As Maricopa County Attorney Bill Montgomery fights to keep Debra Milke behind bars pending a retrial on her overturned murder conviction, he also is fighting a proposed rule to the State Bar of Arizona that would require prosecutors to act on new evidence of a wrongful conviction.
For the past two years, the Arizona Justice Project has petitioned the Arizona Supreme Court to change the State Bar of Arizona's ethics rules, adding a provision based on the American Bar Association's Ethical Rule 3.8.
The ABA's rule states that if a prosecutor discovers "new, credible, and material evidence" of a wrongful conviction, he or she must disclose the evidence to the defendant and "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."
Should there arise "clear and convincing" evidence of the innocence of someone convicted in the prosecutor's jurisdiction, "the prosecutor shall seek to remedy the conviction." According to the AJP's filings, eight states have adopted the ABA rule in whole or in part, largely over concern caused by a slew of death penalty cases nationwide that have been overturned due to new evidence.
Based on the suggestions of local prosecutors, the Arizona Supreme Court re-opened comments on the proposed rule this year, offering a somewhat watered-down version of the ABA rule.
"(g) When a prosecutor knows of new and credible evidence that the prosecutor knows creates 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 judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, promptly disclose that evidence to the defendant unless a court authorizes delay. (h) When a prosecutor knows of clear and convincing evidence that the prosecutor knows establishes that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall take steps in the appropriate court, consistent with applicable law, to set aside the conviction. (i) A prosecutor's independent judgment, made in good faith, that the information is not of such a nature as to trigger the obligation of this rule, though subsequently determined to have been erroneous, does not constitute a violation of this Rule."
In a county that has given us the wrongful murder conviction of Ray Krone, the extra-constitutional antics of disbarred former county attorney Andrew Thomas, and now the overturned conviction of Debra Milke, whose still-warm spot on death row was secured via the testimony of a Phoenix Police Detective with a long history of lying and abuse of authority, a rule such as this would seem a no-brainer.
But not to Montgomery, who still wants his prosecutors to have the ability to hide the football after a conviction without fear of sanction by the state Bar.
In a comment to the court penned by Mark Faull, Monty's chief deputy, Faull argues that these "new obligations" would be "confusing and burdensome" and that there is "no convincing evidence that Arizona has a 'problem' of wrongful convictions" or that "prosecutors have failed to take corrective action when appropriate."
This proves conclusively that at least some prosecutors come from an imaginary planet where unethical behavior by their tribe does not exist.
By way of rebuttal, Larry Hammond of Arizona Justice Project points to "a recent study of Arizona appellate opinions between just 2004 and 2008 [that] revealed 20 cases of prosecutorial misconduct."
Indeed, the National Registry of Exonerations lists 12 Arizona convictions dating back to 1977, including Krone's, where those convicted were exonerated.
Hammond and the other petitioners note some Arizona cases in one filing, where they argue that the court should include the ABA's requirement that the prosecutor investigate any new evidence:
"By considering just a few real examples, we can see the logical and ethical case to require at least some duty of inquiry when the prosecutor's office learns that it has likely convicted the wrong person. For example, when the prosecutor's office learned of (1) the exculpatory DNA results in the Ray Krone, Michael Morton, and Larry Youngblood cases, (2) the expert reports agreeing that the arson of which Ray Girdler had been convicted was likely caused by accident, (3) the expert reports (including, eventually, a report from the state's own trial expert) agreeing that the baby in the Drayton Witt case had not died of "shaken baby syndrome" as the prosecution argued, or (4) the fact that Carolyn June Peak's original prosecutor (who had since passed away) had failed to disclose material exculpatory evidence, would it have been proper as a minister of justice to do nothing further -- not even to revisit the files or talk to the agents?
"Of course not: the proper course at that point would have been to revisit the files, to determine to the extent possible whether the defendants were indeed innocent as the new evidence indicated, and if so, to seek to set aside the convictions consistent with applicable law and procedure. Thus, when the prosecutor's office learns of `new and credible evidence that the prosecutor knows creates a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor should have a duty to investigate the matter further or to make reasonable efforts to cause a law enforcement agency to do so."
Prosecutors already are required to turn over exculpatory material to the defense during a trial, so why not after conviction?
Because prosecutors, on the whole, do not like to relinquish a victory.
Nevertheless, as the petitioners note on several occasions, American jurisprudence regards prosecutors as "ministers of justice" who have a special duty to make sure the guilty are punished and the innocent go free, not just put notches on their belts.
Also, prosecutors as individuals enjoy total civil immunity for their actions in office, though their agencies or jurisdictions can be held liable.
This is a lesson we learned with Andy Thomas. How can a bad prosecutor be punished for his misdeeds? Often the only justice the public can obtain is through the Bar's disciplinary process.
To be fair to Monty, current Arizona prosecutors from Arizona Attorney General Tom Horne on down oppose the new rule, which the Arizona Supreme Court is expected to take up the issue at its next rules conference on August 27.
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Past Arizona Attorneys General Terry Goddard and Grant Woods are supportive of the proposed change, along with some former Arizona judges.
And Hammond reports in one filing that, "[I]n Wisconsin--which became the first state to adopt the Rule 3.8 amendments--the petition to amend the state's ethics rules was filed by the Wisconsin District Attorney's Association.8 Similarly, and importantly, the National District Attorneys Association, the largest and oldest organization representing criminal prosecutors in the world, recently adopted a similar standard outlining prosecutorial notification, disclosure, and remedial responsibilities in post-conviction innocence cases."
But it seems particularly rich that Montgomery would be opposing such a rule while looking to hang Debra Milke, for the second time, on the testimony of a deceitful cop.
And yet, Montgomery and other prosecutors want us all to trust that they would never hide the football from the defense, particularly when the accused's life hangs in the balance.