Taking a Mulligan: The Special Challenges of Narrative Creation in the Post-Conviction Context

Donald R. Caster and Brian C. Howe

“History is written by the victors” is a common phrase used to describe the sentiment that the victorious party to a conflict will have the power to write the history of that conflict. In the courtroom, however, the opposite of that causal relationship exists: the party who can successfully create the most compelling history of the litigated dispute will emerge as the victor. In this Essay, we discuss the myriad impacts of race and racism on the criminal justice system in the United States. First, we address the structural advantages afforded to the prosecutor in the American criminal justice system. The primary advantage is that the prosecution presents its case first and is able to construct the narrative that will dominate a trial. We also address how the structural advantages may serve to distort the facts of a case and how this distortion may remain in effect even through the appellate phases of litigation. Finally, we examine the challenges faced by post-conviction counsel in replacing the existing narrative with a new one that creates a compelling case for relief. The creation of a provable, alternative narrative is particularly important for a defendant in post-conviction proceedings due to the deference afforded by reviewing courts to an underlying criminal judgment. Indeed, the history of a particular litigation may be a crucial part of the new narrative. The need to excise the current narrative and begin again must be made clear to a reviewing court.