Judge in trial of police officer charged with murder in the death of Freddie Gray rules that prosecutors withheld exculpatory evidence

According to a story in ABC news, available here, the judge overseeing the trial of a police officer charged with murder in the death of Freddie Gray has determined that prosecutors withheld information that would have been beneficial to the defense.  It seems to me this would be big news, but, oddly, I have not seen this reported anywhere else. 

Thanks to the Legal Ethics Forum for the link.

New York Times editorial board calls for federal government oversight over DA offices that violate defendants' rights

In a recent Op-ed piece, the NY Times is arguing that because prosecutors are almost never held accountable for misconduct, even when it results in wrongful convictions "it is time for a new approach to ending this behavior: federal oversight of prosecutors’ offices that repeatedly ignore defendants’ legal and constitutional rights." You can read the full article here.

Supreme Court orders new trial for death-row inmate because of prosecution failure to disclose evidence

The U.S. Supreme Court has ruled in a summary disposition that a death-row inmate’s due-process rights were violated when the prosecution failed to turn over material evidence.  You can read the opinion here (scroll down to page 33 of the document).  The ABA Journal.com has more here.

Another comment on lack of accountability for prosecutorial misconduct

Long time readers of this blog know I often complain about the fact that courts do not seem to take prosecutorial misconduct too seriously.  You can go to the prosecutors tag and scroll down for lots of stories, and links on the topic.  Here is the latest from the blog a public defender.

D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations

The United States District Court for the District of Columbia has released a proposed rule which would codify the government’s discovery obligation set out by the Supreme Court. Most significantly, it imposes specific timelines on prosecutors.  The Legal Profession Blog has more details (and the text of the proposed rule) here.

Prosecutorial misconduct in California: an entire DA's office disqualified; and now a statute to encourage more accountability for misconduct

Long time readers of this blog know that I have often commented on the fact that courts do not seem to take prosecutorial misconduct too seriously, and do not do enough to discourage it.  (Click on the label "prosecutors" on the right hand side panel and scroll down for many posts on the subject).

That may change in California, where prosecutors who deliberately withhold evidence from defense attorneys may face harsher punishment under a new law recently signed into law by Gov. Jerry Brown.  Go here for more on the story.

The statute bolsters a judge's ability to disqualify a prosecutor or an entire prosecuting attorney's office. The law also requires the court to report violations to the state bar, which licenses attorneys.
"The bill seems like a step in the right direction," Alex Kozinski, former chief judge of the Ninth Circuit Court of Appeals, told The Huffington Post. "It seems to give a great deal of discretion to trial judges, so its effectiveness will depend on the degree to which those judges are willing to exercise that authority."

But that's the key.  The law itself will be ineffective unless judges are willing to exercise their authority.  In fact, I don't think the law changes much, since it does not give judges any more authority than they already had.  Yet, if all it does is encourage more judges to take action, then the law is, in fact, a step forward.

The law seems to be a reaction to an incident back in March when a state judge removed a full DA's office from the county’s highest-profile murder prosecution in years because misconduct had tainted the entire office’s handling of the case. He reassigned the case to the California attorney general, Kamala Harris, a ruling her office is appealing.  Go here for a New York Times article with more information on that story.

Court finds prosecutor intentionally withheld evidence and lied and yet denies habeas and does not even suggest sanctions

In another example of a court not doing anything to curb prosecutorial misconduct, the ABAJournal.com is reporting on a case from Texas where the court found that a prosecutor intentionally withheld evidence and lied multiple times and yet does nothing about it. The court just said it "did not approve" of the conduct. Wow!, what a bold statement!! You can read the opinion here.
 
Prof. Jonathan Turley did some research and found that the prosecutor in question has a long history of misconduct. Apparently over the years she has already violated 34 rules of professional conduct. You can read the full post on her long history here. Do you think she will be deterred after the most recent case? She hides evidence, lies, gets away with it and the defendant's conviction stands. What do you think?
 

Court orders new trial, holding former prosecutor, now TV personality engaged in unethical conduct

Jonathan Turley's Res Ipsa Loquitur is reporting that a state court has ordered a new trial for a man convicted in 2007 due to unethical conduct of former prosecutor television personality Kelly Siegler, the star of the reality series Cold Justice on TNT.   The judge detailed an astonishing 36 instances of unethical conduct by Siegler, including withholding exculpatory evidence.  The judge explained that the prosecutor testified at a habeas hearing that favorable evidence did not need to be disclosed if the state did not believe it was true.  This is interesting because if she really believed that then you may be able to argue she did not "knowingly" violate the law.  Yet, you can also argue she is incompetent since that is obviously not the standard.  So, either way, there is basis to argue unethical conduct.

Siegler, not surprisingly, has denied she engaged in misconduct and has asserted she never withheld evidence.  Reportedly, attorneys are now re-investigating all the murder cases she was involved in.

Sadly, this is not the first "TV prosecutor" with a history of allegations of unethical conduct.  The other, of course, is Nancy Grace, who has been accused of being an unethical prosecutor who violated the rights of accused persons.

Prosecutor disbarred for his role in capital murder conviction of innocent man

It is often said, and I have discussed it here many times, that prosecutors rarely face accountability for prosecutorial misconduct.  Yet, every now and then courts do take action.  In 2013, I wrote a number of posts about the ex-prosecutor (later judge) in Texas who was disbarred for having lied during an investigation on whether he withheld exculpatory evidence in a case that resulted in the conviction of an innocent man.  See here for the most recent post on that case, with links to others.

Similarly, another former Texas prosecutor was disbarred this week for withholding evidence and presenting false evidence in a case that resulted in the conviction of an innocent man.   The defendant in that case served 18 years and twice was scheduled for execution before he was exonerated and released four years ago. Go here for an article with more information.

DC Court finds that prosecutor's duty to disclose exculpatory evidence under Rules of Professional Conduct is broader than duty under Brady v Maryland

Back in 2012, I reported on a case from Washington DC called In re Kline in which the U.S. Justice Department and the D.C. Office of Bar Counsel argued for different interpretations of the District of Columbia's version of Rule 3.8 on "special responsibilities of prosecutors."  The rule states that prosecutors have a duty to timely disclose to the defense "all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense."  This language originated in the ABA Model Rule which has been interpreted to mean that the duty under the rules of professional conduct is broader than the duty imposed by the constitutional standards in Brady v. Maryland.  (This was explained in ABA Formal Opinion 09-454).

However, not all jurisdictions agree with this interpretation.  I posted a note about this here, when the Wisconsin Supreme Court held in a disciplinary proceeding that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland. 

The proper interpretation of the rule in Washington DC was unclear because, although the text of the rule followed the language of the ABA Model Rule, the comment to the DC rule says that the rule  "is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes and court rules of procedure."

Almost a year after my first post on the case, in August 2013, I reported that the District of Columbia Board on Professional Responsibility recommended a 30 day suspension for the prosecutor in In re Kline.  You can see that post here.

The case is now back in the news because the DC Court of Appeals has reversed the sanctions while clarifying the extent of the duty to disclose exculpatory evidence under the Rules of Professional Conduct.

The court held that the prosecutor violated ethical obligations of disclosure under Rule 3.8, but that it was not unreasonable for the prosecutor to believe that he did not have a duty to disclose because of the confusion created by the discrepancy in the rule and its comment.  For that reason, the court reversed the sanction, but then proceeded to clarify the extent of the duty.  In doing so, the court joined what appears to be the prevalent interpretation of the duty. You can read the opinion here.

For more on this case, you can check out The Legal Profession blog, the White Collar Crime Prof blog, and The Legal Ethics Forum.

Supreme Court denies cert petition in Truvia v. Connick

Last month I wrote about the cert petition in Truvia v. Connick, the most recent in a series of cases from New Orleans on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages.  You can read my original post here.

I was hoping the Court would grant the petition and revise its view on the issue, but it was not to be.  I found out today that the Court denied the petition a week ago.  Here is a page where you can find links to the documents in the case.

Thanks to Prof. Joan (Shaun) Shaughnessy (Washington & Lee) for the update.

Cert petition before the Supreme Court on whether exonerated defendant can sue New Orleans parish prosecutor's office, ... again

A new case has reached the Supreme Court on whether an exonerated criminal defendant who spent years in prison after a prosecutor violated the duty to disclose exculpatory evidence can recover for damages.  The case is called Truvia v. Connick and you can read the certiorari petition here.  (And, before you ask, yes, that is the same Harry Connick, whose office was involved in Connick v. Thompson and Smith v. Cain).

As you probably remember, in Connick v. Thompson, the defendant conceded that the prosecutor in the case against the plaintiff John Thompson did not comply with his obligations under Brady. Thompson was convicted and spent 18 years in prison, 14 of them isolated on death row, before his conviction was reversed. He sued and won a multi-million dollar verdict, but the Supreme Court, in a five-four opinion by Justice Thomas, reversed holding that there was no evidence of a deliberate indifference to the rights of persons or a pattern of similar constitutional violations.  The dissenters in the case argued the evidence was sufficient stating that "the evidence presented to the jury that awarded compensation to Thompson . . . points distinctly away from the Court’s assessment. As the trial record ...  reveals, the conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical."  (It is now known that the DA's office’s failure to disclose exculpatory evidence led to the exoneration of at least twelve people since 1990.)

A year later, after listening to the oral arguments in Smith v. Cain, during which the justices discussed the history of misconduct at the same prosecutors' office, maybe the Court would have been ready to accept the fact that there was a pattern of misconduct.  However, that was not at issue in that case and the Court simply (and almost unanimously, Justice Thomas being the only dissenter) reversed the conviction because of the prosecutor's misconduct.

The new petition before the court involves two men who were exonerated after 27 years behind bars. After their convictions were vacated, the filed a complaint asserting claims under 42 U.S.C. § 1983 for constitutional violations arising from the prosecutors misconduct in not disclosing exculpatory evidence.  They argued (and presented evidence to support the argument) that the Orleans Parish District Attorney’s office had a policy and custom of withholding exculpatory evidence.  The lower court, however, ruled there was no triable issue of fact.  On appeal, the Court of Appeals for the Fifth Circuit affirmed.

I hope the Court grants the petition because it would give the Court the opportunity to define the level of evidence needed to support a claim for civil rights violations by prosecutors due to violation of the duty to disclose exculpatory evidence.  As the petitioners argue in their petition, this is an issue of national importance. 

In Connick v. Thompson the Court held that the single incident of prosecutorial misconduct in withholding exculpatory evidence was not sufficient to create local government liability.  The Court's conclusion was based on the finding that the plaintiff “did not prove a pattern of similar violations that would establish that the ‘policy of inaction’ [was] the functional equivalent of a decision by the city itself to violate the Constitution.” The Court, however, did not indicate what would be sufficient to establish a "pattern of violations" sufficient for a finding of a “policy” or “custom” with regard to the failure to turn over exculpatory evidence. This is the question the Court will have a chance to answer if it grants review.

Also, as I have argued many many times in this blog, I think courts do not do enough to discourage misconduct on the part of prosecutors.  Recognizing a standard that could open the door to claims by exonerated defendants who suffer because of such misconduct would hopefully have a deterrent effect on what Judge Alex Kozinski recently called an “epidemic” of misconduct. 

UPDATE (March 30, 2015):  The Supreme Court denied cert.  Go here for the full story.

Former prosecutor sues DA's office claiming he was fired for refusing to act unethically

A man who worked for several years as a prosecutor in Corpus Christi, Texas is suing the District Attorney's office arguing that he was fired because he refused to act unethically. 

According to this story aired in Action News 10 and published here, the prosecutor says he lost his job for following his duty under the law.  According to the complaint (as explained in the story), when the prosecutor uncovered a witness who had the potential to help someone he was prosecuting, his bosses told him not to share the information with the other side.  Instead, the prosecutor called the State Bar of Texas for an opinion which confirmed he had a duty to disclose the information.  Following his duty, however, the prosecutor told his supervisors he was going to disclose the witness and was fired the morning of the trial.

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.

Connecticut Appellate Court holds that there is no duty to disclose exculpatory evidence

About a week ago, the Connecticut Appellate Court addressed a very interesting question that I have to confess I had not thought about before.  Now I want to do some research to see how it has been approached in other jurisdictions.

The question is whether the state has an obligation to disclose exculpatory evidence to an attorney as part of a disciplinary proceeding.  In this case, an attorney was disciplined, but he later argued that he was entitled to a new trial because bar counsel allegedly suppressed evidence that may have disproved the charge.  The court however held that Brady v. Maryland does not apply in bar disciplinary cases, stressing that Brady‘s applicability is limited to criminal prosecutions.  However, the court also hints that the argument was irrelevant in any case because the attorney in the case had knowledge of the evidence that he accused bar counsel of suppressing.

The case is Smigelski v. Dubois and you can read the decision here.

Complying with Brady, from the prosecutor's perspective

There has been a lot of discussion of prosecutorial misconduct (here and elsewhere) during the past few years and most of it relates to prosecutors' failing to disclose evidence as required by Brady v. Maryland.  And, as readers of this blog know, I have been extremely critical of prosecutors who violate their duties and of judges to let them get away with it.  But we have not heard much from the prosecutors' perspective; so I was glad to see Prosecutor's Discretion, a prosecutor's blog I like to follow, post a comment on that.  In it he describes how sometimes the issue is not so clear cut.  Sometimes, there are multiple issues to consider and the choices the prosecutor has to make are not as easy as they might seem.  You can read the comment here.

Chief judge of the 9th Circuit Court of Appeals warns of "epidemic" of Brady violations by the Justice Department

Long time readers of this blog know that I often complain how courts do not seem to take the problem of prosecutorial misconduct seriously. (Go here and scroll down for all my posts on the subject of prosecutorial misconduct.)  Last October, however, I posted a story (which I started with that same first sentence) about how "luckily, there is one court that is doing its part: the Court of Appeals for the Ninth Circuit."  In that story, I wrote about an oral argument (the story has a video of it) and a recent opinion.

Unfortunately, the latest on the subject from that court is not so encouraging. Last month it was reported that the court voted overwhelmingly to deny a rehearing in United States v. Olsen, 704 F.3d 1172, 1177 (9th Cir. 2013), a case where the Justice Department failed to fully disclose exculpatory evidence. Chief Judge Kozinski (joined by four other judges), however, issued a dissenting opinion opposing the denial of the rehearing. He begins the opinion with a sentiment I have been repeating for as long as I have been commenting on prosecutorial misconduct: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”  The dissenting Opinion is available here.

The case and the opinion by Kozinski have generated much commentary. For more information and comments go to:  Jonathan Turley, Seeking Justice, The Legal Ethics Forum, Seeking Justice, again, Huffington Post, The Los Angeles Times, and The New York Times,

The underlying problems in this case, like in so many others, deal with two related issues:  the extent to which a prosecutor has a duty to disclose material to the defendant and how to determine if a conviction should be reversed because of Brady violations.  Typically, courts will say that, under Brady, prosecutors have a duty to disclose evidence that is favorable and material.   Many jurisdictions, and the ABA, have adopted rules that impose a broader duty to disclose; others have denied that the rules impose a broader duty.

In this particular case, the Circuit Court found that the information in question was evidence favorable to the defendant and that it had not been turned over to the defendant's attorneys, but the court also determined that the evidence wasn't material.  And, having decided that the evidence wasn't material, the court did not decide whether the prosecutor engaged in misconduct.

To this, Kozinski reacted as follows:   "The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here."

This is a very important issue and I am going to take the chance here to predict that it will one of the hottest topics in Professional Responsibility circles this coming year.

More criticism of the DC Bar Counsel decision to recommend an admonition for prosecutor with history of repeated violations

I recently posted a comment critical of a decision from Washington DC in which the Office of Bar Counsel recommended only an admonition for a federal prosecutor with a “history of repeated, blatant Brady violations” (as determined by a judge's findings) and who was found to have made false statements to a judge.   See here.  Seeking Justice was also critical of the decision and the Legal Profession blog has a number of posts critical of the DC disciplinary system. Now Jonathan Turley has added his voice to the criticism.  His comments starts as follows:  "It has long been maintained by defense counsel that the Justice Department not only protected unethical prosecutors but has a culture encouraging unethical conduct in litigation. This problem is magnified by the tendency of courts and bar committees to look the other way in the face of violations or to confine sanctions to admonitions or verbal criticism"  You can read the full comment here.

Wisconsin Supreme Court finds ethical obligation to disclose exculpatory evidence is not broader than the obligation under Brady v. Maryland

The Wisconsin Supreme Court recently held in a disciplinary proceeding (In re Riek) that prosecutors' ethical obligation to disclose exculpatory evidence is not broader than the constitutional standards that apply under Brady v. Maryland.  

The accepted interpretation of the ABA Model Rules, and an ABA Formal Opinion, take the view that the ethical obligation is broader.  See  ABA Formal Ethics Op. 09-454.  But not all jurisdictions agree.  For example, the Ohio Supreme Court rejected the ABA's position in Disciplinary Counsel v. Kellogg-Martin, 923 N.E.2d 125 (Ohio 2010), while North Dakota has embraced it (In re Feland, 820 N.W.2d 672 (N.D. 2012)).  Louisiana and Colorado have also ruled on the subject before the ABA's Opinion in In re Jordan, 913 So. 2d 775 (La. 2005 and In re Attorney C, 47 P.3d 1167 (Colo. 2002).

Also, the professional responsibility rules in at least two jurisdictions state, or can be fairly understood to say, that a prosecutors' duty is not broader under the rules than under Brady.  See D.C. R. Prof'l Conduct 3.8 cmt. 1 (2012) and  N.C. R. Prof'l Conduct 3.8(d) (2012).

Most jurisdictions, however, have yet to decide the issue directly.  It will be interesting to see the case law that develops.

Thanks to the ABA/BNA Laywers' Manual on Professional Conduct for the update and link.

Washington DC Office of Bar Counsel again fails to impose meaningful discipline

A few days ago, I commented on a case in Washington DC where the Office of Bar Counsel's recommendation of censure for prosecutorial misconduct was rejected by the Disciplinary Board which recommended a stiffer sentence.  I have read elsewhere that DC has a reputation for not imposing harsh discipline and now there is news of another case that supports this view.

The new case, reported in the Blog of the Legal Times, involves a federal prosecutor with a “history of repeated, blatant Brady violations” (as determined by a judge's findings) and who was found to have made false statements to a judge.  Yet, despite the finding of the history of violations and the most recent incident, the Office of Bar Counsel recommended only a formal admonition.

Needless to say, as I have argued so many times before, this is not the way to discourage prosecutorial misconduct.

Seeking Justice has a comment on the case here.