Law Professor Reveals the Problems with Our Justice System and Why Wrongful Convictions Happen
A law professor explains the leading causes of wrongful convictions, including mistaken eyewitness identification, flawed forensic science, false confessions, and bad defense lawyering, and how Michigan's indigent defense system has historically failed poor defendants.
About This Episode
University of Michigan Law Professor Eve Primus is the founder and director of the school’s MDefenders- a group which educates aspiring public defenders. She is a highly acclaimed lawyer whose work has been cited by the US Supreme Court. Having worked with the Maryland Office of the Public Defender and written about structural reform in the criminal justice system, Professor Primus is an expert on the systemic problems that have led to so many wrongful convictions.
In this episode of the Open Mike podcast, Mike and Professor Primus discuss the prevalence of ineffective counsel and how essential lawyers are in protecting their clients’ rights. Professor Primus also brings up the different systems for public defense in America and gives her opinion on which is the most effective. Mike explains how court-appointed lawyers are often discouraged from putting adequate time and energy into their cases.
Show Notes
- Professor Eve Primus’s background and bio.
- Welcome to the show! I’m so happy you’re here with us. What is the plan for U of M law school in the fall?
- I’ve been reading, and watching, and asking questions about this heartbreaking wrongful conviction crisis. Could you give us a bit of your background and tell us how big of a problem you think wrongful convictions are in America?
- Is U of M’s Innocence Clinic the best in the country?
- More than 80% of people accused of capital crimes are being put into the system with a court-appointed attorney. What is your opinion of court-appointed attorneys?
- What is the difference between a public defender and court-appointed lawyer
- Mike reflects on his experience as a young attorney taking on these cases, accepting drunk driving cases from the district attorney’s office, just to make ends meet and wet his feet. It’s very hard to make a good living doing that, so you need to take on too many cases and ultimately the defense can suffer.
- What percent of the time are wrongful convictions to blame on bad lawyers?
- Michigan is particularly bad at providing effective assistance of counsel. Each county gets to decide how they provide indigent defense. In 2008, the American Bar Association released a report called The Race to the Bottom and described how Michigan was 44th per-capita in providing indigent defense. The ACLU of Michigan sued the state of Michigan, claiming that the state was violating people’s Sixth Amendment rights, and the result from that litigation was the Michigan Indigent Defense Commission.
- Wayne County’s new Neighborhood Defender program has helped provide a holistic, community-based approach to indigent defense.
- Chantá Parker runs the Wayne County Neighborhood Defender program. Check out our interview with her on Episode 62 of Open Mike!
- Have you seen common characteristics in the lawyers who work on wrongful conviction cases? What are a few attributes that you see manifesting time and time again?
- Everyone in the system is complicit to a certain degree. Some defense lawyers think it’s okay to not challenge junk science, or investigate, and just wing it. Part of the issues are the prosecutors who don’t flag inept or ill-prepared representation on behalf of the defense. Judges should also be aware and willing to slow down processing systems, so people don’t get railroaded.
- If 80% of these cases involve public defenders, is there any budget for expert witnesses for the defense?
- “Science” sounds very compelling to jurors. But many of the scientific “tests” are created by police officers to try and “solve crimes.” Many have no scientific validity, and if you don’t have proper experts to come in and refute them, people are going to get wrongfully convicted.
- Of the first 250 exonerations in America, 40 of those wrongful convictions came from false confessions. Netflix’s Making a Murderer is a great, high-profile example of tactics used by officials to railroad suspects and convince them to wrongly confess. They wear people down.
- Official misconduct is another common cause of wrongful conviction. 37% of DNA exoneration cases involve suppression of exculpatory evidence by prosecutors or police.
- What safeguards are in place to protect us from official misconduct?
- Are you saying that prosecutors don’t have to disclose evidence that can help the defense before a plea bargain is made?
- People who practice civil or personal injury law will enter the criminal justice realm and are oftentimes appalled by the lack of informational exchange. There are few states that allow for criminal depositions. You may not even be able to get a witness list of who the prosecutor will call to testify, depending on the jurisdiction.
- Why are people waiving preliminary exams?
- How often does exculpatory evidence get ignored in criminal cases?
- Every book and movie on wrongful convictions covers the phenomenon of jailhouse snitches. Tell us your favorite jailhouse snitch story!
- In everything you’ve seen over the years… is there a magic bullet or a specific focus we should be adopting in hopes of fixing the system?
- There is cause for hope, as there is more bipartisan support over reexamining American criminalization practices, as well as more progressive prosecutors being elected.
- What we need to ensure a culture of zealous, vigorous representation is like-minded lawyers in public defenders’ offices, supervising each other, and reminding them that they are at the forefront of civil rights defense. You need the right culture infused into those agencies to really effectuate widespread change.
- Thank you to Professor Eve Primus for her time today and talking about everything criminal justice. Thank you for watching this episode of the Open Mike podcast! Be sure to check out our other episodes on wrongful conviction wherever you get your podcasts. Thank you for being here, and we’ll see you next time.
FAQs
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What are the leading causes of wrongful convictions?
Professor Eve Primus describes the ‘big five’: mistaken eyewitness identification, which was involved in 76% of the first 250 documented exonerations; bad forensic science; false confessions; bad defense lawyers; and official misconduct, such as the prosecution or police suppressing exculpatory evidence.
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How bad was Michigan's indigent defense system historically?
Primus says a 2008 report by the National Legal Aid and Defender Association described Michigan as 44th in the country in per-capita spending on indigent defense. After that report came out, the ACLU of Michigan sued the state, and what ultimately came out of that litigation was the creation of the Michigan Indigent Defense Commission.
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What are the three main ways states provide lawyers to poor defendants?
Primus describes three dominant models: public defender offices, where salaried lawyers housed together handle cases as their full-time job; assigned counsel systems, where judges or a court manager assign cases from a list of lawyers paid an hourly or per-event rate that can be abysmal; and contract systems, where lawyers bid for all of a jurisdiction’s indigent defense cases and the lowest bid typically wins, which often means those lawyers have full-time jobs in addition to these cases.
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Do prosecutors have to turn over exculpatory evidence before a plea deal?
According to Primus, it’s unclear. Over 90% of cases are resolved through plea bargaining, and the U.S. Supreme Court has not interpreted the prosecutor’s duty to disclose exculpatory evidence to apply before a plea; prosecutors have that duty before a trial but might not before a plea. Lower courts have different views, and much depends on each prosecutor’s office’s policies, so there are a lot of cases where that information doesn’t get disclosed.
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How reliable is testimony from jailhouse informants?
Primus says jailhouse snitches have always been notoriously unreliable, citing the Leslie Vernon White scandal in Los Angeles, where a snitch fabricated other inmates’ confessions and leveraged them for reduced sentences. She adds that the Supreme Court has said impeachment information about a prosecution witness doesn’t have to be disclosed before a plea, so a prosecutor could give an informant a financial incentive or reduced time without telling the defense before a plea.
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