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Police plea discussions can mean trouble for prosecutors

A police officer is talking to a criminal defendant when the defendant offers some information and asks about a plea deal. The officer calls the commonwealth’s attorney’s office and asks if he can talk to the defendant about some horse trading.

The request should set off ethical alarm bells for the prosecutor who takes that call, says Virginia State Bar Counsel Edward L. Davis. If the defendant is represented by a lawyer, talking about plea deals through a police officer is misconduct under the Rules, Davis explains in a comment posted on the VSB website this week.

The prohibition stands even if the accused defendant is the one who brings up the subject, Davis says. Furthermore, it won’t help to argue that “everyone else is doing it.” Davis says the fact that a procedure is commonplace is no defense.

Davis says he wrote the piece based on an inquiry from someone concerned about the practice. He declined to say whether his advice was prompted by the case of Caroline County Commonwealth’s Attorney Tony Spencer. Spencer is asking the Supreme Court to overturn an admonition for talking to a jail inmate without notifying the inmate’s lawyer.

UPDATE: Davis’ commentary has been removed from the VSB website, at least temporarily. Davis said he wanted to rework the essay and expects to repost it at a later date.

By Peter Vieth

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