In December 2015, I interviewed, in his office in Shreveport, Louisiana, A. Martin Stroud III, the former Chief Assistant District Attorney of Caddo Parish for a book I was then writing on injustice (Broken Scales: Reflections On Injustice, ABA Publ. 2016). The reason? In 1984, Stroud had prosecuted and convicted before an all-white jury one Glenn Ford, a black man represented by court-appointed lawyers with zero criminal experience, for the murder of a local jeweler. Ford was sentenced to death and sat on death row at Angola—the worst of the worst—for 30 years, all along maintaining his innocence.

In 2013, long after Stroud went into private practice, “credible evidence” exonerating Ford came to the attention of the then-district attorney, who called Stroud telling him he had convicted a man who turned out to be innocent. Ford was going to be released, “so, now we set it right,” said the DA. “We set it right.” Just imagine! Stroud successfully had prosecuted an innocent man to death row.

Stroud didn’t ask what the “credible evidence” was; he didn’t challenge the district attorney’s exoneration; and he also didn’t in any way defend himself for the injustice which he had helped perpetrate, however unintentionally. In fact, he astonishingly turned himself into the Disciplinary Committee (which, understandably, did nothing), and visited Ford and tried to apologize—an apology which Ford was not prepared to accept. Ford died months later from a cancer that went undetected while he sat on death row. As of the interview, Stroud was living his life with “a north wind blowing through a hole in my gut”—even though he, at least consciously, had had no inkling that there was anything wrong with the case against Ford until he got that call from the DA.

Stroud’s mesmerizing response—not even asking the DA what had gone wrong—seemed almost bizarre when he told it to me. So what, indeed, is the obligation of a prosecutor when a past injustice surfaces, or even begins to surface?

The renewed controversy over the Central Park Jogger prosecution from 1990, resulting largely from the Netflix series When You See Us, made me think of Stroud. In the largely fictionalized series, the prosecutors (who did not participate in the show’s production) are portrayed as having known from the outset, or at least strongly suspected, that the youthful defendants charged simply couldn’t have been guilty of the rape. The prosecutors thought the defendants were guilty of separate “wilding” crimes on the same night, but not necessarily the rape. An article concerning issues with the series, however, is one to be written by a First Amendment authority, which I am not. And this article is not about the public clamor for vengeance impacting the decision by the district attorney’s office to indict the case despite what, at least in retrospect, should have raised serious questions about the overall proof and especially the reliability of the defendants’ (recorded) confessions.

Linda Fairstein, the chief sex crimes prosecutor at the time of the trial (although she didn’t try the case), slammed When You See Us in her piece in The Wall Street Journal on June 10, 2019 (“Netflix’s False Story of the Central Park Five”). Fair enough—there is little question that the series is a fictionalized depiction with no input from the prosecution team. Notwithstanding what Fairstein says were “falsehoods” in the series, after it aired Fairstein resigned or was asked to resign from a number of boards and was dropped by her publisher (she is a best-selling author). Laura Italiano, “Linda Fairstein Dropped by Publisher After Central Park Five Backlash,” NY Post, June 7, 2019.

There is no question in my mind that Fairstein truly believed the defendants were guilty across the board. Indeed, back in 2002, after Matias Reyes’ confession which so undermined the integrity of the convictions, she told Jeffrey Toobin of The New Yorker, “I think Reyes ran with that pack of kids. He stayed longer when the others moved on. He completed the assault. I don’t think there is a question in the minds of anyone present during the interrogation process that these five men were participants, not only in the other attacks that night but in the attack on the jogger.” A Prosecutor Speaks Up, Nov. 24, 2002. In other words, she—in speaking to the press—challenged her former office’s seemingly independent determination that the Central Park Five were wrongfully convicted of rape, and criticized its decision to even seek vacatur of their convictions for attempted murder and lesser counts of assault and sexual abuse, even though these defendants had all served their sentences.

Not to mention that Fairstein was opposed to the City settling the criminal defendants’ civil case against the City, even though Corporation Counsel Zachary Carter made clear that the settlement “should not be construed as an acknowledgement that the convictions of these five plaintiffs were the result of law enforcement misconduct.” Benjamin Weiser, “Settlement Is Approved in Central Park Jogger Case, but New York Deflects Blame,” The New York Times, Sept. 5, 2014. Maybe Fairstein only wanted a full airing of the case so that her side of the story would be told given the enormous criticism she had received.

In the face of the obvious injustice resulting in the convictions for rape (and rape-related crimes) which led Donald Trump to call for the death penalty back in 1989, President Trump—in the face of Reyes’ confession, the Netflix series and the late Robert Morgenthau’s decision to call for vacatur of the convictions (granted by the court)—still tells the public that they are guilty. Indeed, Trump, as recently as this past June, essentially relied on Fairstein’s public unwillingness to exonerate the defendants for the rape. Aaron Rupar, “Trump still refuses to admit he was wrong about the Central Park 5,” Vox, June 18, 2019.

Should a prosecutor—any prosecutor—faced with a confession years later by one who credibly claimed he acted alone, publicly stick to his or her guns about the case, even after their own office has investigated and determined that the convictions should be vacated? Even if that prosecutor still personally believed in the defendants’ guilt?

Stroud and Fairstein are two ends of the spectrum for sure, and a description of their diametrically polar responses is designed merely to lay the framework for a discussion of a prosecutor’s ethical obligations when it appears that one convicted is innocent. And to be sure, to their credit, major prosecution offices in New York—for example, New York County and Kings County—have now institutionalized conviction integrity units to deal with wrongful conviction claims, although I was told, in response to my verbal requests, that they don’t have specific or published protocols that address precisely how to deal with new information that may lead to an exoneration. That aside, what are the ethical duties of prosecutors to deal with such situations?

The Rules

To begin, a prosecutor is “a minister of justice and not simply an advocate. Comment [1] to Rule 3.8 of ABA Model Rules and NY Rules of Professional Conduct. Prosecutors have a duty to see that justice is done. That duty “continues even after a criminal proceeding ends …” N.Y. Eth. Op. 1152 (2018). Yes, prosecutors have a duty to defend convictions. That duty, however, is not absolute: “the prosecutor should temper the duty to defend with independent professional judgment and discretion [and] should not defend a conviction if the prosecutor believes the defendant is innocent or was wrongfully convicted, or that a miscarriage of justice associated with the conviction has occurred.” ABA Criminal Justice Standards for the Prosecution Function, 3-8.1. To be sure, it’s not only about innocence, but even wrongful conviction.

Rule 3.8 of the NYS Rules incorporate special rules relating to the duties of prosecutors with respect to wrongful convictions. When a prosecutor knows of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,” the prosecutor must act to disclose that information to a court and undertake further investigation. Rule 3.8(c). More to the point, when “a prosecutor knows of clear and convincing evidence establishing that a defendant was convicted, in a prosecution by the prosecutor’s office, of an offense that the defendant did not commit, the prosecutor shall seek a remedy consistent with justice, applicable law, and the circumstances of the case.” NY Rule 3.8(d).

Professor Roy D. Simon, in Simon’s New York Rules of Professional Conduct Annotated (Thomson Reuters, 20th ed. 2019), parses this language as only Professor Simon can—evidence must be clear and convincing, and the prosecution must have been brought by that prosecutor’s office. But at bottom, he concludes, this provision “makes clear that prosecutors are not ethically prohibited from seeking a remedy other than vacating the original conviction (particularly where the … evidence indicates that the defendant is guilty of a related offense).” Simon at 1118. In other words, prosecutors basically have latitude to advocate for whatever they believe is the correct remedy.

In establishing its ethical rubric, the rules allow prosecutors to make mistakes. NY Rule 3.8(e) provides that a “prosecutor’s independent judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations … though subsequently determined to have been erroneous, does not constitute a violation of this rule” See also ABA Rule 3.8, cmt. 9 (same). Thus, a “prosecutor’s misjudgment about the weight and character of new evidence is not grounds for discipline.” Simon at 1119. As Simon warns, however, it is a safe harbor only to those prosecutors who make a good faith, independent judgment as to a convicted defendant’s guilt or innocence.  Once a prosecutor’s obligations pursuant to Rule 3.8(c) come into play, a prosecutor is only excused from being wrong about a person’s innocence if she actually disclosed the evidence and performed an investigation.

The interesting thing in the Central Park Jogger case is this: District Attorney Morgenthau, to his credit, asked the court in 2002 to dismiss all of the charges, including the unrelated charges based on conduct that took place at different locations in Central Park and which may have been sustainable even if the defendants were totally innocent of the rape. Sometimes a prosecutor needs to find a broader remedy to accomplish justice, to the extent possible, when there has indeed been a colossal injustice.

Conclusion

Lest this article seem overly judgmental concerning the prosecution of the Central Park Jogger case, I note the following: When I was a young, inexperienced New York state corruption prosecutor, I filed indictments against four corrupt narcotics detectives for stealing money at the scene of a large drug sale. The necessary non-accomplice corroboration testimony was, I believed, clear cut for one detective, questionable for two more, and simply not there at all for the fourth. I truly believed they were all guilty, but I also believed that I couldn’t sustain a conviction on the fourth one because I couldn’t satisfy New York’s accomplice corroboration rule. But my boss, with decades of experience, asked me to indict them all, and I offered no meaningful pushback. By the time of trial, two years later, the one against whom I believed there was insufficient evidence had died of a heart attack. I always believed that the indictment—the indictment I caused (even though instructed by my boss)—caused his heart attack. I think about him and the “injustice” implicated by that indictment frequently.

I don’t believe for a moment that the trial prosecutor in the Central Park Jogger case or Ms. Fairstein as her supervisor believed that they were filing indictments against individuals whom they believed were actually innocent of the crimes they were charging. In fact, while of course there may be occasionally aberrant conduct, I don’t believe any prosecutors in New York—this article and our experience regarding this issue is exclusively about New York—intentionally accuse people whom they believe are innocent. True, the rules do allow for prosecutors—after an investigation is performed—to exercise their independent judgment, and if they exercise their independent judgment in good faith, then they will not be disciplined, even if they are wrong.

And while some may complain that what follows is somewhat of a rhetorical flourish, still, when an obvious injustice surfaces regarding a case previously prosecuted, shouldn’t the prosecution office and the prosecuting attorney (or his or her successor) always have at least a moral (if not ethical) obligation to move heaven and earth to try to set it right?

Joel Cohen, a former prosecutor, is senior counsel at Stroock & Stroock & Lavan. He is an adjunct professor at Fordham Law School. Dale J. Degenshein, a partner at Armstrong Teasdale, assisted in the preparation of this article.