More on Bar Resolution 09-2 (Special Responsibilities of a Prosecutor)

An especially alert SCOIDBlog reader notes the SCOTUS has recently suggested that the prosecutor's Brady obligation does not extend into post-conviction. See, District Attorney's Office v. Osborne, 123 S.Ct. 2308, 2319-2320 (2009). This should make us all especially motivated to attend the bar resolution meetings.

In Osborne, the defendant had been convicted and his case was final when he sued state officials under 42 U. S. C. §1983 claiming "that the Due Process Clause and other constitutional provisions gave him a constitutional right to access the DNA evidence for what is known as short-tandem repeat (STR) testing (at his own expense)." The Circuit Court concluded that the State had an obligation under the principles of Brady and ordered that access be given to Osborne. The Supreme Court reversed, finding that there was no "free-standing" constitutional right to access DNA evidence. "Osborne’s right to due process is not parallel to a trial right,but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in post conviction relief. Brady is the wrong framework."

Resolution 09-2, however, requires that a prosecutor promptly disclose "new, credible material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted" to the court and to the defendant "if the conviction was obtained in the prosecutor’s jurisdiction" and also to make further efforts "to determine whether the defendant was convicted of an offense that the defendant did not commit."

In addition, the Resolution provides that "when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction."

I'll be at my meeting to cast a vote in favor. These meetings are usually sparsely attended, so just a few votes can determine the outcome. The Bar Road Show is in Coeur d'Alene today (Hampton Inn at noon) and then in Caldwell, Boise, Twin Falls, Pocatello and Idaho Falls next week.