Who’s Responsible For a Wrongful Conviction?

I’m a fan of the TV show Castle, largely because of its character-based humor and the fact that it stars Nathan Fillion. Of course, being a show about a mystery writer who helps the New York police solve crimes, it does occasionally go over the top in its worship of the criminal justice system.

I especially remember one episode where the detective team discovered someone who had been wrongfully arrested by some other New York cops and been convicted of a crime they did not commit. The show’s lead detective soon gave the poor guy the good news that (I’m paraphrasing from memory) “The District Attorney discovered that your lawyer made some mistakes, and he’s going to release you soon.”

Crazy, right? It was the district attorney’s people who made the mistake of prosecuting an innocent man, and now they’re trying to blame his lawyer for not being able to stop them? Of course, it’s just a silly TV show.

Or is it?

The lawyer for a woman suing the city alleging a host of civil rights violations has, in an unusual legal turn of events, himself become a defendant in the civil case he filed.

In answering the lawsuit brought late last year by Nga Truong, who was charged by Worcester Police with killing her infant son four years ago based on what was later ruled to be a coerced confession, city lawyers have hit back with a third-party complaint against her lawyer, Edward P. Ryan Jr.

…

“Her lawyer allowed almost two years to pass before he made a motion to get her released by suppressing her confession. While there are numerous defenses in this case, our position on this point is that, if the city is somehow found liable for the excessive incarceration, then the lawyer who represented her also bears liability for her time in jail,” Mr. Moore said.

Now, I’m not a lawyer, so I’m not in a good position to criticize Ryan for taking too long to file his motion. For all I know, he might have had a good reason for the two year delay. Although Scott Greenfield is a lawyer, and he has doubts:

That said, the delay in submitting motions, assuming that they could have been submitted earlier, presents a second issue that merits concern. Too many lawyers fit their work on behalf of their clients into their schedule. They’ll get to motions when they find the time, or when the mood strikes. In the meantime, the client sits in jail, thinking that she has a lawyer working diligently on the case.

It’s not that client expects, or would be reasonable to expect, that the lawyer has no other clients, no other work, that might possibly interfere with the lawyer’s spending 24/7 on the defendant’s case. It’s expected and understandable.  But if you can’t make time to prepare and file motions for almost two years, good motions, then something is wrong.  No defendant should have to sit in a cell that long before her attorney has her case on the front burner.

Given that, I can even see where the Worcester police are going with their argument. It’s an argument that actually makes sense in other contexts. For example, if you hit a baseball through my living room window, you pretty clearly owe me damages to the tune of whatever it costs to repair one broken window. But if I know about the broken window and foolishly don’t repair it for a month, during which time two rainstorms blow water in and damage the furniture, walls, and flooring, there’s little chance a court will make you pay for all of that mess. Once I’m aware of the broken window, I have a certain responsibility to mitigate the damage, so all the damage that I could have prevented is my problem.

In the case of a wrongful conviction, I can think of a few reasons (although perhaps not legally sound reasons) why the rule about mitigating damages shouldn’t apply.

First of all, I’ll bet it just doesn’t. I’ll bet there’s already some legal doctrine or case law that covers this sort of thing.

Second, the Worcester police department had all the proof of a coerced confession in their hands and the city could have acted on it at any time. If you broke my window, you probably don’t have the right to enter my home to clean it up, but the District Attorney’s office surely has the power to undo its own mistakes and get innocent people out of prison.

Third, as I’ve argued before, wrongful imprisonment should be a strict liability offense. Grabbing people out of their homes and locking them in cages is an inherently dangerous activity that can do great harm to innocent people if something goes wrong. If it’s your job to do that sort of thing, you should be especially careful about it and take full responsibility for the consequences, including full responsibility for wrongfully imprisoning someone.