Under a new rule of professional responsibility proposed for the ABA's Model Rules of Professional Responsibility, prosecutors are required to take affirmative action when they know of "new, credible, and material evidence creating a reasonable likelyhood that a convicted defendant did not commit an offense" for which they have been convicted.

http://www.ndaa.org/pdf/aba_death_penalty.pdf

Don't we already? It must be a problem in New York, though, where this duty was first imposed. I expect we will see this cited really soon in a death penalty opinion.

JAS

Seems to me that the same rule should apply to the defense attorney. How many times have we seen defense attorney found ineffective for failing to do a proper investigation or follow leads. When will that be recognized as an ethical violation that is punished?

I could not agree more, John. Did you see the NDAA site also has the ABA proposed guidelines for prosecutors serving an investigative role. How about the ABA spells out the same for defense counsel?

JAS

Interesting questions, as to both prosecution and defense.

Would defense counsel's obligation stop at following up on info about their own client's possible innocence? Or would it include coming forward when they know the wrong person was convicted...?

I personally don't seriously consider any opinion or proposal spewed forth from the ABA. They quit being a professional organization long ago. They ought to be outed for being the PAC they truly are.

[now stepping down from soap box]

The danger presented by the ABA proposed model rule (which I was told my be voted on by the ABA governing board as early as today) is that it ignores a prosecutor's good faith belief in guilt, notwithstanding some new evidence that may raise some level of doubt. This rule, if instituted in the state, gives the attorney for the convict a powerful new weapon to wield against a prosecutor -- a grievance -- if the prosecutor fails to take affirmative steps to get a guy released because somone argues there is "clear and convincing" evidence of innocence.

Most folks are comfortable with turning over newly-discovered evidence to an attorney for a convict, or notifying the court so the court can appoint someone. Heck, I get letters from inmates now and then claiming innocence, and I send them straight over to the UT actual innocence clinic. Under the ABa standard, do I really need to open an investigation myself?

quote:

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Originally posted by Bob Cole:
I personally don't seriously consider any opinion or proposal spewed forth from the ABA. They quit being a professional organization long ago. They ought to be outed for being the PAC they truly are.

[now stepping down from soap box]

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Bob, you make an excellent point. I stopped believing in the Anti-Prosecutor Bar Association long before I ever entered into this profession.