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6 Ohio St. J. Crim. L. 467 (2008-2009)
Prosecutorial Discretion and Post-Conviction Evidence of Innocence

handle is hein.journals/osjcl6 and id is 471 raw text is: Prosecutorial Discretion and Post-Conviction
Evidence of Innocence'
Bruce A. Green* & Ellen Yaroshefsky**
A recent front-page New York Times article highlighted a dispute about how
prosecutors should exercise discretion when, after criminal proceedings have
ended, new information casts doubt on a convicted defendant's guilt.1 The subject
of the article was the New York state-court conviction of two men for the 1990
murder of a bouncer outside the Palladium nightclub in lower Manhattan and the
state prosecution's response years later, after a federal informant admitted that he
and a fellow gang member, not the convicted defendants, were responsible for the
* 2
Over a lengthy period chronicled by documentary filmmakers, Bronx
detectives unearthed increasing amounts of exculpatory evidence3 while the
Manhattan prosecutor's office appeared indifferent if not hostile to their efforts.4
But eventually, the office appointed a senior trial prosecutor to work with other
1  The authors thank Sara Sun Beale for organizing an engaging roundtable discussion and
inviting their participation. The authors also thank Fordham law students, Adam Calvert and David
Ziegler, and Cardozo law student, Bernard Eyth, for their research assistance. Finally, the authors
thank Professor Daniel Medwed for his helpful comments on an earlier draft of this article.
.  Louis Stein Professor of Law and Director of the Stein Center for Law and Ethics, Fordham
University School of Law.
** Clinical Professor of Law and Director of the Jacob Burns Ethics Center in the Practice of
Law at the Benjamin N. Cardozo School of Law.
I  Benjamin Weiser, Doubting Case, City Prosecutor Aided Defense, N.Y. TIMES, June 23,
2008, at Al.
2  Id. Other sources have covered the case in great detail. See Cooley Godward Kronish
LLP, Pro Bono: Case Studies, The People of the State of New York v. David Lemus and Olmedo
Hidalgo, http://www.cooley.compractices/casestudies.aspx?casestudyid=&practiceid=37411920 (last
visited  Jan.   20,   2009);   Dateline   NBC:     In   the   Shadow     of   Justice,
http://www.msnbc.msn.conid/20091700/ (last visited Jan. 20, 2009).
3  See Dateline NBC: In the Shadow of Justice, supra note 2; see also Sabrina Tavemise, One
More Chance to Overturn Their Murder Convictions, N.Y. TIMES, Jan. 31, 2005, at B4. (In an
unrelated investigation, a gang member by the name of Joey Pillot admitted that he and another gang
member, Thomas Morales, were the two men who did the shooting.).
4 See Dateline NBC: In the Shadow of Justice, supra note 2; see also Damien Cave, Lawyers
Want New Hearing for 2 Convicted in 1990 Murder, N.Y. TIMES, July 20, 2004, at B3. ([Tihe
district attorney's office had been moving too slowly and withholding evidence. It took more than a
year for summaries of interviews with witnesses to make their way to the defense, despite several
requests .... ).

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