When a Prosecutor Learns He Has Likely Convicted an Innocent

There's no level playing field for criminal justice. Even the most aggressive prosecutor would readily acknowledge that, while some criminal defendants can afford a lawyer with more experience and funding, some of the weaponry in a prosecutor's immense arsenal will never, ever, be available to the defense.

The defense will have no grand jury. No power to exculpate without a trial to defeat what the prosecutor did in charging a crime. No capacity to subpoena witnesses before a charge is brought. No pre-indictment ability to compel a hostile witness to appear at penalty of contempt. No power to grant immunity in order to get that testimony. No badge in his investigator's pocket to "encourage" cooperation from those with information to give. No jailhouse full of "rat" prisoners willing to give information in exchange for get-out-of-jail (or leniency) cards. Just imagine a defense lawyer telling a convict that she'll write a helpful letter to the sentencing judge or parole board if he testifies favorably for her client -- ever see that on Law & Order? No, and not in the real world either.

So how does the system create a balance to ensure that prosecutors "do justice" when proof surfaces, from whatever source, that the system has miscarried -- meaning, credible evidence has emerged that a defendant has been wrongly convicted? Such balance has, indeed, been slow to come by, despite the extraordinary work of The Innocence Project and less well known institutions that advocate for convicted innocents.

Importantly, looking at prosecutors around the country, even when exculpating evidence lands directly at their doorstep post-conviction, far too infrequently do they grab the bull by the horns -- there are, of course, notable exceptions -- to reexamine the facts and, where warranted, tell the court: "We screwed up -- An injustice lies here at my desk. The inmate should be fully exonerated and released immediately." It would frankly be the uncommonly, heroic prosecutor indeed who would do just that, unless the exonerating information came directly from the inmate's lawyer or the "second-look" was initiated from some compelling fact counsel disclosed to the prosecutor. Or, it arrived on the prosecutor's doorstep in circumstances where the prosecutor might reflexively want to sweep it under the rug, but would have no deniability if he did so. Unfortunately, the operative mentality too often is that since the world tends to believe that the convicted defendant is guilty anyway, why open a hornet's nest?

Still, what about when the inmate or his attorney doesn't know of the evidence that exists to aid in his exoneration, and the prosecutor alone does? Shouldn't the disequilibrium actually compel the prosecutor to act proactively to make things right? Strangely, until recently, although limited case law may have seemed to require it in order to comply with due process of law, no ethics rule has directly required it. Sure, it would be the "right thing" to do -- but was it required as a matter of ethics, other than as a matter of a prosecutor's idiosyncratic ethics to help an introspectively guilt ridden prosecutor get through the dark nights of his soul? Probably not, and that's a sad thing. Imagine a court not seeing a violation in an undisclosed post-conviction receipt of exculpatory evidence, just because the defendant was already convicted when the prosecutor received the information; that would seem to fly in the face of the Brady (exculpatory evidence) rule, if not almost emasculate its logic and meaning.

Now, fortunately, the ethics rules have somewhat changed the landscape for prosecutors, at least in some locales. And, finally, as of July 1, 2012 (with the commendable support of New York's District Attorneys Association) New York has now come into line with the American Bar Association's Model Rules of Professional Conduct (and different iterations of it in place in the past few years in seven states), which requires otherwise hesitant prosecutors to bear in mind the "ethics" of doing nothing when the truth might, to paraphrase Jesus, help set an innocent defendant free.

So now, if a prosecutor knows from new, credible, material evidence that it is reasonably likely that his office has convicted a defendant of a crime he likely didn't commit -- he must (1) notify the court and the defendant of that likelihood, (2) disclose the arguably exonerating evidence and (3) agree to set the conviction aside unless he can find good reason to show otherwise. And if/when the prosecutor acquires "clear and convincing" evidence that the defendant is innocent, he must pursue the applicable remedy to accomplish righting the wrong.

The purpose of the new rule seems so exquisitely obvious but, still, for a prosecutor to comply with it will be an extraordinarily hard thing to do. Hard to admit a wrongful conviction. Hard to acknowledge, even to yourself, that you sent an innocent man to languish in prison for, God knows, how long, while you have gone home every night to enjoy your life. Hard to admit that your career conviction is based on a faulty premise and will, as a result fall asunder of its own weight. Hard to deal with the fact that you will likely become a named defendant in a wrongful conviction civil case against your office. It's just so much easier to just look the other way.

After all, you didn't earn megabucks while winning the case back when -- you merely earned a laborer's honest day's pay, all along truly believing in the defendant's guilt. And now you must put a knife in your own gut? Human nature would make righting this wrong difficult for anyone at all -- this is not a poke at prosecutors in particular. Being ethical when the truth stares you down is a hard road to travel -- for anyone.

Accordingly, it might be so easy, for example, to toss in the trash bin an inmate's letter proclaiming that his cellmate, imprisoned for an unrelated robbery, has credibly (with the details of an obvious insider) confessed to him that he was the actual murderer, and that the "wrong guy" -- whom you convicted -- is serving life. So easy, indeed! Of course, until now only the prosecutor's conscience stood between the inmate's letter and the round file. Now it will also be an ethics provision (albeit, a hard one to police) that will bolster a prosecutor's willingness to act appropriately upon receipt of the exonerating information.

Still, one wonders if an escape hatch exception that exists for New York prosecutors (that, coincidentally, doesn't exist in the ABA's version of the rule) may theoretically swallow the rule. Under the New York version, a prosecutor's independent judgment that the new evidence is not of a sufficient nature to trigger the disclosure obligations, even if later determined to be wrong, won't violate his ethical obligations under the new rule.

One can certainly expect that prosecutors who have chosen to keep the "bad news" of a convicted defendant's possible innocence to themselves will seek to rely on that escape hatch whenever a discipline prosecutor or a court looks askance and in their direction. Time will tell whether, and under what circumstances, discipline authorities will give these criminal prosecutors the benefit of the doubt. That is, the same benefit of the doubt that they didn't give the innocents whom they convicted (even when those prosecutors sincerely believed in the defendants' guilt).

Indeed, it is hard to imagine anything more Kafkaesque than a true innocent sitting in jail day after day, while a cynical prosecutor hides the knowledge of his innocence and the keys to the man's freedom in a lockbox in her office credenza. And we needed a new ethics provision to O'Henry the ending to this dark drama?