"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Tuesday, April 15, 2008

A Public Defender bemoans the supposed lack of ethical complaints lodged against prosecutors in relation to the number of complaints against defense attorneys. Of course, each state is different, but I've not noticed a lack of complaints against prosecutors in Virginia.

It is to be expected that defense attorneys get tagged for complaints more than prosecutors, since defense attorneys have lots of unsatisfied customers: the convicted client, the convicted client's family, the appellate court that gets the untimely appeal-- lots of opportunities for mistakes to be noticed and then to turn into bar complaints. Prosecutors, on the other hand, don't have a built-in constituency of unhappy clients with lots of time on their hands to contemplate how many mistakes they made in handling the client's case.

One item in A Public Defender's posting needs correction: he asks:
In a case involving clear prosecutorial misconduct, such as hiding Brady or Giglio material or offering knowingly [sic] 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?

...Yes, there is an ethical violation and yes, there is a duty to
report.
Now, the question is very broad, since suborning perjury is a clear cut ethics violation and a crime to boot (I assume PD means "knowingly offering false testimony...").

But the mere fact of a Brady violation does not establish an ethics violation: Brady can be violated even where there is no actual knowledge on the prosecutor's part that undisclosed exculpatory evidence exists in a case-- for example, when the police do not tell the prosecutor about the evidence.

To constitute an ethical violation, according Virginia's Rules of Professional Conduct, the prosecutor's failure to disclose exculpatory evidence must be knowing and intentional:
RULE 3.8 Additional Responsibilities Of A Prosecutor
A lawyer engaged in a prosecutorial function shall:
...(d) make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court.
The Bar commentary to this rule clarifies that only a willing and intentional witholding of known exculpatory evidence subjects the prosecutor to discipline:
Paragraphs (d) and (e) address knowing violations of the respective provisions so as to allow for better understanding and easier enforcement by excluding situations (paragraph (d)), for example, where the lawyer/prosecutor does not know the theory of the defense so as to be able to assess the exculpatory nature of evidence or situations (paragraph(e)) where the lawyer/prosecutor does not have knowledge or control over the ultra vires actions of law enforcement personnel who may be only minimally involved in a case.

In short, a Brady violation may also constitute unethical conduct, but is not per se evidence of such conduct.

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