Sunday, January 20, 2008

Teach Me, Coach Me, but Prosecute HIM!

This NY Times article describes an example of what is, to me, the most compelling argument against the death penalty: sometimes we screw up.

The short version of the story is that Virginia prosecutors coached a witness to lie in order to achieve a murder conviction against his confederate. The slightly longer version is that for a decade the Virginia bar, for whatever reason, contributed exactly nothing to bringing forward allegations of prosecutor misconduct.

The article alludes to legal ethics. I would like to know the answer to this question: What legal ethics rule did the bar think they were enforcing? Assuming they dropped the ball (which, in fairness, may not be the case -- there could be more to the story than the Times has to say) how does one go about bringing charges of misconduct against the bar?


Blogger Bekki said...

I saw that too. My thought was maybe it had something to do about not talking with outside attorneys about the case. Except I wouldn't think that would apply after the case had been closed. Or perhaps something about not revealing information about how the prosecution put its case together - a sort of work product rule?

Either way, I agree that there's a problem with an ethics code that prohibits attorneys from speaking out about misconduct. It makes me wonder about the code of conduct I'll be swearing to here in CA

1/20/2008 2:39 PM  
Anonymous John Steele said...


There are so many significant gaps in that story that neither I nor some of legal ethics buddies can figure out what happened.

1. What exactly was the "lie" you referenced? It's not clear that there was a lie, and, if so what exactly the lie was. "Coaching" a witness is not necessarily unethical. And there is case law stating that a lawyer may challenge a witness's factual recollection. On the other hand, it's unethical (and criminal to boot) to prepare false or misleading testimony, or to assist a witness to falsely claim to have seen things he didn't see.

2. I'm not a specialist in criminal procedure but it seems to me that turning off a tape recorder when you don't like the content of the witness's recollection may be the deliberate alteration of Brady materials.

3. It's not clear what the Virginia State Bar said to the lawyer on any of the occasions. The alleged advice was oral and is not repeated in the article.

4. Virginia's version of 1.6 does make reference to confidences as including information that could be "embarassing or detrimental" to the client if revealed. And the article suggests that the matter had reached a point where revelation would no longer hurt the client. So it's tempting to think that the Bar advised the lawyer, "now that revelation can't hurt your client it's no longer a confidence." But that would be a very surprising way to interpret their rule. If you read Virginia's 1.6, the definition of a client's "confidences" is much broader than that.

5. Also, if you read Virginia's 3.3(d) (Candor to the Tribunal), it appears to permit the revelation back when the coaching session happened, if we buy into the assumption that the coaching was a fraud on the tribunal.

6. Many states permit a lawyer to reveal client confidences to prevent reasonably certain death or substantial bodily harm (although the precise details of the rules vary by state). But as far as I know only Massachusetts has a special rule about revealing confidences to prevent the wrong person from being executed.

1/20/2008 4:01 PM  
Blogger Patrick said...


I was under the impression that the prosecutor had stopped the tape and asked the witness to change his story (substantially) so that it would fit the prosecution's case. That's what I meant by coaching a witness to lie.

Regarding oral advice: it normal for the bar to give advice on what is obviously a large ethical dilemma without creating documentation? That is a lot of unchecked influence . . .

1/20/2008 4:16 PM  
Anonymous John Steele said...

No doubt the import of the article was as you describe, but if the coaching really was to set up flat out perjury, we would have expected the lawyer to have immediately acted very differntly than he did -- and in any case we still can't tell exactly what the lie was, can we? According to your reading, what was the lie?

On the oral advice, the practice may vary by state, but normally there is an ethics hotline that offers "legal education" and not "legal advice," and there is a more formal mechanism for obtaining written opinions from a committee. I'm not sure what processes Virginia has, but my sense is that the NYT was not writing that article for aficionados and did not write it so that people could form their own opinions about what happened. So, on the ethics listservs there is substantial confusion about the details.

1/20/2008 5:24 PM  
Blogger Patrick said...

One charitable way to read the article is that the prosecutor refused to accept the testimony until it matched the physical evidence. Another way to read the article is that the prosecutor was only prepared to accept one version of events, coaxed that version from the witness, and then manipulated the record to conceal any dispute. As you said, there's just not enough information to tell. So my assumption that the witness was ask to lie stands corrected.

No matter what happened, the story is a rather gruesome look at the human face of our political machinery. I wouldn't be surprised to learn that the prosecutor genuinely believed the defendant was guilty, acted in good faith on that belief, etc. I wouldn't even be surprised to learn that over the long run such tactics deliver more justice, more quickly, at a lower cost to taxpayers. And THAT'S a disturbing possibility.

1/20/2008 6:14 PM  
Anonymous John Steele said...

The Washingon Post adds some facts. It appears that the prosecutors turned off the microphone and worked through the fact pattern after the witness said something that was inconsistent with the evidence. Note that the witness's own attorney offered an innocent explanation for the factual discrepancy; that it's still not clear that false testimony was offered; that it's possible that the coaching supplied the witness with facts he didn't really recall (very bad if that's what happened and that's my best guess of what happened in the interrogation room); that it's possible that after recreating the incident in the interrogation room the witness realized he had recalled it wrong (not good if the prosecutors hid the exculpatory evidence of the witness's orginal mistaken recollection, and my guess is that this is part of what happened in the room); and we still don't know if the other defendant was or wasn't the trigger man (who's the only one under Virginia law eligible for death).


"But, according to court testimony, the interview went awry. Jones's statements about what happened were at odds with the forensic evidence in the case. At one point in the interview, someone turned the tape recorder off, Leslie Smith testified in December.

"Les, do you see we've got a problem here?" he recalled a prosecutor asking him. "This isn't going to do us any good."

Smith told the prosecutor his client sometimes confused his right with his left. The group created a mock crime scene so Jones could show prosecutors what happened. Smith testified that law enforcement officials then coaxed his client to give answers that would fit the facts."

1/21/2008 10:45 AM  
Blogger Johnny Menace said...

speaking of the death penalty.. what do you think about picking off a few homeless every year... not like mass wash out... but just picking a city that is hindered economicly by the homeless.. and kill them off..

1/23/2008 8:13 AM  
Anonymous Anonymous said...

Where the heck are our grades? When is the deadline for profs to get grades to the registrar? Is the hold up on the registrar's end?

JS, I hope you graded all our exams before spending time posting here!!

1/23/2008 8:30 AM  
Anonymous Anonymous said...

The deadline for grade submission to the registrar is five weeks from the last day of exams, which is 1/24. So, all grades should be posted by 1/25, 24 hrs. after their timely submission by professors. But if you believe that this will actually happen you must be a starry-eyed 1L.

1/23/2008 11:13 AM  
Anonymous Anonymous said...

While I oppose the death penalty, I wonder how many people have gotten out of jail after being sentenced to life? I'd guess that there are just many, if not more, people wrongly convicted and sentenced to life in prison than there are on death row, but those people don't have their cases reviewed by a huge numbers of people and the best attorneys in the country.

1/23/2008 12:07 PM  
Anonymous Starry-eyed 1L said...

Can someone tell a starry-eyed 1L how unofficial transcripts work? (Currently, I have some of my grades in, but no unofficial transcript on BearFacts.) Does your unofficial transcript become available immediately after all grades are in? Or is there some lag time?

1/23/2008 9:16 PM  
Blogger Ashley said...

I seem to remember there being a pretty long gap. Though for 1L summer job-hunting, employers seemed to be alright with getting a screenshot of the "prior term grades" screen, so you don't have to wait on it.

1/24/2008 8:19 AM  

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