Posts Tagged ‘prosecutorial misconduct’

What all my criminal defense attorney pals long believed to be true got some supportive press this week along with some empirical backing. Defense lawyers know the criminal system is broken largely because of prosecutorial misconduct and the failure of some courts to act as “the guardian of our constitutional rights.”

https://upload.wikimedia.org/wikipedia/commons/thumb/4/4f/M2500_washed_sand_on_conveyor_%286238147930%29.jpg/320px-M2500_washed_sand_on_conveyor_%286238147930%29.jpgIndeed, as one of those defense lawyer friends who’s also a scholar writes, “Prosecutorial misconduct has infected every stage of the criminal process ranging from the initial charging decision through post-conviction proceedings.”

Moreover, in the words of a dissenting jurist, criminal defendants, especially the indigent, are treated like just another fungible item to be shuffled along on a criminal-justice conveyor belt.”

Several days ago, Nina Morrison, a senior staff attorney at the Innocence Project in New York, wrote a scathing op-ed in The New York Times, What Happens When Prosecutors Break the Law?”

https://cdn.morguefile.com/imageData/public/files/c/click/preview/fldr_2008_11_08/file000521358819.jpg“All too often,” she wrote, the justice system“falls silent when the culprit is a prosecutor, and the victim is an ordinary citizen accused of a crime.”

Relying on a recent case to make the point that misconduct by prosecutors too often goes unpunished, she discusses what happened when Suffolk County, NY homicide prosecutor Glenn Kurtzrock was caught violating Brady v. Maryland, 373 U.S. 83 (1963). This is the U.S. Supreme Court decision that requires prosecutors to turn over any materially exculpatory evidence in the government’s possession to defendants. Well, Kurtzrock was caught withholding exculpatory evidence in violation of Brady in multiple cases.

“So what happened to Mr. Kurtzrock?” Morrison asked.


Thirteen months after his public firing, and five murder cases overturned because of his illegal actions, Mr. Kurtzrock hasn’t been charged with a single crime. Not fraud, not tampering with government records, not contempt of court.

And he hasn’t even been suspended from practicing law, much less disbarred. He’s now working as a defense lawyer in private practice. That’s right: he’s making a living representing people accused of crimes, in the same courthouse from which he was (supposedly) banished a year ago. His law firm website even touts his experience as a “former homicide prosecutor.”

The law also makes it virtually impossible for Mr. Kurtzrock’s victims to sue him, with the Supreme Court having declared that individual prosecutors and their offices are “immune” from civil rights lawsuits in all but the rarest of cases.

Nina Morrison’s commentary should be widely read.

Verifiable support.

Empirically speaking, the current Houston Law Review as usefully summarized by the website, The Open File, at TX: In Harris County Capital Cases, Prosecutors Get to Be the Judges,” discusses what they call a “thorough and definitive” essay, “The Problem of ‘Rubber-Stamping’ in State Capital Habeas Proceedings: A Harris County Case Study,” by Jordan Steiker, James Marcus, and Thea Posel.

It’s about “how Harris County criminal court judges act as little more than feckless vessels, used by prosecutors to sign off on whatever version of events the local prosecutors believe will be most helpful to their litigation interests.”

The researchers examined 199 Harris County capital post-conviction cases since 1995 to find that

Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.

[The lawyers, policy advocates, law professors and students at The Open File were galvanized to write about prosecutorial misconduct and system failure by the 2011 U.S. Supreme Court case, Connick v. Thompson, a decision that also raised my hackles here.]

But what’s most concerning about the Harris County case study is what The Open File author opined, “More studies like this one ought to be undertaken to uncover these practices in other parts of the nation. It would not surprise us if the percentages of rubber-stamped recommendations in many death penalty jurisdictions rival the Harris County findings.”

And summing up, he declared, “Prosecutors do not need any more power than they already possess. Letting them act simultaneously as judge and prosecutor makes a mockery of due process and our criminal courts.”


Credits: “washed sand on conveyor,” by Peter Cravens, Wikimedia Commons, creative commons attribution generic license; “justice,” morguefile.com.


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Note: The following story was originally published by ProPublica, “an independent, nonprofit newsroom that produces investigative journalism in the public interest.” It is republished with permission.

The behavior of Bill Kephart, who led the murder prosecution of Fred Steese, was repeatedly lambasted by the Supreme Court of Nevada. But that didn’t stop him from becoming a judge. This month he was charged with misconduct in that position too.

by Megan Rose, ProPublica

May 26, 2017

In the legal world, prosecutors are rarely called out by name. Their misconduct is usually attributed to unidentified prosecutors or the “State” in rulings by appellate judges. But as a Las Vegas prosecutor, Bill Kephart — now a judge — achieved a dubious distinction: He was chastised publicly.

The Supreme Court of Nevada took the rare step in 2001 of ordering him to prove why he shouldn’t be sanctioned for his behavior in one of his cases with a fine or a referral to the state bar for “violation of the Rules of Professional Conduct.” The ruling was disseminated statewide and, in Kephart’s own words, “professionally embarrassed” him. In his response, he wrote that the ruling had “already had a great impact” on him and promised that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future.” The justices nevertheless fined him $250.

Fred Steese served more than 20 years in prison for murder even though evidence in the prosecution’s files proved he didn’t do it. But when the truth came to light, he was offered a confounding deal. Read the story.

The Supreme Court’s rebuke was particularly notable in Nevada, where the judges are elected and part of the state’s insular legal community. They typically rule unanimously and seldom come down too hard on prosecutors. As one retired chief justice put it: “Picking fights with district attorneys might not be the best thing for [a judge’s] career continuation.” But Kephart’s behavior challenged that status quo, compelling one or more of the justices to issue dissents in several cases, saying his behavior called for convictions to be overturned.

Overall, the Nevada high court has noted prosecutorial misconduct in at least five of his cases over a dozen years, not including his actions during the trial of Fred Steese — who was tried by Kephart for a 1992 murder and ruled innocent 20 years later after exculpatory evidence was found in the prosecution’s files. In the cases in which Kephart is not named, he is the prosecutor whose misconduct is cited:

  • In 1996, the court noted “several instances of prosecutorial misconduct” in a sexual assault case. The conviction was upheld, but one justice dissented, saying that Kephart had “infected” an already “muddled case” and it warranted reversal. (In 2001, a judge granted the defendant an evidentiary hearing and he was released.)
  • In 1997, the court reversed the murder convictions of two men based entirely on the “deliberate” and “improper comments” made by the prosecution during cross examination and closing argument. The DA’s office had sought the death penalty, which in Nevada increases costs by about a half million dollars on average, making this and other reversals based on Kephart’s behavior expensive screw-ups for taxpayers. (Both men were retried and convicted again in 1998, one sentenced to life in prison and the other to death.)
  • In 2001, in the case he was fined $250, the court said Kephart gave the jury a misleading explanation of the standard for reasonable doubt when he instructed them: “you have a gut feeling he’s guilty, he’s guilty.” A justice said at a hearing that the remark seemed “like deliberate misrepresentation.” The court upheld the conviction, but noted that Kephart’s “improper remark was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty…”
  • In 2002, the court took issue with Kephart for assaulting a witness. During the trial of a sexual assault case, Kephart said he wanted to demonstrate how the victim said she was choked, pressing his forearm into the defendant’s neck while he was on the stand. The court upheld the verdict, but noted there was “absolutely no reason” for Kephart’s behavior, which went “well beyond the accepted bounds of permissible advocacy.” One justice dissented, saying “the instances of prosecutorial misconduct were pervasive and substantial…an accused who takes the stand runs many risks. One of them should not be that the prosecutor would physically assault him or her.”
  • In 2008, the court tossed out a murder conviction in another death penalty case, saying, among other issues, the prosecution’s misconduct was “significant” and “occurred throughout the trial,” including Kephart’s remarks during jury selection and in closing. One judge dissented, saying the prosecutorial misconduct and other issues didn’t require reversal. (The defendant eventually pled guilty in 2014.)

In 2002, Kephart prosecuted another highly contested murder case against Kirstin Lobato, then 19, which has garnered national outcry for the meager and sometimes contradictory evidence against her. Lobato was recently granted an evidentiary hearing and is represented by the Innocence Project. This month, the prosecuting officer for the Nevada Commission on Judicial Discipline filed misconduct charges against Kephart for a media interview he gave about the case last year, in which he said it “was completely justice done.” Kephart’s “statements could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges. The statement said Kephart violated several rules of the judicial code of conduct. He has not yet filed a reply.

Kephart, who joined the DA’s office in the early 1990s as a brash young attorney, once got in a shoving match with a defense attorney. Another time a judge had to admonish him for repeatedly shaking his head, making faces and rolling his eyes. His behavior eventually led to minor reprimands from the Clark County District Attorney’s Office, according to several people who worked with him during that time. In 2002, after Kephart’s reasonable-doubt flub, the entire DA’s office had to complete a two-hour ethics course and continuing legal education classes, which the deputy district attorneys tagged the “Kephart CLE.” That same year, Kephart was briefly banned from trials. Regardless, he later became a chief deputy.

Kephart also was called before the state bar for his behavior in Steese’s murder trial, but, according to lawyers at the hearing, his boss made an appeal on behalf of him and the other prosecutor on the case, and neither was sanctioned.

Kephart declined several requests for comment.

Despite these repeated critiques of his conduct, Kephart was voted onto the bench in 2010 as a justice of the peace and in 2014 moved to the Eighth Judicial District Court of Nevada, where he today he presides over civil, construction and criminal cases.

Update, May 31, 2017: In his official written response to the disciplinary commission, Kephart has denied charges that he violated judicial canons with his remarks to the media about an open case. His response said that he had “participated in interim rehabilitation by taking classes,” and the commission should consider his honest motives, clean judicial disciplinary record, and “character and reputation.”

Megan Rose covers the military for ProPublica. Previously she was the national correspondent at Stars and Stripes.



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I had bats on my mind yesterday. First there was the report Thursday about bats causing pandemonium sending people screaming from an Arkansas courtroom. I’ve been in really old courthouses and know that rodents live there but this was a first concerning bats. Bats in the belfry Then also last night, I read not about bats but brickbats thrown by the Ninth Circuit over another case of prosecutorial malfeasance. Railing as I have over time, about the persistence of prosecutorial misconduct, for instance, here, here, here, here, here and here, all those posts have started to seem “like the [impotent] vaporings of the fellow with a large flock of bats in his belfry.”


Prosecutor punishment rare.

So here I am back in the same belfry. The problem is that state judges rarely punish the misconduct by at the very least, referring the wrongdoing prosecutors to state disciplinary authorities or at best, by sanctioning the transgressors by reversing the convictions. Furthermore, state bars hardly ever bring disciplinary complaints on their own against prosecutors. Consequently, state supreme courts almost never disbar prosecutors for dereliction, lying, or for failing to disclose evidence to the defense that deprives defendants of a fair trial. Baca v Adams. Courtroom 93The Los Angeles Times’ always insightful Legal Affairs Reporter reported last night about a January 8, 2015 Ninth Circuit hearing and the stern admonishment from the 3-judge panel about prosecutorial lying and the heedlessness of watchdogs in bringing misconduct to heel. See “U.S. Judges see ‘epidemic’ of prosecutorial misconduct in state.” Citing Napue v. Illinois, 360 US 264 (1959), which held that “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment, the three judges were not amused in the unheralded case of Johnny Baca v Derral Adams, which was the subject of the hearing. Per Napue, prosecutors cannot suborn perjury — or lie as happened in the Baca case. 1152762_left_hand_silhouette-_womanAnd questioning why bad things don’t happen to people doing bad Judge Alex Kozinski declared, “You know it’s a little disconcerting when the state puts on evidence, the evidence turns out to be fabricated and nothing happens to the lawyer and nothing happens to the witness. So I have to doubt the sincerity of the State when it says it was a big mistake.” It was hardly a surprise, then, that given the findings of the state appeals court that the prosecutor lied and their own readings of the Baca file, that the judges wanted the State to back off. Judge Kozinski additionally noted that though the state appellate court found the prosecutor lied — since no discipline had been meted, then he opined that prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way.” Watch the videotaped hearing below at about the 28:30 minute mark for equally biting criticisms, including Judge Kozinski questioning the absence of any inquiry or discipline by the state attorney general into the misconduct.


Calif Attorney General Kamala Harris

However, given the keen political shrewdness of California State Attorney General Kamala Harris who now aspires to succeed Barbara Boxer in the US Senate, she spared her office further embarrassment by timely accommodating the strong judicial intimations to stand down. Last Thursday when the bats were flying in De Queen, Arkansas, she and the new Riverside County D.A. filed the following motion: As for myself, unlike one optimistic commentator, who opined after the hearing, “Prosecutors who suborn perjury may finally have to pay the piper,” here in my belfry, I’m still skeptical.

Photo Credits: New Bat, by Windell Oskay at Flickr Creative Commons Attribution License; Bat in Belfry at The Phrase Finder http://www.phrases.org.uk/meanings/bats-in-the-belfry.html; Round Rock, TX: Mexican Free-Tailed Bats by Roy Niswanger at Flickr Creative Commons Attribution License; Kamala Harris, by http://oag.ca.gov/about, official photo, California State Attorney General, Wikipedia Commons, public domain; kdjfdkjdkl.jpg by greyerbaby at morguefile.com license .

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From the knickers in a bunch file.

Last week, the local paper’s editorial board was in high dudgeon grabbing all four cheeks over the wrist-slap inflicted on Fast, Furious and famous former U.S. Attorney for Arizona Dennis K. Burke.

The feather-duster on the wrist that upset the Arizona Republic’s editorial board came courtesy of the public reprimand administered to Burke by Arizona’s lords of lawyer discipline.

But who’s Dennis Burke? What’s Fast and Furious? For those not paying attention or thinking popcorn and high-grossing street racing films with Vin Diesel and the late Paul Walker, the LA Times at “ATF guns sting: Fast and Furious operation” has one of the better, more succinct explanations of what’s what. “A federal operation dubbed Fast and Furious allowed weapons from the U.S. to pass into the hands of suspected gun smugglers so the arms could be traced to the higher echelons of Mexican drug cartels. The Bureau of Alcohol, Tobacco, Firearms and Explosives, which ran the operation, has lost track of hundreds of firearms, many of which have been linked to crimes, including the fatal shooting of Border Patrol Agent Brian Terry in December 2010.”

Dennis Burke US Attorney.jpgSince Operation Fast and Furious took place on Burke’s watch, the furor, the scandal, and the partisan political witch-hunting that erupted following Brian Terry’s death quickly engulfed Burke, the most senior of the DOJ officials implicated.

According to a New York Times story, shortly before he resigned as U.S. Attorney, Burke admitted “he had been the source for a document obtained by Fox News about the A.T.F. agent, John Dodson, who helped disclose risky tactics used in the case.” 

Lawyer discipline notwithstanding, I’m not sure why the Arizona Republic was so upset over what was one of the gentlest, almost apologetic censures I’ve ever read. And besides, Burke self-reported, too.

Most likely, Burke’s got BFFs at the paper. And so the editorialists were displeased. “What Burke did wasn’t something to be sanctioned,” they sniffed. “It was something to be celebrated.” See the March 27 disciplinary agreement here. Also see DOJ Sought Scapegoat for Fast and Furious, Former Arizona U.S. Attorney Says.”

File:Elephant Walking animated.gifBut Burke’s case aside, the elephant in the room.1 is really that hundreds of Department of Justice (DOJ) Attorneys have violated professional rules, laws or ethical standards — and that the public hasn’t a clue who they are. That’s because of DOJ’s longstanding practice of not disclosing the lawyers identified by its own Office of Professional Responsibility (OPR). We’re talking federal lawyers who’ve committed infractions ranging from the sloppily inadvertent to the downright egregious.

According to the Project on Government Oversight (POGO), “The result: the Department, its lawyers, and the internal watchdog office itself are insulated from meaningful public scrutiny and accountability.” Per its website, POGO “is a nonpartisan independent watchdog that champions good government reforms. POGO’s investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, open, and ethical federal government.”

File:Hiding.1.jpgThrough the Freedom of Information Act, POGO was able to obtain OPR data for a 12-year period from 2002 to 2013. Approximately 2,100 allegations of misconduct were unearthed ranging from intentional violations to mistakes and poor judgment involving federal attorneys. 650 instances were substantiated. Of these, more than 400 cases involved recklessness or intentional misconduct.

Meantime, the DOJ refuses to disclose the names of the lawyers OPR identified as having committed the offenses. In their number are federal attorneys who as OPR’s data reveals, misled courts at least 48 times, including 20 intentional violations; breached constitutional or civil rights 13 times; and did not provide exculpatory information to defendants 29 times. Read the POGO report here.

For the time being, wrist-slaps or not — they’re the Untouchables” so don’t be looking for bar discipline either.


1Hat tip to Mark Brennan for sending me the link to POGO’s report concerning the U.S. DOJ refusal to disclose its attorney violators, including more than 400 categorized by its own internal investigatory agency as the more severe on its scale.

Photo Credits: “Dork,” by Dan4th Nicholas at Flickr via Creative Commons-licensing requiring attribution; “Dennis K. Burke,” Dennis_Burke_US_Attorney.jpg at Wikipedia Commons, work of U.S. Government, public domain; Animated version of File:Elephant walking.jpg, by Eadweard Muybridge at Wikipedia Commons, public domain; Hiding.1.jpg by Loveteamin at Wikimedia Commons under the Creative Commons Attribution-Share Alike 3.0 Unported license.

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Turns out former prosecutor and ex-judge Ken Anderson only ended up serving a mere 5 days of a 10-day sentence for contempt of court in connection with the wrongful prosecution of an innocent man, Michael Morton. As though a 10-day sentence for tampering with evidence; helping hide exculpatory evidence; and engaging in prosecutorial misconduct was too much.

According to a spokesman for the Williamson County, Texas sheriff’s office, his term was reduced for good behavior.  See “How Ken Anderson was released after only five days in jail.”

So thanks to my calculator mastery, I can now amend my report that The time served by the former jurist actually amounted to just 0.0547% of the almost 9,125 days Morton spent in prison. Or as Heraclitus once wrote, “If it were not for injustice, men would not know justice.”

Soft sentence spin.

Still, I wonder if University of Cincinnati law professor and Ohio Innocence Project Director Mark Godsey is as triumphantly satisfied as he was when he spun the soft sentence and wrote “a prosecutor was actually punished in a meaningful way for his transgressions.” I guess it depends on how you define “meaningful.”

But at least Judge Anderson still has 500 hours of community service and a $500 fine. See “For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully convicting an innocent man.”

However, take heart that because you’re not supposed to mess with Texas, be happy that notwithstanding Judge Anderson’s light punishment for ruining another man’s life — that at least Texas has tough penalties for serious littering. Under Penal Code § 12.35, serious littering can get you not more than 2 years or less than 180 days in jail and a fine not to exceed $10,000.

Meanwhile back with the javelinas.

And back on the prosecutorial ranch in Arizona — where the javelinas and prosecutors roam, as previously reported, Maricopa County Attorney Bill Montgomery had opposed changes to the ethical rules governing post-conviction prosecutorial obligations. Along with other prosecutors, he believed there’s “no convincing evidence that Arizona has a ‘problem’ of wrongful convictions” or that “prosecutors have failed to take corrective action when appropriate.” 

Grunting and squealing aside — the rule was amended and becomes effective in Arizona on January 1, 2014. See “Ariz. prosecutors must now reveal evidence of convicts’ innocence” and http://www.azcourts.gov/Portals/20/2013%20Rules%20Nov/R110033.pdf


Photo Credits:”I woke up looking this good,” by Evil Erin at Flickr via Creative Commons-license requiring attribution;”Don’t Mess with Texas,” by Jamie at Flickr via Creative Commons-license requiring attribution;”javelinas,” by U.S. Fish and Wildlife… at Flickr via Creative Commons-license requiring attribution.

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People 7109

Caginess or coincidence? No matter. It’s all good.

Four years after the ABA made changes to its Professional Conduct Model Rule concerning the “Special Responsibilities of a Prosecutor” and eighteen days after the “Arizona Republic” ran its multi-part series on prosecutorial misconductand following much protracted consideration, the Arizona Supreme Court finally amended Rule 42, ER 3.8 that identifies prosecutors’ post-conviction obligations when they know of new evidence establishing a reasonable likelihood a convicted defendant was innocent of the offense and addressing those circumstances when a prosecutor has a disclosure obligation and a duty to investigate and to take remedial steps to rectify the conviction.

The state’s highest court also enacted a new rule, ER 3.10, “Credible and Material Exculpatory Information about a Convicted Person.” The new rule follows the same principles underpinning the rule for prosecutors and imposes responsibility on all Arizona lawyers who credibly know of exculpatory evidence to promptly disclose that “credible and material evidence that a convicted defendant did not commit an offense of which the defendant was convicted.” 

LAW AND JUSTICE 133The Comment to ER 3.10 explains: “Rectifying the conviction and preventing the incarceration of an innocent person are core values of the judicial system and matters of vital concern to the legal profession. Because of the importance of these principles, this Rule applies to all members of the Bar except prosecutors, whose special duties with respect to disclosure of new, credible and material exculpatory evidence after conviction set forth in ER 3.8 (g), (h), and (i).”

woman giving thumbs up 3 L uidNo diddling, however, on the part of the Arizona State Bar. One day after the Court’s pronouncement, the Bar emailed all its members with news of a new CLE webcast, “Post-conviction Disclosure: Changes to ER 3.8 and new ER 3.10.” It’s one hour of mandatory continuing legal education in ethics for $39.00.

Small favors. At least the Arizona Bar’s not nicking its lawyers like ALI CLE for CLE likes to do. That organization is quite ‘proud’ of its one-hour webcasts, which typically come in at just two sawbucks shy of $200.


But happily for lawyers who just want CLE that’s FREE, there are complimentary programs still available elsewhere. Along with the usual disclaimers of continued access, content and availability of jurisdictional credit, here are the latest FREE CLE updates.


Florida State Bar

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Practising Law Institute (PLI)

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File:James Cagney in G Men trailer.jpg

James Cagney Never Said “You Dirty Rat . . . .

“Nobody likes a rat.” That was the money quote from the “Arizona Republic’s” four installment series on prosecutorial misconduct that ran at the end of October.

Sure Michael Kiefer’s investigative report was comprehensive and localized with Arizona cases and personalities. And yes, the incisive reporting was just edgy enough to irritate the prickly prosecutors here.

But it was the money quote uttered by Karen Clark, a local attorney interviewed for the series that underscored the problems facing the legal profession when it comes to its self-ballyhooed self-regulation. Members of the legal profession who ‘tattle’ are ‘rats.’

So much for the self-celebrated aspirational ideals and ‘purty’ prose enshrined in lawyer preambles.

Fear of consequences.

As for Kiefer’s series on prosecutors, the most telling conclusion an objective reader can draw is that in the final analysis — the adverse consequences attendant to reporting lawyer or judicial misconduct too often work against those disclosures.

CourOffering solutions, one bar counsel attorney says,We need a culture that says lawyers are obligated by rule and moral considerations alike in policing our own profession . . . where defense attorneys are not afraid to report prosecutorial misconduct for fear that the prosecutor’s office will retaliate against their clients.”  And another commentator opining on judges unwilling to report on fellow judges — calls for a judicial culture that doesn’t worry so much that “countenancing disclosure of misbehavior” undermines public confidence in the judiciary.

https://i1.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/2/28/Blackstones-ratio.jpg/733px-Blackstones-ratio.jpgBut as for reining in misbehaving prosecutors, one view is that the imposition of sanctions — like overturning a conviction — is a step too far. Some courts deem it preferable to instead find just enough thin-reed justification to avoid forcing a reversal. So much for Blackstone.

The most well-known and mind-boggling instance was U.S. v. Ofshe where the Eleventh Circuit managed to uphold a conviction — even though the prosecution had invaded the privileged communications between the defendant and his defense lawyer.

And what was especially shocking was that the defense lawyer sold out his own client by covertly acting as a government informer. While still representing the defendant, the lawyer agreed to wear a recording device so that the government could listen in on his client meetings. The fruit of that electronic surveillance was then used at the criminal trial to secure his conviction. Did the court find demonstrable prejudice? Nah!

With jaw-dropping implausibility, the appellate court held, “After considering the totality of the circumstances presented in this case, we hold that the actions of the government were not so outrageous as to ‘shock the universal sense of justice.’ Therefore the district court’s denial of the motion to dismiss is affirmed.”1

Any wonder law professor Ellen Yaroshefsky declares that Judges rarely report misconduct, even though they are mandatory reporters.”

And pointing fingers elsewhere, Maricopa County Attorney Bill Montgomery rejoined to the Arizona Republic, “If courts are not enforcing the Rules of Professional Responsibility as they pertain to the conduct of defense attorneys and prosecutors, they are then responsible for what goes on in court.”

The “widely ignored” Ethical Rule.

But as it happens, there’s ER 8.3, the ethical rule2 that’s supposed to guide lawyers on this. Too bad it’s less than helpful. “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority . . . .” Seems uncomplicated and easy to understand, doesn’t it? Not when you’re guiding lawyers.

What information, for example, satisfies what a lawyer “knows” and what about a duty to investigate before reporting? And what totality of circumstances give rise to “a substantial question”?

Not surprisingly, Charles Wolfram quoted at “Self Regulation and the Duty to Report Misconduct Myth or Mainstay?,” says of ER 8.3, “Probably no other professional requirement is as widely ignored by lawyers subject to it.”

Plus the rule varies by jurisdiction. Again invoking that cheerless rodent reference, there’s “No Duty to Rat in California” says one criminal defense lawyer — whereas in Louisiana, an oft-cited Supreme Court Opinion states, “a lawyer is subject to discipline for not reporting misconduct.”3

But most of all what causes some minds pause, is the fear of giving testament to what irascible Colonel Slade in Scent of a Woman declaimed to the Baird School, “You’re building a rat ship here — a vessel for sea-going snitches.”

Four words.

Clark, who represents lawyers in state bar discipline matters, is also an expert witness on ethics. Calling them as she sees them, her four words underscore the magnitude of the problem the profession has with consistently following its ethical duty to report professional misconduct.

More significantly, the reluctance to ‘snitch’ highlights why some commentators posit that self-regulation is a myth and that the continued use of the term not only conflates all the external actors who co-regulate the profession but also “muddies the conceptual dividing line between lawyer self-restraint, professional codes that guide and monitor lawyers, and judicially-controlled discipline of the bar.”

And it’s also why still other observers make cost-benefit arguments against self-regulation altogether. “As the prestige of the legal profession has eroded, so too have the costs of being sanctioned by professional bodies. Censure by a bar association does not carry much of a social stigma when the bar itself is not viewed with respect. Rational lawyers will not spend resources to protect the reputation of their profession if there is little to protect.4

So where is the oversight? The Innocence Project’s Stephen Saloom sums it up, “Individuals, whether fellow prosecutors, defense counsel, parties, or judges, ‘don’t feel that they can report it, or they don’t know how . . .and ‘lawyer oversight entities rarely address misconduct.'”

Depressing but hardly shocking stuff. There’s that quote and more in Helen Gunnarsson’s insightful recap of a prosecutorial misconduct symposium held along with the American Bar Association’s Annual Meeting, “Panelists Examine How Prosecutors Can Be Held Accountable for Misconduct.”

At that symposium, one recommendation called for seasoned criminal defense lawyers to be integrated into bar disciplinary departments and offices of lawyer regulation. They’d bring skills, experience and most of all — a different mindset to the knee-jerk prosecutorial inclinations of bar regulatory departments investigating and prosecuting charges of attorney unethical conduct.

Protesting too much.

Lastly, a shout-out to Matt Brown at his Tempe Criminal Defense Blog for his post, “99.9996 Percent Of Prosecutors Are Better Than That,” which took down an unsurprising defensive group response from 20 local prosecutors who denounced the Arizona Republic’s series as a ‘hack job and “a smear-over to all prosecutors.” 

And yesterday, self-appointed moral guardian and county attorney Bill Montgomery had even more to say. He again beat his pulpit and his chest in indignation at the newspaper for doing “more to demean and insult the men and women responsible for holding criminals accountable . . . than it did to contribute to a meaningful discussion of capital litigation and how our justice system actually works.” 

I won’t go into the rest of Montgomery’s Op-ed, “Prosecutors’ improved training, oversight ignored” but I will highlight his disingenuous final paragraph. It’s where he picks one more bone with the investigative journalist.

Montgomery denies he’s ‘lobbying’ “on issues surrounding medical marijuana and Arizona laws protecting the unborn.” And a tad sarcastically he lectures, “I am a named defendant in lawsuits involving these issues. There is a difference between litigating and lobbying. A 10-year court watcher should know that.”

To which I refer such posturing to that farewell speech in “Blazing Saddles.”

Fact is, Montgomery is much more than just a named defendant on those issues. He was the prominent public face against the legalization of medical marijuana, engaging in several drug war policy debates in opposition.

And as for averring otherwise on ‘lobbying’ for the unborn, earlier this month, the non-‘lobbying’ Montgomery “was given the 2013 Witness for Life Award for his vigorous defense of Arizona pro-life legislation, including his pending petition to the U.S. Supreme Court to hear the AZ 20 week ban.”

[1] At least the court footnoted that the prosecutor and lawyer had acted so reprehensibly it might warrant discipline. See United States v. Ofshe, 817 F.2d 1508 (11th Cir. 1987)

[2] E.R. 8.3 Reporting Professional Misconduct

[3] See In re Michael G. Riehlmann, 891 So. 2d 1239 (La. 2005)

[4] See Macey, Jonathan R., “Occupation Code 541110: Lawyers, Self-Regulation, and the Idea of a Profession,” 74 Fordham Law Review 1079 (2005). Faculty Scholarship Series. Paper 1377.

Photo Credits: screenshot of James Cagney from the film G Men via Wikimedia CommonsSelf made screen capture from a public domain film trailer; Licencing information : http://www.creativeclearance.com/guidelines.html#D2 work is in the public domain in that it was published in the United States between 1923 and 1977 and without a copyright notice; “Blackstone’s ratio,” by Kazvorpal at Wikimedia Commons under the terms of the GNU Free Documentation License, Version 1.2 o.

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