ethics
Trading cases
Oct 22nd
Say it ain’t so, David F.! Last night’s episode of Raising the Bar included a storyline about a client of Bobbi the public defender, who had been waiting two years for a trial, but which the prosecutor kept putting off because she wasn’t ready. Then the prosecutor bluffed and put the trial on the “ready list”, knowing full well that the client really shouldn’t go to trial. With me so far?
In another subplot, Zack Morris has a client who is (again) getting screwed [and there's this innovative tangent about how the warrant is defective because it doesn't state the chemical name of Ecstacy. Oh, this client is also the gay clerk's secret lover]. In order to convince the prosecutor to give him a misdemeanor, he agrees to convince Bobbi to not object to a continuance in her case where the guy has been waiting forever.
The last I remember of this subplot was that Bobbi told Zack to stuff it. I even remarked in the liveblog that that particular loose end had not been tied up and I wondered whether they’d pick it up in the next episode.
Perhaps it was toward the end of the show and I lost interest, but Miranda today informed me that, actually, the implication was that Bobbi agreed to continuance because Zack asked her to. This is hinted in the second to last scene, when they all congregate in the bar. As Zack enters, he sees Bobbi and the rabid prosecutor sharing a drink and laughing. Zack comments that Bobbi has a new best friend and she tells him that the prosecutor bought her a drink and that now Zack owes her.
I totally missed it. So chime in if that happened and if that’s your interpretation of the scene. Because if it is, then I’m really disgusted.
The implication, obviously, is that we trade cases. You give me something on this case and I’ll give you something on that case.
I can’t tell you how many times clients have told me that they felt they “got sold” in previous cases. That their lawyer “traded” them in for a favorable result in another.
Not only is it completely unethical, but also quite disgusting. We have a duty to each client and no self-respecting public defender that I know would do something like that.
For Feige to suggest that – and with the character of the intelligent, passionate and no-nonsense Bobbi no less – is a surprise.
Scott wrote a while ago about “the bank” going out of business. I don’t think this is the kind of bank he had in mind. If it was, then I’m glad it went out of business.
You absolutely do not – ever – compromise the rights of one client for another. You fight for both. I don’t care how difficult the prosecutor is. You lose all credibility when you start leveraging clients against one another.
I’m absolutely flabbergasted that David F. would include this in his show and insinuate that such things actually occur. This does nothing to dispel the commonly held misconceptions that we work for the state, we don’t care about our clients and we’re evil.
On the show itself: I think it has stopped being a legal show and has turned into a pure and simple drama that happens to be located in a courthouse. That’s how I will continue to watch it.
But not if this shit happens again.
Legal fictions: Confidential communications
Sep 28th
Babel babble
One of the hurdles we have to deal with as criminal defense attorneys is the language barrier between us and our clients. A fair percentage of our clients don’t speak English or don’t speak it well enough for us to effectively communicate pertintent information.
The Court system provides for this by employing interpreters who stand next to defendants and translate anything that is being said verbatim. But that’s not good enough and doesn’t cover all communications between client and attorney. It’s also not fool-proof.
I could regale you for you hours with stories of interpreters that stretched the limits of their job description and started conversing with the clients. But I won’t – you’ve all been there.
Translating in court isn’t all that an interpreter is required for. What about letters to clients or phone calls or visits in person? Here, in CT, the interpreters office will send interpreters along on legal visits (if you ask for one) and will translate letters for you. This practice has inherent problems: the most important being confidentiality.
Any time you have a conversation with a client where a third party is present, confidentiality is waived. Anything you say at that meeting can be repeated in court. So what do we do? What do you do? Short of becoming fluent in Spanish and spanish-legalese, are there any options available? Without the assistance of the interpeter, one cannot communicate with the client, but if one does, then the conversation is not confidential.
Perhaps for those of you in private practice, there is an out. You use your own investigator who is fluent in Spanish. Those communications are probably still privileged. But for those of us in the public defender system, it creates a difficulty.
Ideally, there should be an independent interpreting service that enters into a contract with the pd’s office, wherein one of the conditions is confidentiality.
With the judicial interpreter’s office, there is only an implied confidentiality and, in reality, there is none whatsoever.
No one would actually try to use the information gained from such a meeting (or from “confidential” visiting rooms and telephones in prison) because the outcome would be a massive lawsuit and lots of headaches for the State, but that doesn’t mean that if push comes to shove, there actually is a cloak of confidentiality.
How does your State do it? For those in CT, how do you do it? Have you found a suitable workaround? Please share.
Gideon’s promise: Determining who benefits
Sep 16th
Gideon made his promise a long time ago and States began providing indigent defendants with counsel in criminal cases. Much has been said over the years about the promise being fulfilled and states not providing counsel, but the Brennan Center for Justice at NYU Law tackles the flip side of the problem in a new report [pdf]: just who is eligible for counsel?
The report examines guidelines across the nation and determines that there is no one consistent standard for determining eligibility. People who really should get counsel don’t and people who shouldn’t, do. SCOTUS has never defined what the eligibility standards should be, so States have been free to set their own. I know CT follows the Federal Poverty Guidelines, but other states do not. Some states disqualify defendants if they own a home or a car. Given the cost of private counsel, it may not be feasible for even people with “equity” to hire their own attorneys. This results in them either hiring bad lawyers or representing themselves and taking bad deals.
The report makes several recommendations and offers guidelines for eligibility determination:
- Screen people seeking the appointment of counsel to ensure that they are financially eligible.
- Apply screening criteria and processes uniformly, and commit them to writing.
- Ensure that screening is performed by someone who does not have a conflict of interest.
- Ensure that counsel is provided to those unable to afford it.
- Streamline screening to speed up the process and save money.
- Ensure that required procedural protections are in place.
The third recommendation above is the product of some interesting findings. For example, in some jurisdictions, prosecutors make the initial eligibility determination. (!) In other jurisdictions, they can challenge a determination of eligibility.
The report also suggests that it is unethical for the public defender’s office itself to make eligibility determinations, because it creates a conflict of interest.
Defenders’ personal interests come into play in several ways when they are asked to screen their own clients. For example, in order to provide adequate representation to their clients, public defenders must maintain manageable caseloads. For salaried defenders, and defenders with a contract to represent all defendants in a given geographic area, this may create an incentive to conclude that potential clients are ineligible for representation. Thus, an assistant public defender in Schuyler County, New York, told investigators from the NAACP Legal Defense and Education Fund “that he uses eligibility requirements to limit the number of clients he will represent.” Defenders may also have an incentive to reject cases that are time-intensive, controversial, or undesirable in some other way. The Schuyler County defender exemplifies this risk, too – he reported “telling eligible defendants that if they are willing to work out a deal with the DA that day, he will represent them.”
This is interesting and I’m not sure I agree. In CT, usually it is the investigator from the public defender’s office who does the intake and determines eligibility. This job is also charged to the public defender’s office by statute. I’ll have to give this conflict angle more thought.
The report does recommend, however, that if public defenders are making eligibility determinations, such determination not be made by the attorney who will represent the client.
Overall, I think these are good recommendations and my experience in CT has been that we err on the side of caution and try to represent as many clients as possible. It’s not like this will get any easier. According to a new report, prosecutions are up.
What’s your experience in other states?
Hood execution stayed; lawyers continue douchebaggery
Sep 9th
I was going to write about the silly comments made by the attorney for the Judge that presided over Hood’s original trial, but that has been pre-empted by this late breaking news that Hood’s execution, set for tomorrow, has been stayed.
Tuesday’s reprieve was granted over a technical issue regarding instructions given to the original jury, and a hearing will be scheduled on that issue.
Btw, I love how instructional error is called a “technical issue”.
Now here are the asinine comments:
Earlier in the day, [attorney for Judge Holland] Mr. Boyd said Judge Holland is “saddened” and “disappointed” by the allegations of an affair at the time of the trial.
He also criticized Mr. Hood’s attorneys for filing a civil action in the case in an attempt to elicit a stay of execution from Texas Gov. Rick Perry, or to force consideration of new appeals in a criminal court.
“This is not about getting money damages for Hood or his estate,” Mr. Boyd said of the civil action. While lauding their “creativity,” Mr. Boyd noted that the case happened 20 years ago and in all those years, “nobody has filed a grievance between either of these two people.”
Right, it’s not about money, but “just the small matter of his life”.
Sorry Judge Holland, but I am “saddened” and “disappointed” by your attempts to obfuscate and to possibly deny this man a fair trial before his life is taken by the State.
Judges are supposed to recuse themselves from cases if there is even the slightest appearance of impropriety. Sleeping with the prosecutor in a capital case goes far beyond that. Everyone knows that there are some judges who are in bed with the State, but when it actually happens – literally – it should be enough to stop the trial or reverse the conviction.
The Judge that ordered the depositions of the judge and prosecutor was quite right in saying:
he was interested in preserving the integrity of the judicial system
Good to know that not all judges in Texas are like Judge Holland.
Courthouse Steps Syndrome
Sep 9th
Also known as “mic in face make lawyer say lots of things”.
A long time ago I wrote two posts on the propensity of some lawyers to blabber too much in court, either with or without the media present (incidentally, two of the most popular posts here at apd).
Then yesterday I happened to read this post by the prolix (his word, not mine) David Giacalone at f/k/a. Essentially, he coins the phrase “Defenders Red Herring Credo” and is disappointed at the blatant nonsense put forth by a particular set of defense lawyers in defense of their clients – to the media. Read the post, which, while rather long, does not seem that way because of his writing style.
The thrust is this: Why are defenders so tied to making some form of statement proclaiming their clients’ innocence or ridiculing the State’s evidence to the media, no matter how patently absurd and does it not show criminal defense lawyers in a poor light and lead some credence to the general perception that we are not to be trusted?
Scott, in the comments, agrees with me for the most part that the less said the better and it probably is best if you say nothing at all. No one I know of was convicted because his lawyer said “not guilty” on the courthouse steps.
But he also threw this in:
But the one thing to remember is that the defense has no duty of fairness to the public. It’s only duty is to its clients within the bounds of the law.
I agree completely, but in the case of CSS*, I don’t think they’re mutually exclusive. Our duty to the client should encourage restraint on the courthouse steps. Just because the clients (or more likely the media) want some outward showing of their “innocence”, doesn’t mean we have to give it to them.
First, we should believe what we’re saying, because if we don’t, it comes across pretty clearly. Second, as lawyers thinking two steps ahead, we should be careful of what we assert, because people and the media and the internet have long memories and if we can’t prove it later on…well, that doesn’t look too good either.
Finally, and most importantly in my opinion, today’s 10pm news watchers are tomorrow’s potential jurors. Much has been written in the blawgosphere over the past months about what best convinces a jury. Credibility was oft repeated. A jury will be more inclined to believe your client’s version of the story if they’re more inclined to believe you.
But if they remember you as the smarmy lawyer they saw spout nonsense on TV, will they be more inclined to believe your next client? Maybe, maybe not. Do you want to take that risk?
*not to be confused with Cascading Style Sheets
Stare decisis ad infinitum (updated)
Sep 8th
So seems to be the State of Utah’s motto. In the midst of a capital case, the A.G. is seeking sanctions against defense lawyers because, get this, they argue that a third of the claims have already been decided by other cases.
[Defense attorney] Brass and attorney Richard Mauro, who represents [the other defense attorney] Donaldson, deny any impropriety or unethical behavior and contend that they only sought to preserve every possible avenue of appeal for [defendant] Archuleta.
Brass said he thought justices should give deference to the 17-page opinion from Judge Donald J. Eyre, who found “there was no deception, there was no unethical behavior that he wasn’t deceived and there wasn’t an effort to deceive him.”
Makes a lot of sense. You raise every avenue of challenge, even if previous cases have decided the issue. Maybe they’ve been decided by state courts, but not by Federal courts. In all post-conviction cases, especially capital cases, it is all about preservation of issues.
But this is not surprising. Since AEDPA, State prosecutors have been on a crusade to curtail post-conviction avenues and rights of criminal defendants. Claims of “abuse” are pretty frequent. Given that courts throughout the country have repeatedly held that habeas corpus petitions are the appropriate venue for challenging trial counsel’s performance (and raising other Constitutional deficiencies), I would sincerely hope that they suggest a viable alternative or let it go.
But back to the curiosity here. What the prosecutors are, in essence, saying is that once a point of law has been decided a certain way, it can never be changed. Not only is this not what stare decisis means, but if such were indeed the case, then almost all issues would have been decided decades ago and we might as well disband all appellate courts.
Decisions are reversed all the time, precedent is overturned with some regularity. If that were not the case, the law would be stagnant, reflecting a time long gone and incapable of dealing with evolving society.
Fortunately for us (and unfortunately for the Utah A.G., I suspect), such is not the case. Lawyers should be free to challenge existing caselaw and should be free to seek reversal of precedent.
I also wonder if the Utah A.G. practices what it preaches. I suspect the A.G. has not rolled over on any cases where there is “caselaw on point”. I bet they still defend post-conviction challenges and other criminal prosecutions. They may do so even in cases where the law is squarely against them. I’ve seen it happen here. It’s annoying, but it’s the way it is. It doesn’t mean that lawyers should be subject to sanctions for merely advocating strongly on behalf of their client and preserving all legal claims. Sanctions are serious – they should be thrown about willy-nilly when defendants do something that irk prosecutors. Sanctions should be reserved for the worst violators of the rules of conduct.
What this disturbing litigation has also caused, perhaps intentionally, is a declining desire on the part of Utah criminal defense lawyers to take on capital cases.
Mauro said the state’s case against Brass and Donaldson has prompted other attorneys to refuse to take other death penalty appeals out of fear they’ll face similar allegations. That could leave some wrongly-convicted death row inmates without a chance for exoneration, he said.
It’s not only those that are wrongfully convicted – those that have been convicted with the assistance of some Constitutional defect. Post-conviction isn’t about getting another shot at the apple; rather it is about making sure that when the State convicts an individual and takes away his/her liberty, it does so in a Constitutionally sufficient manner.
That is of paramount importance – and the A.G. doesn’t seem to care.
Update: The A.G. seems to be in the news for something else as well. This time, the A.G. doesn’t seem to care about the presumption of innocence. The A.G. redesigned his website and launched it anew with a video of the arrest of a sex assault suspect. [He also has a blog.]
Legal Blog Watch reports:
The video shows the Utah Internet Crimes Against Children Task Force assisting local police as they arrest a 26-year-old man suspected of arranging to have sex with an underage girl he met online. Actually all it shows is two men escorting a man in handcuffs through a parking lot. That is followed by the comments of a local sheriff’s detective, who says, “If I was someone who had a daughter, I’d be very scared about what’s going on,” and of a local police officer, who says, “It’s crazy that we have guys like this that would do this type of thing.”
No reason to let the presumption of innocence get in the way of good TV. But the local chapter of the ACLU sees it otherwise. ACLU lawyers showed up at Shurtleff’s press conference announcing the site to register their protest. “We are concerned that by posting the arrest video of an unconvicted person, the attorney general is more interested in political grandstanding than protecting the public,” ACLU lawyer Marina Lowe told the Deseret News. Added ACLU attorney William Carlson, “Guilty before charged.”
Do you gamble?
Aug 28th
The Texas Tornado, by way of the two Justices (Blonde and Western) writes about (what he might as well trademark) the NLS (Nasty Little Surprise©) strategy and tactic.
The question is simply
why a criminal defense lawyer would not share exculpatory information before trial with the Government.
All three of them hit on the crux of the matter – trust. Trust in the prosecutor assigned to the case and trust in yourself. You want to reveal this exculpatory information to a prosecutor whom you know will not dismiss it outwardly and then try to circumvent it surreptitiously. Thankfully, in my experience at least, such prosecutors are few and far between. It is a very real possibility, however, and one that should be weighed.
Then you have to trust yourself. Do you trust yourself to take the case to trial and present that exculpatory information in the best possible way? Only you can answer that question.
The Tornado then goes on to separate the NLS’ into two categories: the bombshells and the not-bombshells. Both should never be revealed to an untrustworthy prosecutor, he says, and the second category NLS need not be revealed if it won’t make much of a difference in the pre-trial stage.
I don’t know how they do it in Texas or the State of Justices, but here in CT, most pre-trials in Part A are in judges’ chambers, where both sides sit down, talk about the case, give the judge some information (without revealing all the cards, of course) and hash out a number. If the number is too high or too low for one side, you go back two weeks later and try it again (roughly speaking). So if there is some exculpatory information, you might be able to get a Judge on your side and convince the prosecutor to dismiss or nolle the charges. Won’t happen every time, but worth considering.
So, The Tornado argues, echoing Blondie, that you might want to set up the NLS for use at trial – a Perry Mason moment, if you will.
I’m not so sure about that. It seems romantic and all, the star witness recanting on the stand or the air-tight alibi for your client destroying the state’s case. But it’s all a risk.
If the star witness recants, there’s always the prior inconsistent statement. If your client suddenly develops an air-tight alibi, but didn’t reveal that in his confession, then you’ve got credibility issues.
When a jury of six or twelve is sitting in that box, watching every move, evaluating every word that comes out of every witnesses mouth (and the lawyers’ too), then it’s always a gamble. Do you have the perfect factual defense? Maybe, but who the hell knows what juries do. Do you want to take that risk?
I think, for the most part, if you have the exculpatory information that should result in a dismissal, you should try and utilize it pre-trial. After all, that too is part of our jobs as criminal defense attorneys.
(Now, you all probably know that I hate generalizations, so I just want to add that every case is different and every circumstance is different and what I would do would probably depend on the individual case, but as a general rule, I’d rather use the exulpatory information pre-trial.)
Fellow practitioners, what do you think?
And finally, just because it’s been so damn long since I’ve done this:
[youtube]http://www.youtube.com/watch?v=kn481KcjvMo[/youtube]
Attorney-client confidentiality in prisons
Jun 23rd
One of the most important aspects of our job is maintaining attorney-client confidentiality and it is also an integral component of the adversarial system. We need confidentiality so clients can take us in their confidence without fear of repercussion. Clients need advice and we need the information without the filter of someone overhearing that information and using it against the client.
In the criminal justice system, where the burden of proof is squarely on the State, the confidentiality is even more important. Clients tell us all sorts of things, none of which the State needs to know.
In this era of Prison Nation, however, maintaining that confidentiality has some unique challenges. As the prison population grows, so will the challenges to maintaining confidentiality. For example, defense attorneys in San Diego were outraged when they recently discovered that their telephone conversations with clients were being recorded.
A lawyer for the Sheriff’s Department said the recordings, which defense lawyers say are privileged conversations protected by law, were made because of an inadvertent glitch in the telephone system.
But defense lawyers said the eavesdropping is a felony under state law and can carry penalties of up to $5,000 per call.
They are also concerned that prosecutors – who have access to the recording system from their desktop computers – could have been privy to conversations, too.
It’s bad enough that a “glitch” in the system led to recording highly sensitive and confidential conversations, but the thought that prosecutors had access to those conversations sitting at their desks should be enough to make anyone cringe and cross their legs. Then there’s this silly waiver argument:
However, all of the calls from the jail that were recorded have an automated message at the beginning warning that the conversation was being monitored or recorded.
“I don’t know if it’s privileged if both parties are warned they are being recorded,” Toyen, a lawyer and a special assistant to the sheriff said. “If a client in jail made a phone call to me and I heard that, I wouldn’t say anything that I wouldn’t want recorded.”
So some automated recording serves as an automatic waiver of attorney-client confidentiality? Why spew this nonsense instead of just admitting you messed up?
In Connecticut, there are two “types” of phones in prisons: counselor’s phones and pay phones. The pay phones are recorded and counselor’s phones are not (supposed to be). It is rare, but sometimes I do get clients calling from pay phones in the prison. That’s when I ask them to hang up and let them know I will call their counselor to set up a legal call. But even calls with counselors aren’t always “private”. The counselor’s office is in a cell block, with other inmates outside the door – and often counselors don’t even leave the office while the client is talking.
This problem with talking to incarcerated clients isn’t limited to the phone, though. In person visits with clients also have confidentiality problems. Holding cells in small courthouses are the least confidential of all locations and yet one has to talk to clients there. There are other inmates being held in those cells and there are marshalls milling about.
One of the largest correctional facilities in the State has the least sound-proof professional visiting rooms ever built. There might as well be no walls. Anything you say above a whisper can be heard by the people in the next room and quite probably by the correctional officers standing guard outside.
But such is the system and you learn to work with it. It’s an unwritten understanding that anything heard during these “confidential” meetings will not be used by the State against your client. It has to be – otherwise the State is looking at massive lawsuits. Imagine that they did use a statement or fact learned from such a conversation. The State could quite possibly be forced to build new courthouse facilities, new visiting rooms in prisons: it would be looking at a massive expenditure.
It’s easier to turn a deaf ear. But when the conversations are being recorded, the pretense of ignorance has been shattered.
Prosecutorial sanctions: Three time’s a charm
May 6th
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.
Dallas DA wants to punish Brady violators
May 4th
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?
Preempting habeas
Apr 21st
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?
Ethical violations: A reluctance to report
Apr 14th
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.]
[poll=21]
Image courtesy 3×0=3 (LVSFRD). License details here.
Appellate Judge facing discipline for concurring opinion
Apr 7th
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?
The maelstrom that is cover your ass-ery
Aug 16th
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.
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