Must a prosecutor disclose new evidence of innocence after conviction? Illinois ethics rules say yes.

I am embarrassed to say that until yesterday, when I read a Chicago Tribune story about a possible wrongful conviction in DeKalb County, I was unaware that the Illinois Rules of Professional Conduct now include the following new special duties of a prosecutor (Rule 3.8):

(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 reasonable 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 effect, the so-called “Brady rule,” requiring prosecutors to disclose exculpatory evidence to the defense before trial, now also applies after conviction under Illinois ethics rules. This is an extremely welcome development for those like myself who practice post-conviction innocence work, and for everyone concerned about criminal justice.

DeKalb County State’s Attorney Richard H. Schmack apparently takes Rule 3.8 very seriously. In an extraordinary 34-page filing in the case of Jack D. McCullough, convicted in 2012 of a 1957 murder of a young girl in Sycamore, Illinois (yes, you read those dates correctly – 55 years after the fact), Schmack describes in painstaking detail his six-month review of the case and the evidence that led him to conclude that McCollough was wrongfully convicted. Schmack points to a highly suggestive photo identification procedure conducted 53 years after the incident and maintains there were false statements in an affidavit for a search and arrest warrant as well as false testimony at McCullough’s trial. Further, and eerily reminiscent of the wrongful conviction of my former client Alan Beaman, Schmack agrees with the FBI’s 1957 conclusion that it was physically impossible for McCullough to have abducted the victim between 6:45 and 7:00 p.m. in Sycamore, based on a phone call McCullough made at 6:57 p.m. the same evening in Rockford, at least 34 miles from the scene.

Schmack states in the preamble to his factual report:

Rules 3.8(g) and 3.8(h) have only been in effect in Illinois for three months, so there is little precedent for a report such as this. The purpose and spirit of these new rules is obvious. They address with clarity the tragedy of wrongful convictions and provide a clear guide for prosecutors in evaluating a claim of actual innocence. I have concluded that a prosecutor is bound to consider personal knowledge and experience in life as well as the discovery in a case. The prosecutor is not a court, and is not bound by any prior determination of fact, if he or she knows that determination to be incorrect, wherever that knowledge originates. In short, the prosecutor can never leave his or her common sense out of the equation. The progress of a case from charging, through pre-trial, trial, appellate and post-judgment phases never lessens a prosecutor’s primary obligation to seek justice, rather than conviction.

Wow.  I couldn’t have said it better myself. Let’s hope that other Illinois prosecutors take note and are equally scrupulous about complying with their duties under Rule 3.8 – and that other states follow Illinois’s lead in imposing a continuing duty on prosecutors to ensure that the wrongfully convicted do not remain behind bars when new evidence of innocence emerges after trial.

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