An allegation of an ethical violation by the director of the capital litigation unit for the Virginia attorney general’s office has been dismissed at the request of the lawyer appointed to prosecute the case.
The charge against Katherine Baldwin Burnett stemmed from a letter drafted more than a decade ago that the AG’s office suggested that prosecutors send to jurors in capital murder cases.
The letter advises jurors they are under no obligation to talk about the case with anyone representing a defendant and tells them that they should contact the prosecutor’s office so that the office can verify the identity of someone talking to a juror.
Winchester Commonwealth’s Attorney Alexander R. Iden was charged with an ethical violation after he sent such a letter to jurors in the case of Edward N. Bell, who was convicted of capital murder for the 1999 killing of a police officer and executed in February.At the hearing for Iden in 2006, Burnett testified that lawyers should not interview jurors without a court order. “There is no duty or right for someone who is appointed to represent a death-row inmate to go and contact every juror. The law says to me otherwise,” Burnett said. A three-judge panel ruled that Iden had not violated ethical rules.
Burnett’s testimony led to an allegation by the Virginia State Bar that Burnett knowingly made false statements to the three-judge panel that heard the case and ultimately dismissed the allegation against Iden. Burnett was also accused of obstructing a party’s access to evidence or counsel or of assisting someone to do so.
Because the AG’s office represents the VSB on appeals of ethical violations and other matters, the agency’s office of bar counsel recused itself from Burnett’s case and Gov. Timothy M. Kaine appointed retired McGuireWoods partner John M. Oakey Jr. to represent it.
However, in a telephone conference call last week with the three-judge panel assigned to hear the appeal, Oakey told the judges he did not think the law and evidence would support a finding of an ethics violation. He asked the panel to dismiss the complaint, and the order rejecting it was entered Monday. A hearing had been scheduled for next month.
Craig S. Cooley, the Richmond attorney who represented Burnett, said the three-judge panel in the Iden case already had ruled that the letter was not unethical.
“I don’t think it’s a misstatement of the law, and I don’t think it says [jurors] can’t talk to defense attorneys,” Cooley said.
The letter was drafted in response to sometimes aggressive efforts by defense attorneys and their investigators to contact jurors about possible misconduct during deliberations or misunderstandings about jury instructions, Cooley said.
“I think there are probably abuses on both sides” in contacts with jurors after their verdict, Cooley said.
By Alan Cooper