January 27, 2023

A State Bar of Texas committee has proposed a new code of ethics that would require prosecutors to take action when they discover evidence that someone may have been wrongly convicted.

But after more than a year of debate, the proposed rule is disappointing. It has been stripped of its original strength and falls short of what prosecutors should have a moral duty to do.

In June, we supported the work of the Bar Association’s Committee on Disciplinary Rules and Referendums to address this issue. At the time, the panel was considering a new rule that would require prosecutors not only to disclose “new and credible information” that creates a “reasonable likelihood” of wrongful conviction to the appropriate court and defense counsel, but also to undertake investigations or make efforts to ” an investigation” of the case.

The proposal was modeled after a model rule from the American Bar Association and is similar to one already adopted by some other states. Violation would expose a prosecutor to an ethical violation, which could result in possible sanctions or even disbarment.

But over the summer, the Texas District and County Attorneys Association protested, complaining that the new investigation requirements were unworkable, particularly in small, less affluent counties. The Agreed Rule published in this month Texas Lawyer’s Journal for public statements, you are not obliged to do so.

No duty for a prosecutor to investigate whether someone has been wrongly convicted given credible evidence? That’s a shame.

Prosecutors are agents of justice, not members of a team seeking convictions. By watering down the proposed new rule, the committee relented under pressure and made it easier for those wrongly convicted to remain wrongly behind bars.

According to the National Registry of Exonerations, 447 people have been exonerated in Texas this month since 1989. Only Illinois had more at 602.

Mike Ware, executive director of the Innocence Project of Texas, shared our disappointment with the proposal but said at least it’s better than nothing. He also pointed out that prosecutors need to share potentially exculpatory information with organizations like his that work to free innocents, and that’s an improvement.

Being a prosecutor is a noble profession, one that sacrifices the lucrative higher pay of private practice in the name of lackluster public service. The vast majority of prosecutors probably do their job for good reason, seeking justice for crime victims in a violent world.

A tougher new code of ethics “isn’t about getting prosecutors in trouble, it’s about giving them the impetus to do the right thing,” Ware said. Indeed, given the pressure to win only convictions, ethical prosecutors concerned with making sure the actual criminals are jailed could have waved the new rule through. It’s unfortunate that the State Bar of Texas didn’t go far enough.

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