A debt of gratitude is owed  Jeff Gamso for reading the New York Law Journal when no one else bothers.  Jeff came across a story by Joel Stashenko  announcing a new rule for prosecutor who “discover” they have convicted an innocent person. 

Half jokingly, Jeff notes the old rule: Bury the evidence.  Of course, that’s not quite true. They merely ignore its existence if at all possible and fight any effort at its disclosure, all in the name of finality.  The new rule, however, changes everything:

The rules were added to the Rules of Professional Conduct by the presiding justices of the four Appellate Division departments in July. They stipulate that when a prosecutor knows of “clear and convincing evidence” that a defendant did not commit the crime for which he was convicted, “the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.”

Prosecutors must act within a “reasonable time” to notify the court and the defense that they have come into the possession of significant new evidence. Those materials are to be turned over to the defense unless doing so would interfere with an ongoing investigation or endanger the safety of a witness or another person involved in the case, according to the rules.

Not enough wiggle room for you in Stashenko’s write-up?  Try  the actual rule instead:

When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time:

(1) disclose that evidence to an appropriate court or prosecutor’s office; or

(2) if the conviction was obtained by that prosecutor’s office,

(A) notify the appropriate court and the defendant that the prosecutor’s office possesses such evidence unless a court authorizes delay for good cause shown;

( disclose that evidence to the defendant unless the disclosure would interfere with an ongoing investigation or endanger the safety of a witness or other person, and a court authorizes delay for good cause shown; and

(C) undertake or make reasonable efforts to cause to be undertaken such further inquiry or investigation as may be necessary to provide a reasonable belief that the conviction should or should not be set aside.

(d) When a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted, in a prosecution by the prosecutor’s office, of an offense that the defendant did not commit, the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.

(e) A prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (c) and (d), though subsequently determined to have been erroneous, does not constitute a violation of this rule.

Naturally, the District Attorneys Association is lauding themselves for this great step forward.

District Attorney William Fitzpatrick of Onondaga County, who worked on the new rules on behalf of the District Attorneys Association of the State of New York, said the rules are due to the “tremendous attention given to wrongful convictions” over the past several years.

Fitzpatrick’s statement appears unintentionally revealing, in that this rule change is a public relations effort “due to the ‘tremendous attention given to wrongful convictions’ over the past several years,” so prosecutors can point to the rule and claim procedures are in place.  And indeed they are, though the rule is so filled with holes, caveats, provisos and wiggle words as to render them utterly worthless.  But then, public relations is all about perception, not reality.

As revealed by the text of the rule, as opposed to Stashenko’s somewhat generous description, they neither assure that an innocent person be released, nor that a prosecutor who sits on evidence of innocence be sanctioned.  Only the most pathologically stupid district attorney would find himself in trouble for concealing proof of innocence, given the myriad opportunities to rationalize their deep-sixing the evidence. 

For those non-New York lawyers, this rule was adopted by the four Appellate Divisions of the Supreme Court of the State of New York, the body responsible for making and upholding the New York Rules of Professional Conduct, and for dealing with violations of those rules.  In other words, they run attorney (including prosecutorial) discipline in New York.  And this is what was given their blessing.

What is fundamentally astounding is that this rule approves of the continued incarceration of an innocent person in furtherance of law enforcement.  Even by pretending that the meaningless rhetoric, “consistent with justice, applicable law, and the circumstances of the case,” isn’t meaningless rhetoric, this is about a person who is not guilty of committing a crime.  By what authority does a court approve a rule that keeps an innocent person imprisoned both for the the convenience of, and as the discretion of, the prosecution?

As the  recent battles over whether prosecutors have to adopt all of Brady or only those pieces they prefer continues, this post-conviction analog is a smack in the face.  Note that this only applies to evidence discovered after a conviction, since prosecutors would never withhold evidence favorable to the defendant beforehand, which of course is what seems to always be the crux of the problem of wrongful convictions.

But now that a rule is in place to “fix” the problem, both the District Attorneys and the justices of the Appellate Divisions can stand tall and proud, knowing that they have faced up to their awesome responsibilities and addressed them.  And so they can wipe their hands as they walk away from the grave.