The major complaint about defense attorneys is that they do not communicate regularly with clients. Complaints received by bar associations generally involve clients who believe that they are not getting what they paid for, in that attorneys don’t return their calls, don’t keep them informed about what is being done on their case, and don’t seem to be putting any effort in the case after they have been paid.
Cases identified by the Innocence Project or by the Exoneration Registry include many examples of criminal defense attorneys not bringing forward evidence or other exculpatory evidence. Cases also include those where defense attorneys did not challenge the testimony of jailhouse informants, or, in other ways, provided such a poor defense that convictions occurred, even with little or no evidence against innocent defendants.
When prosecutors forget that their mission is to protect due process, not merely win the case, misconduct can occur.
The types of misconduct range from minor lapses of ethical rules to commission of criminal acts. Prosecutors may bolster a witness’s credentials or allow him or her to make gratuitous and unsupported claims on the witness stand, such as to state “unequivocally” that the fingerprint, hair, or lip print was the defendant’s.
Judicial canons require judges to avoid even the appearance of bias or impropriety. Misconduct is alleged when judges do not recuse themselves and/or act in ways that give preferential treatment to individuals or groups.
Most judges are ethical and take great care to live up to the obligations of their role. However, as with the other criminal justice professionals, sometimes there are systemic biases and subtle ways in which the principles of justice and due process are subverted.
The factors that seem to be correlated with wrongful convictions clearly indicate that legal professionals must take responsibility for reducing the possibility of such gross miscarriages of justice. Individuals may be affected by confirmatory bias in that they truly cannot see the exculpatory nature of the evidence because they believe so strongly that the defendant is guilty.
The reality is that the law is administered by humans with human failings and that errors and misconduct result in innocent people being convicted, incarcerated, and sometimes executed. State judicial commissions rarely sanction judges, and voters tend to be oblivious to the reputation of judges, often voting along strict party lines, thus “bad” judges keep getting reelected.
A range of potential responses to prosecutorial misconduct have been offered or implemented. Many of these have weaknesses that prevent their effectiveness. Individuals on the side of defending the wrongfully convicted may be subject to confirmation bias as well and have their own ethical blinders on regarding what is legal and ethical when they believe that they are advocating for an innocent person in prison.
Far from being static, the implementation of law reflects political realities, in direct contrast to the ideal of judicial independence that is the cornerstone of our system of government. Critics of judicial activism point out that just because judicial activists have been promoters of civil liberties and socially progressive causes, such as integration and free speech, there is no absolute necessity that activism would always champion such individual rights.