Bill Montgomery's Actions Argue in Favor of Ethical Rule He Opposes

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At the beginning of August, I wrote about proposed new ethical rules for Arizona prosecutors, in a petition currently pending before the Arizona Supreme Court.

Opposed by Maricopa County Attorney Bill Montgomery, as well as numerous other county, state and federal prosecutors in Arizona, these amendments to Ethical Rule 3.8 would require prosecutors to reveal to defense counsel or a court any "new, credible, and material" evidence that creates a "reasonable likelihood" a convicted defendant did not commit the crime in question.

Under the suggested guidelines, a prosecutor must "make reasonable efforts" to look into the matter or have the "appropriate law enforcement agency" investigate the new evidence. And if there is "clear and convincing" evidence of a convicted person's innocence, the prosecutor must work to "set aside the conviction."

See also: Bill Montgomery Opposes Ethics Rule Requiring Prosecutors to Reveal Evidence of Wrongful Convictions

The changes were suggested two years ago by the Arizona Justice Project, a non-profit group that works to free the wrongly convicted. The proposals are based on more stringent language adopted in 2008 by the American Bar Association.

Since, I first blogged about the amendments, comments from the public have been reopened by Arizona Supreme Court Chief Justice Rebecca White Berch, and will remain open till October 25.

Read comments already posted on the Arizona Supreme Court website about the proposed changes.

Concerned citizens can make their views known, either online after registering with the court's rules forum or by snail mailing a letter to: Clerk of the Arizona Supreme Court, 1501 W. Washington Street, Phoenix, AZ 85007.

Find out how you can comment on the proposed ethical rules for prosecutors.

That the proposed changes are necessary in Sand Land, should be self-evident to anyone who's been paying attention.

Prosecutors are supposed to be "ministers of justice" in America's legal system. But all you have to do is call to mind a scoundrel such as disbarred, disgraced ex-Maricopa County Attorney Andrew Thomas, a minister of injustice if there ever was one, to know that not all prosecutors act ethically.

Writing for the Arizona Justice Project, Larry Hammond offers the following, compelling reasons why Arizona should adopt these new requirements:

We now know, for certain, that innocent people are sometimes sent to prison, even death row. If we look only at DNA-testing cases, there have been 265 exonerations to date [nationally], and the vast majority of those wrongfully convicted are minorities.

With the famous cases of Ray Krone and Larry Youngblood, Arizona is the home of perhaps the two highest-profile exonerations in the nation. Unfortunately, these are not the only exonerations in Arizona. The Death Penalty Information Center reports that as of October 27, 2010, there had been 138 exonerations of death row inmates. Eight of those inmates were from Arizona, with Arizona ranking sixth highest among the states for the number of death row exonerations.

Since these cases were exposed, the problem of wrongful convictions has not been miraculously cured. Perhaps obviously, there is universal agreement that such travesties of justice are just that--travesties--and any means to mitigate such travesties should be taken seriously.

Hammond notes that the U.S. Supreme Court has commented on the ethical duty of prosecutors "to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction."

Already, prosecutors are required to turn over any exculpatory evidence at trial, but they do not always abide by this requirement.

Case in point: This year, Debra Milke's 1990 conviction in the murder of her four year-old son Christopher was overturned by the U.S. Ninth Circuit Court of Appeals because the Maricopa County Attorney's Office did not disclose evidence that could have impeached the testimony of the prosecution's chief witness, Armando Saldate, then a Phoenix homicide detective.

Saldate claims Milke confessed to him, but Milke denies this. There's no recording, witness or signed statement to back up Saldate's story. So you can see why Saldate's problem with truth-telling -- kept on the DL by prosecutors back then -- would be important info for Milke's defense.

The case against Milke now is so weak that she is out on bond, something that almost never happens in Arizona for a defendant charged with a capital offense. Saldate's attorney has indicated that his client will invoke his Fifth Amendment right to silence if Saldate is called to testify.

Nevertheless, Montgomery wants to put Saldate on the stand in a retrial of Milke. So much so, he even told reporters in a press conference that Saldate did not have to fear prosecution for anything he said on the stand. In fact, Monty had a letter from the U.S. Justice Department stating that the statute of limitations had expired on any federal charges.

It was a letter Monty neglected to make available to the court.

Judge Rosa Mroz, the jurist in the Milke matter, was annoyed to read of this development in the newspaper and ordered the prosecutor in the case to appear before her and offer an explanation.

Later, Mroz wrote that,

"The Court finds the State's explanation as to why the Court was not informed about such a letter surprising. The Court advises the State that if the State believes the information to be relevant enough and developed enough to discuss it at a press conference, then the State should have given the information to the Court because the Court will be deciding whether Detective Saldate may invoke his privilege against self-incrimination, not the media."

Now, if Monty is not completely forthcoming to a judge in a case that is being closely watched by the press, how forthcoming will he and his prosecutors be if they have possibly exculpatory evidence in a case that the media has paid little heed to?

Writing on behalf of his jefe in a commentary addressed to the Arizona Supreme Court , Monty's Chief Deputy Mark Faull calls the proposed rules, "confusing, burdensome, and unnecessary."

Faull contends that those pushing for new rules have presented "no convincing evidence there is a `problem' of wrongful convictions in Arizona." He argues that the amendments will not alter the behavior of "those few rogue prosecutors" out there.

Which is sort of like arguing there should be no laws against bank robbery, since there always will be bank robbers.

Still, the proposed rules will serve as a reminder to prosecutors of their ethical obligations if new evidence crosses their desks, particularly since these rules will be bolstered by the possibility of sanctions.

There's even a Grand Canyon-sized loophole in the proposed rules: prosecutors who err while acting "in good faith" are off the hook.

Why do Faull and Monty want to block these proposals, despite this huge concession?

Perhaps for them, "good faith" is a foreign concept, and "bad faith" is something they practice on a daily basis.

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