Board of Governors discusses prosecutors’
ethics rule addressing wrongful convictions
A proposed ethics rule offers guidance to prosecutors confronted with
compelling evidence undermining the reliability of the convictions they
have sought.
The State Bar Board of Governors discussed the rule sponsored by the
Wisconsin District Attorneys Association (WDAA) at its Dec. 5 meeting.
Petition
08-24 urges modification to Supreme
Court Rule 20:3.8 to require a prosecutor to promptly disclose
“new, credible and material evidence creating a reasonable
likelihood that a convicted defendant did not commit an offense of which
the defendant was convicted.”
Disclosure is made to the court or to the defense attorney, said
Prof. Ben Kempinen, director of the University of Wisconsin Law
School’s prosecution project and one of the petition’s
presenters to the governors. If the conviction was obtained in the
prosecutor’s jurisdiction, the rule directs a prosecutor to
“promptly make reasonable efforts to disclose that evidence to the
defendant unless a court authorizes delay” and to request further
investigation.
The rule refers to a “clear and convincing” standard for
new evidence. Dean Dietrich, a petition presenter and chair of the State
Bar Professional Ethics Committee, said such evidence could include
DNA, a confession by someone else or a witness coming forward. Kempinen
said it likely would not include just a recanting witness.
Existing state ethics rules identify a prosecutor as a
“minister of justice” with duties distinct from that of a
lawyer representing an individual client. Prosecutors are expected to
respect the procedural rights of the accused and have obligations such
as production of exculpatory evidence to the defense prior to trial.
Kempinen said this proposed change makes clear that this special duty to
the defendant extends beyond trial and conviction.
Some governors questioned whether this rule goes far enough. The
proposed Wisconsin rule recommends
prosecutors “request further investigation” but the American
Bar Association directs
prosecutors to actually perform that inquiry. The lower Wisconsin standard reflects a lack of
investigative resources commanded by some prosecutors around the state,
Kempinen explained. State Bar Past President Thomas J. Basting Sr. asked
why a lack of money should let a wrongful conviction stand despite clear
and convincing evidence of innocence. Kempinen responded that he had the
same concern but suggested that the responsibility is properly shared
among defense counsel and the courts rather than resting solely with the
prosecutor.
Gov. Donald J. Chewning said that there should be an affirmative duty
upon prosecutors to take steps to rectify a wrongful conviction in the
face of strong exonerating evidence. Kempinen said that because only the
court can vacate the conviction, the prosecutor has fully acted by
notifying the court of the problem. Chewning questioned what happens if
a court is unresponsive. Kempinen said that is an issue outside the
scope of an ethics rule governing prosecutors. Dietrich suggested the
judicial ethics rules could be an appropriate vehicle to address such a
problem.
Asked for comment, the Wisconsin Public Defenders said in an e-mail
statement, “The SPD commends the WDAA for filing the petition with
the supreme court to create a rule that clarifies a prosecutor’s
responsibility to address a wrongful conviction. We support a rule that
is the same as or similar to the Model Rule.”
The Professional Ethics Committee has endorsed Petition 08-24. The
governors may have an opportunity to vote in favor at its next meeting.
The Wisconsin Supreme Court has scheduled a public hearing for March 9,
2009.
By Alex De
Grand, Legal Writer, State Bar of Wisconsin
