Ninth Circuit Court of Appeals on how to handle prosecutorial misconduct

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. Often courts do not do enough to discourage it or to impose sanctions for it. Luckily, there is one court that is doing its part.  This week I saw two different stories on prosecutorial misconduct, both from the Court of Appeals for the Ninth Circuit.

The first one involved an oral argument (you can see the video appears below).  Here the court was reviewing a case in which the court denied the defendant a chance to reply to an argument by the DA in which the DA made arguments based on facts not in evidence.  The oral argument on behalf of the government is worth watching.  The judges who participated were clearly bothered by the prosecutor's conduct and it seems pretty clear the conviction will be reversed because of it.  The implication is that the prosecutor purposely decided to wait until rebuttal to make a comment based on facts not in evidence because the defendant would not be able to reply to the comment. The court then denied the defendant three minutes for a rebuttal to the prosecutor's statement giving rise to the question on appeal.

The government's argument begins at the 26 minute mark. The argument starts poorly for the government and gets worse.  At the 44 minute mark, one of the judges reduces the issue clearly to the bottom line: trials should be fair and prosecutorial misconduct can't be tolerated. Interestingly, he then goes on to talk about some reasons why there is too much prosecutorial misconduct: too much prosecutorial discretion. Now, that's a different issue we could talk about another day!  Take a look at the specific comment starting at minute 44 of the video (or here).

UPDATE:  A few days later the US Attorneys Office filed a motion to vacate the conviction.  Go here for the update.

Keep reading below for news on the second story I mentioned.



The second story I saw this week about of the Ninth Circuit was this:  "In another sign that the Ninth Circuit is leading the way in holding prosecutors to their Constitutional obligations while insuring the Constitutional rights of defendants, a panel earlier this month, in Dow v. Virga, No. 11-17678 (Sept. 5 2013 9th Cir.), granted habeas relief where the California prosecutor, Deputy District Attorney Jennifer Ow of San Mateo County, knowingly elicited and then failed to correct false testimon..."  For more commentary see Seeking Justice.  For a copy of the opinion go here.

Even more on the reversed convictions for prosecutorial misconduct

The Legal Ethics Forum has some more links here.

More on the egregious conduct of the prosecutors in New Orleans

Yesterday I posted some links on the recent reversal of a conviction due to prosecutorial misconduct.  Today Seeking Justice has posted a long comment on the case here.

More convictions reversed because of prosecutorial misconduct

Describing the conduct of Justice Department lawyers as “grotesque,” U.S. District Judge Kurt Engelhardt ordered a new trial for officers accused of deadly shootings at the Danziger Bridge after Hurricane Katrina and the subsequent cover-up. The 129-page order identifies “unprecedented events and acts” of misconduct by prosecutors.  Jonathan Turley has a comment on the case here.

How not to practice law: insult the opposition

In class we discuss some cases on the question of whether an attorney can or should disciplined for expressing offensive opinions or for making racist comments.  Among other things, we draw distinctions between expression and conduct and between offensive-but legal conduct and conduct that violates valid regulation on discrimination.  The discussion is interesting because eventually the question becomes whether the rules should be different for lawyers simply because they are lawyers.  And, as you probably know, the result of some of the cases is that the answer is yes.

Interestingly, the Legal Profession blog is reporting on a new case that adds to the debate.  In this case, available here, the Indiana Supreme Court has imposed a 30-day suspension on an attorney for writing a letter to opposing counsel in a divorce action that contained the following statement:  "Your client doesn't understand what laws and court orders are. Probably because she's an illegal alien to begin with." The court rejected the suggestion that the comment was legitimate advocacy and concluded that it had no purpose other than to embarrass or burden the opposing party.

I don't think that the conduct in this case, although offensive, would be sufficient to impose sanctions under the Model Rules.  Indiana's rule 8.4(g) clearly holds that it constitutes misconduct to "[e]ngag[e] in conduct, in a professional capacity, manifesting bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors, and this conduct was not legitimate advocacy."  This language is taken from part of the comment of the Model Rule which suggests such conduct can be considered to be a violation of MR 8.4 but only if the conduct is prejudicial to the administration of justice.

Should sexist comments be a disciplinary offense? Should they be tolerated either as a “First Amendment right”? For a discussion on the subject, see Roberta M. Ikemi and Carol A. Sobel, Should Sexist Comments be a Disciplinary Offense?, 81 A.B.A. J. 40 (August, 1995). Ikemi argues that “[i]f we truly believe in equal access to justice, the courts should have the power to discipline lawyers for gender-biased or racist conduct” because “[w]hen directed at other lawyers, this behavior is evidence of an unwarranted opinion about who is deemed to be a worthy opponent. Left unchecked, the conduct has the effect of intimidation and denies the value of the attorney’s contribution to the legal system. In short, gender-biased and racist conduct denies the principle of equal access to the justice system and its courts, and keeps it from becoming a reality by silencing those who would implement it.” 

In contrast, Sobel suggests that “the fact of a problem with gender bias by attorneys in the judicial system does not excuse any action to discipline attorneys for “objectionable” speech.” She argues that the “utterance of biased expression should not be enough to invoke the sanctions of the legal system because one important part of our commitment to expressive rights is that no person’s speech will be punished simply because it is found to be “offensive” to another person or portion of the community.”  

California legislature passes bill permitting non-citizens to become California lawyers

Last year I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (in California).  The California Supreme Court recently heard oral arguments, and I posted a link to the video of the oral argument and more articles here.

Now the JDJournal is reporting that the California Supreme Court rejected the candidate's argument holding that the federal laws that prohibited professional licenses to illegal immigrants also allowed state legislatures to carve out exemptions.  (I have not yet seen the opinion on this.)

But the  story does not end there.  In a somewhat surprising move, the California Legislature has approved a bill to allow law licenses to illegal immigrants.  Go to JDJ for more information.  (Thanks to the Legal Ethics Forum for the link.)

Another comment on prosecutorial misconduct

Just a few minutes ago I posted a note about a recent case from the Fourth Circuit on prosecutorial misconduct.  Here is another comment on the same case.  The case is U.S. v. Bartko.  As this comment states, the court's opinion was notable not only for its lengthy reprimand of the practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about it.

Yet another example of why there is so much prosecutorial misconduct

I hate to sound like a broken record, but here I go again:  prosecutors will continue to break the rules unless courts begin to take the problem seriously.  Here is the latest example of the problem.  As recently posted in Seeking Justice "until there are serious consequences, including reversal of convictions, disbarment, and sanctions against the prosecutors, we will all continue to suffer from blatant disregard of the law with impunity by the very people who are sworn and empowered to protect us."

Ethics Forum essay writing competition

The Legal Ethics Forum is sponsoring an essay writing competition with cash prizes.  Go here for details. 

More on the issue of violating conflidentiality when replying to an on line review

A couple of days ago I posted a note on a recent complaint filed alleging an attorney disclosed confidential information when replying to a negative on line review.  Today, the Legal Ethics Forum picked up the story and added a couple of interesting questions:  whether the "self-defense" exception in Rule 1.6(b)(5) would ever authorize a lawyer to respond to a negative on-line review of the lawyer's services and whether a lawyer who wants to exercise control over his or her on-line reputation could have as part of the retainer agreement a provision where the client agrees not to post any reviews of the lawyer's services (if the client did post something, the attorney could then have a breach of contract action).  Take a look at the comments section of the Forum where you will find links to relevant materials on these issues.

My own opinion on the first question is that there is nothing that prevents a lawyer from replying to a review but the lawyer has to be careful not to disclose more information than necessary.  For other comments on this issue, go here. In most cases, the attorney can defend his or her reputation without the need to disclose information that is not public already.  The problem in the Illinois case was not that the attorney replied to the review, but that he disclosed more information than was necessary.