Daily Archives: April 14, 2008

Ethical violations: A reluctance to report

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In the comments to my post about prosecutorial immunity yesterday, John raised an interesting point. He writes:

At the VERY least, why do we not see prosecutors grieved, disciplined, reprimanded, made to take remedial ethics classes, etc. when THEY do something unethical? Is it our fault? Should we (defense attorneys) be filing grievances against prosecutors who (as in a case I have pending now) withhold exculpatory information? Should judges (a lot of them former prosecutors here in CT) be taking the lead in seeking sanctions? Why should they not be held accountable?

In a case involving clear prosecutorial misconduct, such as hiding Brady or Giglio material or offering knowingly false testimony to secure a conviction, where a conviction is reversed, does it mean that a prosecutor has violated the Rules of Professional Conduct and if so, do we have a duty to report that to the Grievance Committee?

I think the answer is pretty clear, as I demonstrated in my response to his comment. Yes, there is an ethical violation and yes, there is a duty to report. But stories of such reporting are very scarce. In fact, it seems as though it almost never happens. The Duke lacrosse team case is the only one I can come up with in recent memory where a prosecutor was disbarred (or even reprimanded!) for an ethical violation. Perhaps something will happen as a result of Tim Masters’ exoneration, but even there two of the prosecutors are now judges (IIRC), so it will be an uphill battle.

What if there is no conviction yet, but you discover that a prosecutor has willingly and knowingly withheld exculpatory information. Obviously, you first turn your sights on exonerating your client and getting any charges dismissed, but when that is done, do you file a grievance? I’ve never heard of it happening. Perhaps some more experienced readers can fill in the blanks.

This reluctance to report is not limited to prosecutorial misconduct impropriety alone. Every one of us has seen clear instances of incompetence of fellow counsel in the courtroom. Yet, the question is almost never asked: Is that grievable and do I have a duty to report it?

Why this reluctance? Is it because we work alongside these people on a daily basis and have to interact with them regularly? Is it because we are afraid to “piss off” the prosecutor, who will have the fate of tomorrow’s client in his/her hands? Will the prosecutor seek revenge by taking it out on the obviously guilty client next week? Are we violating some sacred bond between members of the profession by considering reporting a fellow attorney for an ethical violation? Is it just easier to turn a blind eye?

One of the first polls I put up on this site was “Would you ‘snitch’ on another attorney?” The options were “Always”, “Never” and “Only if it was really bad”. An overwhelming majority chose “Only if was really bad” (65%). Granted, the sample size was really small – 20 votes. In fact, I asked this very same question nearly one year ago [weirder still is that in April 2007, I also had a post about videotaping interrogations. Go figure]. So maybe it is time for another vote on that poll.

Why do you folks think this is? Or am I way off and are these not “reportable” offenses? Or am I off further still and do people actually report such actions?

[PS: Scott, this is my 5th post today. No more complaining.]

Please select one

  • Non CT pd (22%, 140 Votes)
  • Non CT other (19%, 122 Votes)
  • CT pd (18%, 114 Votes)
  • Non CT other lawyer (13%, 81 Votes)
  • CT other lawyer (10%, 61 Votes)
  • CT other (10%, 61 Votes)
  • Non CT prosecutor (3%, 19 Votes)
  • CT prosecutor (3%, 19 Votes)
  • CT judge (2%, 12 Votes)
  • CT lawmaker (2%, 10 Votes)
  • Non CT judge (1%, 5 Votes)
  • Non CT lawmaker (0%, 1 Votes)

Total Voters: 642

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Good facts beat good law

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Doug at Not Guilty asks practitioners whether they’d prefer good facts or good law in a case. The answer, I think, is clear. Good facts (almost) always trump good law.

Putting aside the question of whether there actually is such a thing as “good law” for defendants, if the facts are not on your side, your options get severely limited. If you have a case with bad facts, you’re essentially looking to get the “least worst” resolution for your client.

If, on the other hand, you have good facts – such as DNA evidence that excludes your client – then not only can you argue to a jury (or a judge) that the verdict should be not guilty, but you can also try to create an exception in the “bad law” for your good facts.

Anyone disagree with this?

CT odds and ends

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Some interesting CT stories from today that I’m really just too lazy to make into full-fledged posts.

First, New Haven public defender Tom Ullmann gives the New Haven police department a piece of his mind and takes a few swings at the State’s Attorney’s office too:

Defense attorney Thomas Ullmann has charged that some members of the New Haven Police Department’s Detective Bureau are “incompetent, unprofessional and untruthful” in handling witnesses and investigating crimes. Ullmann, said the detectives’ performance is “at its lowest level in the 30 years I’ve been here.”

Ullmann accused the detectives of “a rush to judgment, not being thorough, not following up on obvious leads.” He said there was “a shocking lapse of asking witnesses investigative questions, such as who had been drinking or doing drugs.” Ullmann added, “Their attitude was ‘the less we know, the better.’ This feeds into their tunnel vision on the case.”

He alleged the Detective Bureau has “a history of suggesting information and providing facts to witnesses and failing to investigate facts pointing in a different direction.” He said in some cases witnesses have been “harassed.”

Moreover, Ullmann charged, “This culture doesn’t exist without some enabling by the state’s attorney’s office. This doesn’t happen without the prosecutors winking and nodding and looking the other way.” He added, “There are some really good prosecutors here, but sometimes people close their eyes to this stuff.”

Yowza!

Second, the Appellate and Supreme Courts might be in danger of losing heating and cooling May 1st onwards. The Supreme Court recently rejected emergency appeals filed by the State to compel the service provider to continue providing past the expiration of the contract on May 1.

On March 27, Hartford Superior Court Judge John J. Langenbach ruled that TEN Company has no obligation to supply the state buildings with heat, or the chilled water that runs air-conditioning systems, after its contract expires.

Langenbach said he could find no legal authority to “force TEN to continue a business relationship with the State that it wishes to end because the State may suffer harm as a result of its failure to plan for the expiration of that relationship.”

The State apparently figured that there’s no way TEN wouldn’t provide heat and a/c, so they have done absolutely nothing to prepare for this.

TEN offered to sell the piping system to the state, but officials didn’t make an offer. Wrote Langenbach: “The State has not taken a single step to begin the process of procuring an alternative source of heating and cooling for the eight buildings.”

Actually, it’s not entirely true that the state has failed to act. “Well, we filed an injunction. We also sought some legislative relief. So those are the things we’ve done,” one state official told Langenbach.

Public Works officials contend that a permanent system would take six years to install, and even a temporary solution would take two years to implement. But Langenbach gave credence to TEN’s general manager, Derek Rudd, who testified that temporary heating and cooling could be put in place “fairly quickly.”

Luckily, the current term of the Courts ends on April 30 (although the next one starts mid-May!). This should get interesting.

Videotaped interrogations pilot program to start soon

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At the end of June, four police departments in CT will begin to videotape interrogations of suspects of violent felonies.

Supporters think such a policy should have been required in Connecticut years ago, especially in light of two high-profile cases in which police were accused of coercing confessions. Law enforcement officials have remained leery, voicing concerns that suspects will balk at being recorded and that defense lawyers will critique interrogation tactics.

In 2003, Illinois became the first state to enact legislation requiring electronic recording of interrogations. Maine and New Mexico soon followed suit. But even those states were a decade behind Alaska and Minnesota, whose supreme courts mandated taping in the mid-1980s. New Hampshire and New Jersey’s supreme courts have since made similar rulings. Additionally, 500 smaller jurisdictions have adopted recording policies.

Under State v. James, a 1996 CT Supreme Court decision, videotaping interrogations is not required. Despite that, many organizations have lobbied tirelessly for requiring such videotaping.

Rep. Michael Lawlor, the committee’s co-chairman, said the measure has been merged with another bill aimed at compensating those wrongfully convicted. He said a Commission on Wrongful Convictions would evaluate the pilot program and report back in January. “Then next year we’ll talk about expanding” the videotaping program said Lawlor.

Lawlor said he believes Connecticut will eventually require recording statewide.

Won’t be too soon.

Monday Morning Jumpstart: It’s still darn cold edition

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When will it get warm in the mornings? Let’s hope it is soon. I can’t take this cold weather much longer. Here are some posts and stories to keep you distracted while that raindrop melts:

  • Talkleft has the latest shaming punishment from Arizona Sheriff Joe Arpaio.
  • The Courant has this exhaustive feature on a former CT probation officer and his victims – whom he abused – and how they turned into abusers themselves.
  • Jamie Spencer writes about overcriminalization and its impact on our youth.
  • Mark Bennett talks about the impact of sheltered lives in the criminal justice system (and he’s talking about prosecutors and defenders).
  • Have Opinion, Will Travel brings us that sad but whimsical tale of two parents who got into a serious fight over which gang their 4-year old will join: will he be a Crip or a Westside Baller?
  • The Juries blog covers two contrasting stories of post-verdict contact with jurors.
  • The upcoming week is going to be a very interesting one at SCOTUS.
  • Scott highlights the problem with the low rates paid to SPDs.

That’s all I have so far. Have a great day!

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