In keeping with “Should prosecutors be held accountable” week, the 9th Circuit issued this scathing opinion, chastising two prosecutors for egregious violations:

The government egregiously failed to meet its constitutional obligations under Brady and Giglio. It failed to even make inquiry as to conviction records, plea bargains, and other discoverable materials concerning key witnesses until after trial began. It repeatedly misrepresented to the district court that all such documents had been disclosed prior to trial. The government did not admit to the court that it failed to disclose Brady/Giglio material until after many of the key witnesses had testified and been released. Even then, it failed to turn over some 650 documents until the day the district court declared a mistrial and submitted those documents to the court only after the indictment had been dismissed.

The Court concludes with:

This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available.

Despite that, the opinion declines to name the prosecutors in question. Fortunately, Mike at C&F is not so shy. He’s going to send a copy of the opinion to the Nevada State Bar Association. Maybe something will come of it. It should.

Looks like I wasn’t the only one who had prosecutorial ethics on my mind this past week. From Grits, Dallas DA Craig Watkins has about had it with these exonerations and wants to do something about it. His proposals are serious.

“Something should be done,” said Craig Watkins, whose jurisdiction leads the nation in the number of DNA exonerations. “If the harm is a great harm, yes, it should be criminalized.”

Mr. Watkins said that he was still pondering what kind of punishment unethical prosecutors deserve but that the worst offenders might deserve prison time. He said he also was considering the launch of a campaign to mandate disbarment for any prosecutor found to have intentionally withheld evidence from the defense.

And he has reason to be considering such harsh penalties. Texas has already paid $8.6 million since 2001:

Of the 45 wrongful-conviction cases for which the state has paid compensation, at least 22 of them involved prosecutors withholding evidence from the defense: 19 in the infamous Tulia drug convictions and three of Dallas County’s DNA exonerations. The remainder of the payouts involved exculpatory DNA evidence or other flaws.

The article notes the paucity of sanctions against prosecutors who withhold evidence - one of the only example given is the only case in recent history where a prosecutor was disbarred: Mike Nifong in the Duke lacrosse case.

But as can be expected, there are other prosecutors who take an opposing view. John Bradley, a prosecutor in Williamson County near Austin calls Watkins’ proposal “ridiculous” and “an overreaction”.

What’s ridiculous is that innocent people spend decades in prison and the prosecutors that withheld evidence to put them there don’t get as much as a slap on the wrist. Prosecutors have a duty to do justice and to seek out the truth. To turn a blind eye when they neglect that duty and in fact take affirmative steps to circumvent justice is a big f*ck you to the whole system.

There’s absolutely no reason not to have a mandatory grievance process, at the very least, for prosecutors who intentionally withhold Brady or Giglio material.

The Innocence Project of Texas, a nonprofit legal clinic that worked to free many of the Dallas County exonerees including Mr. Woodard, supports criminalizing Brady violations. Michelle Moore, a board member of the Innocence Project and a Dallas County public defender, said that doing so would reduce the number of violations.

“If he can do 27 years behind bars,” she said of Mr. Woodard, “the prosecuting attorney can face time for hiding evidence.”

Damn straight he can. I know some prosecutors read this blog. What do you think of Watkins’ proposal? Would you be in favor of something like this in your State? If not, why not?

Everyone that practices criminal law is probably aware of the Sixth Amendment right to effective assistance of counsel and the (usually) appropriate venue for seeking relief for a violation of that right: a petition for writ of habeas corpus. This remedy, however, is difficult to obtain and is backward-looking in nature.

The question I’m currently considering, however, is whether there is a need - or does anyone have the responsibility - to preempt habeas corpus petitions by stopping the damage while it occurs.

Norm has been blogging up a storm recently about Gerry Spence and the Fieger trial in Chicago, talking about taking the opportunity to see the master in action. Of course, when a trial lawyer as celebrated and revered as Spence is “performing”, there is much to learn. But what of the exact opposite? What of the trial where everyone is painfully aware the counsel is performing horribly?

A trial, from the perspective of the State, is the pursuit of justice and a quest for the truth. If, during that trial, the defendant (who, let us remember, is presumed innocent) is being defended in a manner that is obviously deficient, does anyone have the responsibility to step in and say, “let us stop this sham before it goes any further”? Does the judge? The prosecutor?

Does there come a point during a trial when the system has so obviously failed that to continue would be a mockery of justice? Keep in mind that I am talking about extreme cases here - cases where it is apparent either that the defense is not really doing any “defending” or that the quality of representation is so poor that a subsequent habeas becomes an almost foregone conclusion.

Or is that too heavy a burden to place on the system? There are a few things that can be done post-trial (habeas, grievance), but is there anything that can - or should - be done during a trial?

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.]

Image courtesy 3×0=3 (LVSFRD). License details here.

A very strange story of out Florida, courtesy of the inimitable Howard Bashman. The story goes thusly:

The underlying case began as an appeal from a criminal conviction. The appeal was originally argued before a panel that ultimately decided by a vote of 2-1 to overturn the conviction. Before that ruling was issued to the parties and docketed, the decision was circulated within the appellate court to all active judges. At that point, a majority of the non-recused active judges voted in favor of rehearing en banc.

Following rehearing en banc, the full appellate court voted 10-4 in favor of affirming the convictions. The defendant asked the appellate court to certify for review by the Florida Supreme Court the question whether specific guideposts should exist for determining whether and how a case should qualify for en banc review at the behest of an intermediate appellate court’s judges. In June 2006, the appellate court denied the criminal defendant’s request to certify issues for review by Florida’s highest court.

When denying the request for certification, the Court of Appeal issued a per curiam opinion providing reasons for the denial. In addition, Judge Michael E. Allen issued a concurring opinion in which he explained why he voted for rehearing en banc. Allen wrote that he concluded that one of the judges in the majority on the original panel had made a mistake in failing to recuse because published press reports and that judge’s own background gave rise to an appearance of partiality. In his concurring opinion, Allen quoted in full three separate news reports to support the assertion that an appearance of partiality existed.

The Florida Judicial Qualifications Commission instituted disciplinary proceedings against Judge Allen.

Last year the JQC accused Allen of conduct unbecoming a judge because he criticized fellow judge Charles J. Kahn Jr. in an opinion upholding the bribery conviction of former Senate President W.D. Childers.

Just weeks before Allen was to face a JQC trial last month, the commission added more charges, accusing Allen of lying to the JQC about his motive for writing the opinion when he denied that he harbored extreme animosity toward Kahn.

Judge Allen’s Quo Warranto Petition is available here. Bashman has an excellent analysis of the absurdity of these “charges” here. This is certainly unprecedented. His concurring opinion was certainly relevant to the issue sought to be certified. The JQC seeks to discipline a judge based on his reasons for writing a decision. Under the right circumstances, it seems like a plausible cause of action. However, I doubt these circumstances are those.

“It is hard to imagine a proceeding with more potential for damaging the public perception of the judiciary, or one more disruptive, inappropriate and destructive of judicial independence than the journey into judicial minds proposed by the JQC effort to divine the reason for Judge Allen’s concurring opinion in the Childers case,” [Judge Allen's lawyer] Rogow said.

I have never read an appellate decision and thought “this judge should be disciplined!”. I have certainly disagreed with many appellate decisions, but I have never thought to questions the judge’s motives for writing it. It certainly was an abnormal concurring opinion, but one that certainly was not unethical in my opinion. Do you disagree?

In reporting Phil Russell’s guilty plea last week, I touched on what this means for all of us and Scott at SJ explored it a bit further, but I don’t think anyone has any real answers yet.

So I’m going to give it another shot. What are the implications of this guilty plea, if any? This is a tricky intersection of attorney-client confidentiality and the fear of prosecution.

Attorney Russell was charged with obstruction of justice for destroying a computer that contained evidence for a future prosecution. He pled to failing to report a felony.

Some have noted the distinction between failing to report a felony committed by your client and by someone else. In Russell’s case, his client was the church, not the employee whose computer was in question.

So does this mean that the attorney-client privilege would be a defense (or would it be a bar) to prosecution for failing to report a crime/obstructing justice, where the crime has been committed by your client? Is that what this hinges on? Whether you represent the individual whose felony you failed to report?

I don’t think this is as instructive as it might seem. Consider this scenario: Your client tells you that his cellmate has committed crimes other than the one he is arrested for. Do you then have to report that cellmate and that crime? Do you have to advise your client that he has to report the crime?

Obviously this teaches us things we cannot do: We cannot personally destroy evidence/contraband and we cannot tell our clients to do that either. Where does that leave the attorney?

I guess I still don’t have an answer, but I am a little surprised at the lack of discussion in the blogosphere on this topic, which certainly impacts us all.

In a bit of a surprise, attorney Philip Russell pled guilty earlier today. Not to the original charge of obstruction of justice, but to a subbed down charge of “misprision of felony”. What it basically means is that he knew of a felony and didn’t report it.

While the bigger issue of whether what he did should be a crime goes unresolved and is left for another attorney on another day, this plea itself raises some questions. Attorneys are under no ethical duty to report a crime unless they believe there is a substantial risk of death or serious physical injury. In this case, the crime was possession of child pornography. No such risk there.

So what does this mean, then? Does this still mean that if attorneys do not report any sort of crime, they can be prosecuted? Does this make mandatory reporters of us all?

I’m not sure that anyone should breathe a sigh of relief - except, perhaps, Attorney Russell himself.

Most recent coverage here and here and all previous coverage here and the Cool Justice Report has a collection of links here.

Image license details here.

My post two days ago about the appropriateness of comments made to the media has sparked intense discussion in the comments here and in posts from Scott and the Texan.

Let’s take Mark’s post first. He writes:

Let me be the dissenting voice here. Scott is wrong. Miranda is way wrong. I’ve written about this before — it’s a common ethical violation.

Everything I tell my client is privileged. The fact that I have discussed a plea offer with my client is privileged. The advice that I gave him regarding that offer is way privileged.

As Scott does, I disagree with Mark. It’s not that “this is how it has always been done”, but that it’s not privileged at all. It does not require disclosing the content of anything conversation, but simply the fact that you have discussed it with the client (which is an ethical obligation in of itself). Taking Mark’s position a little bit further, he is then implying that parts of the Boykin canvass are unethical. What’s the difference between stating on the record: “I have discussed the State’s offer with my client and advised him of the consequences of the plea and he has decided to accept/reject the offer” and responding to the Judge’s question during a canvass: “Have you discussed [insert any of the requirements of a valid plea here] with your client?”

Scott and Mark then misinterpret certain comments made by me and Miranda. First Mark writes:

If you want to make a record to prevent your client from having a chance of prevailing on a writ of habeas corpus, first ask yourself whether it is for your own sake or for his. Then, if you think that there is no conceivable way your client will suffer because you make a record, don’t do it publicly. Do it privately — in a letter to the client, with a copy to your file. Nobody but you and the client needs to know.

Scott follows up with:

But let’s turn to the really fascinating aspect of this debate, Miranda’s position that a lawyer’s CYA statement, in anticipation of a writ of habeas corpus or ineffective assistance of counsel (IAC) claim, justifies doing SOMETHING to protect the lawyer. I feel confident that Mark and I will agree that this is blasphemy.

What smacked me upside the head was Miranda’s, and to some extent Gid’s, suggestion that lawyers should engage in defensive lawyering for fear of an IAC claim. Why? If a defendant later claims that you failed to represent him adequately, so what? Will you melt? Will your self-esteem crumble? Will your friends and neighbors shun you? Who cares?

We’re not suggesting that you do this to protect yourself from a future IAC claim; rather that it is good practice (and we’d prefer) that the record be clear. Clients, in habeas petitions, claim all sorts of things. If the lawyer doesn’t do a good job of peppering the file with memos and correspondence (with many do not) and if the record isn’t clear as to what the client was advised of, then it is unimaginably difficult, given the high IAC standard, to determine what is a viable claim and what is not.

Imagine the scenario where the attorney does not state on the record whether he has discussed the state’s offer with the client. The transcript referencing the rejection of the offer is one of a court appearance where a continuance was sought and the judge opens the proceedings by saying simply: “I have been informed that the offer has been rejected. This matter is placed on the trial list. Continued to xx/xx”.

The client then claims that he was never informed of this offer and thus could not have rejected it.

How easy would it be for an unethical lawyer to simply show up for the habeas trial, get on the stand and say: “Oh I discussed it.”

Who is the habeas court going to believe?

It is to protect the client that we are recommending making complete records.