Wisconsin State Journal

Rule would require prosecutors to reveal information that could affect a past conviction

March 1, 2009

About 14 years ago, Dane County Assistant District Attorney John Norsetter allegedly got a call that attorneys for Ralph Armstrong say would've blown the murder case against their client apart — if only they'd known about it.

A proposed rule pending before the Wisconsin Supreme Court would require prosecutors who receive such explosive information to reveal it to the defense — and possibly to investigate it.

In a filing last summer seeking to have the case dismissed, Armstrong's attorneys allege that in 1994 or 1995, Norsetter was notified by a Texas woman that a man named Steve Armstrong, had confessed to her and another woman in "appalling graphic detail" about a rape and murder in Madison for which his brother, Ralph, had been convicted. Armstrong's attorneys say the alleged confession describes the 1980 murder of UW-Madison student Charise Kamps.

According to the motion, one of the witnesses told Norsetter about the alleged confession, but the prosecutor never notified the defense. An evidentiary hearing to discover what the prosecutor knew and whether the case should be dismissed because of Norsetter's destruction of DNA evidence in 2006 are the subject of a hearing to be held April 1-2 in Dane County Circuit Court.

Assistant District Attorney Robert Kaiser said he couldn't talk about the allegations. Norsetter, now retired, said he also couldn't comment on the case at this time.

Armstrong remains in prison pending a possible retrial after new DNA test results prompted the Supreme Court to vacate his conviction in 2005.

Meanwhile, on March 9 that same court will hold a hearing to decide whether to adopt a rule imposing new responsibilities on prosecutors aimed at remedying wrongful convictions. The proposal was made by what may appear to be an unlikely source: The Wisconsin District Attorneys Association (WDAA).

The current Supreme Court rules for prosecutors require only that exculpatory evidence be turned over to the defense before trial. UW-Madison law professor Ben Kempinen said the proposed rule "would fill an important gap in our ethics rules."

"The new rule requires prosecutors to take action when informed of a wrongful conviction," said Kempinen, who runs the prosecution project at the Law School. "At present, our ethics rules do not address the responsibilities of a prosecutor who learns of an erroneous conviction after the conviction is final."

Langlade County District Attorney Ralph Uttke, president of the WDAA, said the rule is needed because of the "interesting position" prosecutors occupy.

"Our job is not simply to obtain convictions of people who are charged," Uttke said. "Our job is to make sure the person who is convicted is guilty of that crime."

The proposal would require prosecutors to act if they learn of "new credible and material evidence" that creates a "reasonable likelihood" that a person convicted of a crime is innocent.

Exactly what a prosecutor would be required to do with the evidence is a source of some debate.

Defense attorneys argue that the Supreme Court should adopt word-for-word a model American Bar Association (ABA) rule that requires prosecutors to turn over and investigate newly discovered evidence of innocence.

The district attorneys' association, along with the Wisconsin Department of Justice, argues that most prosecutors' offices lack the resources to investigate such claims. Uttke also argued that a provision requiring prosecutors to "remedy" cases involving "clear and convincing evidence" of a wrongful conviction is too vague. Prosecutors should only to be required to notify the court and defendant, he told the court.

However, in letters to the court, the Wisconsin Association of Criminal Defense Lawyers and State Public Defender Nicholas Chiarkis argued that version doesn't go far enough. District attorneys routinely ask law enforcement to investigate allegations, and prosecutors themselves can conduct John Doe proceedings into such claims, said Madison attorney Lisa Goldman, writing on behalf of private defense lawyers.

Her group prefers the ABA wording because it requires the prosecutor "to investigate thoroughly new, credible and material evidence, and to take all necessary ... steps to obtain the release of a wrongfully convicted person," Goldman said.

Armstrong attorney Jerome Buting said courts already have ruled that prosecutors must reveal evidence of innocence after a person is convicted.

"This rule," Buting said, "would clarify prosecutors' obligations when they come across such evidence."

Norsetter said he, too supports the rule.

"I cannot imagine any prosecutor who is worthy of the public trust and responsibility the office entails thinking there is any justification for maintaining the conviction of an innocent person," he said.

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