March 2010

City Bar Urges Amendments to Rules of Professional Conduct to Address Prosecutor's Obligations Regarding Wrongful Convictions

In a letter to New York State Chief Judge Jonathan Lippman and the Presiding Justices of the Appellate Divisions, the City Bar urges the adoption of amendments to New York State’s new Rules of Professional Conduct that went into effect in April 2009. The new provisions would govern the conduct of criminal prosecutors who, after obtaining a conviction, learn of important new evidence indicating that the convicted defendant is likely to be innocent.  The letter was prepared by the Council on Criminal Justice and the Committee on Professional Responsibility.

The proposed additions, which are consistent with those that the American Bar Association recently added to Rule 3.8 of the Model Rules of Professional Conduct, are:

(g) 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:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor's jurisdiction,

(A) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(B) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

While the ABA and other states have adopted similar language, the provisions, according to the letter, have their genesis in New York, beginning with a 2006 City Bar report written by the Professional Responsibility Committee, published in the Record of the City Bar.

The City Bar’s proposed provisions were presented to the New York State Bar's Committee on Standards of Attorney Conduct ("COSAC") and to the ABA Section of Criminal Justice and its Standing Committee on Ethics and Professional Responsibility. Both associations received comment from a wide range of groups, including the National District Attorneys Association. The language was adopted in the ABA Model Rules in 2008.

“We were disappointed when similar provisions were not included in the New York Rules made effective in April 2009,” states the letter, signed by City Bar President Patricia M. Hynes. “Accordingly, our instant Proposals seek amendment to New York Rule 3.8 in a fashion similar to that of ABA Model Rule provisions 3.8(g) and (h).”

The background and rationale for the provisions relate to “recent knowledge about the fallibility of the criminal justice process.” Last year, Chief Judge Lippman established a permanent Task Force on Wrongful Convictions to address the problem.

“The Proposals would codify unarguable professional obligations” and “give concrete meaning to the ‘duty of prosecutors to seek justice, not merely to convict’ (ABA Standards Relating to the Administration of Criminal Justice, Standard 3-1.2(c)), the letter states. “The United States Supreme Court recognized in Imbler v. Pachtman, 424 U.S. 409,427 n. 25 (1976), that prosecutors are ‘bound by the ethics of [their] office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction.’”

Because of built-in institutional disincentives to comport with the “unarguable” obligations of prosecutors to recognize new evidence of a defendant’s innocence, the letter raises the issue of discipline, stating, “Further, it is important not simply to educate prosecutors but to hold out the possibility of professional discipline for lawyers who intentionally ignore persuasive evidence of an unjust conviction. Prosecutors' offices may have institutional disincentives to comport with these obligations and, as courts have recognized, their failures are not self-correcting by the criminal justice process. Codification of these obligations, which are meant to express prosecutors' minimum responsibilities, will help counter these institutional disincentives.



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