60 minutes segment on prosecutorial misconduct

Last night the TV show 60 minutes aired a segement on prosecutorial misconduct in a case in Texas in which the defendant was recently exonerated (after 25 years in prison) by DNA evidence.  It has been alleged that the prosecutor in the case knowingly withheld evidence it was legally obligated to disclose to the defendant's lawyers.  The prosecutor is now a judge and, according to the show, currently under investigation for the incident.  Here is the full segment.  It lasts about 14 minutes, but there are a couple of commercials within it.  Pay attention to the prosecutor's "apology" (at about the 8 minute mark). He apologizes because "the system" failed, but then denies any misconduct on his part. I wonder which part of the system he means failed? I have more comments below. Please continue reading after you watch the video. If, for some reason you can't see the video below, you can watch it here.



It seems to me that the real issue in this case starts with the question of whether the evidence that was allegedly withheld was "exculpatory." Note in the video that the attorneys for the defendant argue the evidence would have proven the defendant was innocent while the current lawyer for the former prosecutor claims it would not have.

If the evidence was "exculpatory", then the prosecutor had a duty to disclose it. Since there is evidence he did not disclose it, that would lead you to conclude that he acted in violation of his duty. Note that under the current Model Rules, the prosecutor would clearly have a duty to disclose the documents in question because the duty under the MRs is broader than the duty under previous case law (namely Brady v Maryland).

The problem with the discussion of the issue by the lawyers in the video is that whether the documents would have proven the defendant innocent is actually irrelevant. "Exculpatory" does not mean that it would have exonerated the defendant or proven that the defendant was not guilty. It only means that there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. See Kyles v Whitley, 514 U.S. 419 (1995).

Based on this, I think the evidence was exculpatory and that, therefore, there was a duty to disclose the information.

The statement by the current lawyer for the then-prosecutor that a claim that his client engaged in unethical conduct is "unwarranted" is ridiculous. Given the facts, the claim is clearly warranted. Also, it bothers me that the lawyer claims we are dealing with "speculation" about things that happened 25 year ago. Yet, here is one thing that does not seem to be speculation: the defendant did not get the documents. No one - not the prosecutor/now judge nor his lawyer - disputed that. The only thing they claim is that the prosecutor now says he could not believe he wouldn't have had a conversation with the defendant's attorney about the case. He did not claim that he did in fact disclose the information. As to that the best he could do was to say he did not remember.

UPDATE 4/21/13:  A judge has decided there is sufficient evidence that the former prosecutor should be tried for criminal contempt, tampering with evidence and tampering with government records. He said Anderson concealed the availability of exculpatory evidence. Go here for more details.

Former prosecutor disbarred for soliciting false testimony

The former chief drug prosecutor for Wayne County, Michigan has been disbarred for her role in soliciting false testimony. Go here for more information.

Update on the debate on whether states should allow fee sharing with non-lawyers and investments by non-lawyers in law firms - UPDATED

The debate over whether states will begin to allow non-lawyer firm ownership/investment in law firms continues although a few days ago a challenge by Jacoby & Meyers to New York state’s ban on law firms accepting equity investments from non-lawyers was dismissed.  The opinion is available here.  In contrast, in a similar case filed in New Jersey, the court denied a motion to dismiss.  The opinion in that case is available here.  The Wall Street Journal law blog has more information. 

Meanwhile, three days ago the Board of Governors of the Illinois State Bar Association adopted a resolution reaffirming its opposition to fee splitting with non-lawyers and the ownership of law firms by non-lawyers.  Go here for more information.

UPDATE (3-25-12):  The Ethical Quandary blog has more here.

More comments on Supreme Court's decision on ineffective assistance of counsel

Three new articles in the New York Times discuss the importance of the Supreme Court's decisions on ineffective assistance of counsel.  The articles can be found here, here and here.  As one of the articles explains "[t]he Court's decisions affirm a defendant’s right under the Sixth Amendment to have the assistance of an effective lawyer during pretrial negotiations. . . . Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with . . . little oversight . . ." In addition, the SCotUS blog has detailed analysis of the opinions here.

Article calls for New York to change its position on metadata

Here is an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers.  The article concludes that these conflicting positions "serve only to place New York lawyers at a tactical disadvantage" and, for that reason, calls for New York to change its approach to the issue.

Thanks to the Legal Ethics Forum for the link.

Comments on yesterday's Supreme Court's decisions on ineffective assistance of counsel

The SCotUS blog is listing the following articles on yesterday's Supreme Court decisions on ineffective assistance of counsel:

Greg Stohr of Bloomberg, Nina Totenberg of NPR, Adam Liptak of the New York Times, Bill Mears of CNN, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Mike Sacks of the Huffington Post, James Vicini of Reuters, Jesse J. Holland of the Associated Press, Debra Cassens Weiss of the ABA Journal, Jess Bravin of the Wall Street Journal (subscription required), and Orin Kerr of the Volokh Conspiracy. Tricia Bishop of the Baltimore Sun reports on the decisions’ possible effect on a convicted child rapist in Baltimore.

Also, Orin Kerr has a comment at The Volokh Conspiracy.

Supreme Court decides two cases on ineffective assistance of counsel

Today the Supreme Court announced two decisions in cases involving claims of ineffective assistance of counsel that essentially conclude that criminal defendants have a constitutional right to effective lawyers during plea negotiations.  The Court, also set the standard to meet in order to obtain relief when the defendant's argument is that the attorney's ineffective assistance resulted in the rejection of the plea offer.  Both cases were decided by 5 to 4 votes.  I have not had a chance to read the opinions myself, so I will reserve my opinion for now.  Meanwhile, however, here is a quick summary (courtesy of the SCotUS blog) and a few links.

In the first opinion, Missouri v. Frye, the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.”  Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito.  The oral argument for this case is available here.

In the second opinion, Lafler v. Cooper the Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion.  The oral argument is available here.

The New York Times has more the story here.

More comments on the prosecutorial misconduct report from the Ted Stevens case

The New York Times has published an editorial on the need for the Department of Justice to "take an even closer look at the powers and responsibilities of its prosecutors, after a scathing new report on the case by a court-appointed investigator" after the DoJ acknowledged pervasive prosecutorial misconduct in the corruption trial of the late Senator Ted Stevens.  The editorial is available here.

The LawProfs Blawg has a more detailed discussion of the report here.

The Legal Profession blog has a short comment here.

The Blog of the Legal Times is reporting (here) that the Senate Judiciary Committee will hold a hearing on March 28 at 10 a.m., to discuss the allegations of prosecutorial misconduct in the Ted Stevens case.  The author of the report is expected to testify.

More comments on the prosecutorial misconduct report from the Ted Stevens case

Go here and here for articles with some analysis on the report on prosecutorial misconduct in the Ted Stevens case. 

Thanks to the Legal Ethics Forum for the first link.

Oklahoma considers banning litigation financing

Back in January, 2011, I reported that the Illinois legislature rejected a bill that attempted to regulate entities that lend money to litigants in exchange for a percentage of the amount recovered in the case.  Typically, the interest rates on those loans are very high (I have seen ads that say the rates are over 45%, for example.)  For some background information on the issues related to this industry, you can take a look at the discussion of the legal and ethical issues that relate to the litigation loan industry in Room for Debate, the Legal Ethics Forum and The Wall Street Journal Law Blog, the NY Bar Association and the New York Times. 

Now comes news that in Oklahoma, Oklahoma Senate Bill 1780 would make it against the law for a company to make a loan to a plaintiff that would be paid back from settlement funds or a jury award. It would apply to any case pending in an Oklahoma state court or any federal court in the state.  Go here for the full story.