New ethics rules adopted for SC prosecutors

By Steve Garrison, The Post and Courier

Defendants wrongfully convicted of a crime in South Carolina have an unexpected new ally: prosecutors.

Under changes made last week to the S.C. Rules of Professional Conduct, prosecutors are required to disclose evidence of innocence discovered after a defendant is convicted of a crime.

South Carolina joins about two dozen other states in adopting such ethics rules for prosecutors, which were first developed by the American Bar Association in 2008.

Some states, including North Carolina and Arizona, have gone further, requiring all attorneys to disclose credible and material evidence of a wrongful conviction to the defendant or his or her attorney.

John Freeman, professor emeritus for the University of South Carolina School of Law, said the new rules emphasize the special role prosecutors play in pursuing justice.

“The prosecutor’s job is to see that the right thing is done,” Freeman said. “And to protect the public by seeing that justice is as fair as it possibly can be. Not to put people in jail.”

Freeman said the rules eliminate ambiguity regarding a prosecutor’s responsibilities when new evidence is unearthed that casts significant doubt on a prior conviction.

Ninth Circuit Solicitor Scarlett Wilson said she supported the rule change.

“I think the rule is good and basically ‘codifies’ what good prosecutors do already,” she said.

Under the new rules, when a prosecutor becomes aware of “credible, material” evidence that indicates a defendant was wrongfully convicted, the prosecutor is required to disclose that evidence to the defendant, or the defendant’s attorney, as well as the chief prosecutor in the jurisdiction where the conviction was obtained.

A prosecutor who knows of “clear and convincing” evidence of a wrongful conviction in his or her jurisdiction has an ethical obligation to remedy the conviction, the rules state.

Prosecutors will need to determine on a case-by-case basis whether newly discovered evidence requires disclosure, Freeman said, but the rule requires they give serious thought to new evidence.

The new rule also provides hope for wrongfully convicted defendants who have otherwise exhausted their right to appeal, Freeman said.

“What this says, basically, is that so long as there is a possibility of proof surfacing that shows that the guy is innocent, it ain’t over,” Freeman said. “And, frankly, isn’t that the way it should be?”

More than 2,800 defendants have been exonerated of crimes they did not commit since 1989 in the United States, including nine defendants in South Carolina, according to the National Registry of Exonerations.