How not to practice law -- UPDATED

It has been a while since I posted a story to the running "How not to practice law" series, so here are two new ones.

How not to practice law:  As a prosecutor, be in a personal-romantic relationship with the lead FBI investigator you use as principal witness to get indictments before a grand jury.  The Legal Profession Blog has the story.  The prosecutor was suspended for a year and a day (although all but 6 months was stayed.)   [UPDATE 10/29/17:  Lawyer Ethics Alerts Blog has a story on this case here.]

How not to practice law:  Offer to pay a witness $7,000 for his "honest testimony."  The Law For Lawyers Today has that story here.  The lawyer was suspended for 35 days.

NPR article on one example of prosecutorial misconduct

NPR has published an interesting short article chronicling a criminal case recently dismissed because of prosecutorial misconduct.  The title says it all:  "'This Was A Colossal Screw-Up': A Close Look At A Case Dismissed For Misconduct."

Georgia Supeme Court finds duty to disclose exculpatory evidence does not necessarily require disclosure before trial

The Georgia Supreme Court recently absolved a state prosecutor of ethics charges arising from an alleged violation of the duty to disclose exculpatory evidence because, according to the court, the “record fail[ed] to show any clear-cut violation of Brady or Rule 3.8 (d), and for that reason, we conclude that no discipline at all is warranted.”

Given that the court concludes the record shows "clearly and convincingly" that the prosecutor failed to disclose evidence to the defense, I wonder what the court means by a “clear cut violation.”  Does that mean that the record showed a violation but that it was an “acceptable violation,” a “so-so violation”...?  Hm; don’t know, but I will let that slide.

There are two more interesting things to point out here.  The first one if that the court does not make any distinction between the obligation imposed by the Constitutional standard in Brady and the regulatory standard in the Rules of Professional Conduct.  As you probably know, some jurisdictions consider the Rules to impose a broader duty.

The second interesting point is the reason the court did not find a violation of the prosecutor’s duty to disclose.  The court found that even though the record “clearly and convincingly shows that [the prosecutor] failed to disclose to defense counsel [the material evidence] before trial . . . Brady does not always require pretrial disclosure of exculpatory evidence . . .”  Citing several older Georgia cases, the court holds that a prosecutor can withhold exculpatory evidence from the defendant until the trial itself and that the duty would be satisfied even if the disclosure is made at the last minute if defense counsel has a chance to cross examine the witness who offers the evidence.  According to this line of cases “[w]hether a disclosure at trial is timely enough to satisfy Brady depends on the extent to which the delay in disclosing the exculpatory evidence deprived the defense of a meaningful opportunity to cross-examine the pertinent witness at trial, whether earlier disclosure would have benefited the defense, and whether the delay deprived the accused of a fair trial or materially prejudiced his defense.”

I find it difficult to think that a prosecutor can knowingly delay disclosing information there is a duty to disclose and that it would be acceptable to surprise the defense in the middle of trial.  (And, even if the information is not withheld "knowingly," as the court states in the case, Brady applies irrespective of the good faith or bad faith of the prosecutor.)  I find the last quote of the court (above) to be of little comfort.  However, I am not an expert on criminal procedure or the Brady doctrine, which is maybe why I find this result surprising.  I just don’t know if this approach is common among jurisdictions.  Do you?  Let me know.


The Legal Profession blog has more information here.

Ethical Considerations When Switching from Criminal Defense to the Prosecution

Here is a new short article on ethical considerations when switching from criminal defense to the prosecution published by the New York Legal Ethics Reporter.

California Appeals Court upholds disqualification of entire DA's office -- UPDATE

Back in March of 2015, I reported that a state judge in California removed an entire DA's office from a high-profile murder prosecution because prosecutorial misconduct had tainted the entire office’s handling of the case. The judge reassigned the case to the California attorney general, who appealed the ruling.  Go here for a New York Times article with more information on the original story.  The state legislature eventually adopted a statute to manage prosecutorial misconduct.  See here.

More than a year later, the California appeals court heard the oral arguments over whether the Orange County judge was right to remove the entire district attorney’s office.  The ABA Journal has more information here.

UPDATE (12/3/16):   In what the ABA Journal is calling a "blistering" and "sharply worded" ruling, the Court has upheld the order disqualifying the entire DA's office.  The opinion can be found here.

California: Prosecutors who withhold evidence can be charged with a felony

Long time readers of this blog know I often complain about the fact that courts do not seem to take prosecutorial misconduct too seriously.  Go here, here, and here, for a few examples; and you can go to the prosecutors tag and scroll down for lots of stories, and links on the topic.

Well, today, I am posting good news, for a change. Almost exactly one year ago, I posted (here) that California had adopted a new law to bolster a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office and to make it mandatory for judges to report violations to the state bar. 

Now, California has gone even further by making it a felony crime to withhold exculpatory evidence. Violators of the law could be sentenced to up to three years in prison.  The ABA Journal has more details here.

NYC Bar Ethics Committee issues opinion holding that prosecutors’ duty to disclose is broader than the duty imposed by Brady v Maryland

As you probably know, there are differences of opinion as to whether the duty to disclose information imposed on prosecutors by ABA Model Rule 3.8 is broader than the duty imposed by the constitutional standards in Brady v. Maryland.  The ABA Standing Committee on Professional Responsibility held that it does in Formal Opinion 09-454, but a few jurisdictions have held otherwise.  I have written about this in the past here.  (And for all my posts on prosecutors' duty to disclose evidence go here.)

Courts or Ethics Committees have also decided the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia.  Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana and Wisconsin.

Now comes news that the New York City bar's ethics committee has issued an opinion holding that a prosecutor's ethical obligation to disclose exculpatory evidence is broader than the constitutional minimums imposed by Brady v. Maryland.  See N.Y.C. Bar Ass'n Comm. on Prof'l Ethics, Op. 2016-3, 7/22/15.

Thanks to the ABA/BNA Lawyers' Manual on Professional Conduct for all the links. 

UPDATE 10-29-16:  Legal Ethics in Motion has a comment here.

Judge in trial of police officer charged with murder in the death of Freddie Gray rules that prosecutors withheld exculpatory evidence

According to a story in ABC news, available here, the judge overseeing the trial of a police officer charged with murder in the death of Freddie Gray has determined that prosecutors withheld information that would have been beneficial to the defense.  It seems to me this would be big news, but, oddly, I have not seen this reported anywhere else. 

Thanks to the Legal Ethics Forum for the link.

New York Times editorial board calls for federal government oversight over DA offices that violate defendants' rights

In a recent Op-ed piece, the NY Times is arguing that because prosecutors are almost never held accountable for misconduct, even when it results in wrongful convictions "it is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights." You can read the full article here.

Prosecutors Coercing Defendants to Contribute to the Prosecutor’s Favorite Charities

Ron Rotunda's most recent column at Verdict  is about prosecutors who force defendants to contribute to charity. His conclusion:  "The best way to avoid the appearance of impropriety is not to engage in the conduct at all. Fines in plea bargains should go to the state or federal treasury, not to friends of the prosecutor."

Two days ago I lamented the lack of action against prosecutors who present false testimony; here is an example of the opposite

A couple of days ago, I commented on a news story about possible perjury by prosecutors’ witnesses and complained about the lack of action against prosecutors who present false testimony.

In response, one of the readers of the blog sent me a copy of Grievance Administrator v. Plants (March 20, 2012) in which the Michigan Attorney Disciplinary Board disbarred a prosecutor for presenting perjured testimony. In its opinion, the Board stated that "knowing submission of false testimony is among the most serious of ethical violations and the presumptive sanction for such misconduct is disbarment."

Thank you very much to Cynthia for the link!

ABA Journal on perjury by prosecutors' witnesses, but no comment on the conduct of the prosecutors -- UPDATED

The ABA Journal has a story today on how courts are not doing much about a little kept secret in Chicago courts:  that police officers sometimes lie on the stand.  I wrote "sometimes" but the tone of the story clearly implies this is a much bigger problem than that.

In any case, the story and the comments are all about how there are little consequences for the officers who lie on the stand, which is likely true.  But what is not discussed in the story is the role of the prosecutors who present the testimony.  How come they get a pass too?  If it is true that "everyone knows" the witnesses are lying, can you really say the prosecutors didn't know?  And if that is the case, shouldn't they be disciplined for it?

Obviously, part of the problem is proving the allegations of "knowledge" but the rules clearly hold that knowledge "can be inferred from the circumstances."   I have said it a million times and will continue to say it.  If you want to do something about prosecutorial misconduct, judges have to start taking it seriously.

For more comments on prosecutorial misconduct go here and scroll down.

UPDATE 10:30pm:  So, a few hours after I posted this comment and my complaint about judges not taking prosecutorial misconduct seriously, I came across this story in Simple Justice about what appears to be the very first ever attempt to impose sanctions on a prosecutor in Utah.

Supreme Court orders new trial for death-row inmate because of prosecution failure to disclose evidence

The U.S. Supreme Court has ruled in a summary disposition that a death-row inmate’s due-process rights were violated when the prosecution failed to turn over material evidence.  You can read the opinion here (scroll down to page 33 of the document).  The ABA Journal.com has more here.

Another comment on lack of accountability for prosecutorial misconduct

Long time readers of this blog know I often complain about the fact that courts do not seem to take prosecutorial misconduct too seriously.  You can go to the prosecutors tag and scroll down for lots of stories, and links on the topic.  Here is the latest from the blog a public defender.

D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations

The United States District Court for the District of Columbia has released a proposed rule which would codify the government’s discovery obligation set out by the Supreme Court. Most significantly, it imposes specific timelines on prosecutors.  The Legal Profession Blog has more details (and the text of the proposed rule) here.

Comment on process to adopt new rule regarding prosecutorial misconduct in California - UPDATED

I have posted some links to comment on the on going process in California for the possible adoption of new rules. (Go here and scroll down.) The most recent development, reported in The Legal Ethics Forum some time ago, is that the Commission seems to be considering "fast tracking" some rules while waiting on others.  One of the rules the Commission seems to be interested in fast tracking is a rule on the duties of prosecutors (presumably akin to Model Rule 3.8).  On that topic, Kafkaesq has a comment here.

UPDATE (12-9-15):  Legal Ethics Forum has an update here.

UPDATE (1/24/16):  KafkaEsq has a new comment on the proposed new rule and asks whether it will ever be used, here.  The author is skeptical that the rule will make much of a difference.

Do prosecutors have too much power?

Last month, Northwestern University Law School hosted a debate on the topic of whether prosecutors have too much power.  The debate featured two speakers in favor of the proposition that prosecutors do indeed have too much power and two speakers against the proposition.  The speakers for the proposition were Paul Butler, a former federal prosecutor and currently a professor at Georgetown Law School and Nancy Gertner, a former federal judge and now a lecturer at Harvard Law School.  The speakers arguing that prosecutors do not have too much power were David Hoffman, former federal prosecutor and partner at Sidley, Austin and Reid Schar, also a former federal prosecutor and now a partner at Jenner & Block.

The debate was organized by a group called "Intelligence Squared" (or "lQ2") which has its own website with lots of useful information on the topic, the panelists and links to the both video and audio versions of the full debate.  Unfortunately, I can't embed the video here, but you can watch it here.

I thought the program was a bit too long, but other than that it was very interesting.  They actually have the audience vote on which side "won" the debate and the results are presented at the end.  I won't spoil it for you, but even if you don't watch the full show, fast forward to the end to see the results.

Check out the IQ2 website for upcoming debates and mark your calendar.

Report on Utah's public defense system for indigent defendants

On October 26, 2015, the Sixth Amendment Center released a report criticizing Utah’s long-standing, deep-rooted indigent defense system's deficiencies.  Among other things, the report criticizes the lack of state oversight, the fact that prosecutors are in charge of some local indigent defense budgets, and the fact that public defenders have excessive caseloads.  According to the report, more than 62% of all people facing a potential jail term for a misdemeanor charge go through proceedings without counsel. You can read the full report here, and two additional stories on it here and here.  This second story is about changes being proposed by Utah policymakers in the wake of the report.

Second Circuit finds prosecutors do not have absolute immunity from suits for misconduct while presenting a case to a grand jury

Last year I reported that a split panel of the Court of Appeals for the Seventh Circuit held in a case called Fields v Wharrie, that a prosecutor is not entitled to absolute immunity when his wrongful conduct is committed during the investigation of a case (as opposed to the trial phase of the case).

Above the Law is now reporting on a recent decision from the Court of Appeals for the Second Circuit holding that because the jury found that the prosecutor presented false evidence to the grand jury that he either knew was false — or was reckless in figuring out the truth of — he had no qualified immunity. Even though a prosecutor can decide to exclude material evidence and can affirmatively ignore exculpatory evidence in a grand jury presentation, the Second Circuit didn’t have trouble finding that the law is pretty clearly settled that a prosecutor can’t actually provide false evidence.

What is interesting in this case is that the court finds that presenting the case to the grand jury falls within the "investigation" phase of the case.  The case is called Morse v. Fusto and you can read it here.

Prosecutorial misconduct in California: an entire DA's office disqualified; and now a statute to encourage more accountability for misconduct

Long time readers of this blog know that I have often commented on the fact that courts do not seem to take prosecutorial misconduct too seriously, and do not do enough to discourage it.  (Click on the label "prosecutors" on the right hand side panel and scroll down for many posts on the subject).

That may change in California, where prosecutors who deliberately withhold evidence from defense attorneys may face harsher punishment under a new law recently signed into law by Gov. Jerry Brown.  Go here for more on the story.

The statute bolsters a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office. The law also requires the court to report violations to the state bar, which licenses attorneys.
"The bill seems like a step in the right direction," Alex Kozinski, former chief judge of the Ninth Circuit Court of Appeals, told The Huffington Post. "It seems to give a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority."

But that's the key.  The law itself will be ineffective unless judges are willing to exercise their authority.  In fact, I don't think the law changes much, since it does not give judges any more authority than they already had.  Yet, if all it does is encourage more judges to take action, then the law is, in fact, a step forward.

The law seems to be a reaction to an incident back in March when a state judge removed a full DA's office from the county’s highest-profile murder prosecution in years because misconduct had tainted the entire office’s handling of the case. He reassigned the case to the California attorney general, Kamala Harris, a ruling her office is appealing.  Go here for a New York Times article with more information on that story.