Last week, in a Connecticut courtroom, something unprecedented happened: after a jury returned a guilty verdict in a trial, the judge, from the bench, suspended the defense lawyer for 20 days from the practice of law, for twice-violating a court order.
Apparently, Williams’ client was tried in Federal court for the same offense and acquitted and then returned to State court for another trial. The judge ruled that the acquittal could not be entered into evidence and the jury could not be told about it.
Twice, Williams slipped up and mentioned the acquittal – once during cross-examination and once during closing arguments. After the verdict the judge announced his: a suspension for 20 days1.
Blue noted a state statute providing for penalties of a fine of no more than $100; suspension of the attorney’s law license; or disbarment.
Williams expressed “profound regret,” saying he had not correctly remembered Blue’s order and thought it had been modified.
But Blue said he could not accept this explanation because Williams had violated the agreement twice.
Whether Attorney Williams willfully disobeyed a court order I do not know. I was not there and Attorney Williams and I don’t share a brain. So I’ll leave judgments about his punishment to others.
What I will join him and Norm in is pointing out the extreme double-standard here. A defense attorney, tasked with zealous representation of his client and protection of the Constitution gets summarily suspended from the practice of law, while prosecutors who routinely flout court orders and hide evidence and engage in heavy-handed, improper rhetoric don’t even warrant getting their name mentioned in appellate decisions.
First, it does strike me as a bit unfair that a prior acquittal is inadmissible in a subsequent trial, whereas if the defendant had had a history of committing similar criminal acts, they would no doubt have been admissible at trial as prior misconduct evidence. If the fact that he, in the past, was convicted of a crime, is relevant to the determination of his guilt in the present case, then how is his acquittal of the same or similar allegations not?
Putting aside evidentiary issues, however, one cannot walk away from this incident without a sour taste in one’s mouth: there certainly seems to be some institutional coddling when it comes to prosecutors across the country.
As Norm says, of all the appellate and supreme court decisions over the last few decades in which convictions were reversed for prosecutorial
misconduct impropriety or weren’t but misconduct was noted, how many of those prosecutors were referred to the grievance committee for discipline?
The answer, I suspect, is so close to zero as to be negligible. A simple Google search reveals the same probing question [PDF] being asked over and over [PDF] again: why are prosecutors never disciplined [PDF]? [Actually I really recommend reading that last law review article. It is very well written.]
In fact, one needs look no further than my home state CT. Over the past few years I’ve written about some stunning reversals involving prosecutorial impropriety, one of them with the headline “a deliberate pattern of improper conduct“. Both of those prosecutors, however, remain unsanctioned. Frankly, I don’t even know if they were referred to the grievance committee.
There may be a reason for this, according to former Chief Ethics Counsel Mark Dubois. As I wrote in this post 3 years ago, he seems to have the opinion that the Connecticut Practice Book makes it impossible for the grievance committee to initiate misconduct proceedings where an appellate court has found misconduct not done nothing about it.
If that is true – and I’m not sure it is – then the implications are stunning: either our appellate courts are unaware that their determination of misconduct without sanctions is the final word on the matter, or they are and they have been engaging in coddling for years.
Whatever the cause, the effect is that a double standard continues to exist in our criminal justice system and the playing field is never even and prosecutors around the country continue to get away with unethical and horrifying behavior because there are no consequences.
Except to the person accused.