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Why water down a proposed ethics rule for Texas prosecutors?

A State Bar committee missed an opportunity to help the wrongly convicted.

A committee of the State Bar of Texas has proposed a new ethics rule requiring prosecutors to take action when they discover evidence that someone may have been wrongfully convicted.

But after more than a year of debate, the proposed rule is disappointing. It’s been gutted of its original strength and falls short of what prosecutors should be morally obligated to do.

In June, we supported the work of the bar’s Committee on Disciplinary Rules and Referenda to take up this issue. Back then the panel was considering a new rule requiring prosecutors to not only disclose “new and credible information” creating a “reasonable likelihood” of a wrongful conviction to the appropriate court and defense lawyer, but also to investigate or make efforts to “cause an investigation” of the case.

The proposal was patterned after a model rule of the American Bar Association and similar to that already adopted by some other states. Violation would subject a prosecutor to an ethics violation, resulting in possible sanctions or even disbarment.

But over the summer, the Texas District and County Attorneys Association mounted opposition, complaining that the new requirements to investigate were unworkable, especially those in small, less-wealthy counties. The agreed-upon rule, published this month in the Texas Bar Journal for the public comment, omitted any duty for them to do so.

No duty for a prosecutor to investigate whether someone was wrongly convicted in the face of credible evidence that he or she was? That’s a shame.

Prosecutors are agents of justice, not members of a team looking to score convictions. By watering down the proposed new rule, the committee backed down under pressure and made it easier for the wrongly convicted to unjustly stay behind bars.

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

Mike Ware, executive director of the Innocence Project of Texas, shares our disappointment in the proposal but said at least it’s better than nothing. He also pointed out that it requires prosecutors to disclose potentially exonerating information to organizations like his that work to free the innocent, and that’s an improvement.

Being a prosecutor is a noble profession, forgoing the lucrative higher pay of private practice in the name of unglamorous public service. The vast majority of prosecutors probably do their jobs for honorable reasons, to seek justice for crime victims in a violent world.

A stronger new ethics rule “is not about getting prosecutors in trouble, it’s about giving them the impetus to do the right thing,” Ware said. In fact, ethical prosecutors concerned with making sure the actual criminals are locked up could have waved the new rule in the face of pressure to only win convictions. It’s unfortunate that the State Bar of Texas didn’t go far enough..



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