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No ‘Needle in a haystack’

VSB: Prosecutor must disclose location of exculpatory info

needle_mainA Virginia State Bar committee believes a prosecutor should not be able to satis­fy disclosure obliga­tions by turning over a bundle of material without pinpointing where the possibly exculpatory informa­tion is.

The VSB’s Standing Committee on Legal Ethics is seeking comments on a proposal to create a rule-based duty for prosecutors not to do a “document dump” without signaling the location of the critical nugget that could help a de­fendant.

200 hours of recordings

Proposed Legal Ethics Opinion 1888 is based on a real-life event, although a bar official said he was constrained from revealing the lawyers involved.

A prosecutor received 200 hours of recorded jail phone calls involving a defendant charged with strangulation, abduction and domestic battery. In one of those calls, the defendant asked the victim if she understood that he “didn’t do it.” She responded, “Yeah.”

The question for the bar panel was whether the prosecutor fulfils her Rule 3.8(d) duty by merely providing to the  defense lawyer the recording of all the calls or whether the prosecutor is re­quired to specifically identify the conver­sation where the victim acknowledged that the defendant “didn’t do it.”

Disclosure means more than mere­ly making the evidence available to be found, the committee said. The ethics panel concluded that once the prosecu­tor knows about the conversation which tends to negate the defendant’s guilt, she must specifically identify the conversa­tion to the defense attorney.

“The prosecutor does not provide disclo­sure in any meaningful way if she mere­ly turns over a large volume of material and implicitly tells the defense lawyer to ‘go fishing’ for whatever exculpatory evi­dence can be found somewhere in the ma­terial,” the proposed LEO reads.

The ethics committee’s analysis is based on Rule 3.8(d) of the Rules of Pro­fessional Conduct which generally re­quires prosecutors to make timely disclo­sure of “the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense or reduce the punishment.” The proposed LEO is not based on the Constitutional Brady duty of disclosure of exculpatory material.

Needle in a haystack

The ethics committee concluded the disclosure duty is affirmative and can­not be delegated to the defense lawyer by turning over a large quantity of material without disclosing the particular excul­patory material. The committee looked to the purpose of Rule 3.8 that every prose­cutor should act as a “minister of justice” and ensure that a defendant is accorded “procedural justice.”

“This purpose is not served if the pros­ecutor is able to effectively conceal infor­mation by failing to draw the defendant lawyer’s attention to a single needle in a haystack composed of 200 hours of re­corded conversations,” the proposed LEO says. The result would be different if the prosecutor had not reviewed the recordings at all, the committee said. The rule does not apply to evidence un­less it is actually known by the prosecu­tor, the panel said.

The deadline for comments on the proposed LEO is Nov. 3. Comments can be directed to VSB executive director Karen Gould at [email protected] org. LEOs recommended by the VSB ethics committee are voted on by the VSB Council with final action by the Supreme Court of Virginia.

No positions from associations

The needle-in-the-haystack issue has not been discussed yet by the Virginia Association of Commonwealth’s Attor­neys, according to president Patricia T. Watson of Greensville County.

“If this is a widespread problem, deal­ing more with state practice than fed­eral practice, then the Association is al­ways willing to discuss ways to improve the system,” Watson said in an email.

She said it would seem appropriate to allow a VSB committee now studying criminal discovery issues to complete its work before a LEO is issued.

Vikram Kapil of Martinsville, pres­ident of the Virginia Association of Criminal Defense Lawyers, said the “document dump” scenario is only a minor aspect of the burden faced by de­fense lawyers.

“The dump is like the tip of the ice­berg. You see it. You say, ‘That’s crazy.’ But there’s a lot more subtle stuff going on,” Kapil said.

Prosecutors boast of “open file” policies, but many do not allow copying or remov­al of any of their bulky files, he said. De­fense lawyers seek “reasonable and com­prehensive” access to prosecutors’ files, Kapil said.

Study continues

A Virginia State Bar task force is ex­ploring incremental ways to reform Vir­ginia’s criminal discovery procedures. According to meeting minutes and other materials, the panel has found agreement on disclosure of witness lists and witness information but has struggled to find common ground on defense access to po­lice reports.

Work on a separate rule for disclosure of exculpatory material was said to be on hold pending work on a basic discovery rule, acc ording to meeting minutes.

Alexandria Commonwealth’s Attor­ney Bryan Porter, a task force member, declined to comment. Porter is working with defense lawyer Douglas Ramseur on a possible compromise on the police report issue.

“I think any public comment about how this might impact the Task Force could act to the detriment of those negotia­tions,” Porter said in an email. Ramseur also declined comment.

Advertising changes published for comment

The VSB legal ethics committee also is seeking comments on proposed revisions to LEO 1750, a compendium of advice on lawyer advertising issues.

The revisions reflect this year’s changes in the rules for lawyer advertising that bring most issues under the umbrella standard of “false and misleading.”

Other revisions to the advertising opinion include:

l Updating section C, Firm Names and Offices, with the current standard for firm names, incorporating a discus­sion of office rentals and other potential­ly misleading firm addresses from LEO 1872;

l Revising section E, Participation in Lawyer Referral Services, to define the parameters of an appropriate lawyer referral service in light of the fact that many prior opinions on lawyer referral services have been withdrawn;

l Revising section F, Advertising Spe­cific or Cumulative Case Results/Jury Verdicts/Comparative Statements, to re­flect the fact that Rule 7.1 no longer re­quires a specific disclaimer when adver­tising case results and to give examples of the context in which case results must be placed in order to avoid misleading the public; and

l Updating section I, Use of “Special­ist” or “Specializing In,” to include the current standard for advertising claims that a lawyer is certified as a specialist in a particular area of law.

Comments on the proposed changes to LEO 1750 also have a deadline of Nov. 3.