I became a lawyer to fight what I saw as widespread injustice against marginalized people. I am director of the Duke Law School Wrongful Convictions Clinic, which tries to identify and remedy wrongful convictions in North Carolina. Since 2011, ten of the Clinic’s clients have been exonerated, two of whom after being incarcerated for more that 40 years for crimes they did not commit. But my hope for the Clinic is not only for our clients; I also am convinced that engaging law students in this work can instill in them a deep sense of purpose that I hope will make them warriors for justice, whatever career path they follow.

Lawyers are the trustees of our democracy and guardians of the rule of law. We take an oath when we become lawyers to support the Constitution of the United States, faithfully discharge the duties of the office of attorney, and conduct ourselves at all times with integrity and civility.¹ Sadly, individual lawyers often subordinate these obligations to other goals, including those inconsistent with the oath. Lawyers were conspicuous among the people who tried to prevent the orderly transfer of presidential power after the 2020 national election for President. A former chief justice of the North Carolina Supreme Court, for example, allegedly gave advice to the then-president that the vice-president had the unilateral authority to refuse to count the votes in several contested states and thereby throw the election of president into the House of Representatives where extreme gerrymandering gave Republicans enough votes to choose the president.² There was no constitutional basis for such advice.³ The refusal of the vice-president to accede to the false claim averted a constitutional crisis for the country. The actions of these lawyers to put the interest of power above their duty to the constitution have resulted in some being disciplined by the state bars that licensed them.⁴ Clearly, it is important for our law schools to be cultivating a commitment to integrity, justice, and courage in our students.

In the criminal justice system, the failure of lawyers to live up to their oath denies criminal defendants the equal justice that the constitution guarantees. The Duke Wrongful Convictions Clinic investigates claims of innocence made by people who have been convicted of major crimes. In our work, the Clinic endeavors to hold all lawyers involved in the criminal justice system, including defense attorneys, prosecutors, and judges, accountable for their sworn duty to defend and support the constitution. At a law school where only a few of our graduates will ever be directly involved in the criminal justice system, the Clinic faculty emphasizes that our obligation to uphold the constitution is not tied to the career path we pursue. Lawyers have a duty to pursue justice in whatever manner possible and to hold those actually working in the system accountable when they fail to do so.

The American criminal justice system is often marked by the role that race plays in its administration and by the public’s widespread indifference to what happens in the system. As citizens, lawyers by their training and experience are able to change both circumstances by holding each other accountable when they engage in conduct that undermines justice. That is our goal in the Clinic. We expose students to the consequences of the system’s failures by immersing them in every aspect of what we do to remedy wrongful convictions. First, we identify conduct that leads to miscarriages of justices and, second, we call out the actors who are responsible for the misconduct. Our hope is that when they become lawyers, our students will continue that effort as individuals.

When we started the Duke Innocence Project in 2002, we were part of a small group of law schools that answered a call for action from the national Innocence Project. The Project had successfully used DNA to identify an alarming number of innocent people who had been convicted of serious crimes, including many who were on Death Row. The Project recruited us to join what eventually became an international network. In North Carolina, Duke Law School and the University of North Carolina School of Law joined forces to create the North Carolina Center on Actual Innocence, a non-profit organization established to coordinate the identification and investigation of wrongful convictions by law schools in our State. UNC–CH and Duke later recruited North Carolina Central University’s Law School to join our effort. Other law schools in the state also joined, including the Wake Forest School of Law. Initially, the purpose of the Center on Actual Innocence was to screen claims of innocence and to allocate the cases among the participating law schools to avoid duplication of effort. Today, the Center no longer performs that role; instead, it operates as an independent innocence project, actively investigating claims of innocence, along with the Duke and Wake Forest law schools.

At the outset, the Duke and UNC law schools sought to work directly with prosecutors around the State to remedy these miscarriages of justice. Our assumption was that prosecutors would see our work as complementary to their own. A wrongful conviction was a threat to public safety; the actual perpetrator was left free to re-offend. Although some prosecutors saw our work that way, ultimately as we became more successful, many did not. But our attempt to work with prosecutors was recognition of the central role they play in the American criminal justice system and their ability to provide relief from miscarriages of justice without the delays and uncertainty that litigation in court entails.

Ministers of Justice

On April 1, 1940, at a conference of United States Attorneys from across the country, former Supreme Court Justice Robert H. Jackson gave a famous speech about the nature and role of the American prosecutor.⁵ The speech is one of the most widely read essays on the subject in law school; it would be unusual if Jackson’s speech was not included on the reading list of a law school ethics courses. Justice Jackson said that the prosecutor was “one of the most powerful peace-time forces known to our country.” He explained:

The prosecutor has more control over the life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.

• • •

Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also be just. Although the government technically loses its case, it has really won if justice has been done.⁶

Reflecting this last point in Justice Jackson’s speech, prosecutors are often called “ministers of justice.” Indeed, that is how their role is described in state bars’ rules of professional responsibility for prosecutors. In North Carolina, for example, the rules state:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate; the prosecutor’s duty is to seek justice, not merely to convict or to uphold a conviction.⁷

As Justice Jackson noted, however, “[w]hile the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

In the Clinic’s wrongful convictions work, we always try to appeal to the beneficent inclination of prosecutors to do justice. Often, however, we encounter prosecutors who are indifferent to whether our clients might be innocent. That is the ordinary injustice the Clinic has to combat. In their work for the Clinic, students experience both the exhilaration of an exoneration as well as the soul-crushing heartbreak of a loss that results from indifference and unfairness. Exposure to both is important for students searching for purpose in their legal careers, whatever path they take.

We tell our students that they will face many opportunities in their careers to act with courage and integrity, sometimes against prevailing winds. I had such an opportunity in 2006 when I came to the defense of members of the Duke lacrosse team who were falsely accused of sexually assaulting an African American “exotic dancer.” What I did seemed heroic to some, but only because others, led by the prosecutor, rushed to judgment and assumed the students were guilty. Eventually, the North Carolina Attorney General replaced the local prosecutor and declared the students innocent. Whether our students rise to the occasion in such circumstances will depend on whether they can muster the courage to do the right thing, as they see it, as well as the courage to be guided by their values and sense of justice. The Clinic exposes students to experiences, good and bad, that we hope will motivate them to do the right thing when opportunities arise.

An Atticus Finch Moment

One of the oddities of the legal profession is that perhaps our most widely embraced hero is a fictional lawyer, Atticus Finch, from To Kill a Mockingbird. Atticus Finch is revered by lawyers and non-lawyers alike because he defended a black man falsely accused of raping a white woman, at a time when that was a heroic act. Today, we would not notice an Atticus Finch defending a man or woman charged with any serious crime. But we judge the courage and integrity of lawyers like Atticus Finch by the circumstances aligned against them.

The Clinic and the Duke Innocence Project have freed ten innocent men from prison since 2010. One of our most beloved clients, LaMonte Armstrong, died in 2019. When LaMonte was exonerated in 2012, after 17 years in prison for a murder he did not commit, the team of lawyers, students, and Duke alumni who had worked on his case gathered in a Greensboro, North Carolina, courtroom to witness the judge sign the order that freed him. Before signing the order, the judge spoke directly to LaMonte and the students and former students:

What I wanted to tell you is judges put their pants on one leg at a time, just like you do. And every day we go to court hoping to do justice, wanting to do justice. And at the end of the day, we leave hoping that we did justice, but we never know. I believe that I do justice on a daily basis, but believing isn’t knowing.

The judge continued:

And I was telling a colleague earlier today, probably, this is as close to knowing that I’m doing justice as I will ever experience in my career as a judge, and it makes me proud to be a judge. It makes me proud to be a lawyer. It makes me proud to be a lawyer in this judicial district where we have prosecutors and police officers [who] are committed to doing justice, and I am proud of your lawyers and those students who were at Duke, who I understand are now lawyers, and it is my sincere wish that your life will go forward in a positive manner from today.8

At dinner that evening to celebrate Lamont’s exoneration, I told the students and former students who had worked on LaMonte’s case that what they witnessed in the courtroom that day was a real-life Atticus Finch moment, the honor that comes from the pursuit of justice. In To Kill a Mockingbird, such a moment comes after the all-white jury convicts Tom Robinson and Atticus Finch packs his briefcase and walks dejectedly toward the door. As he approached the rear of the courtroom, the black people who sat in the balcony stood to honor him. That is when Rev. Styles says to Scout, Finch’s daughter, “Jean Louise, stand up. Your father is passing.”

But even when we fail in our attempt to overturn a client’s wrongful conviction, the devastation that students experience when the result seems unjust or unfair will also motivate them to continue the fight. Our clients lose ultimately only when we and they give up.

“The Assailant Was a Black Man”

In another case, after losing a motion to overturn our client’s conviction in 2009, we learned three years later that prosecutors in the case had obtained a false affidavit from a former police officer and used it surreptitiously to undermine our client’s claim of innocence. The evidence in the case suggested that the perpetrator of a vicious assault on a white store clerk in Winston-Salem had been white. On the night of the attack, the victim was not able to identify or describe her assailant. Nevertheless, one of the prosecutors who was defending the 1997 conviction in 2009 convinced a former police officer to claim that on the night of the attack, the victim told her the assailant was, like our client, a Black man. Several years later, we learned about the false affidavit after one of the prosecutors sent an email to a former FBI official who had reviewed the police investigation in the case and concluded it was deeply flawed and did not support the conclusion that our client had committed the crime.

When we learned about the misconduct, we filed a motion to reopen the case, believing the false affidavit likely had been shared secretly with the judge who had ruled against our client in 2009. The prosecutors did not dispute that the affidavit was false or that they had used it to undermine our client’s claim of innocence. That did not matter because the system itself protected them from accountability.

We filed our motion in 2012, asking the court to allow us to question witnesses under oath about use of the false affidavit and to hold a hearing to determine if the case should be reopened because of the State’s use of the affidavit. The court agreed immediately to hold a hearing, but delayed ruling on our request to question witnesses in advance of the hearing. A year later, in a conference room outside open court, the judge denied our request to question witnesses in advance but reaffirmed his intention to hold an evidentiary hearing on our motion to vacate the 2009 judgment. When we advised the judge that we intended to call as witnesses the same people whom we wanted to question prior to the hearing, lawyers from the Attorney General’s Office who were representing the State told the judge they might have to “get out of the case” if that happened.9 That likely meant the government lawyers had relevant knowledge about the prosecutors’ secret use of the false affidavit. At that point, however, without explanation, the judge abruptly reversed himself and summarily denied our motion to vacate the 2009 judgment. There would be no evidentiary hearing. As we were leaving the conference room, the students fought back tears. I later told them to remember that feeling; it would help provide the empathy necessary to keep fighting this kind of out-of-sight injustice.

I am almost 77 years old. When my family and friends ask why I continue to engage in this kind of frustrating work, my response is simple: showing my students how to fight for justice by example makes me a happy warrior.

Notes

1. See the Oath of the American Bar Association
2. “New Law School Dean Gave Trump Bad Legal Advice,” Inside Higher Ed (January 5, 2023), insidehighered.com/news/2023/01/06/trumps-jan-6-legal-adviser-leads-new-law-school
3. “Trump’s election fraud claims were false. Here are his advisers who said so.” Politico (June 13, 2022; www.politico.com/news/2022/06/13/trumps-election-fraud-claims-were-false-here-are-his-advisers-who-said-so-00039346
4. “Trump’s lawyers keep getting in trouble with judges. Here are the 17 sanctioned so far,” businessinsider.com/trump-lawyers-sanctioned-by-courts-election-lawsuits-2022-12
5. Robert H. Jackson, The Federal Prosecutor (April 1, 1040), 31 J. Crim. L. 3 (1940) (address at Conference of United States Attorneys, Washington, D.C., April 1, 1940).
6. Id.
7. Rule 3.8 of the North Carolina Rules of Professional Responsibility, “Special Responsibilities of a Prosecutor,” Comment 1.
8. Transcript at ____.
9. In Camera Hearing Tr. at 74–76