Robennolt &
Matthew Taksin, Can Judges Determine Their Own Impartiality?, 41 MONITOR ON PSYCHOL. 24,
24 (2010) (explaining that judges, like all people, believe they are objective, see themselves as
more ethical and fair than others, and experience a bias blind spot, the tendency to see bias in
others but not in themselves); Andrey Spektor & Michael Zuckerman, Judicial Recusal and
Expanding Notions of Due Process, 13 U. PA. J. CONST. L. 977 (2011).
64 Melanie D. Wilson, An Exclusionary Rule for Police Lies, 47 AM. CRIM. L. REV. 1, 1718
(2010).
65 Catherine Ferguson-Gilbert, It Is Not Whether You Win or Lose, It Is How You Play the
Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for Prosecutors?, 38 CAL. W. L. REV.
283, 294 (2001) (Prosecutors who do not want to get caught up in the scorekeeping,
conviction-seeking mentality often do anyway because being the whistle blower is against the
prosecutors own self-interest in promotions or career advancement.).
66 Bandes, Loyalty to Ones Convictions, supra note 56; see also Laurie L. Levenson, Essay,
Post-Conviction Death Penalty Investigations: The Need for Independent Investigators, 44 LOY.
L.A. L. REV. S225, S237 (2011).
67 Bandes, Loyalty to Ones Convictions, supra note 56. There are many other reasons that
prosecutors may be hesitant to overturn convictions on which they and/or their peers
workedall of which are permeated by cognitive bias: 1) they may fear that investigating an
innocence claim may unearth a history of similar mistakes made in other casesor may open
the floodgates to more innocence claims being filed; 2) they may uphold their colleagues (other
prosecutors) decisions as they would want those prosecutors to do for them; 3) they may fear
estrangement by their peer group if they reinvestigate or question the validity of a prior
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be neutral and seek the truth when doing so conflicts with their prior
beliefs, and personal and professional interests.
II. CASE STUDIES: THOSE ALLEGING INNOCENCE AND
PROSECUTORIAL RESISTANCE
Looking at individual cases help us understand the unique role of
prosecutors in this setting. 68 The first two case studies show how
prosecutorial resistance unduly prolonged (in the case of Michael
Morton) and continues to prolong (in the case of Glen Tinney) claims
of actual innocence. Although a motion to recuse, or remove, the
prosecutor was filed in each case, each was denied. The third case, that
of Anthony Graves, is one in which the trial prosecutor was recused
from representing the State in the later innocence proceedings, and the
newly appointed prosecutor ultimately concluded that she agreed with
the defense: the petitioner was innocent. The last case, that of Chad
Heins, shows how, absent a request for recusal, new prosecutors took
over the appellate post-conviction appeal, providing fresh eyes to the
innocence claim that the original prosecutors might not have.
A.
Michael Morton
In 1986, 32-year-old Christine Morton was found murdered in her

suburban home near Austin, Texas. 69 Although her husband Michael
Morton claimed his wife was still alive when he left for work that
morning, he was convicted of her murder in February, 1989. 70 The
Innocence Project accepted Michaels case in 2000. In 2005, the
Innocence Project filed a motion requesting DNA testing of evidence
conviction; 4) they may fear confronting the family of the victims if a horrific crime is
reopened; 5) their promotions or performance evaluations may be based on the number of
convictions they obtain or they may fear that their reputation will be at stake; 6) similarly, their
supervisors overall conviction numbers may be used to justify the offices budget and the office
may also want to avoid appearing soft on crime; 7) innocence claims financially expose the
State to liability if exonerees prevail; and 8) post-conviction innocence claims disturb finality
a bedrock of our justice systemand thus expose the system as fallible. See, e.g., id.; Bruce
Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence,
6 OHIO ST. J. CRIM. L. 467 (2009); Medwed, The Zeal Deal, supra note 13.
68 The following cases were brought to my attention through my work at the Innocence
Project and through email correspondence with Innocence Network members regarding
recusal motions.
69 Pamela Colloff, The Innocent Man, Part I, TEX. MONTHLY, Nov. 2012, at 128, available at
http://www.texasmonthly.com/story/innocent-man-part-one; see also Know the Cases: Michael
Morton, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Michael_Morton.php
(last visited Jan. 25, 2013).
70 Know the Cases: Michael Morton, INNOCENCE PROJECT, supra note 69.
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from the crime sceneevidence that included a bloody bandana. 71 In

response, the prosecutor John Bradley filed a motion to deny testing and
dismiss the appeal. 72 Litigation over testing lasted six years as Bradley
continued to oppose DNA testing because, as he asserted, Morton was
simply desperate and grasping at straws. 73 Eventually, the Texas Court
of Criminal Appeals granted testing, reversing a lower courts denial. 74
In June, 2011, DNA results on the bandana confirmed that it
contained blood and hair from the victim, Christine Morton, as well as
blood from an unknown male perpetrator, who was not Michael
Morton. 75 Still, the prosecutor intimated that he would oppose Mortons
exoneration despite the DNA: Morton still could have committed the
crime with an accomplice. The Innocence Project then filed a motion to
recuse the prosecutoralleging in part that because the prosecutor had
so steadfastly fought DNA testing and Mortons possible innocence for
six years, because he was the mentee of the trial prosecutor, and because
of other comments insinuating deep hostility for Mortons lawyers, he
could not impartially fulfill his duty to reinvestigate the case in light of
the DNA findings. 76 The motion was denied from the bench without a
written decision. 77 Shortly thereafter, the blood of an unknown male
from the bandana matched in the national DNA database to a known
convicted felon who was subsequently arrested for the crime. 78 Only
then did the prosecutor agree to release Morton. As Mortons attorney
John Raley explained, Although Mr. Bradley did not try the case that
wrongfully sent Michael to prison and let the murderer go free, because
he fought testing for so many years, he is largely responsible, in my
opinion, for adding the last six years and eight months to Michaels
tragic story. 79 Morton was released on October 3, 2011six years after
DNA testing was first requested, and twenty-four years after being
imprisoned.
Id.
Pamela Colloff, The Innocent Man, Part II, TEX. MONTHLY, Dec. 2012, at 168 [hereinafter
Colloff, Innocent Man, Part II], available at http://www.texasmonthly.com/story/innocentman-part-two.
73 Brandi Grissom, Morton Case Is Focus of Williamson County DA Race, THE TEX. TRIB.
(May 16, 2012), http://www.texastribune.org/2012/05/16/michael-morton-case-central-heatedwilco-da-race/.
74 Colloff, Innocent Man, Part II, supra note 72.
76 Motion to Recuse Williamson County District Attorney and for Appointment of Special
Prosecutor, State v. Michael Morton, Case No. 86-452-K26 (Aug. 17, 2011), available at
www.innocenceproject.org/docs/2011/Morton_Motion_to_Recuse.pdf.
77 Jordan Smith, New Evidence Points to Trouble for Wilco D.A., AUSTIN CHRON. (Aug. 26,
2011), http://www.austinchronicle.com/news/2011-08-26/new-evidence-points-to-trouble-forwilco-d-a/.
79 Brandi Grissom, supra note 73.
71
72
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B.
[Vol. 34:1609
Glen Tinney 80
In 1992, a severely mentally ill man, Glen Tinney, confessed to a

1988 murder while he was in prison for a non-violent crime. 81 The
victim had been murdered while at work in his store during daylight.
Although Mr. Tinney confessed, some police officers agreed that his
confession could not be true, as it did not match the known facts of
the crime in significant ways. 82 In making their own determination, the
prosecutor and his investigator chose to personally interrogate and
officially accept the confession on the record. 83
In 2009, after doing their own investigation, the Ohio Innocence
Project filed a Motion to Withdraw Tinneys Guilty Plea (or his
confession), with attached exhibits and affidavits casting doubt on
Tinneys guilt (the case involved no DNA). 84 The motion included an
affidavit by Lieutenant John Wendling detailing the evidence obtained
during the investigation, the inconsistencies of Tinneys confession, and
Lieutenant Wendlings conclusion that Mr. Tinney was innocent. 85
A complex series of events followed, which included impermissible
ex parte communications: the judge spoke to the Lieutenant about the
case when he saw him at a restaurant; 86 and afterwards, he forewarned
the prosecutor that he was planning to grant Mr. Tinneys motion. 87 The
prosecutor then offered Mr. Tinney a deal to plead guilty to a lesser
offense in exchange for being released. However, the Ohio Innocence
Project confirmed that Mr. Tinney was not interested in pleading guilty
for a crime he alleges he did not commit. 88 The prosecutor and Ohio
80 See Lou Whitmire, Mansfielder Who Confessed to 1988 Murder May Be Released,
MANSFIELD NEWS J., Mar. 31, 2011, available at http://truthinjustice.org/tinney.htm.
81 Brief of Defendant-Appellant at 1, Ohio v. Tinney, No. 2011-CA-0041 (Ohio Ct. App.
July 9, 2011).
82 Tinney confessed to killing a man with a different weapon than the police knew was used,
at a different time of day, on a different part of his body, and to stealing items that the victims
wife says he never possessed. Id.
83 Id. at 45, 7.
84 Id. at 10.
85 Id. at 2829.
86 Id. at 10. In May 2010, the judge on the case ran into Lieutenant Wendling in town and
asked the lieutenant if his opinion remained the same, to which the lieutenant gave a
resounding yes. The judge then called the prosecutors, but not the defense (seemingly in
contradiction to his own ethical and legal duties), and indicated that he planned to grant
Tinneys Motion to Withdraw. The following day, the prosecutors went to the judges chambers
and met with him in person. A month later, the judge denied Tinneys Motion to Withdraw.
The lieutenant has said, Ive said it all the time and I still say that he didnt commit the crime.
He admitted things that did not happen. Defendants Response to the States Motion for
Voluntary Recusal and Defendants Motion for Appointment of a Special Prosecutor at 23,
Ohio v. Tinney, Case No. 92-CR-239H (Ohio Ct. Com. Pl. July 2010).
87 Brief of Defendant-Appellant at 3, Ohio v. Tinney, No. 2011-CA-0041 (Ohio Ct. App.
July 9, 2011).
88 Defendants Response to the States Motion for Voluntary Recusal and Defendants
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Innocence Project discussed holding an evidentiary hearing, to which

the prosecutor indicated that he would call himself and his investigator
as witnesses. 89
The prosecutor subsequently filed a motion to recuse the judge for
improper ex parte communications (with the lieutenant, despite the
prosecutors own role in ex parte communications with the judge, as
well). 90 The judge responded that he would not recuse himself on the
basis that the prosecutor was only filing the motion to forestall an
anticipated adverse decision in the case. 91 Despite the judges comments,
the judge recused himself shortly thereafter without explanation. 92
In front of a newly appointed judge, Mr. Tinneys counsel filed a
renewed Motion to Withdraw the Guilty Plea, and now also filed a
Motion to Recuse the Prosecutor. 93 The motion alleged that, in part, the
recusal was necessary because the Prosecutor planned to call himself as a
witness, which is an impermissible conflict of interest. 94 The judge
denied the Motion to Recuse, writing [t]he court is persuaded that the
prosecutor is not taking a position against defendants release in this
case which violates the Code of Professional Conduct. 95 However, he
did grant the Motion to Withdraw the Guilty Plea based on all the facts
pointing to Mr. Tinneys innocence. 96 However, the State, led by the
same prosecutor who secured Mr. Tinneys conviction and was not
recused, appealed the decision. 97 The case is still pending. 98 Until it is
finalized, Mr. Tinney remains in prison.
C.
Anthony Graves
In 1992, Anthony Graves was convicted of murdering a 45-yearold woman, the womans daughter, and her four grandchildren. 99 In
Motion for Appointment of a Special Prosecutor at 34, Ohio v. Tinney, Case No. 92-CR-239H
(Ohio Ct. Com. Pl. July 2010).
89 Id.
90 Id. at 4.
91 Id.
92 Email from Karla Hall, Attorney of the Ohio Innocence Project (Nov. 29, 2011, 5:40 PM
EST) (on file with author).
93 Defendants Response to the States Motion for Voluntary Recusal and Defendants
Motion for Appointment of a Special Prosecutor, supra note 88.
94 Id. at 811.
95 Decision and Orders on Pending Motion at 3, Ohio v. Tinney, Case No. 92-CR-239 D
(Ct. Com. Pl. of Richland Cnty. Mar. 25, 2011).
96 Id.
97 State v. Tinney, 2012-Ohio-72 (Ohio Ct. App. 2012).
98 Mark Caudill, Tinney Hearing Likely on Hold Until December, MANSFIELD NEWS J., Nov.
8, 2012.
99 Harvey Rice, How Siegler Unmade Case, She and a Colleague Independently Concluded
that Graves Was No Killer, HOUSTON CHRON., Dec. 16, 2010, at A1; Brian Rogers & Cindy
George, After Years on Death Row, Hes an Innocent Man: Prosecutor Exonerates Graves, Says
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2006, a federal appeals court vacated his capital murder conviction and
ordered a new trial because the prosecutors elicited false statements
from witnesses, withheld other statements in violation of Brady v.
Maryland, 100 and a different death row inmate continuously asserted
Gravess innocence up until his own execution. 101 As retrial proceedings
began, defense lawyers argued for the removal of the prosecutor Joan
Scroggins who had been one of the prosecutors in Gravess original trial.
The defense argued that by virtue of violating her ethical obligations as
a prosecutor by suppressing exculpatory statements, Scrogginss
continued presence would deny Graves a fair retrial. 102 The judge
granted the recusal motion with little explanation. 103 Another former
state district judge speculated that in doing so, the judge was likely
enforcing the Texas Code of Criminal Procedure provision which
requires prosecutors not to convict but to see that justice is done. 104
The District Attorney Renee Mueller then voluntarily disqualified her
entire office, stating they could not proceed without Scroggins, and
hired an independent attorney, Kelly Siegler, to act as a special
prosecutor. 105
Siegler is a highly esteemed prosecutor who had successfully
obtained nineteen death row convictions. 106 In her preparation to retry
the case, Siegler and a veteran state trooper poured over evidence and
interviewed more than fifty witnesses. 107 Through their investigation,
they found that the main witness in the case had recanted, 108 as well as
other signs of prosecutorial misconduct and fabrication. As described by
Siegler, much to her own disbelief, they independently concluded that
Graves was innocent. 109 They recommended to the District Attorney
that the case not be retried. 110 Graves was exonerated in 2010 after 18
years in prison, 12 of those on death row. The original appellate
prosecutor, removed from the case, remains convinced of Gravess
guilt. 111
No Evidence Ties Him to 92 Massacre Graves, HOUSTON CHRON., Oct. 28, 2010, at A1.
100 373 U.S. 83 (1963).
101 Erika McDonald, Capital Conviction Tossed Because Prosecutors Concealed Evidence
The Anthony Graves Story, JUST. DENIED, no. 34, Fall 2006, at 34.
102 Cindy George, Prosecutor off Retrial of Graves in 92 Slayings, HOUSTON CHRON., Dec.
13, 2006, at B1.
103 Id.
104 Id.
105 See Rice, supra note 99.
106 Id.
107 Id.
108 Id.
109 Id.
110 Id.
111 Id.
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D.
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Chad Heins
On April 17, 1994, Tina Heins was brutally murdered in the

apartment she shared with her husband, who was away that night, and
her husbands brother, Chad Heins, who was at home. 112 Heins alleged
that due to alcohol and a sleep disorder, he slept through the murder
and knew nothing about it. 113 Besides his presence, no blood, clothes,
fingernail scrapings, hair, nor a murder weapon implicated Heins. The
prosecution sought the death penalty, and although the jury found
Heins guilty, they recommended life in prison instead. 114
In 2003, the Innocence Project and the Innocence Project of
Florida took his case and filed a motion for DNA testingwhich was
granted over the prosecution's objections. By 2005, two rounds of DNA
testing revealed that DNA under the victims fingernails matched the
DNA profile of hair found on the victims bedboth belonging to a
single, unknown male who was not Chad Heins. 115 Then-State Attorney
Harry Shorstein removed the original trial prosecutors from the case
and appointed new assistant prosecutors within his office. He explained
that for all appeals, he routinely removed [the original prosecutor] and
sought other assistants to look at it. 116 He compiled a team, including
himself, to join the assistant district attorneys already assigned to the
case. I did want fresh opinions. I was a trial lawyer, he explained, but
I always sought out, on difficult cases, assistants to take a fresh look, to
test me. 117 He described his and the other three lawyers reinvestigation
of the case as anguishing.
The court vacated Heinss conviction in 2006. 118 The assistant
prosecutors on the case recommended retrying him. 119 In preparing for
retrial, those prosecutors sought more DNA testing on their own. 120
This round of testing corroborated earlier findings: semen on the
victims bed sheets also matched the same unknown, male profile
112 Know the Cases: Chad Heins, INNOCENCE PROJECT, http://www.innocenceproject.org/
Content/Chad_Heins.php (last visited Feb. 1, 2013).
113 Although it is difficult to imagine anyone sleeping through a murder, this was not the
only case where the defendant has made this claim. See Brandi Grissom, DNA Exonerations
Continue, but Not for One Man, N.Y. TIMES, Nov. 5, 2011, at A31 (referring to Hank Skinner).
114 Press Release, Innocence Project, Ten Years After Chad Heins Was Wrongly Convicted
of Murder, Florida Judge Vacates Conviction, Citing New DNA Evidence (Dec. 14, 2006),
available at http://www.innocenceproject.org/Content/Ten_Years_After_Chad_Heins_Was_
Wrongly_Convicted_of_Murder_Florida_Judge_Vacates_Conviction_Citing_New_DNA_
Evidence.php.
115 Know the Cases: Chad Heins, INNOCENCE PROJECT, supra note 112.
116 Telephone Interview with Harry Shorstein, Former State Attorney, Fourth Judicial
Circuit Court of Florida (Dec. 9, 2011) (on file with author).
117 Id.
118 Id.
119 Id.
120 Id.
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discovered under the victims fingernails and on hairs in the victims

bed. 121
Although Shorstein cannot personally completely shake the idea
that Heins might have been involved, he recognized that such a feeling,
given the lack of proof of his involvement, was not the standard by
which a prosecutor should make a decision to prosecute a murder
case. 122 Ultimately, Shorstein dropped the charges. 123 The Innocence
Project deems Heins as having been in exonerated in 2007, after nearly
11 years in prison. 124 Shorstein objects to that categorization: he believes
that Heins was released because the evidence did not rise to the level of
warranting a new prosecution, and not because his innocence was
proved. 125 One of the original trial prosecutors who was removed from
the case, now the elected State Attorney of Shorsteins former office, still
believes Heins is guilty. 126
III. THE PROBLEM: THE FAILURE OF EXISTING PROPOSALS AND
INADEQUATE RECUSAL MECHANISMS
A.
The Failure of Existing Proposals to Fully Address Prosecutorial

Biases Regarding Post-Conviction Claims of Innocence
Because courts tend to view post-conviction prosecutorial abuses

and decision-making as isolated occurrences and the result of character
failure of individual prosecutors, 127 legislators, and judges have been
slow to create new guidelines and procedures to address the
prosecutors role in this field despite the burgeoning attention this issue
has received in recent years. As a result, scholars and local district
attorneys offices have stepped in with proposals. These proposals have
not been widely adopted, have shortcomings, and have resulted in little
uniform change.
A 2008 amendment to the American Bar Association (ABA) Model
Rules of Professional Conduct, Rule 3.8(g) and (h), provides prosecutors
with guidance as to appropriate conduct in the post-conviction
setting. 128 Specifically, the new portions of Rule 3.8, Special
Id.
Id.
123 Id.; see also Know the Cases: Chad Heins, INNOCENCE PROJECT, supra note 112.
124 Know the Cases: Chad Heins, THE INNOCENCE PROJECT, supra note 112.
125
Email from Harry Shorstein, Former State Attorney, Fourth Judicial Circuit Court of
Florida (Jan. 2, 2013, 20:07 EST) (on file with author).
126 Telephone Interview with Harry Shorstein, supra note 116.
127 Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful
Convictions: Shaping Remedies for a Broken System, 2006 WIS. L. REV. 399, 400.
128 MODEL RULES OF PROFL CONDUCT R. 3.8(g)(h) (2008).
121
122
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Responsibilities of a Prosecutor, impart:

(g) When a prosecutor knows of new, credible and material evidence
creating a reasonable likelihood that a convicted defendant did not
commit an offense of which the defendant was convicted, the
prosecutor shall:
(1) promptly disclose the evidence to an appropriate court or
authority, and
(2) if the conviction was obtained in the prosecutors jurisdiction,
(A) promptly disclose that evidence to the defendant unless a
court authorizes delay, and
(B) undertake further investigation, or make reasonable efforts
to cause an investigation, to determine whether the defendant
was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence
establishing that a defendant in the prosecutors jurisdiction was
convicted of an offense that the defendant did not commit, the
prosecutor shall seek to remedy the conviction. 129
The ABA rules offer clear guidelines for prosecutors regarding

their duties to reinvestigate the case. However, these rules are only
recommendations, not binding law even for those states that have
adopted them. 130 Only five states have thus far adopted these specific
guidelines. 131 There are also no consequences for a prosecutor who
chooses not to follow the guidelines.
A 2010 draft of the revised ABA Standard for Criminal Justice,
which was not instituted, also included a new section, standard 3-7.1,
Post-trial Motions, addressing this issue:
The prosecutor should conduct a fair evaluation of post-trial motions,
determine their merit, and respond accordingly. The prosecutor
should not oppose motions that the prosecutor believes are correct,
or solely for the purpose of preserving a conviction. 132
Id. (emphasis added).

The ABA is a voluntary bar association without lawmaking powers. See Consumer FAQs,
AM. BAR ASSN, http://www.americanbar.org/groups/professional_responsbility/resources/
resources_for_the_public/consumer_faqs.html (last visited Feb. 1, 2013). It creates ethical
guidelines, which states often incorporate and adopt into their own laws. See id. Once adopted
by a state, they set the minimum guidelines that practitioners should follow. See Green &
Yaroshefsky, supra note 67, at 472 n.28 (citing CRIMINAL JUSTICE SEC., AM. BAR ASSN, REPORT
TO THE HOUSE OF DELEGATES (2008), available at http:// www.abanet.org/leadership/2008/
midyear/sum_of_rec_docs/hundredfiveb_105B_FINAL.doc).
131 Idaho has adopted rule 3.8(g) and (h) in full. Colorado, Tennessee, and Wisconsin have
adopted (h) and modified (g), and Delaware has adopted a hybrid of (g) and (h). See David
Keenan et al., Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing
Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121
YALE L. J. ONLINE 203, 231 n.134 (2011).
132 AM. BAR. ASSN, STANDARDS FOR CRIMINAL JUSTICE 3-7.1 (Draft 2010) (emphasis added).
129
130
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This standard would have imposed a new duty on prosecutors to

evaluate motions, though do no more. However, this new standard has
yet to be adopted by the ABA or any state. Had the prosecutor in
Michael Mortons case undertaken any such investigation it may have
prevented the six-year delay in Mortons exoneration. Alternatively,
given the prosecutors subconscious biases, it might not have.
A second proposal, put forth by Daniel Medwed, H. Richard
Uviller, and others, involves the creation of internal Innocence or
Conviction Integrity units within prosecutors offices. 133 Postconviction, innocence-based appeals automatically get assigned to the
attorneys in these units, rather than a district attorney through the
ordinary assignment process. 134 For example, in Dallas, Texas, District
Attorney Craig Watkins created such a unit in 2007. 135 The Unit hired
new lawyers without a personal interest in protecting particular
convictions, 136 to ensure the accuracy of the investigation, rather than
solely uphold convictions. 137 Similarly, the goal of the North Carolina
Actual Innocence Commission was to look at each case with a fresh
eye. . . . We are not trying to prove things one way or the other. We have
no axe to grind. We are searching for the factual historical truth. 138
However, these units require both financial resources and the
political will of a leader who is willing to admit the need for new, neutral
prosecutorstwo factors that have prevented, and will likely continue
to prevent, their adoption around the country. Furthermore, even these
separate units do not necessarily obviate conflicts of interests if they
remain under the supervision of the same District Attorney who was
originally involved with the case. 139 Nor have any of these units hired
133 See Medwed, The Prosecutor as Minister of Justice, supra note 13, at 3738; Uviller, supra
note 34, at 170405.
134 See Medwed, supra note 13, at 5253.
135 See Conviction Integrity Unit, DALLAS CNTY. DIST. ATTORNEYS OFFICE, http://dallas
da.co/webdev/?page_id=73 (last visited Feb. 1, 2013).
136 Green & Yaroshefsky, supra note 67, at 49495. The Unit has reviewed more than 400
cases in which individuals had requested DNA testing but had been denied by the courts and
rebuffed by previous prosecutors. See id. at 494 & n.169.
137 See id. at 495.
138 Id. at 495 n.174 (quoting Telephone Interview with Michael Ware, Dir. of the Conviction
Integrity Unit (July 14, 2008)); see also Douglas H. Ginsburg & Hyland Hunt, The Prosecutor
and Post-Conviction Claims of Innocence: DNA and Beyond?, 7 OHIO ST. J. CRIM. L. 771, 78992
(2010) (reviewing systems similar to the North Carolina Commission that have been created in
Canada and the United Kingdom).
139 See Application for Permission to Appeal from Denial of Rule 9 Application at 24,
Rimmer v. Texas, CCA No. W2009-02371-CCA-R9-PD (Tenn. 2010) (seeking recusal of the
trial prosecutor, alleged to have presented false testimony regarding eyewitness identification of
the defendant, who supervises the post-conviction prosecutor as well as the entire prosecutors
office), available at https://s3.amazonaws.com/s3.documentcloud.org/documents/73622/
rimmer-application-for-permission-to-appeal.pdf; see also Brad Heath, Did Prosecutors Taint
Memphis Murder Trial?; Death-row Convicts Attorneys Allege Misconduct, USA TODAY, Aug.
17, 2011, at 1A.
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defense attorneys to work alongside prosecutorswhich might help

balance inherent biases. 140 Empirical research needs to be done to
determine if innocence claims have different cumulative outcomes in
these units than in normal offices.
A third proposal by Bennett Gershman suggests that postconviction prosecutorial functions be outsourced entirely, not merely to
separate internal units of the same prosecutors office. 141 This would
ensure that the cases newly assigned prosecutors have no loyalty to
colleagues in obtaining and maintaining the conviction under
reinvestigation. 142 For instance, in Anthony Gravess case, hiring an
outside prosecutor fulfilled this goal. 143 Utah has implemented this
proposal by housing all post-conviction innocence-based proceedings
within the State Attorney Generals office. 144 However, other states have
not rushed to copy this model. 145
Fourth, George Thomas III goes so far as to propose that there
should be a department of criminal law specialists who both prosecute
and defend casesthereby attacking the problems of tunnel vision and
ingrained loyalties head on. 146 This would force attorneys to engage
alternative views and understand a fuller sense of the stakes not only
for the other side, but for all those affected by the system, including
victims, victims families, and defendants families. 147 Alternatively, he
also suggests that investigators should work for judges, not
prosecutors. 148
Fifth, Alafair Burke has proposed that District Attorneys offices
implement educational training modules designed to teach prosecutors
140 See Jeffrey L. Kirchmeier et al., Vigilante Justice: Prosecutor Misconduct in Capital Cases,
55 WAYNE L. REV. 1327, 136869 (2009) (citing Alafair S. Burke, Improving Prosecutorial
Decision Making: Some Lessons of Cognitive Science, 47 WM. & MARY L. REV. 1587, 161326
(2006)).
141 See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393, 45558 (1992).
However, it is also possible that many employees in an Attorney Generals office have also
previously worked in prosecutors offices.
142 Id. at 45758.
143 See McDonald, supra note 101, at 3.
144 See Medwed, The Zeal Deal, supra note 5, at 176 n.265.
145 This may be because there is still pushback from prosecutors offices that see this as a
trespass on their own authority. Telephone Interview with Harry Shorstein, supra note 116
(explaining that as the elected official, it is the District Attorneys responsibility and privilege to
make decisions about who will try a case, and a judge overruling those decisions violates the
separation of powers). In addition, and more problematically, Attorney General offices may
only hire prosecutors to review post-conviction innocence claimsrather than hiring
prosecutors and defense lawyers, which would increase confidence in the process exponentially.
See NY Attorney General to Review Wrongful Convictions, WALL ST. J., Apr. 11, 2012, at A20.
Lastly, beyond the necessary political will of the district attorney, this approach also requires
that the Attorney Generals office be willing to divert some of their own financial and staff
resources to these cases.
146 See THOMAS, supra note 12, at 19091.
147 Bandes, supra note 54, at 427.
148 See id. at 429.
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about cognitive bias to help them understand their own unconscious

biases. 149 These trainings would have to be either legislatively required
or welcomed by those being trainedwhich requires an
acknowledgement of prosecutorial bias, which many prosecutors are
unwilling to accept in the first place. 150 There is no evidence that such
educational materials exist or have been implemented. However, other
areas of the law, such as the credibility of eyewitness identification, have
recently developed to recognize the role that bias and social sciences
play in the law. 151 These breakthroughs may indicate that the legal
profession is, slowly but surely, willing to recognize new cognitive biases
that were previously dismissed.
Lastly, former director of the Public Defender Service for D.C. and
Professor Angela Davis and others have called for disciplinary measures
to hold prosecutors accountable for official misconduct as well as for
delaying justicethereby deterring such behavior in the future. 152
However, despite numerous calls for prosecutorial discipline in different
areas over the years, external discipline remains aspirational. 153 Bar
Associations have examined very few cases, and of those they have, most
end in only verbal reprimand. 154 It seems that one of the few prosecutors
to be punished for ethical misconduct, including for charges of
withholding evidence from the defense, is the prosecutor who tried the
infamous Duke Lacrosse Case, 155 although criminal actions against the
prosecutor in Michael Mortons case, discussed above, are also being
brought. 156
See Burke, Neutralizing Cognitive Bias, supra note 4, at 52223.
See Telephone Interview with Harry Shorstein, supra note 116.
151 For instance, although our justice system was slow, until recently, to acknowledge the
role that implicit bias plays in eyewitness identification, many jurisdictions and police
departments now recognize, and have implemented trainings, how subconscious biases affect
peoples perceptions of the facts. Compare Perry v. New Hampshire, 132 S. Ct. 716 (2012)
with State v. Henderson, 27 A.3d 872 (N.J. 2011).
152 See Angela J. Davis, The Legal Professions Failure to Discipline Unethical Prosecutors, 36
HOFSTRA L. REV. 275 (2007); see also Joy, supra note 127; Robert Barnes, Prosecution on the
Docket, WASH. POST, Oct. 31, 2011, at A17. In response to this ongoing and widespread
misconduct Barry Scheck and other innocence advocates have proposed a national dialogue
with prosecutors in an effort to find ways to investigate and sanction prosecutors who break the
rulesin order to change and stop prosecutorial misconduct culture. Barnes, supra.
153 See Davis, supra note 152; see also Connick v. Thompson, 131 S. Ct. 1350 (2011).
154 See Davis, supra note 152, at 29192.
155 In that case, the prosecutor was disbarred after rushing to accuse the defendants, Duke
Lacrosse players, see id. at 298, despite contradictory evidence in his investigation, for
providing a suspect with a suggestive photo identification procedure, see Duff Wilson &
Jonathan D. Glater, Files from Duke Rape Case Give Details but No Answers, N.Y. TIMES, Aug.
25, 2006, at A1, among other unethical acts, see Laurie L. Levenson, High-Profile Prosecutors &
High-Profile Conflicts, 39 LOY. L.A. L. REV. 1237, 1251 n.55 (2006).
156 The Innocence Project took the initiative to request that the State of Texas order a full
investigation into the possible prosecutorial criminal misconduct that took place in Michael
Mortons case. See Chuck Lindell, Morton Lawyers Put Prosecution on Defense, AUSTIN AM.
STATESMAN, Dec. 7, 2011, at A1; see also Brandi Grissom, Judge Asks for Court of Inquiry into
149
150
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Although prosecutorial accountability is an important pursuit,

there is also value in removing the rhetoric around fault and blame. In
the post-conviction setting, as Alafair Burke has emphasized,
prosecutors should not be removed only for active wrongdoing, but
rather for their human inability to look at the case with fresh eyes. 157
Thus, this Note thus focuses less on criminal sanctions than on the
deterring and preventing unnecessary delays of justice.
Despite successes in a case-by-case or locality-by-locality basis,
these proposals have failed to gain traction, only addressing the problem
on an ad-hoc basis. And while the ABA Model rules provide proactive
guidelines to prosecutors on what is expected of them, they do not
address the issue of bringing fresh eyes to a case in the way that
independent conviction integrity units, or judges (rather than
prosecutors) investigating the case, do. As a result, the majority of those
alleging their innocence nationwide have not benefited from these
proposals.
B.
Inadequate Recusal Mechanisms
Recusal and disqualification procedures 158 exist to remove judges

and attorneys, particularly prosecutors, from cases to ensure that a
petitioner is afforded her Constitutional right to a fair trial in a fair
tribunal. 159 The idea behind such procedures is that conflicts of interest
inevitably arise in which a party is so embroiled in a controversy that
she may be unable to act fairly and objectively in fulfilling her duty. 160
Historically, recusal only applied to judges. 161 Over time, however,
Morton Prosecutor, TEX. TRIB. (Feb. 10, 2012), http://www.texastribune.org/2012/02/10/judgedecide-former-prosecutor-court-inquiry/. It made its own fact finding and an exhaustive
presentation to the court on why action should be taken against the prosecutor. See Lindell,
supra. As Chuck Lindell, a journalist covering the Morton case closely noted, the request is
groundbreaking: it has never been attempted in the nations 284 other exoneration casesnor
in death penalty or other cases in which prosecutorial misconduct has been found. Id.
157 Burke, Talking About Prosecutors, supra note 4, at 2134.
158 The terms recusal and disqualification are often used interchangeably, although they
are technically different. Strictly speaking, recusal traditionally refers to a judges own
decision to withdraw from a case sua sponte, while disqualification refers to the motion of a
litigant asking the judge to step down. See, e.g., Forrest v. State, 904 So. 2d 629, 629 n.1 (Fla.
Dist. Ct. App. 2005) (citing Sume v. State, 773 So. 2d 600, 60102 (Fla. Dist. Ct. App. 2000)).
For simplicitys sake, I will use the word recusal here to encompass both types of removals.
159 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (quoting In re Murchison,
349 U.S. 133, 136 (1955)); see also Gabriel D. Serbulea, Due Process and Judicial
Disqualification: The Need for Reform, 38 PEPP. L. REV. 1109 (2011) (footnote omitted).
160 Conflicts of interests are some particular incentive[s] which threaten[] the effective and
ethical functioning of a lawyer. Kevin McMunigal, Rethinking Attorney Conflict of Interest
Doctrine, 5 GEO. J. LEGAL ETHICS 823, 831 (1992).
161 See Tumey v. Ohio, 273 U.S. 510, 52334 (1927); see also SUSAN R. MARTYN ET AL., THE
LAW GOVERNING LAWYERS: NATIONAL RULES, STANDARDS, STATUTES, AND STATE LAWYER
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recusal has come to apply to attorneys, as well. But although attorney

recusals have come to mirror judicial recusals, they are much more
limited in significant ways. 162
1.
Recusal of Judges 163
There is a presumption that judges are neutral unless shown

otherwise: the law will not assume the possibility of bias or favour in a
judge, who is already sworn to administer impartial justice, and whose
authority greatly depends upon that presumption and idea. 164
However, when conflicts of interest arise of such a nature, and to such
an extent as to deny a defendant due process of law, that presumption
is overturned and judicial recusal may be necessary. 165 Recusal standards
for judges are broader than those for prosecutorsand include a more
expansive notion of improprietyencompassing cases in which
impartiality might reasonably be questioned. 166 This is because our
judicial system requires that judges be absolutely impartial, whereas
CODES 329 (2009).

162 See Green & Yaroshefsky, supra note 67, at 506. Because prosecutors are not judicial
officers, they are not generally subject to the strict due process neutrality requirements that
courts apply to judicial officers. See id. Although the right to an impartial judge is also not
explicitly guaranteed by the Constitution, the Supreme Court has recognized the right. See
Tumey, 273 U.S. at 510. Certain legal interest groups and scholars have also indicated a general
duty of judges and prosecutors to remain neutral. MODEL RULES OF PROFL CONDUCT R. 3.5
(2012); AM. BAR ASSN, STANDARDS FOR CRIMINAL JUSTICE 8-2.3 (3d ed. 1992); NATL DIST.
ATTORNEYS ASSN, NATIONAL PROSECUTION STANDARDS Standard 7.3, at 23 (2d ed. 1991); see
also Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of
Tyranny, 86 IOWA L. REV. 393, 457 (2001); Levenson, supra note 155, at 124041 & n.12
(discussing the Citizens Protection Act, Pub. L. No. 105-277 801, 112 Stat. 2681-118 (1998),
which overruled federal prosecutors exemption from state ethical rules).
163 For thorough overviews of judicial recusal history and current case law of the Supreme
Court, see Serbulea, supra note 159; Andrey Spektor & Michael Zuckerman, Judicial Recusal
and Expanding Notions of Due Process, 13 U. PA. J. CONST. L. 977 (2011); and Sande L. Buhaia,
Federal Judicial Disqualification: A Behavioral and Quantitative Analysis, 90 OR. L. REV. 69
(2011).
164 Aetna Life. Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986) (quoting 2 WILLIAM BLACKSTONE,
COMMENTARIES *361).
165 McClenan v. State, 661 S.W.2d 108, 109 (Tex. Crim. App. 1983).
166 Cheney v. U.S. Dist. Ct., 541 U.S. 913, 916 (2004); see also Jeffrey W. Stempel, Chief
Williams Ghost: The Problematic Persistence of the Duty to Sit, 57 BUFF. L. REV. 813, 82728
(2009). In 2009, the Supreme Court summarized the two principles underlying judicial
disqualification: 1) judges are not permitted to try cases where [they have] an interest in the
outcome (although interest is not defined), and 2) [t]he inquiry is an objective one. . . . not
whether the judge is actually, subjectively biased, but whether the average judge in his position
is likely to be neutral, or whether there is an unconstitutional potential for bias. Caperton v.
A.T. Massey Coal Co., 556 U.S. 868, 88081 (2009) (quoting In re Murchison, 349 U.S. 133, 136
(1955)).
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prosecutors must be disinterested, but may also be zealous

advocates. 167
Historically, common law and the Canons of Model Code of
Judicial Conduct provided that judicial recusal was necessary only
where there was a conflict of pecuniary interest. 168 In 1955, the
Supreme Court extended the tenet that no person should be a judge in
his own case to no [person] is permitted to try cases where he has an
interest in the outcome. 169 In 1972, an objective impropriety standard
encompassing any case in which impartiality might reasonably be
questioned was added. 170 Thereafter, the concept has gradually
included a broader range of conflicts of interest for judges. However,
due process does not require disqualification for bias or prejudice in of
itself. Consequently, the Constitution sets only the outer boundaries of
disqualification schemes and states are free to impose more rigorous
impropriety standards. 171
Today, the ABA Model Code of Judicial Conduct and the Code of
Conduct for United States Judges govern judicial recusal standards. 172
Although the codes carry no independent authority and are merely
advisory, they have been adopted by nearly all the states. 173 Rule 2.11(A)
167 Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987). Although
similar in meaning, disinterested has a slightly different meaning than impartial.
Disinterested is defined as: [U]nbiased by personal interest or advantage; not influenced by
selfish motives. Disinterested, DICTIONARY.COM, http://dictionary.reference.com/browse/
disinterested?s=t (last visited Feb. 1, 2013). Thus, while a prosecutor may be partiala zealous
advocate on behalf of her causeshe must also be disinterested. See Young, 481 U.S. at 807. In
contrast, judges must be completely impartial in that they must have no stake in the outcome,
are fair, just, and not biased. Caperton, 556 U.S. at 886.
168 Tumey v. Ohio, 273 U.S. 510, 523 (1927); see also MARTYN ET AL., supra note 161, at 329.
169 Murchinson, 349 U.S. at 136.
170 Stempel, supra note 166, at 82729.
171 See Caperton, 556 U.S. at 889; Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813, 828 (1986);
Tumey, 273 U.S. at 523.
172 MODEL CODE OF JUDICIAL CONDUCT R. 2.11 (2011); CODE OF CONDUCT FOR UNITED
STATES JUDGES canon 3(C) (2011), available at http://www.uscourts.gov/rulesandpolicies/
codesofconduct/codeconductunitedstatesjudges.aspx. Although almost all of the postconviction innocence cases take place at the state level, the federal judicial recusal rules are a
helpful guide to understanding the array of state recusal laws. Two sections of United States
Code title 28 provide standards for judicial recusal; and with exceptions and additions, state
laws generally mirror these two provisions. The first, 455, provides that a judge shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned,
and lists the other qualifying circumstances for recusal, which include: personal bias or
prejudice towards a party, personal knowledge of disputed evidentiary facts, previous service as
a lawyer or witness, expression of an opinion concerning the cases outcome, a financial interest
held by a member of the immediate family, etc. 28 U.S.C. 455 (2006). The second, 144,
provides the circumstances under which a party (rather than the judge herself, as was the case
in 455) files an affidavit alleging that the judge before whom the matter is pending has a
personal bias or prejudice, and the case is transferred to another judge. Id. 144.
173 Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judges Impartiality
Might Reasonably be Questioned, 14 GEO. J. LEGAL ETHICS 55, 55 (2000) (stating that fortynine states have adopted some form of the ABA Model Code of Judicial Conduct). In contrast,
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of the ABA Model Code provides that a judge shall disqualify himself
when the judges impartiality might reasonably be questioned. 174 This
includes, but is not limited to when the judge: 1) has personal bias or
prejudice towards a party, partys lawyer, or the case at issue, 2) is a
party or lawyer to the proceeding (which extends to judges family
members), 3) has an economic interest in the subject matter or a party
(which extends to judges family members), 4) knows or learns that a
party or lawyer made a campaign contribution, 5) made previous public
statements committing or appearing to commit her to a particular
result, or 6) served as a lawyer in the . . . controversy . . . [or] was a
material witness. 175
In weighing the conflict of interest at stake, a judge must consider
whether the conflict affects the publics confidence in the judicial system
and whether a reasonable person knowing all the circumstances would
harbor doubts concerning the judges impartiality. 176 The inquiry is an
objective one. . . . not whether the judge is actually, subjectively biased,
but whether the average judge in his position is likely to be neutral, or
whether there is an unconstitutional potential for bias exists. 177
Scienter, or actual knowledge, is not required because a lack of
knowledge about the disqualifying circumstances does not necessarily
eliminate the risk that she is not impartial. 178 Still, the standard starts
the Code of Conduct for United States Judges, adopted by the Judicial Conference of the United
States, applies to United States circuit judges, district judges, Court of International Trade
judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Debra Lyn
Bassett & Rex R. Perschlbacher, The Elusive Goal of Impartiality, 97 IOWA L. REV. 181, 190 n.46
(2011) (citing Introduction to CODE OF CONDUCT FOR UNITED STATES JUDGES (2011)).
174 MODEL CODE OF JUDICIAL CONDUCT R. 2.11(A) (2011).
175 Id.; see also 28 U.S.C. 455 (2006); Order on Petitioners Motion to Disqualify at 4445,
Rimmer v. Texas, Nos. 98-01034, 97-02817, & 98-01033 (Tenn. Crim. Ct. May 20, 2011),
available at https://www.documentcloud.org/documents/217158-c-documents-and-settingsbheath-desktop-tenn.html#document/p46/a28916 (disqualifying the prosecutor, but not the
entire prosecutors office, where the prosecutor was likely to be called as a witness).
176 Jones v. Pittsburgh Natl Corp., 899 F.2d 1350, 1356 (3d Cir. 1990) (citing United States
v. Dalfonso, 707 F.2d 757, 760 (3d Cir. 1983)); see also 28 U.S.C. 455(a) (2006) (judges are
required to recuse themselves in any proceeding in which his impartiality might reasonably be
questioned); United States v. Oaks, 606 F.3d 530, 536 (8th Cir. 2010); Bolin v. Story, 225 F.3d
1234, 1239 (11th Cir. 2000); CODE OF CONDUCT FOR UNITED STATES JUDGES canon
3(c)(1)(d)(iii) (advising judges to disqualify themselves when their impartiality might
reasonably be questioned). In addition, some states have peremptory recusal laws: similar to a
peremptory strike in jury selection, this means that each side gets one free recusal without
explanation and is automatically granted. See Serbulea, supra note 159, at 112223. Federal
recusal law does not include this bonus; and in many cases judges themselves are allowed to be
the triers of their own case in deciding whether or not to recuse themselves. Id. at 112425.
177 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009).
178 [P]ublic confidence in the integrity of the judicial process does not depend upon
whether or not the judge actually knew of facts creating an appearance of impropriety so long
as the public might reasonably believe that he or she knew. Liljeberg v. Health Servs.
Acquisition Corp., 486 U.S. 847, 860 (1987) (citations omitted). But note, four judges in
Liljeberg dissented and said scienter is required: To hold that disqualification is required by
reason of facts which the judge does not know, even though he should have known of them, is
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from a presumption that a judge is neutral. As a result, where there is

only an appearance of (rather than actual) bias, recusal is not necessarily
required.
2.
Recusal of Prosecutors
Public confidence in the judicial system and conflicts of interest

also implicate recusal standards for attorneys. Fewer statutes exist for
attorney recusal, and state case law plays a much larger role. What rules
do exist take the form of constitutional provisions, court rules, statutes,
and most often the state versions of the Model Code of Professional
Conduct. 179
Current ABA Standard for Criminal Justice 3-1.3(f) provides, [a]
prosecutor should not permit . . . her professional judgment or
obligations to be affected by . . . her own political, financial, business,
property or personal interests, but if she does, she should recuse
herself. 180 More commonly accepted areas in which a prosecutor should
be recused include if she: has a pecuniary interest in the outcome of the
case, 181 has a close relationship with the accused, 182 may be a material
witness in the States case, 183 or is tainted by vindictiveness, 184 animosity
or hostility. 185 Upon removal, some states allow the Attorney General to
appoint a special prosecutor or conduct the prosecution itself. 186
However, for prosecutors even more than judges, there is a presumption
to posit a conundrum which is not decipherable by ordinary mortals. Id. at 872 (Rehnquist,
C.J., dissenting).
179 See Preface to MODEL RULES OF PROFL CONDUCT (2012); see also AM. BAR ASSN,
STANDARDS RELATING TO THE ADMINISTRATION OF CRIMINAL JUSTICE (2009); About Criminal
Justice Standards, AM. BAR ASSN, http://www.americanbar.org/groups/criminal_justice/policy/
standards.html (last visited Feb. 1, 2013).
180 AM. BAR ASSN, STANDARDS FOR CRIMINAL JUSTICE 3-1.3(f) (3d ed. 1993); see also Rory
K. Little, The ABAs Project to Revise the Criminal Justice Standards for the Prosecution and
Defense Functions, 62 HASTINGS L.J. 1111, 1128 (2011).
181 See Tumey v. Ohio, 273 U.S. 510, 523 (1927).
182 See Dirk G. Christensen, Incentives vs. Nonpartisanship: The Prosecutorial Dilemma in an
Adversary System, 1981 DUKE L. REV. 311, 321 n.80 (citing State v. Bell, 370 P.2d 508 (Idaho
1962); State ex rel. Williams v. Ellis, 112 N.E. 98 (Ind. 1916)).
183 Thirty-Ninth Annual Review of Criminal Procedure: Prosecutorial Misconduct, 39 GEO.
L.J. ANN. REV. CRIM. PROC. 620, 626 (2010).
184 BENNETT L. GERSHMAN, PROSECUTORIAL MISCONDUCT 4:67 (2d ed. 2012); see also,
Bordenkircher v. Hayes, 434 U.S. 357, 36668 (1978) (Blackmun, J., dissenting) (noting
vindictiveness against a particular defendant can disqualify the prosecutor or invalidate the
conviction); Blackledge v. Perry, 417 U.S. 21, 33 (1974) (holding that due process prohibits a
prosecutor from bringing a more serious charge against a defendant who pursued a statutory
right of appeal from a lesser chargeand that defendant need not prove actual vindictiveness
but rather must be free of even any apprehension of vindictiveness); Christensen, supra note
182, at 319.
185 City of Maple Heights v. Redi Car Wash, 554 N.E.2d 929 (Ohio Ct. App. 1988).
186 See, e.g., CAL. GOVT CODE 12550, 12553 (West 2012).
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that unless the petitioner was truly prejudiced as a result, the conflict
does not rise to requiring recusal.
3.
Elusive Recusals: Unduly High Standards and

Cultural Resistance
Even if a broader, judicial-like impropriety conflict of interest

standard were applied to prosecutors, recusals would remain elusive.
The normal assumption is that judges and prosecutors are capable of
fulfilling their ethical duties. Thus, recusals are intended to be limited.
They should not be so broad as to allow any petitioner to question an
officers impartiality at any time in order to avoid the consequences of
an expected adverse decision. 187 However, while there should be some
threshold for recusal motions, the idea that they can only be granted in
extraordinary cases unreasonably limits their application. Incredibly
high standards make the recusal procedure not only futile (due to the
infrequency with which they are granted), but also ineffectivefor they
fail to fulfill their fundamental purpose. As one author states, the golden
standard of impartiality that recusals theoretically uphold remains
intangible because of inadequate attention toor perhaps in some
cases, arrogance or callous disregard forthe recusal standards by our
courts, exacerbated by procedural deficiencies that prevent the recusal
rules from being fully effective. 188
If a broader impropriety recusal standard were recognized for
prosecutors, a related obstacle remains: cultural resistance by
prosecutors and judges to granting recusals. Although it is not clear the
extent to which recusal motions are being used, 189 those that are filed are
largely unsuccessful. 190 Judges rarely grant recusal motions, and when
they do, they are often from the bench and not in written opinions, so
that it is impossible to know which factor(s) the judge considered in her
decision to grant or deny the recusal. 191 Judges hesitancy may be due to
The judge in Glen Tinneys case said this much explicitly. See supra Part II.B.
Bassett & Perschbacher, supra note 173, at 184.
189 In doing my research, I contacted innocence network organizations through their email
list-serve. I received two responses regarding cases in which recusal was at issue, including that
of Glen Tinney. It is possible no others responded because they have not filed recusal motions
(perhaps because they are seen as futile) or because they simply did not have time to respond. I
learned of Anthony Gravess, Chad Heinss, and Michael Mortons casesthe last of which I
worked onthrough my work at the Innocence Project.
190 GRANT HAMMOND, JUDICIAL RECUSAL: PRINCIPLES, PROCESS AND PROBLEMS 17 (2009)
(noting that judicial recusal is rare, in part because [a]n affirmative finding of actual bias
requires direct evidence or a very strong inference that the judge was so predisposed against a
party that he or she had an entirely closed mind); see also Richard E. Flamm, History of and
Problems with the Federal Judicial Disqualification Framework, 58 DRAKE L. REV. 751, 760
(2010).
191 When asked how prosecutorial recusal standards should be changed to be more effective,
187
188
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their relationship and alignment with the prosecutorsjudges often

work with the same prosecutors on a daily basis, and were often former
prosecutors themselves, which leads them to defer to prosecutors. 192
Others have referred to the difficulty of meeting recusal standards
as the chicken-and-egg, catch-22 truth of recusal. 193 To meet the
standard, absent a blatant conflict of interest, a movant must show that
the prosecutors conflict results in prejudice. Yet, the only way to
determine whether the movant is correct and that prejudice exists is to
allow the contested prosecutor to continue. 194 One expert of legal ethics
and professional responsibility, Lucian Pera, explains that recusal
inquiries should be forward looking; whether allegations are ultimately
proven should be irrelevant to the disqualification decision because of
the great risk that non-recusal bears. 195
Prosecutors also see recusals as punishment for misconduct, rather
than an alternative mechanism to ensure that a petitioners case is
handled fairly. Former District Attorney Shorstein explained that,
absent a good cause, the fact that [certain prosecutors] prosecuted the
case and theyre being obstinate is not enough to recuse them. 196 As
prosecutors take an oath to fulfill their duty, there is a presumption they
are able to do so. Accordingly, Shorstein disagreed that he or his staff
could be so unduly affected by cognitive bias to require recusal. 197
The separation of powers doctrine may also make judges uneasy
about using recusals against prosecutors. 198 Prosecutors are part of the
executive branch whereas judges are part of the judiciary. Because of
this, some argue that in ordering a prosecutor to recuse herself, the
judge has intruded on the executive branch. 199 As Shorstein offered, it is
a district attorneys job to determine who on her staff is fair and capable
one defense lawyer responded, I dont think that state . . . judges would do it regardless of the
standard. Email from Karla Hall, Staff Attorney, Ohio Innocence Project (Nov. 29, 2011, 14:45
EST) (on file with author).
192 Bandes, supra note 54, at 429. For example, in 2007, in the Cook County, Illinois criminal
justice system, three quarters of the judges in Chicagos felony courts had been prosecutors and
one quarter had served as public defenders. Only one judge had worked for neither office. See
CRIMINAL JUSTICE PROJECT, CHI. APPLESEED FUND FOR JUSTICE, A REPORT ON CHICAGOS
FELONY COURTS 27 (2007), available at http://chicagoappleseed.org/wp-content/uploads/2012/
08/criminal_justice_full_report.pdf.
193 Levenson, supra note 66, at S249.
194 Id.
195 Application for Permission to Appeal, Pursuant to T.R.A.P. 10, the Post-Conviction
Courts Order Denying Petitioners Motion to Disqualify District Attorneys Office, Rimmer v.
Tennessee, CCA No. W2009-02371-CCA-R9-PD (Tenn. Crim. App. 2010), available at
https://s3.amazonaws.com/s3.documentcloud.org/documents/229840/c-documents-andsettings-bheath-desktop-rimmer.pdf (citing opinion of Lucian Pera).
197
Id.
198 Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 721, 761
(2001).
199 Id.
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of doing the job assigned to them; and judges do not have the authority
to tell a district attorney who, for reasons such as cognitive biases and
past involvement, should prosecute a case. 200
IV. PROPOSAL: REMOVING PROSECUTORSUSING RECUSALS TO
FURTHER THE PURSUIT OF JUSTICE
A new recusal standard would seek to ensure that those who
investigate, assess, and renegotiate a cases outcome are free from the
encumbrances of those who have a stake (emotional or professional) in
the case. 201 In Section A below, I lay out the scope of what the terms
conflict of interest or impropriety should encompass. In Section B, I
provide the presumptions on which my new recusal standard rests.
Section C provides the new recusal standard itself, and Section D
acknowledges the obstacles that still lie ahead.
A new recusal motion, farfetched to many, is not an unheard of
concept. Laurie Levenson has similarly identified the need for a new
conflict-of-interest standard for investigators in post-conviction death
penalty cases. 202 She proposes that new investigators be assigned to all
non-frivolous claims of police or prosecutorial misconduct precisely
because conflicts of interests, which irreparably damage the confidence
the public has in our justice system, may arise merely from having a
prior interest and/or role in a given case. 203
Skeptics point out that recusal presents a slippery slopeopening
the doors to frivolous conflict of interest allegations. If people all come
to the table with their respective experiences, impropriety could open
the floodgates to recusals based on experiences, friendships,
memberships, writings, religious affiliations, and countless other
considerations. Although an impropriety standard must take into
account that some interests will always subconsciously affect people and
are thus permissible, others mark a point at which a prosecutor is so
affected that she can no longer fulfill her duties. 204
Another counterargument to this proposal is that if prosecutors are
not quasi-judicial but are allowed to be zealous advocates, they are
capable of doing their jobs, making recusals inappropriate. 205 However,
200
201
5.
Telephone Interview with Harry Shorstein, supra note 116.

See Medwed, The Zeal Deal, supra note 5; Zacharias, The Role of Prosecutors, supra note
Levenson, supra note 66.

Id.
204 Levenson, supra note 34, at 887.
205 As former District Attorney Shorstein explained to me in describing a prosecutors duty
and ability to uphold his oath, [i]f you dont think I can do [my job] fairly, then I shouldnt be
the district attorney. Telephone Interview with Harry Shorstein, 116.
202
203
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there are times when the principles of comity and finality underlying
our appeals system must yield to the imperative of correcting a
fundamentally unjust incarceration. 206 Investigating plausible wrongful
convictions is one of these times. And when a petitioner has met a
minimum threshold showing that she may be innocent of the crime for
which she is convicted, the integrity of our justice system requires her
case be investigated with neutral, and thus often fresh, eyes. If a
prosecutor cannot meet that goal, because of her involvement in
previous stages of the case, then she should step aside. Not as
punishment, but as an ethical duty to see that justice is done.
A.
Scope: Re-Envisioning Conflict of Interest
Some conflicts of interest that would trigger recusal appear more

tangible, for example, pecuniary interests or the likelihood of being a
material witness. In Glen Tinneys case, for instance, part of the
prosecutors conflict arose when he indicated he would call himself as a
witness if there were an evidentiary hearing on Mr. Tinneys
innocence. 207
Other conflicts also present dangerous potential for bias but are
more difficult to delineate because of the implicit cognitive biases they
entail. A conflict arises if a prosecutor campaigned on the conviction,
thus giving her a subconscious stake in upholding it. A conflict also
arises when a prosecutor played a previous role in originally convicting
the petitioner. 208 This too would apply to the prosecutor in Glen
Tinneys case: he chose to prosecute Tinney, recorded his guilty plea,
and is now opposing Mr. Tinneys claim of innocence. In Chad Heins
case, Shorstein replaced the original trial prosecutor with assistant
prosecutors who were unfamiliar with Heins original prosecution. 209
Shorstein did it of his own accord, which is not the norm. In Anthony
Graves case, a new prosecutor was appointed after the original
prosecutor was recused by the court. 210 In Heins and Graves cases, new
prosecutors analyzed the cases in ways it is not clear that the originals
would have been capable of doing.
Engle v. Issac, 456 U.S. 107, 135 (1982).

Defendants Response to the States Motion for Voluntary Recusal and Defendants
Motion for Appointment of a Special Prosecutor at 34, supra note 86.
208 See Kenneth Bressler, Seeking Justice, Seeking Election, and Seeking the Death Penalty:
The Ethics of Prosecutorial Candidates Campaigning on Capital Convictions, 7 GEO. J. LEGAL
ETHICS 941, 95354 (1994); see also Republican Party of Minn. v. White, 536 U.S. 765, 792
(2011) (OConnor, J. concurring) (noting that Minnesota had voluntarily taken on the risks to
judicial bias by instituting the practice of popularly electing judges).
210 George, supra note 102.
206
207
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In Michael Mortons case, although the appellate prosecutor was

not the prosecutor at trial, he was the mentee of the trial prosecutor. 211
He fought testing for six years. 212 As testing was ultimately granted and
proved Mortons innocence, recusing the entrenched prosecutor would
have recognized the severity of the issue at handthe possibility
someone was wrongfully convictedand benefitted public confidence
in the outcome of Mortons case.
B.
Pillars on Which Any New Recusal Standard Must Stand
This proposal rests on several foundational pillars. The first is that

prosecutors must see their duty in the post-conviction innocence-based
setting as that of a neutral investigator, as set out by Model Rules of
Professional Conduct Rule 3.8(g) and (h). 213 Second, and critically, my
new recusal standard must be understood in a non-adversarial, nonaccusatory manner. As Alafair Burke has stated, the unique problems
presented by post-conviction innocence-based claims should be framed
in no fault language. 214 If prosecutors understand that recusal is not a
prosecutorial misconduct allegation, they may be able to carry the
message of why recusal and neutrality is necessary to uphold justice. If
recusal is perceived instead as a reprimand, it will inevitably hinder
prosecutors from working with defense lawyers on these claims. 215
Similarly, if judges see recusal as part of their gate-keeping role to
ensure justice, they could turn the tides by granting recusal motions
where they are deserved. By granting recusals more consistently,
although still selectively, the process would hopefully be taken less
personally by prosecutors, and retribution need not be feared as a result.
Third, even if no actual bias yet exists, recusal law should be
forward-lookingimplicated by an appearance of bias and not just
actual bias. 216 Similar to the role that judges play, prosecutors should
understand that public confidence in the integrity of our judicial system
rests on their shoulders. Lucian Pera testified, in a non-innocence case
in which a recusal motion was pending, 217 that where a conflict of
Colloff, Innocent Man, Part II, supra note 72.
See Know the Cases: Michael Morton, INNOCENCE PROJECT, supra note 69.
213 MODEL RULES OF PROFL CONDUCT R. 3.8(g)(h) (2008).
214 Burke, Talking About Prosecutors, supra note 4 at 2121.
215 In explaining why bar associations might be hesitant to reprimand lawyers for
misconduct, the Mississippi Bar Association reminds the public, lawyers are human. . . . The
lawyer [complained against] inevitably suffers from the accusation, regardless of whether any
misconduct is ultimately found. Keenan et al., supra note 131, at 236.
216 See MODEL CODE OF JUDICIAL CONDUCT R. 1.2 cmt. 5 (2011); Id. R. 2.11(A) (2011).
217 In Rimmer v. Tennessee, which does not involve an issue of innocence, the defendant
Dale Rimmer filed a motion to recuse the entire District Attorneys office due to alleged conflict
of interest and appearance of impropriety. The conflict of interest and appearance of
211
212
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interest is alleged, even if the ultimate decision on the merits were that
no misconduct occurred, the analysis of when a prosecutor should be
recused should be the same:
I dont know if the allegations here are true or false. . . . Thats not the
point. The point here is about looking forward and try[ing] to
preserve the impartiality, the integrity of the system now and how it
appears to the public . . . . 218
This understanding of prosecutorial recusal resonates with the 2010

draft ABA Standards Relating to the Administration of Criminal Justice,
as well as with the Supreme Court: [a]ny interest that is inconsistent
with the prosecutors duty to see that justice is done is a conflict that
could potentially violate a defendants right to fundamental fairness. 219
There are times when no constitutional right has been violated, and yet
the legal profession has created solutions to address fundamental
unfairness which offend the ends of justice.
Fourth, these principles rely on the presumption that the defense
can seek recusal, and judges should be willing to grant them. If the judge
is wavering, she should err on the side of recusal. This can be done
without granting frivolous or utterly meritless recusal requests.
Moreover, the success of a new recusal standard will require two
additional rules. First, because records are sparse in explaining why
judges refuse recusal motions, judges should issue written opinions
explaining their decision. This will allow the judicial community as a
whole, prosecutors and defenders alike, to better understand how to
frame their arguments within recusal motionsor to propose reforms.
Second, there should be objective guidelines that prosecutors need to
meet. Due to resource restraints and interests in finality, there must be
an initial threshold showing in a recusal request; similar to the Federal
Rules of Civil Procedure 12(b)(6), 220 the recusal motion should clearly
impropriety were allegedly created by the District Attorneys withholding exculpatory evidence
at trial, as well as an uncorrected pattern of doing so generally, and the presentation of false
testimony. Because of the District Attorneys supervisory role in the office, the Motion
requested that the District Attorney himself as well as the entire office be recused. The court
denied recusal of the office but granted recusal of the District Attorney himself. However, it did
so only because the District Attorney may be called as a witness. It rejected the conflict of
interest and impropriety reasons. See Application for Permission to Appeal, Pursuant to
T.R.A.P. 10, the Post-Conviction Courts Order Denying Petitioners Motion to Disqualify
District Attorneys Office, supra note 195; see also Heath, supra note 60.
218 See Application for Permission to Appeal, Pursuant to T.R.A.P. 10, the Post-Conviction
Courts Order Denying Petitioners Motion to Disqualify District Attorneys Office at 20, supra
195.
219 In re Guerra, 235 S.W.3d 392, 435 (Tex. App. 2007).
220 The Director of the Dallas Conviction Integrity Unit explained the threshold needed for
his office to investigate a claim of innocence: [A]kin to the Federal 12(b)(6) one: have they
stated a claim. . . . have they stated a claim of innocence that does not defy the law of gravity?
Green & Yaroshefsky, supra note 17, at 495 n.173.
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state the alleged conflict of interest and the resulting prejudice. The
motion should not be based on mere gripes about an attorney, nor
require the reader to strain [to] fill in the blanks. 221 It should provide
support for the claim through personal knowledge, affidavits, or other
supporting documentation. However, it may also be forward-looking
it does not need to prove that that the conflict has already caused the
defendant harm if it may cause the defendant harm in the future. 222
C.
The New Recusal Standard
I propose that a new, broader conflict of interest standard should

be instituted to encompass the cognitive and subconscious biases that
come into play in this setting. In conjunction with or as a supplement to
ABA Model Code of Professional Conduct, I propose the following
Innocence-Based Prosecutorial Recusal standard:
1. Following an innocence-based motion for post-conviction
relief, upon discovery of new, credible and material
evidence raising a reasonable likelihood that a convicted
defendant did not commit the offense for which she was
convicted, a prosecutor should conduct a full and fair
investigation to determine the merits of the claim.
2. A prosecutor should be recused if:
A. She fails to make reasonable efforts to carry out an
investigation of the claim;
B. Regardless of the merit of the prosecutors efforts, she
has a direct conflict of interest in the conviction,
including, but not limited to: if she prosecuted the
defendant at trial, took the confession of a defendant, or
if she specifically campaigned for election while
referring to the defendants conviction; or
C. Her conduct is the subject of any non-frivolous conflictof-interest allegation, including prosecutors who have
played a role in the appeals or post-conviction process.
3. A conflict of interest exists if it would render it unlikely that
the petitioner would get a fair hearing and investigation
into her innocence claim, as the ability of the prosecutor to
re-investigate and act in the case neutrally, impartially, and
unaffected by previous findings, is impaired. 223
221 Id. at 495 n.173 (citing an interview the author had with Michael Ware, the Director of
the Dallas Conviction Integrity Unit in 2008).
222 See supra Part III.B.2.
223 This language was modeled after California Penal Code section 1424: Such a motion
may not be granted unless the evidence shows that a conflict of interest exists that would
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4. No actual bias need be proven. An appearance of bias

suffices.
5. Procedure:
A. The defense can seek recusal, and upon a showing that a
conflict of interest in any of the three categories in
section 2 are met, including the appearance of a conflict
of interest, the presumption should be in favor of
recusal.
B. Judges have the authority to grant recusal of the current
prosecutor for these proceedings only.
C. All orders granting or denying a recusal motion should
be written and should explain the reason for granting or
denying the motion.
D.
The Standard in Action: Making Recusals a Reality
Of course, like the proposals listed earlier, this one, too, faces
obstacles. How should it be implemented? Ideally, states would adopt
this Innocence-Based Prosecutorial Recusal Model as part of their state
codes and statutes. Alternatively, the ABA Model Code of Professional
Code could adopt this standard. However, while state bar associations
have the power to propose rules, only the states highest court has the
ultimate authority to issue rules governing attorney behavior. 224 Despite
these challenges, and even if never adopted, by drawing attention to
post-conviction innocence-based cases in which recusals have been
sought and denied, or which could have benefitted from this recusal
standard, I hope to increase awareness and propel debate around this
contested issue. Public debate can raise public awareness about ongoing
wrongful convictions, and allow those with a stake in the judicial system
to self-reflect on the inevitable role, for better or worse, that cognitive
bias plays in their decision-making processes.
This information could also lead to more internal reforms within
prosecutors officesand, at the very least, more decisions to selfregulate by taking the original prosecutors off the case to allow new
eyes to be brought in, similar to district attorney Shorsteins actions in
Chad Heins case. Debate can also raise prosecutors awareness generally
of the potential of their own biases, perhaps leading to more decisions
agreeing to investigate the claim or test the DNA.
render it unlikely that the defendant would receive a fair trial. CAL. PENAL CODE 1424 (West
2012). The statute articulates a two-part test: (i) is there a conflict of interest?; and (ii) is the
conflict so severe as to disqualify the district attorney from acting? Haraguchi v. Superior
Court, 43 Cal. 4th 706, 711 (2008).
224 Keenan et al., supra note 131, at 233.
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There remain other logistical issues that still need to be explored.

For instance, if a recusal motion was granted, could the prosecution
appeal it? And would doing so put the rest of the case on holdthereby
obliterating one of the benefits of the motion in the first place: ensuring
that the petitioners innocence motion is decided in a timely manner?
Presumably, the appellate court should defer to the lower courts
determinationbut perhaps higher courts are better prepared, as they
do not interact on a daily basis with the same prosecutors necessarily, to
objectively consider the dangers of cognitive biases and to lead a cultural
transition within the judicial community to be less recusal-resistant.
This issue highlights the important role judges themselves (in choosing
to grant the motions) as well as prosecutors (in recognizing cognitive
bias as a truth rather than an attack on their authority) must play in
taking the issue of prosecutorial resistance to innocence claims
seriously.
CONCLUSION
The use of a broader recusal standard for prosecutors in the postconviction innocence-based setting furthers the pursuit of justice and
fundamental fairness by ensuring the public has confidence in a
prosecutors impartiality and that claims as serious as wrongful
convictions are treated judiciously. The prosecutor working on a postconviction innocence-based claim should be able to make an
independent determination of guilt or innocence without placing weight
on the jurys guilty verdict or her offices past conclusions of guilt. 225
Using recusal standards as a mechanism by which to remove a
prosecutor from a case is a reliable way to do this. An expanded recusal
standard does not presume that all innocence-claiming petitioners who
use the standard will turn out to be innocent. Some will turn out to be
guilty. However, justice demands that the guilty and innocent be treated
equallythat their cases be treated judiciously, fairly and seriously. The
fact that some petitioners are ultimately exonerated only elucidates why
this is the case. Fresh eyes and commitment to reinvestigation give the
outcome of an innocence claim a badge of reliability, allows the public
to have confidence in the verdict, and ensures petitioners do not stay
wrongfully imprisoned unnecessarily longer than they already have.
225 In doing this research, I have come to understand that recusal motions in the postconviction, death penalty context face similar hardships. Arguably, this proposal could be
expanded beyond the post-conviction innocence realm to the death penalty realm, as well.
However, the implications of doing so are beyond the scope of this Note.

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QUASI-JUDICIAL PROSECUTORS AND POSTCONVICTION CLAIMS OF INNOCENCE: GRANTING

THE SOURCE OF THE PROBLEM: THE INTERPLAY OF WRONGFUL

II. CASE STUDIES: THOSE ALLEGING INNOCENCE AND PROSECUTORIAL

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Elusive Recusals: Unduly High Standards and Cultural

IV. PROPOSAL: REMOVING PROSECUTORSUSING RECUSALS TO FURTHER THE

Scope: Re-Envisioning Conflict of Interest ........................................... 1643

After exhausting all other post-conviction appeals, petitioners who

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The dearth of guidelines creates the problem addressed in this Note:

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Part I of this Note introduces the underlying problem: wrongful

Wrongful Convictions and Procedural Redresses

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convicted have a slim chance of ever proving their innocence. 10 This is

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However, as Professor Ellen Yaroshefsky explains, some of this

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require the petitioner to show in some manner that there is newly

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prosecutor asserted that the 11 year-old murder victim was sexually

The Powerful Role of Prosecutors

Prosecutors and Prosecutorial Discretion

Prosecutors choose whether to pursue a petitioners conviction in

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In a recent Illinois exoneration, the district attorney resisted a finding of

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Quasi-Judicial Prosecutors at the Helm of Post-Conviction

As a minister of justice, the goal of a prosecutor is to reach an

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elevated: a prosecutor is suddenly confronted with the heightened risk

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Internally held beliefs and biases influence all humans. Alafair

In the judicial system, cognitive bias is not unique to prosecutors,

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acknowledged that it is even difficult for judges to free themselves from

Similarly, cognitive bias can lead prosecutors to uphold their colleagues

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In 1986, 32-year-old Christine Morton was found murdered in her

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from the crime sceneevidence that included a bloody bandana. 71 In

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In 1992, a severely mentally ill man, Glen Tinney, confessed to a

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Innocence Project discussed holding an evidentiary hearing, to which

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On April 17, 1994, Tina Heins was brutally murdered in the

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