Office of Bar Counsel, 0222 WYBJ, Vol. 45 No. 1. 12

AuthorMelinda S. McCorkle
PositionVol. 45 1 Pg. 12

Office of Bar Counsel

Vol. 45 No. 1 Pg. 12

Wyoming Bar Journal

February, 2022

The Prosecutor's Post-Conviction Duties

Melinda S. McCorkle

Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming

“[T]o be a prosecutor is to accept the responsibility of being the only thing standing between the defendant and the jail-house door sometimes. We have the duty to make sure no one else can be victimized by the person we're prosecuting. That pressure, that fear, can choke you ... and cause you to become too conservative. That fear has a face: the face of a child molested by someone you couldn't convict, the face of a person killed by a murderer you couldn't put away."1 Undoubtedly, a prosecutor carries a heavy burden which must be balanced with the constitutional rights of the defendant.

Until 2008, the American Bar Association (ABA) Model Rules of Professional Conduct, as well Rules in other jurisdictions, including Wyoming, focused on a prosecutor's duties during the pendency of a case. These Rules primarily focused on duties already required by law. In Wyoming, a prosecutor: (a) cannot prosecute a charge that the prosecutor knows is not supported by probable cause; (b) must make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining,[2] counsel and given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights; (d) disclose to the defense all evidence or information known that tends to negate the guilt of the accused or mitigates the offense, and, in sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor...; and (e) refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused unless the statements are necessary or serve a legitimate law enforcement purpose. Wyo.R.Prof.Cond. Rule 3.8(a-e). Section (e) also requires the prosecutor to "exercise reasonable care" to prevent individuals associated with the prosecutor in a criminal case from doing the same.

These duties remain, but in 2008, the ABA adopted two additional provisions that extend beyond sentencing. These post-conviction duties require a prosecutor to disclose exculpatory evidence tending to demonstrate that the defendant did not commit the offense for which he was convicted and, depending upon the facts of...

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