There is, apparently, a new rule in New York. From Thursday's New York Law Journal (subscription required for the article, my father was once the chief assistant editor, but I don't get it free), we learn that a prosecutor who's got "clear and convincing evidence" (an altogether nebulous standard - as they all are - that's more than a preponderance of the evidence but less than beyond a reasonable doubt) that someone's innocent of the crime for which he was convicted
shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.
Which is, I suppose, better than a formal rule saying that the evidence of innocence should be buried.
Remember those folks in North Carolina? The more than 60 of them who went to prison for federal gun violations they didn't actually commit? The ones the government is really concerned about since they're innocent and in prison but, as I wrote in June, the government won't tell them or their lawyers.
Says the Justice Department,That's for us to know and them to figure out.Oh, and they can't be released.Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.Because, you know, um, you know, it's because, er, what was that again?
The thing is, this is really very simple.
If the evidence is clear and convincing that someone is innocent of a crime for which he or she was convicted, the prosecutor's duty should be so clear that no rule is required.
Move heaven and earth to get the conviction reversed and, if the person is doing time for it, get him released. Immediately. Now. Before dinner.
But because prosecutors don't get that intuitively, they need a rule. Not one that says to consider the facts and circumstances and what justice requires and the law allows. That rule, the new New York rule, leads to
- Gee, he didn't do this, but he's a bad guy so we should keep him locked up.
- Gee, the law is hard to get around, so let me do 6 or 8 years of research.
- Gee, if he's so innocent, shouldn't he be doing something about it.
- Gee, it's juries who decide, and who am I to say they were wrong?
- Gee, he entered a guilty plea so he can't be innocent no matter what the evidence.
- Gee, I've got a headache.
As a public service then, I offer a proposed new rule:
Get him the fuck out of prison!