Georgia Supreme Court Adopts Rule to Hold Prosecutors Accountable for Misconduct
“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.” (Source: ABA)
As you can imagine, prosecutors wield immense power—especially in Georgia. Many use that power responsibly. However, if left unchecked in a society that already tends to normalize injustice and inequitable treatment toward people of color and those without access to power, then misconduct, corruption, and indifference to blatant injustice can reign supreme.
Adding to the power that prosecutors already possess are the rigid procedural laws in Georgia that make it very difficult to even bring cases of potential wrongful conviction into court – much less win.
Too often in our work fighting for the imprisoned innocent, we have seen prosecutors fight to maintain convictions despite clear evidence of innocence and egregious official misconduct, as recently seen in Devonia Inman’s case. Devonia was convicted of armed robbery and murder at a Taco Bell in Adel, Georgia in 2001, despite having an alibi and a lack of any physical evidence tying him to the crime.
Years later, Georgia Innocence Project was able to secure DNA testing on a mask, which implicated another man, but prosecutors still opposed relief, and a Cook County trial judge ruled the new evidence was not enough to grant Devonia a new trial. The Georgia Supreme Court then declined to grant permission to Devonia and GIP to appeal the Cook County trial judge’s erroneous decision.
But several years after that, Justices on the Georgia Supreme Court became concerned that they should not have denied that permission, and that an innocent man may well be sitting in prison. In 2019, Georgia Supreme CourtPresiding Justice David Nahmias wrote that while he could not find a way within the confines of the law to undo the earlier decision denying permission to appeal, he urged the prosecuting attorney to exercise his discretion in furtherance of justice and consider giving Devonia a new trial.
“But this Court is not the only source of justice in this State,” wrote Nahmias. “Indeed, judges are often obligated to enforce procedural rules, and we often must defer to discretionary decisions made by prosecutors. Prosecutors, however, may always exercise their discretion to seek justice – to do the right thing.”
Still, the Georgia Attorney General fought to uphold Devonia’s conviction— keeping him imprisoned for two more years until Devonia’s legal team won in court on a habeas corpus petition and Devonia was exonerated and freed. Similarly, the Brunswick Judicial Circuit District Attorney fought to keep Dennis Perry convicted of a double homicide that he did not commit, despite extreme prosecutorial misconduct and DNA evidence of innocence. And the Georgia Attorney General continues to fight to keep Joey Watkins in prison, despite clear evidence of innocence and misconduct.
Previously, there were no written ethical rules in Georgia requiring prosecutors to turn over evidence of innocence discovered after a person’s conviction or to otherwise remedy clear wrongful convictions. Instead, convicted people had to rely on the integrity of individual prosecutors and their own moral compasses. The newly adopted amendment to Rule of Professional Conduct 3.8 (Special Responsibilities of a Prosecutor), however, changes that.
The amended ethics rule affirmatively requires that prosecutors “promptly disclose 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 an appropriate court or authority” and investigate and notify defendants of the discovery of new, exculpatory evidence. The rule also requires that prosecutors seek to remedy convictions obtained in their own jurisdictions “when the prosecutor knows of clear and convincing evidence establishing that a defendant did not commit the offense.”
The consequence of violating the amended rule? Prosecutors can lose their license to practice law.
This rule change—which brings Georgia’s requirements for prosecutors in line with the American Bar Association’s model ethical rules—is a significant and encouraging step.
“The recent amendments to RPC 3.8 make it even more clear that a prosecutor’s ethical obligation is to ensure that innocent people are no longer imprisoned and that justice must be done now, even if it also could have been done earlier,” said Executive Director Clare Gilbert.