Virginia Lawyers Weekly

A top lawyer in the Virginia attorney general’s office is facing disciplinary charges accusing her of going too far in advocating against criminal defense lawyers contacting jurors after a trial.

According to a notice of charges from the Virginia State Bar, Senior Assistant Attorney General Katherine Baldwin Burnett testified in 2006 before a three-judge panel that, under Virginia law, lawyers should not interview jurors after trial without a court order. The VSB claims the testimony amounted to making a false statement of law to the judges. The VSB also charged Burnett with obstructing access to evidence by helping a prosecutor send a letter urging jurors to contact the prosecutor’s office before talking to defense lawyers.

Defense lawyers insist they have not only a right but a duty to interview jurors to test for possible defects in a guilty verdict.

They say Burnett’s actions and statements conflict with the VSB’s rules of professional conduct that permit lawyers to contact jurors unless prohibited or unless the contact is for an improper purpose. The complainant, attorney Jonathan P. Sheldon, called Burnett’s statement “a bald-faced falsehood.”

The issue of contacting jurors commonly arises in death penalty cases, where lawyers handling appeals for a condemned defendant must explore whether there are grounds to challenge the validity of a jury’s verdict. “Whenever there’s a death verdict, the attorneys are going to go above and beyond, within ethical bounds, to find any evidence they might use to attack that verdict,” said Jay Finch, a lawyer with the capital defender office in Christiansburg.

It was a 1999 capital murder case that led, over 10 years, to the charges against Burnett. A Winchester jury in 2001 convicted Edward Bell of killing a city police officer and sentenced him to death. The Supreme Court of Virginia affirmed the conviction and sentence in June 2002. As habeas corpus appeals were underway the next year, Burnett spoke with the new Winchester commonwealth’s attorney, Alexander Iden, about tactics that might be used by Bell’s habeas appeal lawyers.

According to the VSB notice, Burnett “counseled and assisted” the prosecutor in sending a letter to the jurors from Bell’s trial.

The letter, dated Nov. 26, 2002, told the jurors that Bell’s lawyers might misrepresent their role in the case, that the jurors had no obligation to discuss the case with anyone representing Bell, and that the jurors should contact the commonwealth’s attorney’s office before talking about the case to verify the identity of the questioners.

The Virginia Association of Criminal Defense Lawyers voted to file a complaint with the VSB about Iden’s letter. After hearing Burnett’s testimony at the 2006 hearing in support of Iden, the panel of three circuit judges reversed an earlier public admonition against Iden. The panel did not spell out the reasons for its decision.

Richmond criminal defense lawyer Steve Benjamin, who was president of the VACDL at the time of the Iden complaint, said criminal defense lawyers sought to include Burnett in their ethics complaint when they learned of her role in the letter to jurors. “It was the association’s view that this was clearly improper and contrary to law,” he said.

Meanwhile, Bell’s appeals failed to save his life. He was executed by lethal injection in February of this year.

Facing the ethics charges that emerged from the Iden case, Burnett chose to skip a step in the discipline process. She waived an initial hearing by a VSB district disciplinary committee and elected to defend herself before a three-judge panel. The judicial panel may impose a broader range of punishment than the committee. No hearing date has been set.

Burnett’s defense may rely in part on language from the Supreme Court of Virginia: “Virginia has been more careful than most states to protect the inviolability and secrecy of jury deliberations,” the court wrote in affirming the death sentence for a Pakistani man who gunned down victims outside the CIA headquarters in Langley. The trial court barred jury contacts in that case and refused permission for defense attorneys to contact jurors after the trial, despite a published report about loose comments in the jury room.

That case is cited in a draft brief provided by attorney Craig S. Cooley, who represents Burnett. Cooley argues in the brief that information from jurors is not “evidence” in the meaning of Rule 3:4(a) of the VSB rules of professional conduct, which bars attorneys from obstructing access to evidence.

Cooley also argues that Iden’s exoneration by the judicial panel amounts to approval of the letter to jurors. “The judges’ ruling makes it clear that the mailing of the letter did not constitute an ethical violation,” Cooley said, despite the lack of analysis in the written record of the decision.

The Virginia Rules of Professional Conduct and associated comments appear to give a green light to inquiring lawyers unless a court has ruled otherwise. “After the trial, communication by a lawyer with jurors is permitted so long as the lawyer refrains from asking questions or making comments that tend to harass or embarrass the juror or to influence actions of the juror in future cases,” reads a comment to Rule 3.5.

The Supreme Court posts a list of questions and answers for jurors on its Web site, but the court does not mention the possibility of contact by lawyers after a trial. The Q-and-A does include this statement: “When the trial is over, you can discuss it with anyone if you want to, or you may keep silent if you prefer.”

Sheldon, the lawyer who signed the complaint against Burnett, points to the language of Rule 3.5 to argue that there simply is no controversy over the juror contact issue. “She is intentionally misstating the law to gain a tactical advantage in a hearing,” he said about Burnett’s testimony in support of Iden. Sheldon said he has interviewed jurors in three cases where Burnett was opposing counsel, with no complaints or charges over his actions.

Benjamin, the former VACDL president, agrees that post-trial juror contacts are necessary and expected. “When an attorney is appointed to determine the validity of a death sentence, it is his moral responsibility to investigate every fact that may have a bearing on the validity of a conviction,” he said.

“There have been convictions and death sentences that have been reversed by juror misconduct or by actions of outsiders directed toward jurors,” Benjamin said. “These events are only detected by thorough investigation.

As Finch noted, a jury issue can be especially valuable in a death penalty challenge. “Anytime there’s a jury issue, the likelihood of the appellate courts taking note of it is very high,” Finch said. “These are the cases that are going to get a writ granted.”

Law professor James E. Moliterno – in the process of moving from William & Mary to teach professional responsibility at Washington & Lee – sees the issue similarly. “As the rules now stand, there is nothing inappropriate about the mere fact of contacting jurors after trial,” he said.

Moliterno calls the Iden letter to jurors “unfortunate.”

“In my opinion, the letter discourages jurors from accepting communication from habeas counsel without any evidence that these particular habeas counsel will behave inappropriately. That discouragement should not be acceptable. The commonwealth should want executions only when the process that produced them is thoroughly defensible and open to examination,” Moliterno said.

Questioned about the issues of post-trial juror contacts, Virginia Attorney General Bill Mims released only a statement of support for Burnett, noting her more than 20 years of service handling capital litigation. “I have complete confidence in Katherine’s legal skills and ethical standards,” Mims said. “She is a dedicated public servant.”

The Virginia Interfaith Center for Public Policy condemned Burnett with a statement from executive director Rev. C. Douglas Smith. Burnett’s alleged misconduct “is particularly troubling given her stature in the office of the Attorney General,” Smith wrote. “For the last 20 years, Ms. Burnett has been involved in every death penalty case in the commonwealth,” he said.

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