Wednesday, December 23, 2015
Last week, the Netflix documentary series "Making a Murderer" was released to a rapturous response. The series, created by Laura Ricciardi and Moira Demos, follows the trials and tribulations of Steven Avery, a Wisconsin man who...well, I won't spoil anything for readers who haven't watched the series. Indeed, I haven't even watched the series yet because I don't have a Netflix subscription.
As a result, this post is not about Steven Avery; it's about the ethical rule that was created as a result of his case and other similar cases.
As noted by Michael C. Griesbach in Why Avery Matters, 84-MAR Wis. Law. 6 (2011):
In response to a recent spate of high-profile [cases], including Steven Avery's, the American Bar Association amended its Model Rules of Professional Conduct to include a section entitled, "Special Responsibilities of a Prosecutor."
In full, Model Rule of Professional Conduct 3.8 reads as follows:
Rule 3.8 Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(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.
In theory, Rule 3.8 sounds great, and it might lead many listeners of Undisclosed to wonder why there was never any disciplinary action brought against the prosecutors in the Adnan Syed case, particularly for violations of subsection (d), which deals with Brady violations.
Well, as T. Owen Farist noted in Municipal Liability? Not So Fast: What Connick v. Thompson Means For Future Prosecutorial Misconduct, 63 Mercer L. Rev. 1113, 1125-26 (2012),
While courts may frequently consider violations under Brady, there is rarely any action taken against violations of...Model Rule [3.8]. This lack of enforcement results in Rule 3.8(d) being practically ineffective. Therefore, the functional consequence following Connick is that there will be "little to hold prosecutors accountable for their conduct" In reality, however, these sanctions might have always been all that was on the line for prosecutors, no matter the outcome of Connick.
The Connick case mentioned in the article is the Supreme Court's opinion in Connick v. Thompson, which I referenced on the podcast. It's the opinion that held that "[a] district attorney's office cannot be held liable for failing to train its prosecutors when the plaintiff proves only a single violation that has allegedly arisen from the inadequate training."
The result is that Rule 3.8 is an aspirational rule more than a practical rule. The reality is that prosecutors are rarely disciplined for misconduct, and criminal defendants are rarely entitled to relief, even in the face of extreme misconduct by the State officials prosecuting them.