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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** I. INTRODUCTION 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 shooting. 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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