Justice, Justice, You Shall Pursue

“When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.”

That sentence comprises the American Bar Association’s subheading “h” of its “Rule 3.8: Special Responsibilities of a Prosecutor.”

The prior subheading charges prosecutors that any evidence they encounter that might help reverse a conviction should be disclosed to “an appropriate court or authority” and to the convicted defendant; and to make “reasonable efforts” toward opening a new investigation.

In other words, if there is either clear evidence that the convicted person is in fact innocent, or evidence that could conceivably point in that direction, a prosecutor must take appropriate action.

Such action would seem to be a reasonable and straightforward product of a prosecutor’s responsibility to justice. And yet, the ABA can only recommend the policy. Adopting it as law is the privilege of each state. Only two states, Indiana and West Virginia, have approved it as-is; another 11, New York among them, have approved a modified version of the rule. Two states have rejected it entirely: North Carolina and Michigan.

No one knows how many prisoners in those states may have been wrongly convicted and incarcerated. But among them are five men who were convicted of a home invasion and murder in North Carolina’s Buncombe County. The men are free, but only because of the work of the state’s Innocence Inquiry Commission, an agency that investigates and evaluates post-conviction claims of factual innocence. Had the prosecutor in the case, Ron Moore, been required to present exculpatory evidence in his possession, the men would have been freed years earlier.

The crime took place in 2000, and the convicted men pled guilty — because, they say, they feared that a trial could have resulted in a death sentence. It turned out, though, that Mr. Moore, the District Attorney at the time, had been informed in 2003 that another man had confessed to the murder and implicated yet another man, whose DNA was found on masks near the scene of the crime. That information, however, was not disclosed to anyone by the District Attorney.

Two of the innocent men were exonerated in 2011 — the others, only last year. The county agreed to pay the five a total of nearly $8 million.

The ABA rule requiring prosecutors to act on post-conviction exculpatory evidence was rejected several years ago by North Carolina after the state’s Conference of District Attorneys voiced opposition to it, claiming it was too broad and burdensome. Jim Woodall, the District Attorney for North Carolina’s Orange County, asserts that clear evidence like DNA doesn’t generally come to light. More typical, he says, are phone calls from people saying they heard from a friend that a witness claimed to have lied on the stand.

But simply amending the language of the ABA rule, as 11 states have done, to protect prosecutors who, in good faith, did not act on what they considered unreliable claims or inconclusive evidence should be sufficient to shield prosecutors, while at the same time affording convicted defendants evidence or information that might reverse their verdicts.

Crime, especially violent crime, is a topic of great concern to our community. Rabi Chanina Sgan Hakohanim advised us long ago to pray for the welfare of the government, “since were it not for the fear it inspires in citizens, they would swallow one another alive” (Avos, 3:2). The Gemara (Avodah Zarah, 4a) derives that idea from the Navi Chabakuk, who compares people to fish (1:14). Observes the Gemara: “Just as with fish of the sea, the larger swallows the smaller, likewise among people, were it not for the fear of the government, the larger would swallow the smaller.”

And so, the prosecution of violent criminals must certainly not be hindered in any way. But the very same ideals of justice and protection of citizens that animate our commitment to law and order must impel us as well to support efforts aimed at helping the wrongfully convicted.

Requiring prosecutors to execute due diligence when it comes to evidence that could prevent the wrongful punishment of innocent people is not a political issue, but an ethical one.

An ex-federal prosecutor who drafted the ABA rule, Bruce Green, said that some “prosecutors argue the world will come to an end if we have these provisions.”

No, the world won’t end with the provisions. But without them, the worlds of some innocent men may well.