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Prosecutorial Misconduct

Prosecutorial misconduct typically includes the suppression of exculpatory evidence ( Brady ), utilization by the prosecution (knowingly) of perjured testimony at trial, and inappropriate comments at the sen- tencing phase by the prosecutor (Harmon, 2001b). Harmon (2001b) and Bedau and Radelet (1987) found this factor as the leading and most prevalent reason leading to wrongful capital convictions. In a recent piece, Joy (2006) suggests that prosecutorial misconduct is the result of three institutional con- ditions: vague ethics rules that provide ambiguous guidance to prosecutors; considerable discretionary authority with little to no transparency; and inadequate remedies for prosecutorial misconduct that create perverse incentives for prosecutors to engage in misconduct. Joy (2006) suggests modest pro- posals to reduce incidence of prosecutorial misconduct, including the identifi cation by the American Bar Association of clearer, more specifi c rules that can provide better guidance; the increase of trans- parency and setting of clearer limits on prosecutorial discretion; the enforcement by each offi ce of its own internal norms for the exercise of discretion; public access of these norms, notwithstanding inter- ference by the public; and more accountability and effective remedies for prosecutorial misconduct.

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Ineffective Assistance of Counsel

The issue of ineffective counsel in capital cases has been well-documented (Bright, 1992, 1994). Additionally, much of the previously discussed research identifi es this factor as a primary cause of erroneous capital convictions (Bedau & Radelet, 1987; Gross, 1996; Yant, 1991; Huff, Rattner, & Saga- rin, 1996). One reasonable explanation for the prevalence of ineffective counsel claims could be the extreme cost of litigating capital cases. As suggested by Bright (1994), individuals charged with capital murder usually cannot afford the fees associated with an adequate legal defense. Nor do most states provide the experts and resources necessary to present the best defense in a capital trial.

In general, there is reason to believe that capital defense representation has probably improved signifi cantly since 2000, when the United States Supreme Court raised the bar for effective assistance of counsel in capital cases by requiring a more effective investigation into mitigation evidence. More specifi cally, even though the court did not change the actual standard for ineffective assistance of counsel, they interpreted the standard differently over the years. The standard that was established in Strickland v. Washington (1984), where the court ruled that it was not ineffective assistance for the



32 Wrongful Capital Convictions

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