After years of fighting to set the wrongfully imprisoned free, Northeastern University School of Law professor Daniel Medwed has written a book outlining the systemic problem and its possible solutions.
“I wanted to write a book about one of the major factors in false convictions, prosecutorial decision-making, and how it impacts all the people in the [penal] system,” Medwed said.
The book, “Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent,” is “a bit of a hybrid. It’s fairly academic, but there’s lots of narrative in it to try and make it concrete and accessible,” Medwed told the Gazette. “I want to make it mainstream.”
Medwed told the Gazette about one former client, Fernando Bermudez, who was wrongly arrested and convicted of murder.
In the early 1990s, one man pointed out and another man shot a third man at a crowded New York City nightclub. Police brought witnesses in for questioning.
In an unusual move, police allowed witnesses to “trade notes” on what they remembered and to compare suspects’ photographs together. The witnesses settled on pictures of 16-year-old Efraim Lopez as the “pointer” and of Bermudez, who was known as “Most,” as the shooter.
During police questioning where the prosecutor was present, Lopez identified the shooter as someone else named “Woolu.” He said he did not know anyone named “Most.”
But during trial, Lopez identified Bermudez as “Woolu.” The prosecutor did not correct him. Bermudez stated he was not the shooter.
The jury found Bermudez guilty of murder. He spent almost 20 years in prison before a state court judge reversed the conviction, partly because the prosecution had introduced evidence that it knew or should have known was false.
Medwed spent years at The Innocence Project in New York City, working on wrongful arrest cases before switching to teaching and recently moving back to Boston. While at The Innocence Project, Medwed realized how much a prosecuting attorney’s discretionary decisions—offering a plea bargain or delivering their closing arguments—could impact someone who has been wrongly arrested.
A prosecutor could easily develop tunnel vision, Medwed said, which could lead to the prosecutor ignoring new evidence in favor of a preferred theory favoring conviction. A prosecutor could coach a witness too much, or fail to disclose evidence—like Bermudez’s prosecutor—or decide to charge the accused with extra offenses, or any number of big and small decisions that could compound the mistake of a wrongful arrest.
“The underlying assumption is that most professionals want to do a good job, but the pressures of that job, combined with lenient legal and ethical rules [for prosecutors] create this perfect storm that too often can lead prosecutors to make decisions that can contribute” to wrongful convictions, Medwed said.
“The idea is, a little more transparency and accountability would help a lot,” he said.
While it is unclear how many wrongful convictions occur in the U.S. yearly, there have been more than 300 documented “DNA exonerations” since 1989, Medwed said.
“There is reason to think that these  cases are just the tip of the iceberg because biological evidence is available in only a small percentage of cases,” an estimated 10 to 20 percent, Medwed said. “And even in DNA cases not everyone manages to obtain access to the evidence down the road” or to test it after the conviction, he added.
Medwed has spent the last decade, “on and off,” he said, working on the book. It was published last year by New York University Press.