New York Times article on what it calls a prosecutor's "the inherent conflict of interest"

About two weeks ago, I posted a link to a comment on whether the prosecutor in Ferguson, Mo., had acted unethically because of a conflict of interest.  See here.  Yesterday, the New York Times published an editorial on the issue.  It starts as follows:

It is a long-established and basic reality of law enforcement in America: Prosecutors who want an indictment get an indictment. In 2010 alone, federal prosecutors sought indictments in 162,000 cases. All but 11 times, they succeeded.

Yet the results are entirely different when police officers kill unarmed civilians. In those cases, the officers are almost never prosecuted either because district attorneys do not pursue charges in the first place or grand juries do not indict, as happened most recently in Ferguson, Mo., and Staten Island.

There are various explanations for this, but the most obvious is the inherent conflict of interest that exists for prosecutors, who rely heavily on the police every day. Cops arrest suspects; they investigate crimes; they gather evidence; and they testify in court, working essentially in partnership with prosecutors.

Whether or not bias can be proved in a given case, the public perception of it is real and must be addressed.

The best solution would be a law that automatically transfers to an independent prosecutor all cases in which a civilian is dead at the hands of the police. This would avoid the messy politics of singling out certain district attorneys and taking cases away from them.

You can read the full article here.

Reversal of conviction because prosecutor used perjured testimony

The Indiana Court of Appeals had reversed a burglary conviction based on its conclusion that the prosecution knowingly used perjured testimony.  For more details go to the Legal Profession blog.

New study on Brady violations

About two weeks ago, the National Press Club in Washington, DC (NACDL), released a new report, called "Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases."  According to the President of the NACDL "This groundbreaking study documents one of the major problems facing the nation's criminal justice system today: the failure to ensure full, fair and timely disclosure of information favorable to an accused person in a criminal action. It is a significant step towards achieving the vital reforms necessary to guarantee a fair trial for every accused person."   You can download a copy of the report by clicking here.  You can find more information on the report here.

The problem of inflating billable hours

Here is a good short comment by Prof. Ronald Rotunda on the issues raised when lawyers overbill clients.

The most recent edition of The Professional Lawyer

The new issue of the ABA Professional Lawyer is available here  (for a limited time).  It includes the following articles:

Unfinished Business: The Legacy of Brown v. Board of Education
William C. Hubbard

Indie Lawyering: A New Model for Solo and Small Firm Practice
Lucille A. Jewel

The High Cost of Efficiency: Courthouse Tech and Access to Justice
Eric J. Magnuson, Nicole S. Frank

The Twenty-First Century Lawyer’s Evolving Ethical Duty of Competence
Andrew Perlman

The Law Firm Records Burden: Tips for Clearing the Warehouse
Janis M. Meyer

But I’m Just a Lawyer: Do Cloud Ethics Opinions Ask Too Much?
Stuart L. Pardau

Spectacular incompetence

I have used the phrase "spectacular incompetence" before, but this case may just be the worst.  At the time of the year when many blogs are preparing their "top ten" lists for the end of the year, I am wondering if this is the number one case in the "funny if it wasn't so sad and serious" misconduct category.

I am referring to the recently reported case in which a lawyer was disbarred for his incompetent representation of a client in a death penalty case.  The attorney had no prior experience in death penalty cases. He devoted little effort to preparing the case and had not tried a murder in twenty years. He didn’t investigate alibi witnesses and didn’t track his client’s cellphone to find his location at the time of the murders.  He was unfamiliar with ABA guidelines for trying capital murder cases. At trial, he informed the jury his client had previously been convicted of voluntary manslaughter, even though prosecutors agreed to a stipulation that the client had a prior felony conviction without further details.  Most bizarre is the fact that the attorney showed up to oral argument before the court dressed as Thomas Jefferson.

The court had little difficulty finding the attorney had provided ineffective assistance of counsel and eventually reversed the conviction.

The case is discussed in a public defender (which has photos of the attorney in his distinctive attire"), the Legal Profession blog and the ABA Journal.

Here is a video of the oral argument in question.  The attorney's argument starts at the 22:30 mark, where the attorney tries to explain the significance of the outfit.  Judge for yourself.

NY Times article on the need for a system to provide attorneys to those who can't afford one for civil law cases

I have written before about the debate on whether the state should provide attorneys to litigants who can't afford them in civil litigation.  (Go here for a note describing Illinois' approach to the issue, and here for a link to a comment on the subject.)

Recently, the issue was back in the news again because The New York Times published this article.

Failure to communicate plea bargain offer can constitute ineffective assistance of counsel

The South Carolina Court of Appeals has found ineffective assistance of counsel in a case where the defendant was not advised of a ten-year plea offer before going to trial and getting twenty.  The case is called Chico Bell v. The State of South Carolina and you can read the opinion here.

Did the prosecutor in charge of the grand jury in Ferguson act unethically?

As we watch the events in Ferguson, Missouri unfold, here is a short comment by Prof. Monroe Freedman arguing the prosecutor in charge of the grand jury acted with a conflict of interest.

In an unrelated comment, another author argues the case should have been set for trial saying..

Ferguson prosecutor Robert McCulloch delivered a long-winded, smirking speech blaming social media, journalists, Ferguson residents, and pretty much everyone else who isn't Darren Wilson, for Darren Wilson shooting and killing 18-year-old Michael Brown. It took McCulloch 10 minutes of hectoring before he revealed the grand jury had found no probable cause to indict Wilson, and the rest of the 45-minute speech, in which McCulloch seemed to be presenting evidence in Wilson's favor, felt more like defense attorney's argument than a prosecutor's. The very length of McCulloch's rambling statement, really, and the amount of evidence he felt compelled to argue against, was in and of itself a fair argument that the case should have gone to trial.

New ABA Formal Opinion on prosecutors who allow debt collection companies to pretend the prosecutors' office backs them up

The ABA Standing Committee on Ethics and Professional Responsibility has issued a new Formal Opinion (No. 469).  You can read the full opinion here.  The summary speaks for itself:

A prosecutor who provides official letterhead of the prosecutor’s office to a debt collection company for use by that company to create a letter purporting to come from the prosecutor’s office that implicitly or explicitly threatens prosecution, when no lawyer from the prosecutor’s office reviews the case file to determine whether a crime has been committed and prosecution is warranted or reviews the letter to ensure it complies with the Rules of Professional Conduct, violates Model Rules 8.4(c) and 5.5(a).