Pace Professor Bennett Gershman makes a case for the establishing a prosecutorial misconduct commission, as New York considers doing just that. Read the article in The Daily Beast titled How to Hold Bad Prosecutors Accountable: The Case for a Commission on Prosecutorial Conduct.
The American Bar Association has published its Fourth Edition of the ABA Criminal Justice Standards for the Prosecution and Defense Functions, adopted by a resolution 107D in February 2015. This edition supplants the Third Edition (1993) of the ABA Standards for Criminal Justice: Prosecution Function and Defense Function. Among the new provisions are the following:
For the Prosecution
- Standard 3-1.3 – The Client of the Prosecutor – explicitly stating that a victim is not a prosecutor’s client.
- Standard 3-3.6 – When Physical Evidence with Incriminating Implications is Disclosed by the Defense – stating that “[w]hen physical evidence is delivered to the prosecutor consistent with defense function standard 4-4.7, the prosecutor should not offer the fact of delivery as evidence before a fact-finder for purposes of establishing the culpability of defense counsel’s client.”
- Standard 3-4.3 – Minimum Requirements for Filing and Maintaining Criminal Charges – stating in subsection (d) that “[a] prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.”
- Standard 3-5.c – The Decision to Recommend Release or Seek Detention – recommending that prosecutor should favor pretrial release over detention unless detention is necessary to protect individuals or the community. Additionally, prosecutor should remain open to reconsideration of pretrial detention.
- Standard 3-5.8 – Waiver of Rights as Condition of Disposition Agreements – requiring a prosecutor not to condition a disposition agreement on a waiver of the right to appeal the terms of a sentence, on any waiver of post-conviction claims, or a complete waiver of the right to file habeas corpus petition, fully incorporating the DOJ policy banning waiver of ineffective counsel claim as a condition to guilty plea, as discussed here.
- Standards in Part VIII Relating to Appeals and Other Conviction Challenges
- Standard 3-8.1 – Duty to Defend Conviction Not Absolute – requiring prosecutor to exercise one’s own independent professional judgment and discretion and thus allowing the prosecutor to decline prosecution if she “believes the defendant is innocent or was wrongfully convicted, ….”
- Standard 3-8.3 – Responses to New or Newly Discovered Evidence or Law – placing emphasis on seeking justice by requiring prosecutors offices to develop policies and procedures to address situations in which the prosecutor learned of credible evidence ‘creating a reasonable likelihood that a defendant was wrongfully convicted or sentenced or is actually innocent, ….”
- Standard 3-8.4 – Challenges to the Effectiveness of Defense Counsel – requiring the prosecutor to intervene if he observes that defense counsel may be ineffective.
- Standard 3-8.5 – Collateral Attacks on Conviction
For Defense Counsel
- Standard 4-2.3 – Right to Counsel at First and Subsequent Judicial Appearances – stating that “[a] defense counsel should be made available in person to a criminally-accused person for consultation at or before any appearance before a judicial officer, including the first appearance.”
- Standard 4-5.4 – Consideration of Collateral Consequences – placing a requirement on the defense counsel to “identify and advise the client of collateral consequences that may arise from charge, plea or conviction.”
- Standard 4-5.5 – Special Attention to Immigration Status and Consequences – taking standard 4-5.4 one step further by incorporating the decision of Padilla v. Kentucky, 559 U.S. 356 (2010) (slip opinion copy) (requiring defense counsel to advise his client of potential immigration consequences as a result of guilty plea).
- Standard 4-9.4 – New or Newly-Discovered Law or Evidence of Innocence or Wrongful Conviction or Sentence – placing a duty on the defense counsel to act if she “becomes aware of credible and material evidence or law creating a reasonable likelihood that a client or former client was wrongfully convicted or sentenced or was actually innocent.”
If you listen to the Podcast Serial – a broadcast that addresses the conviction (or wrongful conviction) of Adnan Syed in Baltimore, you probably already know that the court has granted a hearing on his claim of ineffectiveness of counsel. Syed claims his trial attorney failed to communicate a willingness to discuss a plea to the prosecution and failed to investigate an alibi witness.
Art meets reality once again. Last week we discussed the film, The Newburgh Sting, about the terrorist prosecution arising out of Newburgh involving a claim of entrapment. What is the role of journalism and art in addressing a claim of injustice?
In Serial, Syed claims he was innocent, as he has claimed all along. Sara Koenig, the journalist who produces and hosts the show, reaches no conclusions. Now the court is going to hear evidence on his claim that he was willing to plead guilty. What could be more complicated?
Some thoughts about the intersection of life and art in this case:
First, one has to think that the tremendous publicity this case has garnered had a role in the court’s willingness to look at it. Post-conviction claims of ineffectiveness are almost routinely rejected.
Second, to what extent will Syed have to explain his very public innocence claim in relation to his claim he was interested in pleading guilty before trial? The evidence that he always claimed to be innocence is now recognized worldwide. How, if at all, should or will that play out in the litigation?
Third, for those litigators who listened to the defense attorney’s cross-examination on the show, we all must have had second thoughts about the condition of the attorney. She became ill and was disbarred and then died after the trial. While hindsight is 20-20, and knowing what happened after, her performance in court, at least, doesn’t seem like she is functioning well.
- Emma G. Fitzsimmons, Appeal to Be Heard in ‘Serial’ Murder Case, The New York Times (Feb. 7, 2015).
- NPR, Adnan Syed, Subject of ‘Serial’ Podcast, Granted Appeal (Feb. 7, 2015).
The prosecutor in the Michael Morton case in Texas, in which the defendant was exonerated, has pled guilty to criminal contempt for intentional non-disclosure of exculpatory evidence and will give up his law license, perform 500 hours of community service, and serve 10 days in jail. Among the withheld evidence was the account of an eyewitness, the defendant’s son, who said he was not the murderer.
No matter what one’s views are on this unprecedented event, it should raise consciousness about the risk of withholding substantial exculpatory evidence and risking the conviction of an innocent person.
PhD. Pamela Perez, Professor of biostatistics at Loma Linda University, conducted research for Safer-America.com in which she examined the 1,450 exonerations listed on the National Registry of Exonerations as of Oct. 20, 2014. She reported that although one cannot know for sure, the numbers collected so far show that “[B]lack Americans are exonerated at a substantially slower rate than any other race.” The collected data was then translated into an interactive map showing exoneration information through the United States breaking down exonerations by state, crime and race of the wrongfully convicted.
Pace Criminal Justice Blog has reported on the issue of wrongful convictions and exonerations, including, among others, the following posts:
- Crime-less Exonerations
- The North Carolina Exonerations: Innocence Commissions
- The Jonathan Fleming Case: Investigation of Wrongful Conviction
- Many Wrongful Convictions: Not So Many Answers
- NY Appellate Court Upholds Vacatur of Conviction Based Upon DNA Evidence
- Compensation for Exonerees
- Development in Compensation for Exonerees
- Actual Innocence: Landmark Decision Changes Post-Conviction Landscape in New York
- Wrongfully Convicted African-Americans Wait Longer to be Exonerated Than Others: Study, The Huffington Post (Oct. 29, 2014).
- The Innocence Project