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Michael Kiefer at the Arizona Republic reports that the Arizona Supreme Court has adopted an amendment dealing with Rule 3.8 of the American Bar Association’s model rules on the Special Responsibilities of a Prosecutor. The Arizona Rules of Professional Conduct now include a subsection on the responsibility of prosecutors to disclose evidence that suggests a defendant did not commit the offense for which he was convicted. The rules provide that when a prosecutor comes to know of a possible wrongful conviction, he or she must disclose the new evidence to the trial court and the defendant’s lawyer, and work to make sure that the defendant’s case is reviewed.

In August we reported that Maricopa County Attorney Bill Montgomery was fighting this change, sending a representative to tell the Arizona Supreme Court that the provision 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.”

Kiefer’s recent series on prosecutor misconduct and wrongful convictions in Arizona, one installment of which focused on Montgomery’s office, seriously undercuts Montgomery’s assertion. His comments to Kiefer on this point were troubling:

Montgomery admitted he was not aware of many of the instances of misconduct or improprities that are described over the course of this series, even those that occurred while he has been in office.

That information rests with the middle-management supervisors, he said…

He said he does not weigh in on how prosecutors try their cases.

“The attorneys are trying the case, I’m not going to step in,” he said. “They’re on their own.” And if they need to be put in their place, “that’s the job of the judge. It’s the job of the defense attorney to object,” he said.

The adoption of the new provision by the Supreme Court will not automatically lead to the investigation of possible wrongful convictions by county attorneys in Arizona. Indeed, it is still up to prosecutors to abide by and enforce this rule in their profession. Montgomery insists that he is making every effort to ensure prosecutors in his office conduct ethical prosecutions in accordance with their professional responsibilities. His meaningful implementation of this new wrongful convictions provision is one important way he can demonstrate that.

ABA Rule 3.8 Special Responsibilities Of A Prosecutor

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 reasonable 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.

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