Handcuffed-ManThe Manhattan District Attorney’s Office recently announced the indictment of NYPD detective Joseph Franco, who was charged with numerous counts of perjury and official misconduct. The indictment alleges that Detective Franco, a 19-year veteran of the Manhattan narcotics squad, fabricated evidence and testified falsely in at least three cases where the defendants pled guilty and received prison sentences. In the aftermath of the indictment, defense attorneys have called on prosecutors in Manhattan and the Bronx to conduct an investigation into other cases involving Detective Franco in order to determine whether more convictions should be vacated. The Manhattan DA’s Office stated that it is already conducting an investigation but has not commented on the scope. The Bronx DA’s office has also declined to provide specifics. With respect to the three individuals already exonerated, there is no question that the indictment of Detective Franco was exculpatory. However, the question remains whether prosecutors have an obligation to probe other cases and, if so, to what extent. This article addresses a prosecutor’s ethical obligations under the New York Rules of Professional Conduct (the Rules) upon learning of new evidence that might exonerate a convicted defendant.

In addition to the myriad ethical duties to which all lawyers are subject, Rule 3.8 is addressed specifically to prosecutors. The rule recognizes prosecutors’ unique function as a “minister of justice and not simply that of an advocate.” See Rule 3.8 Cmnt. [1]. In particular, the rule recognizes: “The prosecutor’s duty to seek justice has traditionally been understood to require the prosecutor to take precautions to avoid convicting innocent individuals, but also requires the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted.” Id., Cmnt. [6A].

Rule 3.8(c) is one of the Rules that gives meaning to prosecutors’ duty to correct wrongful convictions. It requires a prosecutor who “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” to take remedial measures. Remedial measures include disclosure to the court, the defendant, or another prosecutor’s office with jurisdiction over the conviction. Id. The rule sets an ethical floor, not a ceiling. See Rules, Scope [6]. Rule 3.8(c) supplements prosecutors’ legal obligations and does not tell a well-intentioned prosecutor what more to do as a matter of fair dealing and sound judgment.

In Formal Opinion 2018-2 (2018), the New York City Bar’s Committee on Professional Ethics published the first ethics opinion interpreting Rule 3.8(c). The Opinion concludes that Rule 3.8(c) may be triggered by, among other things, “new evidence that tends to discredit the proof at trial, such as … information impeaching a key witness.” The Opinion also concludes that Rule 3.8(c) applies equally to guilty pleas as a conviction after trial “since a guilty plea does not foreclose the possibility that the defendant was in fact innocent.” This is particularly important here since all three of the cases on which Detective Franco’s indictment is based involved guilty pleas.

The Opinion concludes that the terms “new, credible and material” in Rule 3.8(c) have “ordinary, everyday meanings” and were not meant to incorporate legal standards governing a prosecutor’s post-conviction disclosure obligations. For example, the requirement in Rule 3.8(c) that evidence be “new” does not mean the same thing as “newly discovered” in N.Y. Crim. Pro. L. §440.10(g), which requires that the new evidence could not have been produced by the defendant at trial after the exercise of due diligence. Similarly, the terms “credible” and “material” in Rule 3.8(c) “do not have special meanings derived from statutes or case law.” See also NYCBA Formal Op. 2016-3 (2016) (prosecutor’s pre-trial disclosure obligations under Rule 3.8(b) are different than those under substantive law).

The one term in Rule 3.8(c) that does not carry an everyday meaning, the Opinion notes, is the requirement that the prosecutor “know” of the new, credible and material evidence. Rule 1.0(k) defines knowledge as “actual knowledge” but also says that knowledge “may be inferred from the circumstances.” Although the “knowledge” requirement may limit Rule 3.8(c)’s application in some circumstances, earlier ethics opinions have made clear that a lawyer may not exercise conscious avoidance in order to avoid an ethical obligation. See NYCBA Formal Op. 99-02 (1999); ABA Informal Op. 1470 (1981); see also Matter of Reno, 147 A.D.3d 8 (2d Dep’t 2016) (disciplining lawyer for ignoring evidence that transaction with which lawyer was assisting may have been fraudulent). Moreover, as Opinion 2018-2 notes, a prosecutor must act competently, including in pursuit of exonerating evidence, and therefore a prosecutor who does not “know of new exculpatory evidence because of a failure to exercise reasonable diligence may have acted incompetently under Rule 1.1.”

There is no question that Rule 3.8(c) applies to the Manhattan DA’s discovery that Detective Franco may have been falsifying evidence. The information is new and credible insofar as it was recently discovered and a grand jury found the information credible enough to indict. There is also no dispute that prosecutors “know” of this information and that it was material to the three individuals already exonerated. As to Detective Franco’s other cases, prosecutors must assess whether the information is material and, if so, what remedial obligations they must take. As Opinion 2018-2 notes, this is a “fact-intensive inquiry,” which, at minimum, requires prosecutors to evaluate the impact of the indictment on other cases and determine whether any disclosure obligations exist.

Rule 3.8(c) should not be a roadmap for the DA’s offices in determining which of Detective Franco’s closed cases to reopen. As noted, although the Rules may not require reopening each and every case, other considerations will likely warrant a broader investigation. At the same time, failure to meet these minimum standards would run contrary to prosecutors’ duties as ministers of justice who are obligated to correct wrongful convictions.

Tyler Maulsby is counsel to the Legal Ethics and Professional Responsibility Litigation Group at Frankfurt Kurnit, and is incoming chair of the New York City Bar Association’s Committee on Professional Ethics.