Defense Perspectives on the Prosecutorial Ethic

The final morning session at The Prosecutorial Ethic: A Tribute to King County Prosecutor Norm Maleng was "Defense Perspectives on the Prosecutorial Ethic," with:

• Jacqueline McMurtrie (moderator)
• Daniel S. Medwed, professor at Univ. of Utah
• Ellen Yaroshefsky, professor at Cardozo Law School
• and Daniel T. Satterberg, King County Prosecuting Attorney

Much of the discussion was about post-conviction claims of innocence. (Professors Yaroshevsky, Medwed, and McMurtrie are all connected with innocence projects.)

The ABA has new language in rule 3.8 of the Model Rules of Professional Conduct:

(g) When a prosecutor knows of new, credible and material evidence creating 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 conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonablehttp://www.blogger.com/img/gl.link.gif efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) 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.

Yaroshevsky was involved in the drafting of the rule. Satterberg reports that the has proposed some alternative language.

Medwed and Yaroshevsky both talked about prosecutor's offices setting up units to investigate post-conviction claims of innocence. Minneapolis, San Diego, Dallas, and some other cities have such units. Some focus on DNA evidence. Dallas's unit covers any claims. Yaroshevsky used the term "conviction integrity units."

Satterberg began his remarks with this: “I’m Dan Satterberg and I deserve your close scrutiny.” He continued by saying that it's not because he's shifty and up to no good, but simply because he's the prosecutor. Prosecutors have unreviewable power in three areas: the decision to charge, the decision not to charge, and the decision to resolve a case short of trial. If prosecutors overcharge -- make charges they can't prove -- then the jury is a check. But otherwise, there aren't checks in these areas of discretion -- other than prosecutors' accountability to the people.

The panelists discussed different techniques to prevent wrongful convictions, notably working on the problems of mistaken eyewitness identification. Yaroshevsky recommended the list of reforms at InnocenceProject.org.

By the way, Yaroshevsky also had a plea for sensitivity in terminology. Too often people refer to any problem in prosecution that lead to wrongful conviction as "prosecutorial misconduct." But that's not fair to prosecutors: many problems aren't "misconduct," so she'd like to see more use of the term "prosecutorial error," which packs less of a bite.