According to an Arizona Supreme Court enactment updating Ethical Rule 3.8, prosecutors are required to turn over to defense attorneys any evidence showing the possible innocence of a convicted person, and prosecutors must take it upon themselves to get the conviction reversed if they find “clear and convincing evidence” proving the defendant’s innocence, the Arizona Republic reports.
The role of the prosecutor is to represent all citizens, “and therefore they, like judges, are held to higher standard and should help remedy any errors that result from our sometimes imperfect system of justice,” Supreme Court and Chief Rebecca White Berch wrote in an email to the Republic.
Berch said that Ethical Rule 3.8 supports the notion that it is the duty of prosecutors to act as “ministers of justice” who work to represent all citizens fairly rather than seek convictions at all costs; however, Maricopa County Attorney Bill Montgomery and other attorneys are rejecting the new rule.
A statement made under Montgomery’s name claims that the change is unnecessary.
“We have no real-world examples of prosecutors discovering evidence of the nature that would trigger a duty under this rule,” because “prosecutors in Arizona already fully embrace their roles as ministers of justice when (it) comes to righting wrongful convictions,” the Republic reports.
Montgomery’s objection cited that prosecutors were already reexamining their convictions. An example in his file said that his office was recently working to drop charges against people pleading guilty to “huffing,” the act of intentionally inhaling vapors as a way to get high, because the law had been misinterpreted.
Although this may be true in regards to those specific cases, the Republic reported a case that challenges the perception that prosecutors are diligent when it comes to turning over exculpatory evidence.
Henry Hall was sentenced to death in 1999 for the murder of Ted Lindberry who was killed due to a blow to the head by Hall and dumped in the desert, according to testimony made by a jailhouse informant who claimed Hall had described the events to him.
In 2001 Hall’s conviction was overturned by the Arizona Supreme Court due to juror misconduct, and Lindberry’s remains, which weren’t found at the time of Hall’s conviction, were discovered in a location differing from the informant’s testimony with an intact skull.
Despite the promising new evidence, a series of unfavorable events followed for Hall. Lindberry’s remains were promptly returned to his family and cremated, but Hall’s defense attorney didn’t know about the discovery of the body and the condition of the skull until about a year after the cremation, according to court documents, making the exculpatory evidence virtually useless.
During retrial, prosecutors wanted to use the informant’s original testimony, but Superior Court Judge Roland Steinle didn’t allow it because the information was proved false and the informant had died. Steinle did allow the defense to inform the jury of the situation with the discovered evidence as punishment to prosecutors for not previously disclosing such crucial information, but that didn’t necessarily help Hall or the defense.
Prosecutors were not satisfied with the idea of losing a conviction and took the case to the Arizona Court of Appeals, still insisting on using the original, false testimony. The appeal and a request by the defense to dismiss the case for prosecutorial misconduct were denied in 2011.
There’s no guaranteeing that Hall’s conviction would have been overturned if Rule 3.8 existed at the time, but the muddled situation wouldn’t have been an issue because prosecutors would have known how to properly and fairly proceed with the new evidence.
Hall, having already spent 13 years in prison, was offered by prosecutors a plea to second-degree murder and a prison sentence of another 16 years.
Citizens rely on those in power to fight for justice under all circumstances, and although it’s a complicated and controversial process, amendments to the system and additional ethical rules and improvements like Rule 3.8 will help law enforcement, prosecutors and others work more transparently in the future.
