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CHAPTER
ETHICS IN CRIMINAL ADVOCACY
Peter A. Joy and Ellen Yaroshefsky
Ethics issues in criminal advocacy abounded in 2013. Cases involving prosecutors, defense lawyers, and the criminal justice system made headlines frequently. The year marked the 50th Anniversary of both Gideon v. Wainwright and Brady v. Maryland, and the news this year continued to include stories of Brady violations, prosecutorial misconduct and the poor state of indigent defense in the U.S. The stories we have chosen to include in this chapter represent a good cross-section of the ethics stories in criminal advocacy for the year.
I. “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”
The most memorable quote concerning Brady this past year came in a strongly worded dissent by Judge Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, from a decision not to rehear U.S. Olsen:[1] "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."[2]
In Olsen, a three-judge panel detailed extensive instances of the government withholding exculpatory and impeaching evidence, but did not reverse the conviction finding that the withheld evidence was not material. At trial, Kenneth Olsen had been convicted of developing a biological agent, ricin, for use as a weapon. Olsen had claimed that he was simply curious about the manufacture of ricin, and the government did not have specific evidence that Olsen intended to kill anyone with it. Key to the government’s case was a bottle of allergy pills found in Olsen's lab that, according to forensic specialists, contained traces of ricin.
One forensic analyst who handled the pills, Arnold Melnikoff, was under investigation for forensic misconduct by the time of Olsen’s trial. Melnikoff’s testimony had already been tied to three wrongful convictions, and an internal investigation of his work found improprieties in 14 of 100 randomly chosen cases. The report found that his mistakes included evidence analysis, data interpretations, errors in written reports, and a tendency to reach stronger conclusions as cases developed. He was eventually terminated, and a court affirmed the termination “finding Melnikoff was incompetent and committed gross misconduct.”[3]
The defense tried to discredit the evidence of ricin noting that Melnikoff had dumped the pills on a clean sheet of lab paper on his laboratory bench after Melnikoff had examined other items, including scraping of ricin-positive powder from some of those items. The ricin test destroyed the pills, so it was not clear whether the ricin was inside the pills or on the surface.
A federal prosecutor knew about the Melnikoff investigation and his history of errors but failed to disclose it to Olson’s attorneys. The AUSA also allowed the trial judge to be misled about the extent of the investigation. Instead of disclosing the damaging information, the AUSA characterized the investigation as purely administrative and that it was limited to an old complaint about DNA testing. The AUSA had the report, which contradicted these statements. The AUSA did not disclose the contents of the report to the defense or to the trial judge, who did not permit the defense to delve into the issue on cross-examination.
In his dissent from the 9th Circuit’s decision not to rehear the case en banc, Judge Kozinski states:
The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.[4]
As for the AUSA, whom Kozinski does not identify by name, he stated: “Protecting the constitutional rights of the accused was just not very high on this prosecutor's list of priorities. The fact that a constitutional mandate elicits less diligence from a government lawyer than one's daily errands signifies a systemic problem: Some prosecutors don't care about Brady because courts don't make them care.”[5]
Judge Kozinski continued that judges “must send prosecutors a clear message. Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction.”[6] Instead, Kozinski stated that the panel’s decision “invites prosecutors to avert their gaze from exculpatory evidence, secure in the belief that, if it turns up after the defendant has been convicted, judges will dismiss the Brady violation as immaterial.”[7]
As Judge Kozinski stated, Brady violations will continue to abound unless judges start to take them seriously. There is little evidence that ethics authorities or some prosecutors’ offices are doing much to address the issue.
On the heels of the Olson decision, the New York Times had a lead editorial lamenting the structural problems that have led to the “rampant” suppression of favorable evidence by prosecutors in criminal cases. “The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely.[8]
Public Attention To Cases OF PROSECUTORIAL MISCONDUCT
The year preceding the Olson decision was marked by significantly increased public attention to instances of prosecutorial misconduct, including cases involving Brady and other discovery violations. A highly experienced U.S. Attorney in Florida, who handled the prosecution of more than 50 Columbian defendants for significant drug smuggling, was excoriated by the Court for intentionally withholding key evidence from the defense. The prosecutor was found to be a “serial offender” who has “problems staying within the bounds of the law.[9]
Other reports and in-depth articles chronicled hundreds of cases of failure to disclose key evidence, overcharging to obtain plea bargains, reliance on known faulty scientific evidence, and other egregious violations of ethics codes and law. These include the Human Rights Watch report “An Offer You Can’t Refuse;”[10] Propublica, “Who Polices Prosecutors Who Abuse Their Authority? Usually Nobody;”[11] Center for Prosecutorial Integrity: “An Epidemic of Prosecutorial Misconduct;”[12] Huffington Post report “The Untouchables: America's Misbehaving Prosecutors, And the System That Protects Them.”[13]
These articles, detailing a wide range of abuses of prosecutorial authority in jurisdictions around the country, spotlight the need for systemic reform in discovery, and prosecutorial accountability. The articles mirror the longstanding critique that few prosecutors are ever subject to discipline for misconduct.
Unique Consequence For Intentional
Withholding Of Evidence: A Judge Goes To Jail
Public attention about egregious prosecutorial misconduct was directed to Texas where, in the first case of its kind, a sitting state judge was sentenced to 10 days in jail for
Intentionally withholding key evidence in a highly publicized homicide case. In 1987, Judge Ken Anderson was the prosecutor for Michael Morton who was indicted for the murder of his wife in their home. Despite the defense attorney’s repeatedly requests to Anderson for witness statements and other key evidence, the exculpatory evidence was never produced and Morton was convicted. He spent nearly 25 years in prison. He was innocent.
In 2005, Morton, with the assistance of the Innocence Project, began legal proceedings to test the DNA in the case. The Williamson County district attorney, John Bradley, fought the request for DNA testing for six years, based upon advice from Judge Anderson. Finally a judge ordered the DNA test, and after serving nearly 25 years, Morton was exonerated by DNA and freed from prison. His case was highlighted on CBS's 60 Minutes on March 25, 2012.
A Court of Inquiry ensued, an investigative process to examine the prosecutor’s conduct in the original trial. During the Court of Inquiry hearing, the lawyers questioned the lead sheriff’s investigator, an assistant district attorney who worked with Judge Anderson and the former prosecutor himself. District Judge Kelly Moore found that Judge Anderson committed serious acts of misconduct by concealing material evidence and found him guilty of criminal contempt of court for telling Morton’s trial judge in a 1987 pretrial hearing that he had no evidence favorable to Morton. Judge Anderson was disbarred and sentenced to 10 days in jail and 500 hours of community service. No other prosecutor in the country has faced such a consequence.
Discovery Reform
The Ken Anderson fiasco in the Michael Morton case spurred discovery reform in Texas.[14] During the week that marked the 50th Anniversary of the decision in Brady v. Maryland, Gov. Rick Perry signed into law Senate Bill 1611 — The Michael Morton Act. The new law codifies that prosecutors must make available to the defense, automatically upon request, all police offense reports and witness statements in their files. It changes discovery procedures and provides for disclosure of certain information,
Louisiana also passed legislation to expand discovery, HB371, An Act Relative to Discovery Reform. [15] Called a “sea change” in Louisiana criminal cases, it provides for disclosure of certain information to the defense—far beyond the current practice in many of Louisiana’s parishes. One of its goals is to provide uniformity in discovery throughout the State.
On the federal side, “The Fairness in Disclosure of Evidence Act of 2012” introduced by Senator Murkowski and other sponsors did not pass in 2012. It was reintroduced in 2013. It would require prosecutors to disclose all favorable information to the accused. (See State of Criminal Justice 2013 at 232-233). Discovery reform has been long championed by the ABA Criminal Justice Section.
National Institute Of Justice Report On Preventing Wrongful Convictions
In 2013, the Office of Justice Programs at the National Institute of Justice released a report documenting its thorough study to determine causes and remedies for wrongful convictions.[16] It found ten factors that lead to wrongful convictions:
A younger defendant
A criminal history
A weak prosecution case
Prosecution withheld evidence
Lying by a non-eyewitness
Unintentional witness misidentification
Misinterpreting forensic evidence at trial
A weak defense
Defendant offered a family witness
A "punitive" state culture
It focused upon the effect of tunnel vision in the prosecution of cases and then recommended changes to practices in criminal justice. These include attention to defense practice, production of exculpatory evidence, eyewitness identification, false confessions, forensic error, police misconduct, weak prosecution evidence, and systemic failures. The report emphasized that the interactions of these factors as well as the individual factors themselves are to blame for systemic breakdowns leading to erroneous convictions. Comprehensive reform is essential in order to prevent future errors.
DANZIGER BRIDGE SHOOTINGS—CONVICTION OF POLICE OFFICERS OVERTURNED FOR PROSECUTORIAL MISCONDUCT
It is a rare instance when prosecutorial misconduct results in a reversal of a conviction. A particularly unusual instance is that of U.S. district court judge Kurt Engelhard granting five former New Orleans police officers a new trial after their conviction violations in the highly publicized post-Katrina case. In these Danziger bridge shootings of unarmed civilians and the subsequent cover up to make their actions appear justified, the five officers were convicted of civil rights violations.
Post trial, the defense complained that a high ranking New Orleans federal prosecutor has secretly posted inflammatory comments about the police officers on a web page of a local newspaper. The court asked the U.S. Attorney to investigate. After investigation, the attorney did not inform that court that others in the Justice Department, including herself, had blogged about the case. The DOJ then conducted another investigation and learned that other DOJ prosecutors blogged about the case as well. The information was provided to the Court.
The judge, in a 129 page order, held that Justice Department lawyers had engaged in misconduct by posting online comments about the police officers during the pendency of the case.[17] He did so without conducting a public hearing. Instead, he conducted a private inquiry and concluded that there was no need for further investigation to determine the full scope of the misconduct.
The court, in a curious reliance upon Sheppard v. Maxwell, where a new trial was granted because of significantly prejudicial pretrial publicity, reversed the convictions because of the blogging of three prosecutors. The court never conducted an inquiry as to whether the postings had an effect upon the jurors that would justify the granting of a new trial.
50th ANNIVERSARY OF GIDEON
The ABA along with state and local bar associations, law schools throughout the country, defender organizations, constitutional law organizations and a myriad of high schools and colleges marked the 50th Anniversary of the historic right of counsel case.[18] Among the conferences examining the unfulfilled promise of Gideon and the ongoing indigent defense crises throughout the country was the February 8, 2013 Ninth Annual Summit on Indigent Defense Improvement sponsored by the ABA Standing Committee on Legal Aid and Indigent Defendants in Chicago. Stephen Bright, president and senior counsel for the Southern Center for Human Rights, in his stirring keynote speech called the current indigent defense system an absolute disgrace to the legal profession, outlined the problems he has seen over the years, and called for systemic reform.
The wealth of symposia around the country echoed the collective call for reform.
Solutions were proposed including the innovate court rule in Washington State that limit defense lawyer caseloads, referral of cases to private counsel by defender organizations, motions seeking caseload relief, declaring “unavailability” to provide representation, increased use of and emphasis upon Standards for the Defense Function,[19] holistic lawyering, client choice of counsel and prosecutorial participation in defense efforts to secure reasonable caseloads. [20] The need to change the “meet em and plead em” system for misdemeanor defendants received significant attention. [21]
As Attorney General Eric Holder noted, in his many 2013 speeches on Gideon’s unfulfilled promise, the need for change to assure that our justice system can provide fundamental fairness for indigent defendants has never been more acute. He noted,