Did the St. Louis County prosecutor admit to a violation of the rule regarding perjury?

Below you will find a video of a radio interview with Bob McCulloch, the St. Louis County prosecutor who handled the Grand Jury proceeding against Darren Wilson in Ferguson, Missouri.  The interview is interesting for many reasons, but the part that really caught my attention was the discussion about the possibility that some of the witnesses committed perjury.

This discussion starts at the 9 minute mark of the recording.  The interviewer asks "Why did you allow people to testify in front of the grand jury in which you knew their information was either flat-out wrong, or flat-out lying, or just weren't telling the truth?" In response, McColluch is vague as to whether he agrees with the premise of the question (that he knew some of the witnesses were not telling the truth), but later he specifically says it was clear some of the witnesses were not telling the truth and, further, admits that he would not normally use witnesses like those - that he did that specifically for this one case. Later he adds that he was "absolutely sure" that some witnesses lied under oath, but that he would not seek perjury charges (at minute 16:15 or so).

Was that an admission that he knowingly presented false evidence/perjured testimony?

Are the rules related to grand juries so different that they allow the knowing use of false evidence in an effort to have the jury assess credibility?  That is how McCulloch tries to explain his conduct. He states that "I knew that no matter how I handled it, there would be criticism of it. So if I didn't put those witnesses on, then we'd be discussing now why I didn't put those witnesses on. Even though their statements were not accurate. So my determination was to put everybody on and let the grand jurors assess their credibility, which they did. ...I wanted to put everything on there. I thought it was much more important to present everything and everybody, and some that, yes, clearly were not telling the truth. No question about it."

If the prosecutor was so concerned with how "we'd be discussing now why I didn't put those witnesses on," let try this on for size: How about stating "because I have an ethical obligation not to put those witnesses on the stand.  Those witness are lying and the system can't function if we allow prosecutors to knowingly use false evidence."  That wouldn't be so difficult, would it?

I understand the prosecutor's decision to allow the witnesses to testify if he merely believed, but did not know, that they were lying. That essentially means he thought they had poor credibility and that it would be better to let the jury assess that credibility.  Allowing witnesses to testify when you have doubts as to whether they are telling the truth (as long as there is no knowledge) is not a violation of the rules.  But the prosecutor here used different language. He essentially said he knew they were lying. Once you have knowledge, the rule is clear.

Maybe the prosecutor meant the former but said the latter.  Otherwise, I think he admitted to using false evidence. I should clarify that this is not an admission of suborning perjury because suborning suggests he encouraged the witness to lie. Here what he seems to admit to is allowing someone to testify falsely when he knew they were lying. That is not suborning perjury but it is knowingly using false evidence which is a violation of Rule 3.3.

In the end, the question is whether the comments should be interpreted to mean he knowingly violated the rules or that he merely had doubts as to the credibility of the witnesses and allowed the jury to decide, which would not be a violation of the rules.  

Here is the video:

Richard Zitrin on what's going on in California

Richard Zitrin (UC Hastings) has published a column in The Recorder on what has been happening in California.  As you know, not too long ago, the state's supreme court rejected a proposal to substantially change the state's rules of professional conduct.  This was followed by the dismissal of a member of the Board of the State Bar, who followed up with a lawsuit.  It is quite an intriguing story.  You can read the article here.

Debate on the need for special prosecutors

A couple of days ago I posted a link to an article discussing prosecutorial discretion and what The New York Times called a "prosecutor's inherent conflict of interest" in cases that involve the possible indictment of police officers.  I also posted a link to a discussion in the Legal Ethics Forum on whether the prosecutor in Ferguson, Missouri had a conflict of interest.

As part of that discussion, many are calling for the use of special prosecutors in cases involving police officers.  The New York Times' Room for Debate has published five short comments on this issue here.

On using the phrase "and associates" when in fact the attorney does not have any associates

I have mentioned in the past that the use of the phrase "and associates" in a firm name can be found to be misleading when, in fact, there are no associates.  I doubt a lawyer would be sanctioned just for that reason, but it has been discussed as a violation of the rules in cases where the attorneys violated a number of rules.  For example, see Virginia State Bar v Head.

In that same context, Eric Turkewitz of the New York Personal Injury Blog is reporting that a recent case in New York listed the use of "and associates" as a violation of NY rule 7.5, as part of a list of violations discussed in the case.  The case is Matter of Cardenas and you can read it here.

California joins Massachusetts and Georgia holding the intra firm communication is privileged in case against the firm by former client

Back in July 2013, the Massachusetts Supreme Court held that confidential communications between law firm attorneys and a law firm's in-house counsel concerning a malpractice claim asserted by one of the firm's clients are protected from disclosure to the client by the attorney-client privilege.   Shortly after that, Georgia issued an opinion agreeing with this position.  A strong debate followed (see here and here).  Oregon was next, and the debate continued.

And now, California Supreme Court has joined the list of jurisdictions recognizing the applicability of the privilege:  "The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications."  The decision is called Palmer v. Superior Court and you can read it here.   Go here for a little more information.

Attorney sues disciplinary board alleging the board has been engaging in unethical conduct

In an interesting turn of events, the Legal Profession blog is reporting that two Nashville lawyers are suing the Tennessee ethics board for what they call ethical violations and a cover-up.

Article on prosecutorial discretion

Here is an interesting article on prosecutorial discretion called Prosecutorial Discretion Under Fire: The Common Thread in the President’s Executive Action on Immigration and the Non-Indictment in the Michael Brown Case by Michael C. Dorf (Cornell). You can also listen to the article here (press the "play" triangle button). 

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.