On February 8th, the American Bar Association conducted its Midyear Meeting, which focused on “Wrongful Convictions: Engaging in Critical System Reform.”
One of the panelists, a law professor at Pace University in New York stated, “We know why wrongful convictions occur.” The major reasons she identified are:
• False confessions coerced by police
• Mistaken identification by prosecution witnesses
• Witnesses who embellish or trim their testimony to please prosecutors or gain a promised benefit
• Discovery violations that deny defendants and their attorneys access to exculpatory evidence
Defense attorneys need to do their jobs. With hourly rates of $300-$1000 per hour, it is not unreasonable to expect your attorney to investigate and procure adequate discovery to litigate your case. (Whatever happened to Perry Mason?)
We have laws to compel prosecutors to turn over exculpatory evidence. It’s called Brady evidence (Brady v. Maryland, 373 US 83, 1963) and prosecutors are required under Brady to turn over any and all exculpatory evidence. So, it’s funny that the American Bar Association even has to have this discussion. Obviously, this very important law is not being enforced.
One defense attorney testified that, after he was unable to exonerate a client in a capital murder case, as he was suing for civil rights violations, he received much more exculpatory evidence at the civil level than he did for the criminal proceedings.
This begs the question: what was the prosecutor trying to do? Convict an innocent person? And how prevalent is this problem?
It’s prevalent enough that on February 11th, the American Bar Association’s policy-making House of Delegates voted to amend Model Rule of Professional conduct 3.8. The amendment would now require prosecutors to take action when they learn of evidence indicating that a person convicted of a crime may not have actually committed that crime.
Incredibly, the Justice Department asked that the motion be postponed.
Stephanie Landa
Whatever happened to the tenet that justice delayed (or, in this case, postponed) is justice denied?
Another issue addressed at the meeting was prosecutors’ requests for the subject of an investigation to waive attorney-client privilege in order to be deemed “cooperative.”
Why would they want us to give up our rights in order to be considered cooperative? Think about it.
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