DOJ Bucks Trend On Protections Against Wrongful Convictions

By Andrew Strickler | February 3, 2019, 8:02 PM EST

Mounting awareness in the U.S. legal system of the prevalence of wrongful criminal convictions hasn't stopped federal prosecutors around the country from fighting state efforts to codify the government's duty to help right a miscarriage of justice.

Opposition to a post-conviction prosecutor rule was most recently on display in Michigan, but legal ethics experts said U.S. Department of Justice resistance has been a consistent, though not universal, reaction to moves by other state courts to expand prosecutor ethics rules.

Ellen Yaroshefsky of Hofstra University's law school, who helped draft the American Bar Association's model for the post-conviction rule a decade ago, said federal officials put up "intense" but ultimately unsuccessful opposition to the ABA's 2008 augmentation of the prosecutor rule.

But a lot has changed. In the years since the rule was created, high-profile exonerations have become far more common, particularly through the use of DNA analysis. Spreading awareness about how the justice system can convict innocent people has spurred the creation of dozens of county and state prosecutor units tasked with investigating credible claims of wrongful convictions. Law enforcement officials in many areas of the country have also improved their use of photos lineups and forensic tools, or taken other steps to head off flawed prosecutions.

In contrast, U.S. attorneys in a number of states have continued to argue that conduct rules addressing prosecutors' particular duty to share evidence that a convicted person did not commit the crime just duplicate existing disclosure obligations, conflict with federal law, or put an unfair burden on prosecutors without corollary for defense attorneys.

Last fall, the Michigan Supreme Court became the latest state to update its prosecutor rule; it took effect Jan. 1. Amid the discussion about that standard, known as Rule 3.8(g) and (h), both U.S. attorneys in the state urged the high court not to make the change or, alternately, to make clear that the rule was merely "aspirational" and not grounds for a disciplinary action against a prosecutor.

The DOJ opposition in Michigan follows similar opposition from U.S. attorneys in states including Arizona, Illinois, California and Tennessee, all of which ultimately adopted the rule.

That stance is increasingly out of step with the legal community's more progressive attitude towards "actual innocence" investigations, Yaroshefsky said, and isn't supported by the experiences of prosecutors in states that do have the enhanced rule.

"And yet the DOJ persists," she said. "The DOJ has a lot of clout, and when a U.S. attorney comes into this discussion in a state, representing a powerful arm of the federal government, it's taken very seriously."

The ABA's 2008 overhaul of the rule, which outlines prosecutors' special duties, added a requirement for those with "new, credible and material" evidence that a convicted person was innocent to disclose the information to a court or other authority. If the conviction occurred in the prosecutor's jurisdiction, the rule also directs them to promptly inform the defendant unless a court authorizes a delay and to "undertake further investigation" to determine whether the defendant was in fact innocent.

Since the creation of the model rule, at least 19 states have adopted it in its entirety or a variant. Officials in a handful of other states either have considered and rejected amendments or are still reviewing the issue, according to ABA research and state bars.

Reflecting versions adopted in states including North Carolina, Hawaii and Illinois, the Michigan standard includes a safe-harbor provision for prosecutors to use their "independent judgment" to decide what new evidence triggers the post-conviction duty.

In an opposition letter to the state Supreme Court, U.S. Attorneys Matthew Schneider in Detroit and Andrew Birge in Grand Rapids argued that the rule presented "thorny" conflicts with the federal grand jury secrecy statute, among others. It could also create a direct conflict of interest between a prosecutor with evidence that an innocent person was convicted and their client — in this case, the U.S. government.

The rule could also "become a cudgel that will force prosecutors to choose between disclosing even marginally relevant material and becoming mired in a frivolous, but still resource-intensive, ethics proceeding," the letter said.

Bruce Green, a legal ethics expert at Fordham Law School who supported the Michigan adoption, called the officials' fears of statutory conflict "overstated."

According to Green. the rule is a "minimal obligation" clarifying the well-understood principle that prosecutors should always seek justice, even if it means acknowledging the system convicted an innocent person. Moreover, federal prosecutors are already statutorily obligated under the federal McDade Amendment to comply with the at-times inconsistent ethics rules of all jurisdictions in which they practice, Green added.

U.S. attorneys "carry a lot of weight, and if they would say 'We support this and here's a revised version we could get behind,' I think that would go a long way to seeing this adopted in more states as a basic ethical standard," Green said.

DOJ resistance to the enhanced rule has not been universal. The U.S. attorney's office in Manhattan did not oppose its adoption in New York in 2012, while the state District Attorneys Association supported the addition and was involved in negotiating the language, according to Green and others involved in the adoption process.

Since 2008, the year the ABA created the model rule, more than 1,300 criminal defendants have been exonerated, according to data from the National Registry of Exonerations, which counts misconduct by law enforcement and prosecutors as just one of many contributing factors.

The last eight years has also seen more than 35 state or county prosecutor's offices create "conviction integrity units" to investigate credible claims that a convicted defendant did not commit the crime. Those units, including one established by the federal prosecutor in Washington, D.C., were involved in 269 exonerations through 2017, according to the NRE.

"If the DOJ would switch positions, write a memo, that would be helpful in getting these units set up and to get federal funding," Yaroshefsky said. "But more significantly, on a state level, it would heat up the adoption process and support the state bars that take on the responsibility of getting these changes made."

A DOJ spokesperson in Washington declined to comment. A Birge representative was not available for comment. Schneider did not respond to requests for comment.

John Smietanka of Smietanka Buckleitner Steffes & Gezon, who was a county prosecutor and U.S. attorney in Michigan for a quarter-century, said DOJ officials there raised some valid concerns, and reasonably looked at the rule as a threat to case "finality" and the safety of witnesses. But Smietanka noted that, like many states, Michigan has also seen high-profile exonerations of innocent people who languished for years behind bars.

"It seems to me that a rational system should acknowledge that actual innocence is actual innocence before conviction or 25 years later," he said. "I believe the DOJ could show leadership on this, and offer assistance around the country, a kind of moral assistance, in many states that are struggling with this issue."

--Editing by Brian Baresch.

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