Congress should invoke its authority under the 14th Amendment, however, to give defendants a civil right to prove their innocence, and to sue both DA offices and individual prosecutors for withholding evidence of actual innocence.

Small corrections: the three lacrosse students were charged but never prosecuted, and the charges weren’t just dropped they were exonerated.

I believe the three charged have already made their deal with Duke, but others tarnished by Nifong’s net are pursuing Duke and Durham, et al; but their case is not going well.

First, it is silly to say prosecutors only bring weak cases to trial. People dead-to-rights guilty go to trial all of the time.

Second, there is a huge “drive a mack truck through it” difference between being found not guilty and being found innocent. Most people who are acquitted are guilty. This is the exact intent of the system.

Either way you go on this, there is grave injustice. It is unjust to have to pay for a defense when you are innocent. If is also unjust for us to foot the bill for criminals who beat the rap.

Interesting byproduct of the system: lawyers pushing their clients to try their cases so they can get paid if they win. Contingency fee criminal lawyers. “Johnny, I know they are offering you a suspended sentence on your murder rap. Still, I think we should roll the dice.”

Prosecutors only bring weak cases to court. Strong cases plead out. And in that there is a great asymmetry, because the underlying threat from the prosecutor is to take the deal, or be overwhelmed with a hundred charges and an indictment the size of a telephone book.

In the former, three Duke student lacrosse players were prosecuted for rape, sexual assault and kidnapping based on the false claims of the “victim,” Crystal Mangum. The case was heavily politicized by the corrupt, incompetent prosecutor, Mike Nifong. All charges were ultimately dropped, and Nifong was fired, disbarred and (briefly) went to jail. The defendants were guilty of nothing and are pursuing their remedy through the courts, but the outcome at this time is uncertain.

In the latter case, US Senator Ted Stevens (R, Alaska), was tried and convicted on seven counts of failing to report gifts, a felony. Stevens stridently maintained his innocence but, largely because of this prosecution, narrowly lost his reelection bid. Subsequent investigations revealed egregious misconduct by the prosecutors (withholding exculpatory evidence, suborning perjury, etc.). The judge vacated the convictions and held the prosecutors in contempt, and one of them committed suicide.

Granted, these are examples of extreme prosecutorial misconduct, not just innocent defendants. But why shouldn’t they have a standard remedy to compensate them for the great harm resulting from these false accusations? Even in the absence of such misconduct, innocent defendants often spend huge amounts of money. Why shouldn’t they be compensated, if only for their defense costs? Anyway, the number of criminal defendants who are ultimately found totally innocent (and who don’t just plea bargain down the charges) is rather small.