Bill Montgomery Opposes Ethics Rule Requiring Prosecutors to Reveal Evidence of Wrongful Convictions
Monty's against requiring prosecutors to reveal new evidence of a convict's innocence . . .
As Maricopa County Attorney Bill Montgomery fights to keep Debra Milke behind bars pending a retrial on her overturned murder conviction, he also is fighting a proposed rule to the State Bar of Arizona that would require prosecutors to act on new evidence of a wrongful conviction.
For the past two years, the Arizona Justice Project has petitioned the Arizona Supreme Court to change the State Bar of Arizona's ethics rules, adding a provision based on the American Bar Association's Ethical Rule 3.8.
The ABA's rule states that if a prosecutor discovers "new, credible, and material evidence" of a wrongful conviction, he or she must disclose the evidence to the defendant and "undertake further investigation or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit."
Should there arise "clear and convincing" evidence of the innocence of someone convicted in the prosecutor's jurisdiction, "the prosecutor shall seek to remedy the conviction." According to the AJP's filings, eight states have adopted the ABA rule in whole or in part, largely over concern caused by a slew of death penalty cases nationwide that have been overturned due to new evidence.
Based on the suggestions of local prosecutors, the Arizona Supreme Court re-opened comments on the proposed rule this year, offering a somewhat watered-down version of the ABA rule.
"(g) When a prosecutor knows of new and credible evidence that the prosecutor knows creates 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 judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, promptly disclose that evidence to the defendant unless a court authorizes delay.
(h) When a prosecutor knows of clear and convincing evidence that the prosecutor knows establishes that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall take steps in the appropriate court, consistent with applicable law, to set aside the conviction.
(i) A prosecutor's independent judgment, made in good faith, that the information is not of such a nature as to trigger the obligation of this rule, though subsequently determined to have been erroneous, does not constitute a violation of this Rule."
In a county that has given us the wrongful murder conviction of Ray Krone, the extra-constitutional antics of disbarred former county attorney Andrew Thomas, and now the overturned conviction of Debra Milke, whose still-warm spot on death row was secured via the testimony of a Phoenix Police Detective with a long history of lying and abuse of authority, a rule such as this would seem a no-brainer.
But not to Montgomery, who still wants his prosecutors to have the ability to hide the football after a conviction without fear of sanction by the state Bar.
In a comment to the court penned by Mark Faull, Monty's chief deputy, Faull argues that these "new obligations" would be "confusing and burdensome" and that there is "no convincing evidence that Arizona has a 'problem' of wrongful convictions" or that "prosecutors have failed to take corrective action when appropriate."
This proves conclusively that at least some prosecutors come from an imaginary planet where unethical behavior by their tribe does not exist.