Monday, April 29, 2013

Seeking Justice: a blog dedicated to prosecutorial misconduct

Thanks to the Legal Ethics Forum, I recently found out about a blog called Seeking Justice which is dedicated to commenting on issues of prosecutorial misconduct.  It describes itself as a blog that "exists to provide both a source of current information and a forum for those who have experienced or  witnessed misconduct by federal prosecutors in particular.  We are especially interested in seeking reform of the legal system in the way it deals with “Brady violations” or the prosecutors’ suppression of evidence favorable to the defense."  You should check out Seeking Justice here.

Thursday, April 25, 2013

The Atlantic: "What is the most important Supreme Court case no one's ever heard of?"

The Atlantic Magazine asked a number of "experts" (law professors, lawyers, judges, authors, etc) for their opinion on the most important, yet not widely known, Supreme Court case.  Their responses are very interesting and you can read them here.  One author picked Strickland v. Washington, stating that
Decided in 1984, Strickland v. Washington created a procedural rule that makes it virtually impossible for a criminal defendant to successfully argue that he or she has been denied the “effective assistance” of counsel—and thus the Sixth Amendment right to a fair trial. The ruling is directly responsible for thousands of Americans’ incarceration after trials in which their lawyers drank, or were using drugs, or were sleeping, or were otherwise clearly incompetent.

Wednesday, April 24, 2013

New article and debate about the problem of the client who intends to commit perjury

Over at the the Legal Ethics Forum, an article by Richard Zitrin has ignited the never ending debate as to what to do when a criminal defendant client wants to commit perjury.  It is well worth taking a look at here and here.

Illinois disciplinary annual report

The Illinois Attorney Registration Commission has posted its Annual Report for 2011. As usual, it has a lot of useful information about complaints, investigations and sanctions broken down by age, gender, practice setting, areas of law and other factors.

One interesting fact from the report:  almost 3/4 of the disciplined attorneys were solo practitioners. 

Thanks to the Legal Profession blog for the link.

Sunday, April 21, 2013

Judge sets good example: holds himself in contempt

There is a first time for everything.  This is the first time I have heard of a judge finding himself in contempt.   Apparently, the judge has a well known policy in his courtroom banning the use of electronic devices, or at least warning that if the devices cause a disturbance, the owner will be found in contempt.  According to the story (here), the judge was surprised when his own phone began to "talk" in the middle of a hearing.  Apparently, the judge had mistakenly pressed the button that activates the voice command system ("Siri", for the iPhone users out there).  Understanding he was not above his own policy, the judge declared himself in contempt and paid a fine.  That's my kind of judge: tough but fair and with a sense of humor...

Thanks to Jourdan Levy for the link.

More comments on the state of access to representation in criminal cases

As you probably remember this year we are celebrating the 50th anniversary of Gideon v. Wainwright, the case that recognized the right to counsel in criminal cases and the state of access to counsel by indigent defendants. I have posted on some of the many comments on the state of access to representation here, here, and here

Unfortunately,  much coverage focuses on the unfulfilled promise of access to representation.  (I also reported (here) on the possibility of a lawsuit against the state of Utah for its failure to provide funding for legal representation of the poor.)

Adding his voice to the chorus, Paul Butler, a professor of law at Georgetown University and a former federal prosecutor, has published an Op-Ed piece in the New York Times in which he argues that "fifty years after the Supreme Court, in Gideon v. Wainwright, guaranteed legal representation to poor people charged with serious crimes, low-income criminal defendants, particularly black ones, are significantly worse off."  You can read his full editorial here.

Thanks to George Conk for the link.

Texas judge to face criminal charges for his misconduct as prosecutor 25 years ago

Long time readers of this blog might remember a case in Texas in which a judge was under investigation for misconduct when he was a prosecutor.  My original post, which includes a segment from the tv show 60 minutes on the case, is available here.   More comments - by me and others - followed here and here.  The bottom line is that the now judge-then prosecutor, Ken Anderson, concealed exculpatory evidence in a case which resulted in sending an innocent man to prison for 25 years. 

The case is now back in the news, because after all these years, finally the ex-prosecutor will face justice.  The New York Times is reporting (here and here) that the judge overseeing the case found that there was 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.

At some point in the past, when it was determined the defendant was innocent, Anderson offered an apology for what he called "failures in the system" but continued to argue he believed that there was no misconduct. In my opinion, the apology, like his original conduct, was dishonest.  The system did not fail; he failed.  He lied and cheated and robbed an innocent man of 25 years of his life.  You can see the apology here.

Given my previous post on the lack of accountability for prosecutorial misconduct, a conviction in this case would go a long way to deter future prosecutors from violating their duties.

UPDATE 4/26/13: There is a good discussion in the comments by readers of the story at the ABA Journal here.

Prosecutorial misconduct in the news

Here are some links to recent stories on prosecutorial misconduct:  ProPublica has a two part story on "who polices prosecutors" in which they discuss the fact that, even though there is a lot of publicity about prosecutorial misconduct, there seem to be few prosecutions for it.  So, who polices the proscutors?   Usually nobody.  In the second part, they discuss the specific case of a prosecutor who was disciplined for his misconduct.  He is described as a serial abuser of his authority. His misconduct actually led to disciplinary action by his superiors. He lost his job, and eventually his law license, after an appellate court determined he had lied to a judge about the whereabouts of a key witness.  State appellate courts reversed three convictions based on his wrongdoing.  That story is available here.

ProPublica later published an opinion piece suggesting that a solution to the problem is to compel judges to report prosecutorial misconduct.  (See here).  The problem is that judges already have that obligation, imposed both by the rules of professional conduct and the code of judicial ethics.  The problem is not that the judges don't have the obligation to do something about prosecutorial misconduct, the problem is that they don't do it. 

In a related, and contrasting, story, the Legal Ethics Forum discusses the discipline of several prosecutors in California and asks whether it is "a trend"?  (See here).  Some readers of the Forum seem skeptical.

Thanks to the Leagl Ethics Forum for the links.

Attorneys disciplined when employees steal money from clients

In two recent cases, attorneys have been disciplined when employees stole money from clients. In one case, it was a paralegal and in the other it was a secretary (who also happened to be the attorney's wife). The key to remember here is that in these cases, discipline is not imposed as a form or vicarious liability. The attorneys are not disciplined for the other person's misconduct. The attorneys are disciplined for their own misconduct in not having mechanisms in place to supervise or control in a way that would prevent the misconduct of the employees. Read more about these recent cases here and here.

Friday, April 12, 2013

Utah may be facing a lawsuit for failing to provide legal defense for indigent defendants

According to a story in the San Francisco Chronicle, available here, the state of Utah could be vulnerable to a lawsuit for falling short on its role to provide legal defense for poor people because it is one of only two states that does not fund or provide oversight for its system to supply defense attorneys to those who can't afford them. Thanks to the Legal Ethics Forum for the link.

Tuesday, April 9, 2013

Follow-up on the story about the prosecutors in Senator Steven's case

Yesterday I reported and commented on the fact that an administrative judge has overturned the suspensions of the prosecutors who engaged in prosecutorial misconduct in the prosecution of the late Senator Ted Stevens.  See here. As you would expect, others are now commenting on the issue too.

Professor Jonathan Turley has a comment here.  He argues, in part, as follows:
The Justice Department has long been accused of whitewashing misconduct of its own prosecutors and rarely acting on acts of prosecutorial misconduct, including common complaints of federal prosecutors withholding evidence and making misrepresentations to counsel or the courts. Even in high profile cases of misconduct, the Justice Department often drags out investigations only to later quietly end them without sanctions.. . .

The result is that even this mild punishment will now be tossed out in one of the Department’s most damaging scandals. With the earlier sweeping DOJ finding in favor of the litigation team, the result is all too familiar for those who watch the department. Since the suspensions were viewed as laughable by most objective viewers, the ruling is not going to generate much discussion. What should be the focus is the continuation of the Justice Department’s record of insulating its attorneys from discipline for even the most egregious forms of misconduct. The result of such cases sends a clear message to the rank and file attorneys that they have little to fear from allegations of misconduct.
Over at the Legal Ethics Forum, John Steele comments that "[a]s I've seen the DOJ's internal discipline process play out, I've wondered why the DOJ does the disciplining of the DOJ lawyers. The process seems plagued by cozy insider-ism punctuated by the occasional burst of politically inspired discipline. I suppose there's no one else who can do the disciplining" Read the comments here.

The Blog of the Legal Times also has more details on the story here.

Sunday, April 7, 2013

Judge overturns suspensions of prosecutors in Ted Stevens' case

Long time readers of this blog will remember I have been following the story about prosecutorial misconduct in the prosecution of the late Senator Ted Stevens and that I have posted numerous comments and links on it.  To access those, type "Stevens" in the "search this blog" box on the right side panel.

As you may recall, back in 2011, a court-appointed investigator found that the prosecution was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence that would have helped Mr. Stevens defend himself at his 2008 trial. See here.  However, the investigator recommended against imposing a finding of contempt on the prosecutors involved because the judge who presided over the trial did not issue an order specifically instructing prosecutors to obey the law, and act according to their ethical duties, both of which required them to turn over any exculpatory evidence. I criticized this report here. I argued that it was inconceivable that a report could find clear and intentional misconduct and then not recommend sanctions. 

Contrary to that criminal investigation, however, the Department of Justice's own investigation did not find that the prosecutors acted intentionally and for that reason the prosecutors were sanctioned merely with suspensions without pay (one for 40 days and one for 15 days), which I argued was a joke.

Now the joke is even worse, as an administrative judge has overturned the suspensions.  As reported in the New York Times, in a 29-page ruling released late Friday night, the administrative judge ruled that the Justice Department violated its own procedures on whether professional misconduct had occurred.  This is just the latest chapter on the comedy of errors this case has become.

Tuesday, April 2, 2013

Florida opinion on website design and search engine optimization

As reported in Legal Ethics in Motion:
On March 5, 2013, the Florida Bar Standing Committee on Advertising issued a Proposed Advisory Opinion that addressed the use of misleading “content or techniques in the design and optimization” of attorney websites. The Committee wrote that while website design, content, and search engine optimization are acceptable marketing techniques, “deceptive or inherently misleading advertising” is prohibited under the new Florida advertising rules, specifically, Rule 4-7.13. The opinion included several examples of how website optimization crosses the line including examples of deceptive “hidden text,” “meta tags,” and purchased advertising such as buying Google Adwords. The Committee concluded by reminding attorneys that if they outsource their website design or optimization, they should take steps to assure that the website designers and optimizers are conscious of the Rules Regulating the Florida Bar.

Monday, April 1, 2013

Out of control judge suspended until 2017

You may remember my previous posts on a video in which a judge totally loses control during a divorce hearing and starts yelling at one of the parties. See here (includes the video), here, here and here.  Not surprisingly, it was later determined that the conduct had not been an isolated incident.  The claim against the judge was eventually decided by a Commission on Judicial Ethics and The ABA Journal is now reporting that the state Supreme Court has affirmed the decision.  The Opinion is available here.  It concludes that the judge should be suspended for the rest of his term - until December 31 2016.