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.