Posted by BH
By NANCY GERTNER And BARRY SCHECK
On Thursday, a special prosecutor released his report on the botched prosecution on corruption charges of the late Sen. Ted Stevens. It's worth noting the lessons learned from this investigation. Otherwise, wrongful convictions will continue.
The special prosecutor, Henry Schuelke, found that Justice Department lawyers committed ethics violations by the deliberate and "systematic" withholding of critical evidence pointing to Stevens's innocence, but he declined to go further. The reason: There was no court order expressly directing the government lawyers to turn over the evidence. Criminal charges can only be brought when there is a knowing and intentional violation of an order.
In sharp contrast, on Friday, Feb. 17, the chief judge of the Texas Supreme Court convened a court of inquiry to determine whether the former Williamson County district attorney violated state laws by failing to turn over evidence that could have prevented Michael Morton from spending 25 years in prison after his 1987 conviction for a murder that DNA evidence now proves he didn't commit.
The judge in the Morton case could deal directly with the prosecutor's alleged misconduct while the judge in the Stevens case could not. The Texas prosecutor had been expressly ordered by the trial court to turn over the lead investigator's complete report, an order that made certain all exculpatory evidence would be disclosed. The obligations of the Stevens prosecutors, while based on the Constitution and the disciplinary rules of the profession, were not formally embodied in a court order.
The two cases present a simple solution
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for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible.
Issuing this order pretrial, at a time when most prosecutors are re-interviewing witnesses and reviewing their file, would encourage a more careful review of their case and their obligations. If prosecutors had a checklist similar to those the medical profession has used to dramatically reduce errors in intensive care units, they would not only discover more exculpatory evidence but develop valuable data about weaknesses in their evidence-gathering and evaluation processes.
This proposal can be implemented tomorrow by every state and federal judge in the nation without the need for legislation. Ultimately, it will benefit prosecutors, defendants and the courts by eliminating any confusion surrounding the disclosure of exculpatory evidence.
The Supreme Court has long held that a criminal conviction will not be reversed for failure to disclose exculpatory or impeaching evidence unless the appellate court finds that the undisclosed evidence was "material," or so important that it "undermines confidence in the outcome of the trial." It can be difficult for a prosecutor, particularly in the heat of battle, to decide before a trial whether undisclosed evidence that appears favorable to the defense will be considered "material" by appellate courts after a conviction.
With this dilemma in mind, decades ago the American Bar Association promulgated an ethics rule which has been substantially adopted in 49 states, Guam and the District of Columbia: Prosecutors are obligated to make timely pretrial disclosure of any evidence they know about that "tends to negate the guilt of the accused or mitigate the offense."
A direct order by a judge to follow the ethics rule and disclose all evidence that "tends to negate guilt" will act as a deterrent to the overzealous prosecutor. Disobedience of a direct court order is contempt, which is an ongoing offense. So contempt prosecutions of unscrupulous prosecutors whose suppression of exculpatory evidence is discovered many years after the act won't be derailed by statute-of-limitations problems (which have been a significant obstacle to prosecuting prosecutors).
Most failures to disclose exculpatory evidence are the result of inadvertence or negligence, and their eventual discovery would not normally result in disciplinary actions, much less criminal charges. The importance of this order would be to hold prosecutors accountable in the most egregious cases—such as Stevens's, in which the special prosecutor found not one but multiple instances where the prosecution "willfully" withheld information pointing to Stevens's innocence.
This simple proposal is not original or heretical. It has been raised in similar forms by many scholars and follows long-standing ABA policy. It does nothing more than provide a concrete way to enforce an ethics rule that our profession assures the public we follow, an ethical rule that protects our most cherished objective—a fair trial.
Ms. Gertner, a former judge of the United States District Court for the District of Massachusetts, teaches at Harvard Law School. Mr. Scheck is the co-director of the Innocence Project, a national organization dedicated to exonerating wrongfully convicted individuals.
A version of this article appeared Mar. 16, 2012, on page A13 in some U.S. editions of The Wall Street Journal, with the headline: How to Rein In Rogue Prosecutors.