Category Archives: Ethics

The ABA on Brady

Today the American Bar Association passed a resolution regarding discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963). Resolution 104A urges judges to prepare a checklist of disclosure obligations for prosecutors.

Brady requires the state produce exculpatory evidence to defense counsel. The state doesn’t always play fair. According to the report in support of the resolution:

A substantial number of verified wrongful convictions have been attributed to the use of testimony or physical evidence that was contradicted or undermined by other evidence in the hands of the prosecution, law enforcement or other government agencies, but was not disclosed to the defense even though it qualified as exculpatory evidence under Brady.

I doubt a checklist is going to fix the problem. It’s an ethics thing. If a prosecutor is not turning over discoverable materials, then that prosecutor is unethical. The fact that the ABA has to address this issue is a sad commentary. Even sadder, is the question of whether a checklist will make a prosecutor ethical?

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Filed under Ethics, Evidence

A Common Sense Approach to Ethics

This morning I read about another prosecutor getting suspended for ethics violations. Ethics can be a complicated field of law. I believe there are 59 Rules listed under the heading Rules of Professional Conduct.  There are scores of cases on the subject.  It can be difficult. But it doesn’t have to be, particularly for prosecutors.  Here are my four simple rules.

  1. Don’t become the lowest common denominator. I think this is simple, but for clarification I will explain it like this. You are prosecuting a bad guy. You think he broke the law and should be punished.  Don’t stoop to his level of conduct.  Don’t break the law just because you think he did.
  2. Don’t lie. Cops get to lie to suspects. They don’t get to lie on the witness stand. Fact witnesses sometimes like to lie. Prosecutors are never allowed to lie. Don’t let your witness lie on the stand.
  3. Don’t cheat. Not disclosing evidence in a timely manner is, for all intents and purposes, the same as not disclosing it. Not disclosing evidence is the same as hiding it. Hiding evidence is cheating.
  4. Don’t disobey court orders. If you don’t like a judge’s order, do what we do: Appeal it or move on.

That’s it. An entire rule book and years and years of jurisprudence boiled down into four simple rules. Actually, I think rule number one takes care of it all. I would add one other bit of advice. If you are questioning yourself about a potential course of conduct, then the answer is you probably shouldn’t do it.

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Filed under Ethics, Prosecutorial Misconduct

Courthouse Security?

I recently heard the unbelievable story about a detention officer in Arizona who stole a document out of a lawyer’s file in open court in the middle of a sentencing hearing.

Did I say unbelievable?

I am absolutely brand new to the blog world, but I do know some excellent sites always worth a visit. Off to Simple Justice and Defending People I went to see the real story. If true, this would be outrageous. If true, surely the real story would be how the officer was immediately sent to jail for contempt of court.

Not so fast. The story is true, but also sad, very sad. It is an example of a judge who simply does not have control of the courtroom. From the vantage point of the video, it is obvious that the judge witnessed the entire event.

I would say it is also an example of one of the uniformed good guys stooping to the level of those who might wear the uniform of inmate. Unfortunately, this obvious crime is not limited to one officer. He calls over an accomplice who spirits the document away. Apparently for copying so they could replace the original. I would hope that this crime was only the actions of these two confederates.

However, another player in the action is that of the prosecutor. Or should I say her inaction. It also appears that she witnessed the entire crime, yet did nothing. Innocent people have been prosecuted for lesser actions or inactions. Moreover, I hope that the duty of a prosecutor would be a higher one under these circumstances.

From top to bottom in no particular order, this is despicable. It is outrageous.

The blog world is busy with analysis. From attorney client confidentiality to criminal conduct, the sky seems to be the limit. Of particular absurdity is the excuse that this defendant was a bad person. Maybe he is, maybe he is not. It does not matter. The bottom line is that the officer took the paper out of the lawyer’s file.

The analysis is this. The officer took a piece of paper out of the lawyer’s file. That action was criminal. The officer’s action interrupted a judicial proceeding. That was contempt. It should have been dealt with immediately and accordingly.

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Filed under Ethics