Court debates extent of prosecutor’s duty to explore evidence of
wrongful
conviction
March 10, 2009 - An ethics rule requiring prosecutors to act
on
credible information pointing toward a convicted defendant’s
innocence took another step toward enactment after a hearing before the
Wisconsin Supreme Court on March 9.
The rule put forth in Petition 08-24 is advocated by the Wisconsin District
Attorneys Association. While the purpose of the rule is broadly
supported, criminal defense attorneys and the State Bar of Wisconsin
questioned language shifting the burden of investigating the newly
learned evidence away from prosecutors.
Pat Kenney of the WDAA told the justices that many Wisconsin prosecutors do not command the necessary
resources to investigate potentially exonerating evidence. Justice
Patience D. Roggensack sympathized, arguing that she did not want to see
budget constraints lead to a prosecutor charged with an ethics
violation.
But if the prosecutor is not responsible for exploring the evidence,
the question remained as to who would be. Chief Justice Shirley S.
Abrahamson pressed Kenney to explain how a court possessing this
information should effectively investigate it. Kenney said a prosecutor
would share the evidence with the court in an effort to get the
defendant new counsel and a hearing.
Unfortunately, defendants do not have a right to counsel in
postconviction proceedings as they have at trial so that the justices
should not presume a lawyer will be provided, said Marla Stephens of the
State Public Defender’s office. Stephens added that these
defendants will be particularly disadvantaged because they are
incarcerated without access to resources they might otherwise have.
Stephens argued that the duty to investigate new evidence ought to
remain with the prosecutor because the prosecutor -- even one without
many resources in his or her office -- enjoys a special relationship
with law enforcement agencies that are likely to honor a request for
investigation.
The American Bar Association’s model rule imposes a greater affirmative duty
upon the prosecutors to act. State Bar President Diane Diel informed the
justices that the Board of Governors preferred the ABA language over
the modifications proposed by the WDAA when it endorsed the goals of petition 08-24
at its Feb. 27 meeting. The governors had also cited the
prosecutor’s unique position in the criminal justice system to
facilitate investigation by law enforcement, if the prosecutor’s
office cannot do it.
Dean Dietrich, chair of the State Bar Ethics Committee, told the
justices that the ABA language more clearly and
succinctly defines the duties of a prosecutor and better satisfies the
goals of the rule. He also said that adoption of the ABA standard would allow Wisconsin to more
easily look for guidance from other jurisdictions’ interpretative
decisions, opinions, and analysis.
The justices sought to insert language into the proposed rule that
would balance the concerns expressed at the public hearing regarding the
prosecutor’s duty upon receipt of new exculpatory evidence. When a
prosecutor receives evidence suggesting a “reasonable
likelihood” of a wrongful conviction, the prosecutor is to
“make reasonable efforts to undertake or cause an
investigation” into the matter.
If the new evidence establishing innocence satisfies a “clear
and convincing” standard, the justices indicated they would
require a prosecutor to “seek to remedy the conviction” --
the language found in the ABA model rule. The WDAA had sought to
soften this provision with an obligation to merely “notify the
court where the conviction occurred and make reasonable efforts to
notify the defendant.”
Most prosecutors would likely act to correct a wrongful conviction
even without this rule, said WDAA President Ralph Uttke. But he
recognized that there are some segments of the general public lacking
confidence that a prosecutor would ever work to undo a conviction and he
hoped this rule could remedy that. Kenney noted that some prosecutors
around the country have been “disappointing” when confronted
with evidence they may have gotten the wrong guy. Mention was made of
the Alaska prosecutors who have taken their
attempt to block an inmate’s efforts to prove his innocence all
the way to the U.S. Supreme Court.
The ABA modified the rules governing
prosecutors’ ethical duties to address wrongful convictions in
February 2008. If adopted, Wisconsin
would be one of only a handful of states to endorse these changes,
according to U.W. Law School Professor Ben Kempinen.
Following the administrative hearing, the proposed rule is to undergo
revisions reflecting the justices’ concerns before adoption.
By Alex De
Grand, Legal Writer, State Bar of Wisconsin