State Bar of Wisconsin

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