Legal Misconduct

[mdavis]

As the defense attorneys continue to fire salvos at the forensic labs and technicians to avoid prosecution for their clients, so also must the prosecutors and defense attorneys on the front lines of the bench be scrutinized for ethical misconduct. There is an article in today's NY Times regarding the alleged misconduct of prosecutors in a homicide case against Daryl Atkins in the state of Virginia. The prosecutor is said to have withheld a taped testimony from the court because part of that tape did not fit the evidence. One of the defendents was then coached to provide testimony that did fit the evidence, which was used in the conviction. However, Virgina bar legal ethics prevented the information from being brought to light by one of the attorneys that knew.

I would argue that most forensic technicians are usually so far removed from the details of the case, that their findings are of no personal interest, just that they are accurate. Would that that be the case in the courtroom where neither side is really interested in the truth unless it benefits their side of the argument.

You can find the article in today's NY Times headlines online (free but you do have to register online).

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"This is not a court of justice, young man, it is a court of law!" - Oliver Wendell Holmes

[Gerald Clough]

I got to the article without registration at:
http://www.nytimes.com/2008/01/19/us/19 ... ei=5087%0A

A couple of things. After twenty-something years, almost all as a detective and a few years as a low level judge, but not, like most officers, working intimately on appeals, and knowing some of the things that can happen, I would read the claims made on behalf of an appellant and think, "Gee, that's bad, and no one would make up a story like that - it's too outrageous." Now working on appeals cases and investigating those claims, I have found there's not much limit to how "imaginative" they can be. And that's nothing to the fantastic stuff made up by rabid supporters of the incarcerated and opponents of the death penalty. Often, plain damn liars. So, I'm properly suspicious of claims for relief until both sides are heard. I also have very little expectation that reporters will accurately represent the claims.

The other thing is that prosecutors are supposed to and are often sworn to seek the truth. The defense is not. The State is bound to reveal all it knows. The defense will reveal only what it brings to court. This story approaches that situation with the attorney for the co-defendant feeling bound to keep quiet about what could harm his client, even unto the death of the other. It's not explicitly stated, but it appears all the appeal opportunities were exhausted for his client before he could talk, although I kind of doubt it was the intent of the codified ethics in Virgina that he let someone die, rather than do some trivial harm to his manifestly guilty client. It's not clear from the story if the complaint is about turning the tape off to conceal the discussion or withholding the tape altogether. At any rate, it interesting that the famous Atkins, the focus of the law on mental retardation and execution, may never he legally declared MR or not.

But, as to any difference between analysts and attorneys, I'm not sure there is enough difference to presume an absence of bad acts or that bad acts are wholly attributable to the degree to which the person is familiar with the details of the case. There are a lot of different ways and whys of mistakes and intentional bad conclusions. Most prosecutors are straight shooters. Most forensic folks are straight shooters. Both have had bad actors. For that matter, I've seen more defendants wronged by lazy attorneys than by more serious ethical lapses. And I suspect it's true that there have been vastly more forensic wrongs through lazy work than fraud.

[L.J.Steele]

The other thing is that prosecutors are supposed to and are often sworn to seek the truth. The defense is not.

Not quite. Both sides have a legal duty under their applicable ethics code to zealously represent their client within the bounds of the law. Both have duties of candor to the court. Neither side can introduce perjured testimony. Neither side can tamper with evidence. (Preparing witnesses can be a very tricky area for both sides.)

The prosecution has several additional duties -- the somewhat vague one to "do justice" and, among other things, a constitutional duty to disclose excuplatory evidence within its possession and that of the prosecution's agents (police, labs, etc.). Truth is a hard thing to establish -- there's a lot of uncertainty, ambiguity, conflicting information, etc., in any case.

The defendant has a constitutional protection against self-incrimination. It has various disclosure obligations related to trial -- generally these involve expert witness reports for testifying experts and statements of testifying witnesses, the details vary state by state.

This story approaches that situation with the attorney for the co-defendant feeling bound to keep quiet about what could harm his client, even unto the death of the other.

There's considerable ongoing debate in various legal boards and lists about all parties in the case. I expect the appropriate state ethics bodies to investigate, and likely write some opinions clarifying the situation.

[mdavis]

The question, then, rides on a struggle between what is ethical, and what is legal? Or do we assume everything that is legal is supported by the Constitution and, therefore, ethical?

I was amused a couple of years ago when I went to testify at a jury trial in an adjoining county court. The judge broke for lunch, everyone filed out of the courtroom, and there were several family members and onlookers milling about. On the table was a box of evidence used during the trial. No one seemed concerned about it being accessible to anyone nearby, yet the chain of custody of that evidence was one of the big points in the trial.

It is very difficult for a scientist to understand the political and legal commonality of a double standard.

[L.J.Steele]

The question, then, rides on a struggle between what is ethical, and what is legal? Or do we assume everything that is legal is supported by the Constitution and, therefore, ethical?

Remember that the state and federal ethics rules for attorneys govern an attorney's license to practice. Violation of the ethics rules isn't a crime in and of itself, but it can get someone disbarred, suspended, fined, etc. The specific act may also be a crime like fraud or obstruction of justice. Violating the ethics rules is also a dandy ground for a civil malpractice lawsuit. For those purposes, there's a fine line between the two -- for most purposes I'd expect an attorney to tend to treat an act that violated the ethics rules as seriously as a criminal misdemeanor.

I was amused a couple of years ago when I went to testify at a jury trial in an adjoining county court. . . .

Once the exhibit goes into the court clerk's hands, the trial attorneys have little influence on its fate. For the most part, exhibits get handled by attorneys, witnesses, and jurors, then seem to get stuffed in a box on a shelf in a large evidence vault after the trial. Not great conditions for preventing subsequent cross-contamination, degredation of evidence for retesting, or utility in the event of a retrial or successful habeas, I agree.

For the vast, vast majority of cases, the evidence has served its purpose at the time of the first trial if not much earlier for the large number of cases disposed of pre-trial. Rarely would one expect to test or retest the stuff after it becomes a court exhibit, so the procedure seems to be less stringent. Not a double standard, more a question of whether the purpose for the chain of custody has been fulfilled by that point. I'm not saying I agree with how exhibits are handled in that case, or in some of my own cases, but I can see the clerk's PoV.

[mdavis]

Remember that the state and federal ethics rules for attorneys govern an attorney's license to practice. Violation of the ethics rules isn't a crime in and of itself, but it can get someone disbarred, suspended, fined, etc. The specific act may also be a crime like fraud or obstruction of justice. Violating the ethics rules is also a dandy ground for a civil malpractice lawsuit. For those purposes, there's a fine line between the two -- for most purposes I'd expect an attorney to tend to treat an act that violated the ethics rules as seriously as a criminal misdemeanor.

This is a bit like the objection of the forensic verification process in which a "biased" peer is reviewing an already-identified latent print. Let's see, the judge is an attorney, the prosecutor is an attorney, the defense is an attorney -- sort of like a fox guarding the henhouse, don't you think? There is a skepticism of "the thin blue line" in which police protect their own. I don't doubt there is a thin gray line that protects the mis-adventures of lawyers as well. In the typical legal environment, judges, PAs and defense frequently leave for lunch together and play golf on the weekends.

I would like to think, from my own experience, that scientists tend to be more aware of the demands of objectivity, otherwise an examiner from the XYZ Police Department Crime Lab couldn't be allowed to testify for a case presented by the XYZ Police Department. This is ever-so-rarely a problem, which speaks well of the system and the integrity of those involved.

For the most part, exhibits get handled by attorneys, witnesses, and jurors, then seem to get stuffed in a box on a shelf in a large evidence vault after the trial. Not great conditions for preventing subsequent cross-contamination, degredation of evidence for retesting, or utility in the event of a retrial or successful habeas, I agree.

The legal system seems to be unaware of the ruthless advance of scientific methods, especially in the areas of serology and DNA. I wonder how many falsely-convicted prisoners could have been exonerated had evidence been properly handled and stored. Of course, DNA was not a viable investigative resource decades ago. Who knows what may arise in the future to re-open all those hundreds of thousands of dusty evidence boxes being stored in damp basements, riddled by mice and cockroaches?

[L.J.Steele]

This is a bit like the objection of the forensic verification process in which a "biased" peer is reviewing an already-identified latent print. Let's see, the judge is an attorney, the prosecutor is an attorney, the defense is an attorney -- sort of like a fox guarding the henhouse, don't you think? There is a skepticism of "the thin blue line" in which police protect their own. I don't doubt there is a thin gray line that protects the mis-adventures of lawyers as well.

Depends a bit on what the ethical violation is. Remember that in criminal cases, the defense can challenge a conviction on the basis of prosecutorial misconduct -- that gives the defense a significant incentive to call attention to any discovered error by a prosecutor.

For defense errors, there are two mechanisms that come into play: harmless error and habeas. When the defense claims that the prosecutor committed misconduct, the prosecutor is allowed to defend (in part) by saying "he started it". (Yes, this works.) This gives the defense an incentive to stay on the high ground rather than engage in tit-for-tat.

Habeas is a second mechanism. The defendant can challenge the conviction based on ineffective assistance of trial (or appeallate) counsel. When I work on a case, I know that some habeas attorney is going to be looking over my shoulder in a few months, asking me to justify my decisions.

These, of course, don't involve the grievance process for an ethical violation. Clients can and do file grievances -- in some states there's a seperate office and staff for that (who are as popular at lawyers outings as Internal Affairs at a police picnic), in others there's a panel of volunteers. How they react depends a great deal on the complaint itself. I see routine notices from the courts about attorneys being suspended or disbarred, so I gather enforcement is fairly common.

For examples of the procedure and rules:
Mass Board of Bar Overseers
http://www.mass.gov/obcbbo/

Connecticut Grievance Committee
http://www.jud.ct.gov/SGC/

In addition to that, in some states, the rules require an attorney to report serious misconduct. See

http://findarticles.com/p/articles/mi_q ... i_n9119385

for a discussion. Is there a counterpart in the IAI rules that would require an IAI certified examiner to report a serious problem by another IAI certified examiner to an IAI disciplinary body who could investigate and revoke the certification in appropriate cases?

The legal system seems to be unaware of the ruthless advance of scientific methods, especially in the areas of serology and DNA. I wonder how many falsely-convicted prisoners could have been exonerated had evidence been properly handled and stored. Of course, DNA was not a viable investigative resource decades ago. Who knows what may arise in the future to re-open all those hundreds of thousands of dusty evidence boxes being stored in damp basements, riddled by mice and cockroaches?

Agreed that we need better handling -- sadly a matter that needs to be taken up with the clerks and court administrators.

[Gerald Clough]

The legal system seems to be unaware of the ruthless advance of scientific methods, especially in the areas of serology and DNA. I wonder how many falsely-convicted prisoners could have been exonerated had evidence been properly handled and stored. Of course, DNA was not a viable investigative resource decades ago. Who knows what may arise in the future to re-open all those hundreds of thousands of dusty evidence boxes being stored in damp basements, riddled by mice and cockroaches?

Agreed that we need better handling -- sadly a matter that needs to be taken up with the clerks and court administrators.

It's a real problem for a lot of clerks whose vaults are jam packed. Ours once had six gallons of meth oil, which is not a fun thing to have around in glass jugs and very expensive to dispose of some day when the conviction becomes final. Some old courthouses are indeed somewhat infested, and the clerk's vault is often subject to the same things, like roof leaks, as the rest of the building.

I had a case where long after trial there was an issue of a pistol, mainly who had examined it, since the fact of the examination was not in the record. That would, of course, have been noted on the tag before it was turned over to the court (which often means handed to the ADA to take to court as an exhibit). In this case, the lab apparently got the ADA to sign the tag, and the lab kept the tag, which would have been another expedition to find. Fortunately, the associated ammunition was in an envelope bearing the original PD tracking sheet which showed the transfer to the expert. Finding the information attached to a marked exhibit in the clerk's custory meant the information was part of the record, which was nice, since we were at a stage when nothing could be submitted that was not in the existing record.

Our clerk once talked the district judge into signing a bunch of orders clearing ancient evidence out of her vault. I had to research a lot of it to make sure the case was final and to try to figure out the ones with lost tags. I recognized old weapons as having been from cases from the sixites and seventies that I knew from having read very old case files when I came to the department in 1986.

And I have known exhibits to be stolen from the courtroom during a lunch break. Fixing clerks' storage situations would likely take legislation, which the counties hate, since it would almost certainly be another unfunded mandate.

[sharon cook]

What about Leslie Abrahmson, who was guilty of suborning perjury and evidence tampering in the Menendez trial? Nothing ever happened to her. Likewise Johnny Cochran commiting forgery and fraud during the O.J.Simpson trial. Of course, Johnny's dead now...so there's a LITTLE bit of justice.

[L.J.Steele]

[quote="Gerald Clough]
It's a real problem for a lot of clerks whose vaults are jam packed. Ours once had six gallons of meth oil, which is not a fun thing to have around in glass jugs and very expensive to dispose of some day when the conviction becomes final. Some old courthouses are indeed somewhat infested, and the clerk's vault is often subject to the same things, like roof leaks, as the rest of the building.[/quote]

There a storage issue on going at a courthouse near me.

http://www.telegram.com/article/2008012 ... 70417/1116

When the clerk's office moved from the old courthouse to the new one, they found a number of problems during an inventory, particularly with narcotics evidence.

Out of curiosity, has anyone had to examine or re-examine evidence after it went to court? I'd assume there would be a huge problem with jurors, lawyers, and clerks handling exhibits and creating latents that weren't there when the evidence was first taken.

[RL Tavernaro]

Out of curiosity, has anyone had to examine or re-examine evidence after it went to court? I'd assume there would be a huge problem with jurors, lawyers, and clerks handling exhibits and creating latents that weren't there when the evidence was first taken.

Answer is yes, but I don't recall details at this time.

One case I do recall however, was a defense attorney's prints identified on items with an easily visible amount of cocaine residue. Nothing unusual about that perhaps, except that the items had been clean prior to the attorney having possession of them overnight prior to trial. The attorney was removed from the case, and disappeared from that jurisdiction.