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The exoneration of a wrongly convicted defendant once was cause for celebration. Now, there are too many, too often accidentally discovered, to cheer. According to a recent study led by University of Michigan law professor Samuel Gross, 328 inmates were exonerated between 1989 and 2003; nearly half in the last four years. On average they had served more than ten years in prison; 73 had been sentenced to death. Is something seriously amiss in our justice system? It’s hard to say which is worse: the errors themselves, or that in many cases, the errors were only discovered by the work of volunteer lawyers. As a magazine, we encourage, even lionize, pro bono work. But there’s a limit: What sort of system depends on volunteers to prevent mistaken executions? I raise this problem because we ran smack into it several times while preparing this issue. We commissioned a story on the 12 years of effort that patent litigator James Blank and his firm, Latham & Watkins, put into freeing an inmate, Ernest Willis, from death row in Texas. ( “The Accidental Defender.”) Coincidentally, as we reported our Litigation Boutique of the Year project, we found that two of our finalists had, over the past 18 months, sprung three others wrongfully convicted, including one from death row. How were these mistakes made? They involved, to a lesser or greater extent, prosecutorial misconduct, poor investigative work, particularly forensic, and, in at least one case, shockingly bad criminal defense work.Can we fashion a systemic remedy? We could begin by heeding the Illinois Commission on Capital Punishment that recommended that judges report to bar disciplinary committees questionable conduct by prosecution or defense counsel. At a minimum, that would be particularly appropriate in cases where prosecutors fail to turn over potentially exculpatory evidence, a matter that the U.S. Supreme Court had settled more than three decades ago. If judges won’t do it, the lawyers in the case who later discover the wrongdoing can file the complaint. Adding accountability to the system might be a useful prophylactic. Second, we could follow the lead of the police chief of Houston, and several Texas state legislators, who have asked their state to suspend executions involving convicted defendants from Harris County, Texas. The case of George Rodriguez, handled by Susman Godfrey and the famous Innocence Project, showed that the Houston crime lab was riddled with mistakes, including one that wrongly put Rodriguez on death row. Houston’s is not the only troubled police lab in the nation, and even Congress has grown sufficiently worried to set up a mechanism for requiring states receiving federal law enforcement funds to create oversight agencies for local labs. These aren’t just debating points. As we went to press, the Chicago Tribune reported on the case of Cameron Willingham, who was executed earlier this year in Texas for an arson murder. According to the Tribune, the forensic evidence in Willingham’s case rested on the same faulty premises as that used against Willis. However, Willingham was not represented by an Am Law 50 law firm that could afford to spend millions on investigators and lawyers. Instead he had apparently competent appellate counsel who, as he explains it, did not have the budget to investigate his client’s case the way Latham tackled the Willis matter. I’m not in a position to judge Willingham’s innocence. But I do know that having an execution turn on the availability of deep-pocket volunteers is a scandal. So, one last suggestion: We could try funding indigent appellate defense at adequate levels. It seems a small step toward promoting what the politicians now refer to as our culture of life.

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