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Defense bar says VSB goes light on prosecutors, which bar denies 

While North Carolina regulators recently have cracked down on complaints of unethical prosecutor conduct, Virginia defense lawyers continue to complain that the Virginia State Bar turns a blind eye to ethical lapses by prosecutors in this state.

The issue led defense lawyer David P. Baugh to quit the VSB’s Third District Discipline Committee in April, and he and other defense bar leaders remain outspoken in their claim that Virginia prosecutors often get a free ride on ethics complaints. It’s a claim disputed by Virginia State Bar Counsel Edward L. Davis, by prosecutors, and by Rodney G. Leffler, a Fairfax lawyer who represents prosecutors before the VSB.

“We take complaints about prosecutors seriously and deal with them in the same manner as complaints about other lawyers,” Davis said.

Nevertheless, the impression remains among defense lawyers that prosecutors are given extra slack.

The Virginia Association of Criminal Defense Lawyers has established a system for members to anonymously present complaints about alleged prosecutorial misconduct to the VSB, but VACDL president Corinne Magee says the group rarely sees any action taken against the offenders.

“It is frustrating to see some of this stuff going and not have anything come of it,” Magee said. “All we feel we can do is continue to file complaints.”

Baugh is more outspoken. “As far as I am concerned, it is an entire corruption of the system,” Baugh said. He said many defense counsel just ignore ethical breaches by their adversaries. “We don’t get results, so we don’t turn them in,” he said.

The defense lawyers point to well-known cases of apparent prosecutorial misconduct where no disciplinary action has been reported against prosecutors. In a capital case with national significance, a lawyer revealed in 2007 that a prosecutor helped coach a co-defendant to make his story conform to the evidence. When the lawyer later testified about the coaching incident, the judge commuted the defendant’s death sentence to life in prison. No reported disciplinary action has been taken against the prosecutor involved in the incident, however.

The case in question involved Daryl Atkins, whose initial death sentence for a robbery and murder was overturned by the U.S. Supreme Court on the issue of whether a mentally retarded defendant can be subject to the death penalty.

Another example cited by critics involved a Fairfax County prosecutor who, in 2007, told a police officer to ignore and discard marijuana found on a material witness in a murder trial. The prosecutor did not disclose the witness’ drug possession or the disposal of the drug to defense attorneys. Again, there is no record of any disciplinary action against that prosecutor.

“I believe David Baugh when he says our system is corrupt,” said Kristie Kane. The Fredericksburg defense lawyer is a past president of the VACDL. “The fact of the matter is that, sometimes, prosecutors cheat,” she said.

“In all my years of practice, I have never seen or heard of a prosecutor disciplined for anything, never mind a discovery violation,” Kane said in an e-mail. “However, I have seen several defense lawyers disciplined for missing deadlines for filing appeals. I have to ask, what seems to be the more intentional violation? Why the difference? I believe it is because our bar counsel prefers to overlook and excuse a violation if committed by a prosecutor.”

Neil S. Vener, commonwealth’s attorney for Campbell County and president of the Virginia Association of Commonwealth’s Attorneys, notes the VSB has instituted disciplinary actions against a number of prosecutors over the years, acknowledging they have not always been successful. He points to actions taken against former Richmond Commonwealth’s Attorney Joseph D. Morrissey and former Rockbridge County Commonwealth’s Attorney Beverly C. “John” Read as examples.

Vener defends his colleagues as a group. “Prosecutors take their ethical obligations very seriously,” he said.

Davis, the head of the disciplinary arm of the VSB, is disappointed at the criticism. “That concerns me. It always will concern me,” he said.

Davis could offer no statistics on investigations of prosecutors due to confidentiality rules. “We do take complaints against prosecutors seriously,” he said, indicating he is prepared to pursue such cases when necessary. “As part of an attorney cross-training program, I have trained on issues applicable to prosecutorial misconduct,” he said.

Disclosure

A critical issue for prosecutors is the requirement to disclose information that could be helpful to the defense. The requirement was established in a 1963 U.S. Supreme Court decision.

In North Carolina, prosecutorial misconduct became a widely debated topic following the ill-fated prosecution of three Duke University lacrosse players accused of raping a stripper. Former Durham District Attorney Mike Nifong was disbarred in 2007 after the N.C. state bar found he withheld evidence that the students had been falsely accused.

The VSB’s Davis says he heard a presentation on the Nifong case from one of the hearing officers in the case. “It was a very serious matter – I think it was handled quite well,” he said.

The (Raleigh) News & Observer last month reported on the N.C. state bar’s rebuke of a prosecutor’s office for mishandling evidence in a murder case. A bar disciplinary panel dismissed charges against an assistant district attorney, but the panel chair sharply chastised the prosecutor’s office for turning over a 437-page file to a defense attorney only a week before trial.

“We’re sending a message to all the prosecutors of the state,” Lane Williamson told the newspaper. “The game has changed. You need to have checks and balances in place to ensure that the mandate [for prompt pretrial disclosure] is complied with. It wasn’t done here.”

As reported by the newspaper, the tough stance by the North Carolina state bar on prosecutorial misconduct stems from criticism of the handling of a case where a man spent nine years in prison for a 1995 murder before being exonerated. In 2004, the N.C. state bar reprimanded two former prosecutors who had failed to share favorable evidence to the defendant.

Late disclosures of the type reported recently in North Carolina are “sadly, not that uncommon,” said Leffler, who has worked as a police officer, prosecutor and defense attorney. He regularly speaks to both criminal defense lawyers and Virginia prosecutors. He also represents prosecutors accused of misconduct.

Leffler said a defense attorney working in different jurisdictions will find the mileage varies. He said some commonwealth’s attorneys’ offices have open-file policies; others give nothing more than the rules require. Personalities also are a factor. “There are conscientious prosecutors and there are some not-so-conscientious prosecutors.”

Most complaints involve a dispute over whether withheld material was required to be disclosed to the defense, Leffler said. Generally, prosecutors must turn over evidence which “the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment,” according to Rule 3.8 of the Rules of Professional Conduct.

Under the language of the rule, Leffler said, the prosecutor’s intent is a factor. “A prosecutor should be subject to discipline only for knowing and intentional violation of the rules,” he said. “There can be untimely and sloppy disclosures that are not necessarily violations of the rules of professional conduct,” he said.

Leffler laments that prosecutors sometimes don’t get information from police in a timely fashion. “The police always seem to be someplace else when the prosecution needs them,” he said.

Leffler does not agree that Virginia prosecutors are getting an easy time of it on ethics complaints. “I don’t see any evidence the Virginia State Bar treats prosecutors better than any other lawyers,” he said. “I don’t see the bar rolling over and playing dead when it comes to prosecuting a prosecutor.”

Nor should the bar lighten up, Leffler said. “If we want to remain self-policing, we need to make sure we are thoroughly policing ourselves,” he said. “I have no problem with the bar going hard at someone who decides to keep clearly exculpatory evidence away from the defense.”

Related Article: Letter to the Editor

2 comments

  1. Defense Attorney

    It’s not so much that prosecutors set out to deliberately withhold information from defense counsel, but that they often lack the imagination to see how a piece of information in their hands might be exculpatory. After all, oftentimes they are relying on the police account of what a witness said or did and not upon their own careful review of the file. They often aren’t paying enough attention until the eve of trial to realize that they may have something exculpatory. I’ve had prosecutors laugh in my face at objections for failure to share information which I consider to be vital and potentially exculpatory. But where the problem really lies isn’t merely on the bizarre rule that the person who is one’s opponent decides which information is potentially exculpatory to one’s case, but the way the judges bend over backwards to forgive even the obvious game-playing by prosecutors. They’re loathe to think ill of the prosecutors, to accept that the prosecutor may not be as honest or above-board as he/she should be. The most frustrating aspect of all this is the failure of the legislature to establish even a baseline for information to be shared, leaving administration of justice up to the sole discretion of the prosecutors in each jurisdiction. Thus, I can walk into one jurisdiction and have open file discovery from the first day, and in other jurisdictions will be refused permission even to see the police reports before trial. Many times I’ve seen offers of pleas to lesser offenses placed on the table by prosecutors who treat the information which any attorney would require in order to fully inform the client of the case against him as a kind of poker hand to be held close to the chest. The threat, sometimes bluntly made, is if you don’t get your client to plead, then the Commonwealth will proceed on the more serious charges. Limited time offer, they say. Accept it on faith that we’re not lying to you, that we do have a case, or take your chances that we really do have a case.

    There is something seriously wrong with a system which treats information available to defendants as a crap shoot and plea negotiations as a game of chicken or high-stakes poker.

  2. Another Defense Attorney

    If the VSB doesn’t treat prosecutors any differently than defense counsel, why is its investigation of Eileen Addison, Commonwealth’s Attorney for York County, now into its fourth year, especially since the Circuit Court Judge in the Atkins case found that she had engaged in witness tampering and used that fact to commute a death sentence to life? [This is one of the reasons David Baugh quit the Ethics Committee.] Who do they think they’re kidding?

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