Exculpatory Evidence

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The Arizona Supreme Court issued new rules last week that require attorneys to reveal evidence that could prove the innocence of a criminal defendant. Executive Director of the Arizona Prosecuting Attorneys’ Advisory Council Elizabeth Ortiz, and Keith Swisher, a defense attorney, discuss the issue.

Ted Simons: The Arizona Supreme Court issued new rules requiring prosecutors to reveal evidence that could prove the innocence of a criminal defendant. The rules say prosecutors must take steps to have a conviction overturned if they find clear and convincing evidence that a defendant is not guilty. Here to discuss what the Supreme Court enacted is Elizabeth Ortiz, executive director of the Arizona Prosecuting Attorneys Advisory Council, and Keith Swisher, an attorney and professor at the Arizona Summit Law School. Good to have you here. Your thoughts on what the Arizona Supreme Court enacted?

Elizabeth Ortiz: Well, the rule itself has very little impact on what prosecutors will do day in and day out. We have historically disclosed exculpatory evidence. While we had some comments regarding the particular aspects of this rule, we supported the principle of the rule and we continue to support the principle of the rule. It will not impact day in and day out what prosecutors have done and will do.

Ted Simons: Your thoughts.

Keith Swisher: I'm happy to hear Elizabeth say that because some of the comments didn't suggest the principle was supported, but I'm glad it's still supported. The rule will, in instances where a person may have been wrongfully convicted, make sure that evidence is disclosed, will require prosecutors to look into it, and if the evidence as you mentioned rises to the level of clear and convincing, then take steps to set aside the conviction. A wrongful conviction is perhaps one of the gravest tragedies in the criminal justice system because not only do you have the convicted defendant behind bars but you also have the truly guilty party out there. Typically these are violent crimes, committing further crimes against the public.

Ted Simons: My impression is that most prosecutors look at this and say this rule, the entire scope, not necessary.

Elizabeth Ortiz: That is exactly it. That was our initial reaction, the proposed rule change wasn't necessary because we're already disclosing exculpatory evidence. We had some concerns because it appeared it was targeting prosecutors for, we believe, no appropriate reason. Also we have some procedural issues such as it required reporting to a public defender's office where not all counties have public defenders. There are some problems along those lines, but we always did support the rule in principle and continue to.

Ted Simons: Was this necessary? Again, I'm hearing from some on the prosecutorial side that this is a solution in search of a problem.

Keith Swisher: I did see that, Ted. It is necessary to provide guidance to prosecutors in these very important circumstances. Perhaps the best argument I saw against the rule was as Elizabeth articulated, we do this already. So then I can't really see the argument as to why having a rule in place to give guidance to new and more seasoned prosecutors in these egregious situations would be a bad thing. I think it's a good new step for the state to have adopted it.

Ted Simons: Why not require steps, though, to be taken, to require steps to be taken if a wrongful conviction is evident?

Elizabeth Ortiz: There are already steps in place and have been in place for many, many years that prosecutors have been following. We have rule 15.1, our disclosure requirement that essentially tells prosecutors turn over everything you have. Prosecutors do and I myself am a career prosecutor. I was with Maricopa County attorney's office for years working in the trenches before I came to APAC to train and lead. I still carry a case load. This is what prosecutors have done and will continue to do. We follow rule 15.1. We follow case law. We follow the ethical rules.

Ted Simons: And yet there have been some high profile cases where it seems as though there was reluctance, there may have been an actual hindrance to this evidence by prosecutors. First of all, is that valid? Secondly, if valid, how come?

Keith Swisher: It's definitely occurred, Ted. I want to preface this statement by echoing Elizabeth's comments that most prosecutors are great. It's not an issue about every prosecutor. The problem is one person in prison innocent is too many. A rule like this helps to prompt the prosecutor's office to create structures to filter in the good evidence and the bad evidence and to more promptly get the innocent person released and the guilty person behind bars.

Ted Simons: Is there a reason -- again, we have heard, seen high profile cases where there's evidence that could have been shown that a convicted person was not guilty. We read about it in the paper, hear about it now and then here and there, enough to where the Supreme Court's chief justice said prosecutors do have a special duty, a special requirement. They represent all of us, and thus they should be held to a higher standard. Why not a higher standard?

Elizabeth Ortiz: We are held to a higher standard. When I train prosecutors I tell them, you're held to a higher standard. If you don't like that, with all due respect you've picked a wrong part of the legal profession this. This rule has never been about prosecutors trying to walk away from being held to that standard. For us it came down to whether or not it was necessary. Have there been a few isolated instances? Yes, there absolutely have. But I agree with Keith that they are very far and few between. What frustrates me is when those very far and few in between instances are sometimes used as a broad brush of what's going on. Prosecutors, we have -- that's our worst nightmare to convict an innocent person. Not only is a person who didn't commit the crime being punished, I have a victim, a victim whose hand I often held, who knew that I worked day and night to have someone held accountable and the wrong person. Finally, I'm a member of the community. When the wrong person is being punished that means a very potentially dangerous person is out there where my own family lives.

Ted Simons: But is there, again, the perception is when these instances, few and far between, when they occur there's not an emphasis, an urgency to either address that situation or in some ways address the person who is responsible for that situation.

Ted Simons: That, simply with all due respect, has not my experience there are many examples that don't necessarily make into the papers because the facts are not particularly interesting or sexy, if you will. For example, in Yavapai County recently they realized that some drug cases that they had charged, that due to the particular drug being mutated it did not fit within the very narrow statutory definition of that crime. They realized it and affirmatively went back and had those convictions undone. It's those types of things that happen every day in prosecutor offices but they don't make the headlines.

Ted Simons: Yet the Supreme Court chief justice wrote that prosecutors, special duty, ministers of justice. She referred to they are not advocates who seek convictions at all cost. Just that reference suggests that that is out there, correct?

Keith Swisher: Absolutely. In fact one thing we based the rule on was prosecutors' unique role in our criminal justice system. It's a critically important role as a minister of justice, whose purpose is not solely to convict. Justice doesn't just stop at conviction if it turns out we have the wrong person, right? So perhaps you lock a person up but it's the rare instance where you throw away the keys and not be willing to objectively reexamine the evidence. I would like to note, too, that there are instances where good prosecutors as Elizabeth noted do the right thing and it's not highlighted in the media. That's unfortunate. That would be a good correction when that does happen. On the other hand there are times when people, as the example in the drug case, Ray Crone, the Hall matter, et cetera, that a person shouldn't be convicted either legally or factually. When that happens, then there should be rules in place to prompt the prosecutors to take quick and effective action. Victims were mentioned a second ago and I would like to highlight a couple things with respect to victims. The only comment from victims directly in favor was a very influential victim who had been a victim of a violent sexual assault and had wrongfully identified the perpetrator. Once the real perpetrator was found she had to not only have gone through that violent offense but also made amends with the person whom she had helped to wrongfully convict. She filed a comment, she's also author of a "New York Times" bestselling book, in favor of this rule. The other good thing it does with respect to victims, we are now the 9th state to adopt this rule. For the first time it actually includes a notification gestures towards our victims notice laws that says if you're about to seek to set aside the conviction you would give notice to the victims. That might happen anyway, but the rules specifically require it now.

Ted Simons: As far as -- can prosecutors, can you order law enforcement -- say the requirements are in place, and there is someone claiming X, Y, and Z. What happens next? Are you able to take those steps? Can you order law enforcement to take these steps for more investigation? The logistics of something like this?

Elizabeth Ortiz: The logistics are I don't have the authority to order law enforcement. I can certainly work in conjunction with them and refer matters to them. What they and how they investigate is their discretion. Obviously, if circumstances are requiring it, prosecutors can go to court and seek court orders against any number of parties, but I can't actually order law enforcement.

Ted Simons: Bottom line, you don't have too much disagreement with what went on although you don't think it's necessary.

Elizabeth Ortiz: That is true.

Ted Simons: All right. We'll stop it there. Good to have you both here. Thanks for joining us.

Keith Swisher: Thank you.

Elizabeth Ortiz:Executive Director, Arizona Prosecuting Attorneys' Advisory Council;Keith Swisher:Defense Attorney;

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