What’s good for the goose is good for the gander, I suppose, which is why it makes me really angry to see this story from South Carolina, where a lawyer has filed an ethics complaint against a prosecutor and a public defender for being figuratively caught in bed.
This stems from the same district where the prosecutor tried to have a Supreme Court justice recused for having the temerity to remind prosecutors that they shouldn’t be engaging in misconduct. (I wrote about it here and Radley Balko expounded on it here.)
The complaint has been filed by Attorney Desa Ballard:
A former law clerk with the state Supreme Court, Ballard has practiced law for 31 years and serves as an adjunct professor with the University of South Carolina School of Law. She specializes in professional ethics and responsibility.
In the complaint she alleges that Wilson, the prosecutor, has established an atmosphere of getting away with what you can and hiding exculpatory information. For instance:
In that case, involving the 2003 rape and stabbing of Julie Jett in West Ashley, Wilson failed to tell defense attorneys before trial that a boyfriend of Jett’s roommate had a key to the apartment – information they could have used to raise the possibility that someone other than the suspect had access to commit the crime, Ballard said.
Ballard said Wilson also failed to turn over crime scene notes to the defense before another murder case went to trial in Berkeley County in 2009. And she let Tyrone Winslow Jr. spend two years in jail waiting for a 2012 murder trial though her office had ample witness testimony indicating he had acted in self-defense in stabbing another man in McClellanville two years earlier, the complaint stated.
But that’s sadly becoming par for the course. What is shocking are the allegations against the public defender, Pennington. According to the complaint, Pennington is a “vocal supporter” of the prosecutor, who has muzzled his staff from speaking out about injustices committed by the prosecutor’s office and has made that a factor in his performance evaluations:
As for Pennington, Ballard said she was approached by an attorney in his office who complained that the public defender had directly ordered him not to file misconduct complaints against Wilson in 2007 and 2009. The attorney, who she would not identify, said Pennington also made clear that his performance evaluation would hinge on him ceasing his public criticism of Wilson and her office.
“You are not to speak or convey in any manner to others comments that are critical of (Scarlett Wilson) or her office, especially regarding their ethics or honesty without gaining my permission first,” Pennington stated in a December email to the attorney.
Pennington also refused to join the SC Association of Criminal Defense Lawyers’ request to have the prosecutor’s office investigated for misconduct, saying he preferred to work issues out on his own.
It’s shocking to me that a prosecutor and public defender seem to be so copacetic. The realities of the criminal justice system are, of course, such that despite the adversarial environment, we are forced to work together on an every day basis at close quarters, so civility and some collegiality are inevitable.
But no defense attorney should ever mistake that collegiality and professionalism for friendship and subjugation of the interests of the client. That should always be foremost and if the allegations against Pennington are true, they’re really disturbing and might hint at an underlying philosophy of making clients’ interests secondary. When that happens – and I’m sure it does in many places where ethics complains aren’t filed – the justice system ceases to become adversarial and you begin to see why public defenders get a bad name.
If you ask me, I’d rather be this guy.