It's frightening how protected some agents of the court are from taking reponsibility for correcting wrongful convictions - they aren't even necessarily being blamed for misconduct. Prosecutors act like they are infallible and never need to take responsibility for their mistakes, while holding all the rest of us accountable for ours. Their resistance to being held to a higher standard than currently exists is the very reason we need these proposed rules to go into effect.
Arizona's prosecutors seem especially shameless. Instead of fighting these new rules they should be leading the way to building a more just system. I'm especially disappointed with Maricopa County attorney Bill Montgomery's response, but not surprised. He's refused to take action in the wrongful conviction of Courtney Bisbee: one of her accusers recanted several years ago, and has been fighting to get her case re-heard, but Montgomery won't even talk to the kid, who authored this petition.
Courtney's judge, Warren Granville, and Bill Montgomery both have the power to have her case re-opened tomorrow, if they wanted - they just refuse to exercise it because they don't want to admit liability for her wrongful conviction and prolonged imprisonment in the first place - she was convicted in a trial by judge, not jury. Prosecutors should not be allowed to represent counties in civil action because of the conflict of interest it creates, undermining the primary duty of the prosecutor being to the People, as evidenced here. If Montgomery's most pressing sense of duty was to justice for the People, Courtney's case would have had a new hearing by now.
Meanwhile, Courtney- whose family was financially ruined by her trial and who now has to represent herself - has been spending the past six or seven years in prison going through the appeals process trying to exercise her rights - the appeals process is cumbersome and time-consuming and often doesn't work to trigger new trials because of "technicalities", people - a trial can conform perfectly and still result in convicting an innocent person if all evidence wasn't available at the time, for example, as opposed to the evidence being withheld. In Courtney's case, the recantation of a chief accuser and witness hasn't guaranteed her a new trial.
Courtney Bisbee and daughter
Taylor Lee
The damage by wrongful convictions isn't just to the life of the accused - Courtney's whole family has been devastated, and her daughter is growing up without her. Criminal prosecution destroys lives and those people should get it right the first time, and should be mandated to fix things when exculpatory evidence presents itself - clearly what's in place now isn't working. Maybe these rules will compel prosecutors to be a little less reckless convicting people in the first place, too. Members of the public should read the petition Courtney's accuser wrote about her conviction, and write to the Arizona Supreme Court and tell them to support the proposed rule changes.
Here's their web comment form:
Here's the postal address:
Chief Justice Rebecca White Berch
Arizona Supreme Court
1501 W. Washington St
Phoenix, AZ 85007
excellent coverage here by Gary Grado the AZ Capitol Times, by the way...
----------------from the AZ Capitol Times------------------------
Proposed ethical rules would require prosecutors to disclose evidence even after convictions
By Gary Grado - gary.grado@
Published: December 17, 2012
Henry Hall was on death row when police found the remains of Ted Lindberry in the desert west of Phoenix in March 2001.
A
jailhouse snitch had testified that Hall bragged he beat Lindberry to
death, breaking his wrist and smashing his skull. But an autopsy of the
skeletal remains found no broken bones. And worse yet, prosecutors
didn’t inform Hall’s defense attorney about the discovery until a year
later, after the remains had been cremated.
A
bevy of defense attorneys led by Larry Hammond, who heads the Arizona
Justice Project, are citing troubling cases like Hall’s and wrongful
convictions throughout the country as reasons for proposing new ethical
rules requiring prosecutors to turn over new evidence that might prove a
defendant’s innocence after a conviction.
The
Arizona Supreme Court, which sets the rules governing attorneys and
court procedures, has drafted the proposed new rules and is seeking
input from the legal community. If the rules are adopted, prosecutors
could be disciplined by the State Bar of Arizona for violating them.
Under
the proposal, a prosecutor would have to inform the court and the
defendant if credible evidence surfaces that raises a reasonable
likelihood the defendant didn’t commit the crime for which he was
convicted.
Prosecutors
oppose the change for several reasons, said Yavapai County Attorney
Sheila Polk, chair of the Arizona Prosecuting Attorneys’ Advisory
Council. She said there are already rules of professional conduct, or
ethical rules, in place related to the concealment of evidence and
administering justice. There is also case law that requires prosecutors
to disclose evidence that clearly shows a defendant’s innocence after
conviction.
Polk
said defendants are also afforded the right to challenge their
convictions and offer evidence of innocence or new evidence after trial
in Superior Court.
The
proposed rules also require a prosecutor to “undertake further
investigation, or make reasonable efforts to cause an investigation” to
see if the defendant was wrongfully convicted after coming across new
information of possible innocence.
“I
think that’s a fundamental misunderstanding of prosecutors,” Polk said.
“Law enforcement investigates and they present to us cases to charge.”
Prosecutors
don’t have the resources to conduct investigations and they would
probably lose their immunity from lawsuits by venturing into
investigations, Polk said.
She said rules of professional conduct apply to all attorneys across the board, but prosecutors will have the extra obligations.
“Why all of a sudden are prosecutors being singled out?” she asked.
Hammond
said the proposed rules don’t impose a duty for prosecutors to
personally investigate, only that the prosecutor would be required to
ask local police to investigate.
“It amazes me this has been controversial at all,” said Hammond. “It is a hot-button issue for some prosecutors.”
Hammond
said the American Bar Association’s board, which consists of 500
people, unanimously approved the proposed rules in 2009, and the
National District Attorneys Association and prosecutors from around the
country have supported them.
“Everybody
thought it was a great thing to make clear that every public prosecutor
has a duty to disclose newly discovered evidence when somebody is in
prison,” Hammond said.
Hammond
leads the Arizona Justice Project, a nonprofit organization that fights
for prisoners it deems to have been wrongfully convicted or who have
suffered clear and unmistakable injustice. The organization is involved
in several cases disputing the science used to convict people in cases
of shaken-baby syndrome and arson.
Siding
with the defense attorneys are former Attorneys General Terry Goddard
and Grant Woods and former Arizona Supreme Court Justices Stanley
Feldman, Charles Jones and Thomas Zlaket. Mark Harrison, an attorney
with expertise in attorney ethics, wrote a brief on their behalf in
support of the new rule.
“Wrongful
convictions unfortunately occur, and Arizona’s ethics rules currently
provide very little guidance to prosecutors post- conviction,” Harrison
wrote.
The
language in the proposed Arizona rules is nearly identical to model
rules, or guidelines, adopted by the American Bar Association in 2008.
As of Sept. 26, eight states have adopted the ABA guideline or a
modified version of it, while Michigan, Maryland and North Carolina,
rejected them. Nine states are studying whether to implement the rules.
The rest have done nothing.
The
ABA guidelines grew out of a 2006 report of the Association of the Bar
of the City of New York, which recommended the expanded ethical rules
for prosecutors “[i]n light of the large number of cases in which
convicted defendants have been exonerated, most often as a result of DNA
testing but also as a result of other proof that they were wrongfully
convicted.” The report stated that prosecutors should be obligated to
give serious consideration and devote resources to credible claims of
innocence after a conviction.
Maricopa
County Attorney Bill Montgomery filed a written response with the
Supreme Court opposing the rules, stating that Arizona is not facing a
problem with wrongful convictions.
Montgomery
pointed to the state’s poster-child of wrongful convictions, Ray Krone,
to prove that prosecutors do the right thing when presented with new
evidence. Krone was convicted of first-degree murder and sentenced to
death for the 1991 murder of Phoenix bartender Kim Ancona. He was
eventually exonerated in 2002 when DNA testing proved Kenneth Phillips, a
convicted rapist, was the killer.
“Revised
ethical rules are not necessary to further the goal of releasing
inmates who are actually innocent,” Montgomery’s chief deputy, Mark
Faull, wrote to the court.
Hammond
has a different recollection of how prosecutors reacted to Krone,
saying the Maricopa County Attorney’s Office fought efforts to have
evidence tested for DNA. It took media attention and a DNA match to
Phillips to get the state to pick up the pace in releasing Krone,
Hammond said.
“If
we didn’t have the good fortune of Phillips having the DNA in the
database, they would have fought that too, but they don’t like to talk
about that,” Hammond said.
Hammond
pointed out one case in which a Tucson woman, Carolyn June Peak, was
convicted of second-degree murder in the shooting death of her husband
after the prosecutor withheld reams of material, some of which would
have cleared her. Pima County prosecutors discovered the hidden evidence
after the original prosecutor, David White, died of cancer. The case
was eventually dismissed in 2003.
A
group of defense attorneys on the State Bar of Arizona’s Criminal
Practice and Procedure Committee also urged the Supreme Court to adopt
the rules. They stated that in Hall’s case the prosecutor in 2001 wasn’t
legally or ethically obligated to turn over the evidence of the remains
while the case was pending appeal. The state was able to argue to the
Arizona Supreme Court that the victim’s bones were broken, while not
mentioning the discovery of the remains or the autopsy finding that no
bones had been broken.
The court’s March 2003 decision in the case said Lindberry’s body has never been recovered.
Court
records show Hall’s attorney, Thomas Gorman, was informed six months
before the Oct. 31, 2002, oral arguments. Gorman said that didn’t
necessarily matter because the body wasn’t part of the trial record and
couldn’t be used as an issue on appeal.
Gorman
said prosecutors still should have told him about it and not destroyed
the remains, but instead he was left without an opportunity to have his
own pathologist examine the body.
He said he believes the prosecutors in the case acted unethically even without the proposed new rule.
“They are required to act in the interest of justice,” Gorman said.
“They’re there not just to secure a conviction, they’re there to do justice.”
Gorman
was able to convince the Supreme Court to reverse Hall’s murder
conviction and order a new trial based on misconduct of a bailiff.
Hall’s
new judge, Roland Steinle of Maricopa County Superior Court, ruled that
the defense could tell Hall’s new jury how the state didn’t disclose
the information on the remains. That wasn’t necessary because Hall
pleaded no contest to second-degree murder on Jan. 31, 2011, and he was
sentenced to 16 years in prison with 13 years credit. He is due to be
released in October 2013.
