Prosecutors’ Ethical and Professional Decision Making -- Is it Unique?
Prosecutors are said to have “the responsibility of a minister of justice and not simply that of an
advocate.” This responsibility is defined in part by the law and professional conduct rules of the
prosecutor's jurisdiction, but it is commonly understood that prosecutors’ vast power and
discretion are guided by additional expectations. Both the ABA and the National District
Attorneys’ Association (NDAA) periodically publish standards that attempt to capture some of
these expectations, but new developments regularly test the correctness, clarity and
completeness of these standards. This panel discussion will employ a series of real-life problems
to explore the depth and complexity of prosecutors’ ethical and professional decision making in
a range of contexts.
I
After being robbed on a street corner, a woman provides a detailed description of the
robber. A man meeting the victim’s description is arrested nearby soon after and brought to the
police station, where the victim picks him out of a lineup. The defendant has prior robbery
convictions. With the victim’s testimony, the case against him is fairly strong, but the case could
not be tried without her testimony, because her prior statements would be inadmissible under the
hearsay rules. The prosecution offers a lenient plea bargain and defense counsel agrees to
convey it to the defendant. In the interim, the prosecutor learns that the victim has suffered a
stroke and is unlikely to recover. At the next court appearance, defense counsel says that the
defendant is prepared to plead guilty. May the prosecutor let the defendant do so without
disclosing the victim’s condition? Would the answer be different if the victim died from the
stroke?
II
It appears obvious from a surveillance photograph taken during the robbery of a liquor
store that the perpetrator was one of two identical twins, each of whom has an arrest record for
similar robberies. Neither has an alibi and there is circumstantial evidence that could be used to
obtain a conviction of either twin, although it is clear that only one was involved. After an
exhaustive investigation, it is impossible to determine which committed this particular robbery.
May the prosecutor bring separate charges against each and leave it to separate juries to decide
whether to convict one, the other, neither or both?
Suppose that during the investigation, the first brother is arrested for another robbery to
which he pleads guilty and receives a substantial sentence. If the prosecutor can charge only
one, may the prosecutor choose the second brother, on the theory that the first is already
incarcerated?
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III
The state’s “identity theft” statute makes it a felony to “misuse identification belonging to
another person.” A man is arrested for using phony identification to purchase a gun. The
defendant made up the name, but coincidentally there is someone in the state with the same
name. Under a recent decision of the intermediate appellate court, a defendant must know that he
is engaged in identity theft to be guilty under the law, but the state high court has not yet ruled.
May the prosecution charge the defendant under the law?
Suppose the facts are the same but the state high court has upheld the intermediate
appellate court’s interpretation. May the prosecutor negotiate a plea bargain under which the
defendant will plead guilty to identity theft and waive the right to appeal, and in exchange, the
prosecutor will dismiss more serious charges?
IV
A woman calls the police after being robbed at gunpoint on a street corner while going
home from church and she provides a detailed description of the robber. A defendant meeting
the victim’s description is arrested nearby soon after and brought to the police station, where the
victim picks him out of a lineup. The defendant has no prior convictions, he has no gun and
none of the victim’s property, and he insists he is innocent, but he later accepts a lenient plea
offer. If the prosecutor holds a press conference right afterward, what may the prosecutor say?
Soon after the sentencing, a second defendant who looks very much like the first one is
arrested in the same location for a similar robbery. He has a lengthy arrest record. During police
questioning, he volunteers that he committed a prior similar robbery. He has forgotten the
details other than that it was on a Sunday. Must the prosecutor give this information to the first
defendant and/or investigate whether the second defendant committed the first robbery?
Suppose that the prosecutor investigates and becomes certain that the first defendant was
innocent. Must the prosecutor take any steps to help secure the first defendant’s release from
prison? Should the prosecutor apologize for having secured a wrongful conviction? Should the
prosecutor take any measures to prevent future wrongful convictions under similar
circumstances?
2
ABA Model Rules of Professional Conduct (selected)
Rule 3.6 Trial Publicity
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter
shall not make an extrajudicial statement that the lawyer knows or reasonably should know will
be disseminated by means of public communication and will have a substantial likelihood of
materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the
persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to
believe that there exists the likelihood of substantial harm to an individual or to the public
interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that
person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the
investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer
would believe is required to protect a client from the substantial undue prejudicial effect of
recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to
this paragraph shall be limited to such information as is necessary to mitigate the recent adverse
publicity.
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(d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a)
shall make a statement prohibited by paragraph (a).
Comment
[1] It is difficult to strike a balance between protecting the right to a fair trial and safeguarding
the right of free expression. Preserving the right to a fair trial necessarily entails some
curtailment of the information that may be disseminated about a party prior to trial, particularly
where trial by jury is involved. If there were no such limits, the result would be the practical
nullification of the protective effect of the rules of forensic decorum and the exclusionary rules
of evidence. On the other hand, there are vital social interests served by the free dissemination of
information about events having legal consequences and about legal proceedings themselves.
The public has a right to know about threats to its safety and measures aimed at assuring its
security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in
matters of general public concern. Furthermore, the subject matter of legal proceedings is often
of direct significance in debate and deliberation over questions of public policy.
[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic
relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4(c)
requires compliance with such rules.
[3] The Rule sets forth a basic general prohibition against a lawyer's making statements that the
lawyer knows or should know will have a substantial likelihood of materially prejudicing an
adjudicative proceeding. Recognizing that the public value of informed commentary is great and
the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in
the proceeding is small, the rule applies only to lawyers who are, or who have been involved in
the investigation or litigation of a case, and their associates.
[4] Paragraph (b) identifies specific matters about which a lawyer's statements would not
ordinarily be considered to present a substantial likelihood of material prejudice, and should not
in any event be considered prohibited by the general prohibition of paragraph (a). Paragraph (b)
is not intended to be an exhaustive listing of the subjects upon which a lawyer may make a
statement, but statements on other matters may be subject to paragraph (a).
[5] There are, on the other hand, certain subjects that are more likely than not to have a material
prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a
criminal matter, or any other proceeding that could result in incarceration. These subjects relate
to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal
investigation or witness, or the identity of a witness, or the expected testimony of a party or
witness;
(2) in a criminal case or proceeding that could result in incarceration, the possibility of a
plea of guilty to the offense or the existence or contents of any confession, admission, or
statement given by a defendant or suspect or that person's refusal or failure to make a statement;
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(3) the performance or results of any examination or test or the refusal or failure of a person
to submit to an examination or test, or the identity or nature of physical evidence expected to be
presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or
proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be
inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of
prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a
statement explaining that the charge is merely an accusation and that the defendant is presumed
innocent until and unless proven guilty.
[6] Another relevant factor in determining prejudice is the nature of the proceeding involved.
Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less
sensitive. Non-jury hearings and arbitration proceedings may be even less affected. The Rule
will still place limitations on prejudicial comments in these cases, but the likelihood of prejudice
may be different depending on the type of proceeding.
[7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may be
permissible when they are made in response to statements made publicly by another party,
another party's lawyer, or third persons, where a reasonable lawyer would believe a public
response is required in order to avoid prejudice to the lawyer's client. When prejudicial
statements have been publicly made by others, responsive statements may have the salutary
effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive
statements should be limited to contain only such information as is necessary to mitigate undue
prejudice created by the statements made by others.
[8] See Rule 3.8(f) for additional duties of prosecutors in connection with extrajudicial
statements about criminal proceedings.
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Rule 3.8 Special Responsibilities Of A Prosecutor
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable
cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the
procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such
as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor
that tends to negate the guilt of the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information
known to the prosecutor, except when the prosecutor is relieved of this responsibility by a
protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about
a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or
prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the
prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making
extrajudicial comments that have a substantial likelihood of heightening public condemnation of
the accused and exercise reasonable care to prevent investigators, law enforcement personnel,
employees or other persons assisting or associated with the prosecutor in a criminal case from
making an extrajudicial statement that the prosecutor would be prohibited from making under
Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a reasonable
likelihood that a convicted defendant did not commit an offense of which the defendant was
convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
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(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to
determine whether the defendant was convicted of an offense that the defendant did not commit.
(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in
the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the
prosecutor shall seek to remedy the conviction.
Comment
[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
This responsibility carries with it specific obligations to see that the defendant is accorded
procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special
precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of
mandated remedial action is a matter of debate and varies in different jurisdictions. Many
jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution
Function, which are the product of prolonged and careful deliberation by lawyers experienced in
both criminal prosecution and defense. Competent representation of the sovereignty may require
a prosecutor to undertake some procedural and remedial measures as a matter of obligation.
Applicable law may require other measures by the prosecutor and knowing disregard of those
obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule
8.4.
[2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a
valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to
obtain waivers of preliminary hearings or other important pretrial rights from unrepresented
accused persons. Paragraph (c) does not apply, however, to an accused appearing pro se with the
approval of the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect who
has knowingly waived the rights to counsel and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate
protective order from the tribunal if disclosure of information to the defense could result in
substantial harm to an individual or to the public interest.
[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in grand jury and other
criminal proceedings to those situations in which there is a genuine need to intrude into the
client-lawyer relationship.
[5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a
substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal
prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing
public condemnation of the accused. Although the announcement of an indictment, for example,
will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid
comments which have no legitimate law enforcement purpose and have a substantial likelihood
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of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict
the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).
[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to
responsibilities regarding lawyers and nonlawyers who work for or are associated with the
lawyer's office. Paragraph (f) reminds the prosecutor of the importance of these obligations in
connection with the unique dangers of improper extrajudicial statements in a criminal case. In
addition, paragraph (f) requires a prosecutor to exercise reasonable care to prevent persons
assisting or associated with the prosecutor from making improper extrajudicial statements, even
when such persons are not under the direct supervision of the prosecutor. Ordinarily, the
reasonable care standard will be satisfied if the prosecutor issues the appropriate cautions to lawenforcement personnel and other relevant individuals.
[7] When a prosecutor knows of new, credible and material evidence creating a reasonable
likelihood that a person outside the prosecutor’s jurisdiction was convicted of a crime that the
person did not commit, paragraph (g) requires prompt disclosure to the court or other appropriate
authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the
conviction was obtained in the prosecutor’s jurisdiction, paragraph (g) requires the prosecutor to
examine the evidence and undertake further investigation to determine whether the defendant is
in fact innocent or make reasonable efforts to cause another appropriate authority to undertake
the necessary investigation, and to promptly disclose the evidence to the court and, absent courtauthorized delay, to the defendant. Consistent with the objectives of Rules 4.2 and 4.3, disclosure
to a represented defendant must be made through the defendant’s counsel, and, in the case of an
unrepresented defendant, would ordinarily be accompanied by a request to a court for the
appointment of counsel to assist the defendant in taking such legal measures as may be
appropriate.
[8] Under paragraph (h), once the prosecutor knows of clear and convincing evidence that the
defendant was convicted of an offense that the defendant did not commit, the prosecutor must
seek to remedy the conviction. Necessary steps may include disclosure of the evidence to the
defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and,
where appropriate, notifying the court that the prosecutor has knowledge that the defendant did
not commit the offense of which the defendant was convicted.
[9] A prosecutor’s independent judgment, made in good faith, that the new evidence is not of
such nature as to trigger the obligations of sections (g) and (h), though subsequently determined
to have been erroneous, does not constitute a violation of this Rule.
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ABA Standards on the Administration of Criminal Justice
The Prosecution Function (selected)
Standard 3- 1.1 The Function of the Standards
These standards are intended to be used as a guide to professional conduct and performance.
They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of
the prosecutor to determine the validity of a conviction. They may or may not be relevant in such
judicial evaluation, depending upon all the circumstances.
Standard 3- 1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the
prosecutor must exercise sound discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the
administration of criminal justice. When inadequacies or injustices in the substantive or
procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial
action.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional
conduct as defined by applicable professional traditions, ethical codes, and law in the
prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an
advisory council of the kind described in standard 4-1.5.
***
Standard 3-1.4 Public Statements
(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a
reasonable person would expect to be disseminated by means of public communication if the
prosecutor knows or reasonably should know that it will have a substantial likelihood of
prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement
personnel, employees, or other persons assisting or associated with the prosecutor from making
an extrajudicial statement that the prosecutor would be prohibited from making under this
Standard.
***
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Standard 3-3.4 Decision to Charge
(a) The decision to institute criminal proceedings should be initially and primarily the
responsibility of the prosecutor.
(b) Prosecutors should take reasonable care to ensure that investigators working at their
direction or under their authority are adequately trained in the standards governing the issuance
of arrest and search warrants and should inform investigators that they should seek the approval
of a prosecutor in close or difficult cases.
(c) The prosecutor should establish standards and procedures for evaluating complaints to
determine whether criminal proceedings should be instituted.
(d) Where the law permits a citizen to complain directly to a judicial officer or the grand jury,
the citizen complainant should be required to present the complaint for prior approval to the
prosecutor, and the prosecutor's action or recommendation thereon should be communicated to
the judicial officer or grand jury.
***
Standard 3-3.8 Discretion as to Noncriminal Disposition
(a) The prosecutor should consider in appropriate cases the availability of noncriminal
disposition, formal or informal, in deciding whether to press criminal charges which would
otherwise be supported by probable cause; especially in the case of a first offender, the nature of
the offense may warrant noncriminal disposition.
(b) Prosecutors should be familiar with the resources of social agencies which can assist in the
evaluation of cases for diversion from the criminal process.
Standard 3-3.9 Discretion in the Charging Decision
(a) A prosecutor should not institute, or cause to be instituted, or permit the continued
pendency of criminal charges when the prosecutor knows that the charges are not supported by
probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued
pendency of criminal charges in the absence of sufficient admissible evidence to support a
conviction.
(b) The prosecutor is not obliged to present all charges which the evidence might support. The
prosecutor may in some circumstances and for good cause consistent with the public interest
decline to prosecute, notwithstanding that sufficient evidence may exist which would support a
conviction. Illustrative or the factors which the prosecutor may properly consider in exercising
his or her discretion are:
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(i) the prosecutor's reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the
offender;
(iv) possible improper motives of a complainant;
(v) reluctance of the victim to testify;
(vi) cooperation of the accused in the apprehension or conviction of others; and
(vii) availability and likelihood of prosecution by another jurisdiction.
(c) A prosecutor should not be compelled by his or her supervisor to prosecute a case in which
he or she has a reasonable doubt about the guilt of the accused.
(d) In making the decision to prosecute, the prosecutor should give no weight to the personal or
political advantages or disadvantages which might be involved or to a desire to enhance his or
her record of convictions.
(e) In cases which involve a serious threat to the community, the prosecutor should not be
deterred from prosecution by the fact that in the jurisdiction juries have tended to acquit persons
accused of the particular kind of criminal act in question.
(f) The prosecutor should not bring or seek charges greater in number of degree than can
reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of
the offense.
(g) The prosecutor should not condition a dismissal of charges, nolle prosequi, or similar action
on the accused's relinquishment of the right to seek civil redress unless the accused has agreed to
the action knowingly and intelligently, freely and voluntarily, and where such waiver is approved
by the court.
***
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Standard 3-4.1 Availability for Plea Discussions
(a) The prosecutor should have and make known a general policy or willingness to consult with
defense counsel concerning disposition of charges by plea.
(b) A prosecutor should not engage in plea discussions directly with an accused who is
represented by defense counsel, except with defense counsel's approval. Where the defendant has
properly waived counsel, the prosecuting attorney may engage in plea discussions with the
defendant, although, where feasible, a record of such discussions should be made and preserved.
(c) A prosecutor should not knowingly make false statements or representations as to fact or
law in the course of plea discussions with defense counsel or the accused.
Standard 3-4.2 Fulfillment of Plea Discussions
(a) A prosecutor should not make any promise or commitment assuring a defendant or defense
counsel that a court will impose a specific sentence or a suspension of sentence; a prosecutor
may properly advise the defense what position will be taken concerning disposition.
(b) A prosecutor should not imply a greater power to influence the disposition of a case than is
actually possessed.
(c) A prosecutor should not fail to comply with a plea agreement, unless a defendant fails to
comply with a plea agreement or other extenuating circumstances are present.
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Charging Discretion
Excerpt from motion:
PEOPLE v. STRAUSS-KAHN
August 22, 2011
Recommendation for Dismissal
Joan Illuzzi-Orbon, Assistant District Attorney.
John (Artie) McConnell, Assistant District Attorney.
SUMMARY
The People of the State of New York move to dismiss the above-captioned indictment, which
charges the defendant with sexually assaulting the complainant at a hotel in midtown Manhattan
on May 14, 2011. The crimes charged in the indictment require the People to prove beyond a
reasonable doubt that the defendant engaged in a sexual act with the complainant using forcible
compulsion and without her consent. After an extensive investigation, it is clear that proof of two
critical elements -- force and lack of consent -- would rest solely on the testimony of the
complaining witness at trial. The physical, scientific, and other evidence establishes that the
defendant engaged in a hurried sexual encounter with the complainant, but it does not
independently establish her claim of a forcible, nonconsensual encounter. Aside from the
complainant and the defendant, there are no other eyewitnesses to the incident. Undeniably, then,
for a trial jury to find the defendant guilty, it must be persuaded beyond a reasonable doubt that
the complainant is credible. Indeed, the case rises and falls on her testimony.
At the time of the indictment, all available evidence satisfied us that the complainant was
reliable. But evidence gathered in our post-indictment investigation severely undermined her
reliability as a witness in this case. That an individual has lied in the past or committed criminal
acts does not necessarily render them unbelievable to us as prosecutors, or keep us from putting
them on the witness stand at trial. But the nature and number of the complainant’s falsehoods
leave us unable to credit her version of events beyond a reasonable doubt, whatever the truth
may be about the encounter between the complainant and the defendant. If we do not believe her
beyond a reasonable doubt, we cannot ask a jury to do so. 1
We have summarized below the circumstances that have led us to this conclusion. This is not a
case where undue scrutiny or a heightened standard is being imposed on a complainant Instead,
we are confronted with a situation in which it has become increasingly clear that the
complainant’s credibility cannot withstand the most basic evaluation. In short, the complainant
has provided shifting and inconsistent versions of the events surrounding the alleged assault, and
1
This motion explains the basis for our request that the indictment returned by the grand jury be
dismissed. It does not purport to make factual findings. Rather, we simply no longer have
confidence beyond a reasonable doubt that the defendant is guilty.
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as a result, we cannot be sufficiently certain of what actually happened on May 14, 2011, or what
account of these events the complainant would give at trial. In virtually every substantive
interview with prosecutors, despite entreaties to simply be truthful, she has not been truthful, on
matters great and small, many pertaining to her background and some relating to the
circumstances of the incident itself. Over the course of two interviews, for example, the
complainant gave a vivid, highly-detailed, and convincing account of having been raped in her
native country, which she now admits is entirely false. She also gave prosecutors and the grand
jury accounts of her actions immediately after the encounter with the defendant that she now
admits are false. This longstanding pattern of untruthfulness predates the complainant’s contact
with this Office. Our investigation revealed that the complainant has made numerous prior false
statements, including ones contained in government filings, some of which were made under
oath or penalty of perjury. All of these falsehoods would, of course, need to be disclosed to a
jury at trial, and their cumulative effect would be devastating.
Finally, we have conducted a thorough investigation in an effort to uncover any evidence that
might speak to the nature of the sexual encounter between the complainant and the defendant All
of the evidence that might be relevant to the contested issues of force and lack of consent is
simply inconclusive.
We do not make this recommendation lightly. Our grave concerns about the complainant’s
reliability make it impossible to resolve the question of what exactly happened in the defendant’s
hotel suite on May 14, 2011, and therefore preclude further prosecution of this case.
Accordingly, we respectfully recommend that the indictment be dismissed.
PROSECUTION STANDARDS
Along with the substantial power conferred upon prosecutors come unique responsibilities.
Rather than serving only as a zealous advocate on behalf of a client, prosecutors have a broader
set of obligations to the community, the victim, and the defendant:
The [prosecutor] is the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as compelling as
its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. As such,
he is in a peculiar and very definite sense the servant of the law, the twofold aim
of which is that guilt shall not escape or innocence suffer. 2
New York’s rules of professional conduct, which parallel the ethics rules in virtually all
jurisdictions, and the American Bar Association’s Criminal Justice Standards both rest on the
same belief that the prosecutor’s duty is to seek justice, not simply to win cases. 3
2
Berger v. United States, 295 U.S. 78, 88 (1935).
See New York Rules of Prof’l Conduct R. 3.8 cmt. 1, 6B (2011); ABA Standards for Criminal
Justice: Prosecution Function 3-1.2(b), (c).
3
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Prosecutors also must abide by unique rules that reflect our special role in the legal system. Most
significantly, prosecutors must satisfy an exacting standard for conviction: proof of guilt beyond
a reasonable doubt. This requirement is “bottomed on a fundamental value determination of our
society that it is far worse to convict an innocent [person] than to let a guilty [person] go free.” 4
That standard of proof guides the decisions of prosecutors who must decide whether to proceed
with a case, not just the jurors who must decide whether to convict. At the beginning of a case,
prosecutors are frequently called upon to make charging decisions before all the relevant facts
are capable of being known, or all investigative steps required for trial are complete. Under New
York’s legal ethics rules, charges may be brought against a defendant if they are supported by
probable cause. 5 But for generations, before determining whether a case should proceed to trial,
felony prosecutors in New York County have insisted that they be personally convinced beyond
a reasonable doubt of the defendant’s guilt, and believe themselves able to prove that guilt to a
jury. The standards governing the conduct of federal prosecutors, as well as the American Bar
Association’s criminal justice standards, likewise recognize the need for prosecutors to act as a
gatekeeper by making an independent assessment of the evidence before proceeding to trial. 6
These core principles, by which this Office operates, are therefore clear. If, after a careful
assessment of the facts, the prosecutor is not convinced that a defendant is guilty beyond a
reasonable doubt, he or she must decline to proceed. While an abiding concern for victims of
crime is an essential attribute for every prosecutor working in this Office, that concern cannot
eclipse our obligation to act only on the evidence and the facts, mindful of the high burden of
proof in a criminal prosecution.
PROCEDURAL BACKGROUND
The defendant was taken into custody on May 14, 2011, and on the following day, was identified
in a line-up by the complainant and arrested by the New York City Police Department
(“NYPD”). The People filed a felony complaint on May 15, 2011, charging the defendant with
the same crimes for which he was later indicted, which are specified below. On May 16, 2011,
the defendant was arraigned in Criminal Court and despite a request for bail, was remanded on
the People’s motion. Pursuant to CPL §180.80, the People were required within 144 hours to
present evidence to a grand jury and obtain an indictment in order to avoid the defendant’s
release from custody. Based on the evidence available at that time, the People determined that
the case should be presented to a grand jury. The presentation occurred on May 18, 2011; the
defendant chose not to testify in the grand jury proceeding. The grand jury indicted on the same
4
In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).
New York Rules of Prof’l Conduct R. 3.8(a) (2011); Model Rules of Prof 1 Conduct R. 3.8(a)
(2010).
6
See U.S. Dep’t of Justice, United States Attorneys’ Manual § 9-27.220 (1997); ABA Standards
for Criminal Justice: Prosecution Function 3-3.9(b)(i).
5
15
day.
The indictment (number 02526/2011) charged the defendant, Dominique Strauss-Kahn, with two
counts of Criminal Sexual Act in the First Degree, in violation of Penal Law §130.50(1); one
count of Attempted Rape in the First Degree, in violation of Penal Law §§110/130.35(1); one
count of Sexual Abuse in the First Degree, in violation of Penal Law §130.65(1); one count of
Unlawful Imprisonment in the Second Degree, in violation of Penal Law §135.05; one count of
Forcible Touching, in violation of Penal Law §130.52; and one count of Sexual Abuse in the
Third Degree, in violation of Penal Law §130.55.
On May 19, 2011, the defendant made a second bail application, and bail was set in the amount
of $1 million in cash plus a $5 million bond. The conditions of bail included the surrender of the
defendant’s passport, his home confinement in New York County, and electronic monitoring at
his expense. He was arraigned on the indictment on June 6, 2011, entered a plea of not guilty,
and counsel filed and served a written discovery demand. The case was adjourned until July 18,
2011.
On June 30, 2011, in a letter to defense counsel, the People disclosed exculpatory information
regarding the complainant pursuant to the People’s obligations under CPL §240.20, Rule 3.8 of
the New York Rules of Professional Conduct, and Brady v. Maryland, 373 U.S. 83 (1963) and its
doctrinal progeny. The case was advanced to July 1, 2011, for the purpose of a renewed bail
application, at which point this Court released the defendant on his own recognizance, at the
defendant’s request and with the People’s consent, on the condition that the People retain
possession of the defendant’s passport and travel documents. On July 7, 2011, the case was
administratively adjourned on the consent of both parties from July 18, 2011 to August 1, 2011,
for the purpose of continued investigation by both sides. On July 26, 2011, the case was again
adjourned to August 23, 2011.
HISTORY OF THE INVESTIGATION
A. Initial Investigation and Indictment
On May 14, 2011, the complainant, a housekeeper at the Sofitel Hotel on West 44th Street in
Manhattan, reported to hotel security, and later to the NYPD, that she had been sexually
assaulted by the defendant in his hotel suite. She first reported this incident to her immediate
supervisor shortly after her interaction with the defendant, whose suite (Suite 2806) she had been
assigned to clean. That supervisor summoned a more senior supervisor, to whom the
complainant repeated her claim. The second supervisor notified hotel security and management
personnel, who in turn notified the NYPD. NYPD uniformed police officers and detectives
interviewed the complainant and had her transported to a local hospital for a medical
examination later that afternoon.
In substance, the complainant reported to NYPD detectives, and later to prosecutors, that shortly
after she entered the defendant’s suite to perform her housekeeping duties, he emerged naked
from the suite’s bedroom, approached her, and grabbed her breasts without her consent.
16
According to the complainant, the defendant closed the door to the suite, forced her into the
bedroom, pushed her onto the bed, and attempted to forcibly insert his penis into her mouth,
which caused his penis to make contact with her closed lips. The complainant stated that the
defendant then physically forced her further into the suite’s interior by pushing her down a
narrow hallway. According to her, he pulled up her uniform dress, partially pulled down her
stockings, reached under her panties, and grabbed the outside of her vaginal area forcefully.
Finally, the complainant reported that the defendant physically forced her to her knees, forcibly
inserted his penis into her mouth, held her head, and ejaculated. This sexual act, the complainant
stated, occurred at the end of the suite’s interior hallway, in close proximity to the suite’s full
bathroom. According to the complainant, she instantly spat the defendant’s semen onto the
suite’s interior hallway carpet, and continued to do so as she promptly fled from the suite.
The NYPD ascertained that the defendant was scheduled to depart on an Air France flight at
John F. Kennedy Airport that was headed for Europe. He was asked to disembark from that flight
at approximately 4:45 p.m. by detectives assigned to the Port Authority Police Department, and
was eventually taken into custody.
On the date of the incident, and for several days afterward, the complainant was interviewed by
detectives assigned to the NYPD’s Manhattan Special Victims Squad and by other experienced
investigators and prosecutors, including members of the Office’s Sex Crimes Unit. As in all
cases where a witness’ testimony is essential to prove the crime, the prosecutors who interviewed
the complainant explained to her that her past and present circumstances would be thoroughly
examined. The complainant expressed her willingness to cooperate with prosecutors and to be
truthful. In the course of these initial interviews with prosecutors and police, which probed the
details of the incident as well as the complainant’s background and history, the complainant
appeared truthful. Her account of the incident was plausible, and as she repeated it on different
dates to Special Victims detectives and prosecutors, it was materially consistent.
Investigation between the time of the incident and May 18 revealed no red flags in the
complainant’s background. She had a work history at the Sofitel Hotel of more than three years,
her employee file contained no incident reports or disciplinary history, and her supervisors
indicated that she was a model employee. She had no criminal history and had been granted
asylum by the United States Immigration Court Although she noted that she had originally
entered the United States using a visa and papers that had been issued to a different person, she
readily admitted this fact Finally, available evidence indicated that the complainant had no
foreknowledge of the defendant’s stay at the hotel that might have enabled her to orchestrate an
encounter between them, and that she entered the defendant’s suite believing it to be empty.
Other evidence was consistent with a non-consensual sexual encounter between the defendant
and the complainant. As described above, the complainant made a prompt outcry to two
supervisors, both of whom were interviewed by a prosecutor within the first 48 hours of the
investigation, and who reported that she appeared upset. A preliminary result from DNA testing
conducted by the Office of Chief Medical Examiner (“OCME”) established that several stains
located on the upper portion of the complainant’s hotel uniform dress contained semen that
yielded the defendant’s DNA. Although this preliminary forensic finding did not resolve whether
17
the encounter between the defendant and the complainant was forcible, it established that the
defendant had engaged in a sexual act with the complainant. Early investigation also indicated
that the encounter between the complainant and the defendant was brief, suggesting that the
sexual act was not likely a product of a consensual encounter.
Pre-indictment investigation indicated that the defendant had left the hotel in a hurried manner,
but it was not known at that time where the defendant went immediately after his departure from
the hotel. What was known, however, was that later in the afternoon of May 14, 2011, the
defendant had boarded an Air France flight at John F. Kennedy Airport destined for Europe, and
that he was a French citizen. Prior to the defendant’s arraignment, it was also ascertained that as
a French national, he would not be subject to extradition for purposes of a criminal prosecution
in the United States.
Based on multiple interviews with the complainant and an assessment of all of the evidence
available at the time, the NYPD detectives and prosecutors who spoke with the complainant
during this initial phase of the investigation each arrived independently at the same conclusion.
Each found the complainant to be credible and believed that criminal charges were warranted.
Accordingly, the case was presented to a grand jury and the defendant was indicted.
B. Subsequent Investigation
From the date of the indictment until the present, the District Attorney’s Office continued to
conduct a comprehensive and wide-ranging investigation into the defendant, the complainant,
and the facts of this case. That investigation has included the results of physical examinations of
the complainant and the defendant, and scientific testing of forensic evidence obtained from both
of them and their clothing. Police officers, detectives, civilian witnesses, medical personnel,
forensic scientists, and medical experts were interviewed. Documents, records, and other
evidence have been gathered and analyzed, including records of electronic communication
carriers, financial records, business records, medical records, video surveillance recordings from
inside the Sofitel Hotel and other locations, police department records, and records of other law
enforcement and governmental agencies.
Because credible testimony from the complainant was necessary to establish the crimes charged,
prosecutors and investigators interviewed the complainant repeatedly regarding her personal
history, current circumstances, and the details of the incident itself. During interviews conducted
from May 14, 2011 to June 7, 2011, the complainant provided prosecutors and investigators with
detailed information about the incident, her personal history, and her current circumstances. On
June 7, 2011, the complainant’s attorney alerted prosecutors that the complainant had not been
truthful in recounting her personal history, including her account of an alleged prior rape. In
further interviews conducted on June 8, June 9, and, June 28, 2011,10 the complainant herself
admitted that she had been untruthful with prosecutors about aspects of her personal history and
current circumstances.
18
In the June 28 interview, in the presence of her lawyer, three prosecutors, and an investigator, the
complainant also admitted not just that she had been untruthful with prosecutors about her
activities in the immediate aftermath of the charged incident, but also that she had lied in the
grand jury on this important point. In a letter dated June 30, 2011, the Office disclosed
complainant’s false statements and other potentially exculpatory information to the Court and
defense counsel.
From July 1, 2011 to the present, the Office continued its investigation of the case, including
interviewing further civilian witnesses, scientists, and medical experts; seeking and reviewing
additional records; examining additional forensic results provided by OCME; and evaluating
additional information provided by the complainant’s lawyer and defense counsel. Prosecutors
also met with the complainant one additional time, on July 27, 2011, at which time the
complainant again significantly altered her account of what had occurred in the time immediately
after her encounter with the defendant
REASONS FOR RECOMMENDATION OF DISMISSAL
The prosecution has the burden at trial to prove the guilt of an accused beyond a reasonable
doubt. For a host of reasons, including those set forth below, the complainant’s untruthfulness
makes it impossible to credit her. Because we cannot credit the complainant’s testimony beyond
a reasonable doubt, we cannot ask a jury to do so. The remaining evidence is insufficient to
satisfy the elements of the charged crimes. We are therefore required, as both a legal and ethical
matter, to move for dismissal of the indictment.
***
19
Excerpts from opinions on prosecutors’ ethics:
Charging Decisions – Inconsistent Theories
NICHOLS v. COLLINS
802 F.Supp. 66 (S.D. Texas 1992)
HITTNER, District Judge:
Pending before the Court are the original petition for writ of habeas corpus, the motion to
reopen evidentiary hearing, and the motion for expansion of the record all filed by 802 F.Supp.
66 petitioner Joseph Bennard Nichols. Having considered the motions, the submissions of both
Nichols and the respondent James A. Collins and the applicable law, this Court determines that
the petition should be granted and the motions should be denied.
I. FACTS
Nichols was indicted in Cause No. 323,836 in the 178th District Court of Harris County, Texas
for the offense of capital murder in connection with the death of Claude Shaffer, Jr.. Shaffer, a
seventy year-old employee of Joseph's Delicatessen and Grocery, was killed on October 13, 1980
during the course of the robbery of that establishment committed by Nichols and another, Willie
Ray Williams. Nichols and Williams were tried separately for the crime.
In July, 1981, Nichols was tried for capital murder in connection with the above offense. The
Court declared a mistrial in that action based upon the jury's inability to answer the second
special issue at the conclusion of the punishment phase.
In March, 1982, Nichols was again tried for capital murder. He was convicted, and after the
jury answered the three special issues affirmatively during the sentencing phase, the court
assessed punishment of death by lethal injection. On direct appeal, the Texas Court of Criminal
Appeals affirmed the conviction and sentence.
Nichols subsequently filed a state application for writ of habeas corpus pursuant to the Texas
Code of Criminal Procedure, article 11.07. The trial court held an evidentiary hearing upon two
issues (ineffective assistance of counsel and statistical challenge to the Texas death penalty
statute as unconstitutional as applied) and subsequently issued findings of fact and conclusions
of law denying all relief requested. On December 12, 1991, the Texas Court of Criminal
Appeals denied the relief which Nichols requested.
Nichols now seeks federal habeas corpus relief. This is Nichols first federal habeas corpus
petition.
Upon review of Nichols' petition for writ of habeas corpus and application for stay of
execution, this Court determined that Nichols was entitled to an additional, limited evidentiary
hearing on issues of prosecutorial misconduct.
Therefore, this Court granted a stay of execution on January 10, 1992.
20
***
IV. ANALYSIS
PROSECUTORIAL MISCONDUCT--IMPROPER STATEMENTS:
Prosecutorial statements may violate due process in two ways:
first, the statements may implicate "a specific provision of the Bill of Rights" incorporated into
the fourteenth amendment by the due process clause; second, the statement may constitute a
denial of due process "generically."
In reviewing prosecutorial statements or conduct, the Court should not find constitutional error
in a trial which was less than perfect; rather a constitutional error derives from a trial which was
unfair. Such unfairness will exist when prosecutorial misconduct is "either persistent and
pronounced or ... the evidence so insubstantial that [in probability] but for the remarks no
conviction would have occurred." In the instant case, Nichols complains of a persistent denial of
both specific and generic due process rights.
Through claim for relief number three, Nichols asserts that "the prosecutor's blatant
misconduct violated the doctrines of judicial estoppel, collateral estoppel, due process and the
duty to seek justice." Through this claim for relief, Nichols challenges the fundamental fairness
of the State's efforts and ultimate success in knowingly convicting two men of the same act.
Nichols urges that, although the evidence unequivocally demonstrated that Shaffer was killed by
a single bullet, the State unfairly convicted two different men of firing that single bullet.
It is undisputed that on January 29, 1981, Williams plead guilty to "unlawfully while in the
course of committing and attempting to commit the robbery of Claude Shaffer, Jr., hereafter
styled the Complainant, intentionally caused the death of the Complainant by shooting him with
a gun." (Williams transcript). The Court accepted that plea of guilty and, upon affirmative
answers to special issues from the jury, assessed Williams' punishment at death. Subsequently,
the State obtained Nichols' conviction and a death sentence upon an indictment which charges
him with "unlawfully while in the course of committing and attempting to commit ROBBERY,
intentionally cause the death of CLAUDE SHAFFER, JR., hereafter styled the Complainant, by
SHOOTING THE COMPLAINANT WITH A GUN."
This Court has previously noted certain excerpts from State closing arguments in the trial of
the two different defendants (Williams and Nichols) which are strikingly similar:
Williams Trial
"Willie Williams is the individual who
shot and killed Claude Shaffer.
Nichols Trial
"Willie could not have shot
him."
“That is all there is to it. It is scientific.
It is consistent. It is complete. It is
final, and it is in evidence."
"And I submit to you from this
evidence, [Nichols] fired the fatal
bullet and killed the man in cold blood
and he should answer for that.”
21
"[T]here is only one bullet that could
possibly have done it and that was
Willie Williams.”
At the "punishment phase:
"Is it fair and equal for Willie Williams
to sit up there on death row when this man
planned the whole thing and fired the shot."
---------This Court also notes the statement of facts provided by the Texas Court of Criminal Appeals
on direct appeal of each case which are strikingly diverse:
Williams Trial: Both men pulled guns on Claude Shaffer, the man behind the counter. Shaffer
reached for and grabbed a pistol which he pointed at appellant [Williams]. Nichols fired a shot
at Shafer and Shaffer "went down" in what appellant described as a squatting position. Nichols
and appellant turned and started to go out the door. Appellant still had his weapon pointed
toward Shaffer who he thougt had not been hit. Nichols went out the door, but appellant turned
back toward the counter and saw Shaffer squatting with his back to appellant. Appellant shot
Shaffer in the back, killing him, ran out of the store, and then came back inside. He testified that
he returned to see whether he had hit the deceased. He removed a box which contained money
from behind the counter. Then he ran out of the store.
Nichols Trial: As they approached the cash register, both men pulled guns on Shaffer, the
seventy year old victim. Shaffer bent down behind the counter, and it is controverted whether he
was reaching for an unloaded pistol kept behind the store counter or whether he was simply
taking cover. Appellant [Nichols] stated "Don't try it" and opened fire on Shaffer. It is unclear
whether appellant's shots hit Shaffer. Appellant and Williams then turned and started to flee. As
they reached the door, Williams turned and shot Shaffer. Again, it is unclear which shot
contacted the victim. Both men fled but, after running out of the Deli, Williams stopped and
went back into the Deli, alone. Williams took the case box from behind the counter where the
victim had been standing and ran out of the store.
---------In the Texas Court of Criminal Appeals opinion in Nichols v. State, the court disclaims its
prior rendition of the "facts" as an "assumption ... based upon Williams' guilty plea and
statements accepting responsibility for the murder." Instead, the court, like the State, supports
different versions of the same event as possibilities flowing from inconclusive evidence. Id.
While this Court acknowledges the State's argument that the above are merely different
interpretations of the same evidence and, therefore, not constitutionally infirm simply because
each jury believed a different interpretation, this Court's concerns with the position are two fold.
First, under such a theory, the constitution would not prevent the State from convicting an
unlimited number of individuals for the precise same act which all could not physically have
committed. Second, the integrity of the judicial system commands that citizens can rest assured
that prosecutors are seeking truth and justice; and that when they find truth and justice they
cannot seek a different truth and a different justice from the first.
Both parties concede that the question whether, in a criminal prosecution, the State should be
22
constitutionally estopped from obtaining a fact finding in one trial and seeking and obtaining an
inconsistent fact finding in another trial is a question of first impression in this circuit. In support
of the above proposition, Nichols cites the special concurrence filed in Drake v. Kemp, 762 F.2d
1449 (11th Cir.1985) (Clark, J., concurring).
In Drake, the majority of the Court determined that several instances of prosecutorial
misconduct in argument during the sentencing of Drake rendered Drake's sentencing hearing
fundamentally unfair. In his concurrence, Judge Clark added an instance of what he viewed as
another example of prosecutorial misconduct in that case--inconsistent theories argued by the
State to convict two different individuals.
This Court determines that the due process boundary upon prosecutorial conduct and the
appearance of basic fairness derived from that boundary command a determination that in a
criminal prosecution, the State is constitutionally estopped from obtaining a fact finding in one
trial and seeking and obtaining an inconsistent fact finding in another trial.
This Court is not suggesting that the State cannot prosecute several individuals for the same
crime, as long as the law and physics provide for such. Williams and Nichols can both be guilty
of capital murder because the state of Texas has determined, by law, that both are equally
culpable without regard to who fired the bullet which killed Shaffer. However, Williams and
Nichols cannot both be guilty of firing the same bullet because physics will not permit it. At the
same time, the state of Texas has determined, by law, that it is important for purposes of
sentencing that a jury know which one did fire the bullet which killed Shaffer.
This Court further determines that the foregoing denial of due process was not harmless error.
Based upon the evidence adduced at the evidentiary hearing conducted by this Court, this Court
makes the following supplemental findings of fact:
1. The law of parties was not submitted to the jury during Williams sentencing phase.
2. The assistant district attorney prosecuting Nichols I knew that the law of parties was not
submitted to the jury during Williams sentencing phase.
3. The assistant district attorney prosecuting Nichols I did not argue during Nichols I that only
Nichols' bullet could have killed Shaffer.
4. The assistant district attorney prosecuting Nichols I visited with members of the jury
following the grant of mistrial due to the jury's inability to answer all of the special issues.
5. The assistant district attorney prosecuting Nichols I learned from those jurors that whether or
not Nichols was the "triggerman" had caused problems for the jury in considering the death
penalty.
6. The assistant district attorney prosecuting Nichols I also prosecuted Nichols II.
7. The assistant district attorney prosecuting Nichols II argued during Nichols II that only
Nichols' bullet could have killed Shaffer.
In light of the supplemental fact findings, this Court determines that the outcome of Nichols I,
a jury hung on special issue due to the possible lack of Nichols' triggerman status, establishes the
harm of the denial of due process in Nichols II.
***
23
Notes:
1. In Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000), two groups of burglars broke into the
same house on the same night. The homeowner was killed by one of the two groups, but the
prosecution tried to convict members of both groups. A witness from the first group testified
that a member of his group committed the murder. In a second trial the same witness testified
that a member of the second group committed the murder. The Court described the prosecutor’s
conduct as manipulation of the evidence and held that a due process violation occurs when the
prosecution uses “inherently factually contradictory theories.”
2. Other courts have identified "the requirement that the prosecutor not pursue wholly
inconsistent theories of a case at separate trials." Thomas v. Calderon, 120 F.3d 1045 (9th Cir.
1997), rev’d, 118 S.Ct. 1489 (1998); see also Thompson v. Calderon, 86 F.3d 1509, 1522 (9th
Cir. 1996). They have derived this requirement from due process decisions such as Brady v.
Maryland, 373 U.S. 83 (1963). Thus, the requirement is tied to the prosecutor's duty of candor
(e.g., the duty not to withhold exculpatory evidence), and, ultimately, to the duty to avoid
convicting an innocent person. But, as long as the prosecutor does not conceal evidence, is it
wrong to argue inconsistent theories? Compare State v. Roach, 1996 N.J. LEXIS 969 (N.J.
Aug. 7, 1996) ("The prosecutor properly presented different, plausible interpretations of the
conflicting evidence. . . . Within the bounds set by the available inferences to be drawn from the
evidence, the prosecutor is entitled to present the strongest case against each defendant provided
the State has not compromised that evidence or engaged in representations on which the courts
have relied or that have prejudiced the defendant.") with Jacobs v. Scott, 115 S.Ct. 711, 712
(1995) (Stevens, J., dissenting), ("For a sovereign state represented by the same lawyer to take
flatly inconsistent positions in two different cases--and to insist on the imposition of the death
penalty after repudiating the factual basis for that sentence--surely raises a serious question of
prosecutorial misconduct."). Assuming that Justice Stevens is correct, what are the implications?
Suppose that the prosecutor need not argue inconsistent legal theories because, for example, one
of the two possible "triggermen" has pleaded guilty or is deceased. If the prosecutor is uncertain
about who was the actual triggerman, why should it be proper to argue that the defendant on trial
served that role?
3. For commentary on these questions, see Michael Q. English, Note, A Prosecutor’s Use of
Inconsistent Factual Theories of a Crime in Successive Trials: Zealous Advocacy or a Due
Process Violation?, 68 Fordham L. Rev. 525 (1999) (arguing that when a prosecutor uses
inconsistent factual theories there is a high risk that an innocent person will be convicted); Anne
Bowen Poulin, Prosecutorial Inconsistency, Estoppel, and Due Process: Making the Prosecution
Get Its Story Straight, 89 CA L. Rev. 1423 (2001); Kelly Ksywienski, Note, Roadblock in the
Search for Truth: What are a Criminal Prosecutor’s Constitutional and Ethical Obligations When
the Evidence Suggests Multiple, Inconsistent Theories of a Crime?, 37 U. Tol. L. Rev. 111
(2006).
4. The propriety of a prosecutor’s taking inconsistent factual positions was raised but not
decided in Bradshaw v. Stumpf, 545 U.S. 175 (2005).
24
5. In United States v. Ramming, 915 F. Supp. 854 (S.D. Tex. 1996), the court found that the
prosecution had engaged in misconduct in failing to disclose exculpatory evidence.
Additionally, the court found that there was insufficient evidence to support a conviction, and
therefore entered a judgment of acquittal for the defendants. At the conclusion of its decision,
the court opined that the government had "an obligation . . . to not prosecute where the evidence
at best is disputed." Id. at 868.
25
Candor in Plea Negotiations
PEOPLE v. JONES
44 N.Y.2d 76 (1978)
JONES, Judge:
We hold that defendant was not denied due process when the District Attorney's office
did not disclose during plea negotiations that it had received information that the complaining
witness had died. On January 5, 1975 as he was entering his car, Juan Rodriguez was approached
at gunpoint by three persons including defendant who forced their way into the vehicle, drove
him a distance and stole his wallet before releasing him and driving off. Following his arrest
defendant was indicted for robbery in the first degree, robbery in the second degree, grand
larceny in the third degree and criminal possession of a weapon in the fourth degree and entered
pleas of not guilty. The case appeared on the calendar a number of times during 1975 and was
adjourned on each occasion for various reasons, among them the inability of the People to locate
the complaining witness, Rodriguez.
On January 15, 1976 investigators for the defense located the witness, and shortly
thereafter defense counsel was informed that the District Attorney's office had also found and
conferred with him. On February 3, 1976 the prosecution announced the case ready for trial. Plea
negotiations had been conducted before the complaining witness had been located, were
continued after the case had been marked ready, and culminated on April 26, 1976 when
defendant withdrew his prior plea of not guilty and pleaded guilty to robbery in the third degree
in full satisfaction of the indictment. After defendant admitted his guilt and established a factual
basis for the plea, the plea was accepted and sentencing was put over until June 7. When
defendant appeared for sentencing, defense counsel moved to withdraw the plea of guilty on the
ground that it had come to his attention the previous day that the District Attorney's office had
been informed of the death of Rodriguez, the victim, on April 22, 1976, four days prior to the
acceptance of the plea. In support of the motion to withdraw the plea, counsel for defendant
contended that "in the spirit of Brady versus Maryland (373 U.S. 83)" the prosecution was
obliged to disclose the fact of Rodriguez' death to the defense and averred that had counsel
"known that the witness in chief passed away, had I been informed of that fact I would not have
allowed, at least I would have advised my client not to make the plea". A hearing was had on
defendant's application on June 17, 1976, at the conclusion of which, following submissions of
counsel, the application was denied. The Appellate Division affirmed defendant's judgment of
conviction on the plea, and we now affirm the dispositions of both courts below. At no time did
defendant assert, nor does he now that he was innocent of having committed the criminal acts
charged.
It advances analysis to focus on the precise nature of the matter which was not disclosed
by the prosecutor during the plea negotiations information with respect to the death of the
complaining witness. The circumstance that the testimony of the complaining witness was no
longer available to the prosecution was not evidence at all. Further, to the extent that proof of the
fact of the death of this witness might have been admissible on trial, it would not have
26
constituted exculpatory evidence i. e., evidence favorable to an accused where the evidence is
material either to guilt or to punishment. Accordingly, it does not fall within the doctrine
enunciated by the Supreme Court of the United States in Brady v. Maryland. Counsel does not
now claim otherwise. Rather, as counsel tacitly admitted in his colloquy with the court on the
motion to withdraw the plea, the death of Rodriguez would merely have been one of the factors
though a most significant factor to be weighed by defendant in reaching his decision whether, as
a matter of tactics in light of the strength of the People's case against him, to interpose a
negotiated plea of guilty.
The question remains as to the extent of the prosecution's obligation to disclose
information in its possession which, as here, is highly material to the practical, tactical
considerations which attend a determination to plead guilty, but not to the legal issue of guilt
itself. Analytically the issue is not whether this defendant was entitled to evidence in the
possession of the prosecution; the question before us on this appeal is whether the pretrial
conduct of the prosecutor in the course of plea negotiation was such as to constitute a denial of
due process to defendant in the circumstances disclosed in this record.
The Supreme Court has observed that the prosecutor "is the representative not of an
ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a
peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt
shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as
much his duty to refrain from improper methods calculated to produce a wrongful conviction as
it is to use every legitimate means to bring about a just one." (Berger v. United States, 295 U.S.
78).
Defendant notes that, as the basis for announcing the case ready, the prosecutor had
represented to the court and to defense counsel that the complaining witness had been located
and would therefore be available to testify at trial. Defendant adds that the prosecutor knew, or at
least was chargeable with knowledge, that the plea for which defendant had negotiated was
predicated principally on the availability of the Rodriguez testimony. Defendant then argues that
it was reprehensible on the part of the prosecutor not to disclose that he had been informed of
Rodriguez' death, before the acceptance of defendant's guilty plea. He asserts that nondisclosure
in these circumstances constituted a denial of due process and that the sanction therefor must be
to permit a withdrawal of the plea. We reject this contention.
Counsel cite no reported case, nor has our independent research disclosed any, in which
judicial attention has been focused on the failure of a prosecutor before trial or during plea
negotiations to disclose nonevidentiary information pertinent to the tactical aspects of a
defendant's determination not to proceed to trial. No particularized rule can or need be laid down;
some comments may usefully be assayed, however. At the threshold we assume that,
notwithstanding that the responsibilities of a prosecutor for fairness and open-dealing are of a
higher magnitude than those of a private litigant, no prosecutor is obliged to share his appraisal
of the weaknesses of his own case (as opposed to specific exculpatory evidence) with defense
counsel. "A defendant is not entitled to withdraw his plea merely because he discovers . . . that
his calculus misapprehended the quality of the State's case". (Brady v. United States, 397 U.S.
742).
27
At the other extreme it is equally clear that the courts will allow a defendant to withdraw
a guilty plea when the prosecution has either coerced him by threats or persuaded him by
affirmative deceit to enter a guilty plea. All the reported instances of deceitful persuasion appear
to have involved positive misstatement or misrepresentations; none has considered the effect to
be accorded silence only.
Consistent with legal principles recognized elsewhere in our jurisprudence, it would seem
that silence should give rise to legal consequences only if it may be concluded that the one who
was silent was under an affirmative duty to speak. Whether and to what extent the courts, in the
absence of statute or possible rule of court would impose such an affirmative duty on a
prosecutor would necessarily be dependent on the circumstances of the individual case. Thus, we
do not decide what the rule might be where in the course of plea negotiation a particular
defendant staunchly and plausibly maintains his innocence but states explicitly and creditably
that as a matter of balanced judgment in the light of the apparent strength of the People's proof
he wishes to interpose a negotiated plea to reduced charges to avoid the risk of a more severe
sentence likely to attend conviction after trial; failure of the prosecutor to reveal the death of a
critical complaining witness might then call for a vacatur of the plea. Silence in such
circumstances might arguably be held to be so subversive of the criminal justice process as to
offend due process.
It may be of more than passing interest that the formal statements of the professional
responsibilities of prosecutors to make disclosure appear to address only the obligation to
disclose exculpatory evidence (Code of Professional Responsibility, DR7-103, subd. (B); cf.
former canon 5 of the Canons of Professional Ethics). None touches on disclosure of tactical
data. The applicable provision of the Standards Relating to the Prosecution Function and the
Defense Function promulgated by the American Bar Association Project on Standards for
Criminal Justice, is found in subdivision (c) of section 4.1: "It is unprofessional conduct for a
prosecutor knowingly to make false statements or representations in the course of plea
discussions with defense counsel or the accused." Here, too, the formulation of standards appears
to consider only affirmative misrepresentation and possibly, by reasonable extension, misleading
silence when there is an affirmative duty of disclosure. The provision does not, however, assist in
determining when there may be such an affirmative duty to disclose.
A fundamental concern of the criminal justice system, of course, is that an innocent
defendant shall not be convicted; not that a possibly guilty actor shall escape conviction because
the People are not able to establish his guilt. Turning then to the present case, we hold that there
was no obligation on the part of the prosecutor to reveal to defense counsel that Rodriguez had
died, prior to acceptance of defendant's plea of guilty. Defendant does not protest his innocence;
on the contrary he testified to the factual basis for the charge to which he pleaded. While the
prosecutor failed to inform defense counsel of Rodriguez' death, there is no claim of affirmative
misrepresentation. And, it is critical, the failure to disclose did not involve exculpatory evidence.
We perceive no reason to depart from the principle that a fairly and voluntarily negotiated plea is
the equivalent of a conviction after trial. Accordingly, for the reasons stated, the order of the
Appellate Division should be affirmed.
28
PEOPLE v. RICE
69 N.Y.2d 781 (1987)
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was indicted on several charges, including murder in the second degree,
attempted murder in the second degree and robbery, arising out of the stabbing of Jesse Horton
and Lawrence Worley. Horton died of the wounds, but Worley survived the attack and died later
in an unrelated subway incident. Defendant was acquitted of the attempted murder of Worley.
The robbery charges were dismissed at the close of the People's case, but defendant was
convicted of the murder of Horton.
The Appellate Division affirmed the conviction, without opinion. Defendant on appeal
urges that there should be a reversal and a new trial because he was deprived of his right to a fair
trial by the misconduct of the prosecuting attorney in deliberately dissembling and telling halftruths for the purpose of misleading defense counsel into believing that Worley was still alive
and subject to call as a witness when, as he well knew, Worley was dead. The truth concerning
Worley came out during the trial in response to a question asked on cross-examination of one of
the People's witnesses.
The acts of the prosecutor constituted a serious violation of his duties as an attorney (see
ABA Standards for Criminal Justice, Prosecution Function, Standard 3-1.1; Code of Professional
Responsibility, EC 7-13). Such conduct is reprehensible and cannot be condoned. Under the
particular circumstances here, however, including the overwhelming evidence of defendant's
guilt, and the failure of defense counsel at trial or on appeal to identify any prejudice, we
conclude that a reversal of the conviction is not warranted. We decline to adopt a per se rule that
would require us to reverse the conviction.
HANCOCK, JR., J. (dissenting):
The conduct of the prosecutor, in our opinion, amounted to nothing less than a blatant
and reprehensible misrepresentation with respect to Worley, deliberately made for the purpose of
falsely assuring both the court and defense counsel that Worley was alive and might be called as
a witness.
The prosecutor's role differs from that of a lawyer representing a private client. He "is
the representative not of an ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be
done". "He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones" (see Code of Professional
Responsibility, EC 7-13; ABA Standards for Criminal Justice, Prosecution Function, Standard 31.1). It is the prosecutor's absolute "duty to correct what he knows to be false and elicit the
truth,” for society gains "not only when the guilty are convicted but when criminal trials are
fair."
29
By knowingly making a false statement of fact in violation of the Code of Professional
Responsibility (see, DR 7-102 [A] [3], [5], [8]) and by deliberately continuing this fraud on the
court and opposing counsel through evasive answers to both (see, DR 7-102 [B] [2]), the
prosecutor induced defendant's attorney to devise and execute a trial strategy based on a crucial
circumstance which he knew did not exist -- that the only eyewitness to the events prior to the
stabbing of Horton was alive and available. It was not until the third day of the trial that
Worley's death was made known and defense counsel found that he had planned the defense,
prepared for trial, and carried out the plan for trial based on a false premise. The extent of the
damage done is unknowable. "We cannot speculate as to what strategy would have been utilized
if [the witness's] availability were made known, or whether it would have been successful. The
issue does not turn on such considerations. A defendant should have the right fully, freely and
properly to prepare his defense."
Egregious misconduct of this kind by the prosecutor "'undermines confidence, not only in
his profession, but in government and the very ideal of justice itself'" (Code of Professional
Responsibility, EC 7-13, n 1, McKinney's Cons Laws of NY, Book 29, Judiciary Law, pp 474475), offends the dignity of the court and perverts the adversarial system. But worse, such
behavior contradicts the purpose of the criminal justice system and deprives defendant of "a trial
that could in any real sense be termed fair." The conduct of the prosecutor warrants a reversal
and a new trial.
Note: For commentary on Jones and Rice, see David Aaron, Note, Ethics, Law Enforcement,
and Fair Dealing: A Prosecutor's Duty to Disclose Nonevidentiary Information, 67 Fordham L.
Rev. 3005, 3037 (1999) (addressing prosecutors' failure to disclose nonevidentiary information,
such as the death of witnesses, that would affect defendants' plea bargaining decisions).
30
Arizona Ethics Opinion No. 94-07
March 18, 1994
FACTS:
The inquiring attorney is a Deputy Maricopa County Attorney who has requested that the
committee resolve a "heated debate" among prosecutors within his office regarding the
prosecutor's duty to disclose "exculpatory" information.
The prosecutors have grappled with the contours of their obligation, specifically whether the
rule requiring disclosure is limited to evidence which clearly tends to show that the defendant is
not guilty, or whether it extends to what has been characterized as mere "problems of proof".
To place the debate in perspective, the inquiring attorney requests the committee to answer
the above question through three scenarios which he poses as follows:
1. The defendant is charged with aggravated Driving While Under the Influence,
a class 5 felony. The arresting officer observed the defendant's driving, administered
field sobriety tests, and administered the breath test. The arresting officer testified at
the preliminary hearing and a record was made of his testimony. Soon thereafter, he
passed away. The Deputy County Attorney offered the defendant a stipulated
sentence prior to the officer's passing. The defendant is contemplating whether to
take the offer or proceed to trial. Must the Deputy County Attorney disclose the fact
that the officer passed away? If so, when?
2. The defendant is charged with Possession of Narcotic Drugs for Sale arising
from a 1989 search warrant. The Deputy County Attorney makes an offer to a
stipulated sentence then learns that the drugs were inadvertently destroyed in 1990
by the police department during relocation of its property room. The defendant is
contemplating whether to take the offer or proceed to trial. The State could, if
necessary, proceed to trial with only testimony and lab reports. Must the prosecutor
disclose the fact that the drugs were destroyed? If so, when?
3. The defendant is charged with Driving While Under the Influence of Drugs, a
class 1 misdemeanor. One key piece of evidence is a urine sample given to the
police by the defendant on the night of the arrest pursuant to compliance with the
Implied Consent law. The urine sample tested positive for methamphetamine. All of
the sample, however, was consumed in testing leaving no portion for an independent
test by defense counsel. The State may have sufficient evidence to proceed to trial
even if there were no urine sample. The defendant has made no Motion for
Discovery. Must the prosecutor disclose the fact that all of the urine sample was
consumed in testing? If so, when?
31
ETHICAL RULES INVOLVED:
ER 3.4. FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal
a document or other material having potential evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
****
(c) knowingly disobey an obligation under the rules of a tribunal except for an
open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper discovery request by an
opposing party;
****
ER 3.8. SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
****
(d) make timely disclosure to the defense of all evidence or information known
to the prosecutor that tends to negate the guilt of the accused or mitigates the
offense, and, in connection with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective order of the
tribunal; and
****
ER 8.4. MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce
another to do so, or do so through the acts of another;
****
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
****
32
OPINION:
A. GENERAL OVERVIEW
The Supreme Court of the United States has determined that the due process right to a fair
trial mandates that the prosecution disclose information favorable to the defendant that is
material to either guilt or punishment. United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392
(1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Evidence is "material" when
"there is a reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.
Ct. 3375, 3383 (1985). The Brady obligation extends not only to purely exculpatory information,
but also to information that could be used to impeach government witnesses. For example, nondisclosure of a grant of immunity to a witness who testifies against a criminal defendant violates
due process because witness credibility is at issue. Giglio v. United States, 405 U.S. 150, 92 S.
Ct. 763 (1972). Finally, because these questions can be difficult, the courts have cautioned
prosecutors to resolve doubtful questions in favor of disclosure. Brady v. Maryland, supra; State
v. Jones, 120 Ariz. 556, 560, 587 P.2d 742, 746 (1978).
The A.B.A. ethical codes have long recognized a similar obligation on the part of the
prosecution to disclose information favorable to the defendant.7 DR 7-103(B) of the Model Code
of Professional Responsibility specifically required that prosecutors "make timely disclosure to
counsel for the defendant . . . of the existence of evidence . . . that tends to negate the guilt of the
accused, mitigate the degree of the offense, or reduce the punishment."8 The current provision of
the Arizona Rules of Professional Conduct, ER 3.8(d), expands this requirement by mandating
7
This ethical duty predates the Supreme Court's application of the due process clause to
prosecutorial disclosure. See R. Rosen, "Disciplinary Sanctions Against Prosecutors for Brady
Violations: A Paper Tiger," 65 N.C.L. Rev. 693 (1987).
8
The Comment to DR 7-103(B) makes it clear that the omission of a "materiality" requirement
gives it broader application than the Brady due process standard:
. . . DR 7-103(B) does not limit the prosecutor's ethical duty to disclose to situations in
which the defendant requests disclosure. Nor does it impose a restrictive view of
"materiality." DR 7-103(B) states that the prosecutor has a duty to make a timely
disclosure of any evidence that tends to negate guilt, mitigate the degree of the
offense, or reduce the punishment. It appears possible, therefore, that a prosecutor may
comply with the constitutional standards set forth in Brady and Agurs and still be in
violation of DR 7-103 (B) . . . .
American Bar Foundation, Annotated Code of Professional Responsibility, Comment to DR 7103(B) at pp. 330-331(1979).
33
disclosure not only of the "existence" of favorable evidence, but of the evidence itself. 9 In
addition, the current rule requires disclosure of "evidence or information that tends to negate
guilt" thus making it clear that the admissibility of Brady material is irrelevant. Finally, the
current rule specifically provides that the prosecution may seek a ruling from the court as to its
disclosure obligations.
Other portions of this rule require disclosure at the same time, inter alia, of the names and
addresses (except victims) of all prosecution witnesses to be called in the case-in-chief, Rule
15.1(a)(1), a list of all documents or tangible evidence to be used at trial, Rule 15.1(a)(4), and the
names and addresses of experts who have examined any evidence in the case, Rule 15.1(a)(3).
Upon written request, the prosecutor is required to "make available to the defendant for
examination, testing and reproduction any specified items contained in the list [of documents and
tangible objects]." Rule 15.1(c). These broad disclosures by the State trigger equally broad
disclosure requirements on the defendant. See Rule 15.2, Ariz. R. Crim. P. Both sides have a
continuing duty to disclose additional information or material covered by the rules. See Rule
15.6, Ariz. R. Crim. P.
9
The A.B.A. Comments to Rule 3.8(d) reaffirm that the ethical duty to disclose is broader than
the constitutional due process obligation:
A prosecutor's ethical obligation, though derived from constitutional mandates, seeks to preserve
public confidence in the prosecution function as well as to avoid constitutionally significant
harm to the defendant. Thus, Rule 3.8(d) requires disclosure of all information that may tend to
negate the defendant's guilt, mitigate the offense, or reduce punishment.
The ethical duty therefore, requires disclosure beyond that which may be material under the
Bagley standard . . . .
A.B.A. Annotated Model Rules of Professional Conduct (2nd ed., 1992), Rule 3.8(d), Comment
at p. 408.
Brady obligations cannot be decided in a vacuum but must be considered in the context of the
jurisdiction's criminal discovery rules. In Arizona, the Rules of Criminal Procedure contain
especially broad requirements for disclosure by the prosecution. Rule 15.1(a)(7) essentially
tracks the language of ER 3.8(d) by requiring that the prosecutor disclose the following no later
than 10 days after arraignment in Superior Court:
All material or information which tends to mitigate or negate the defendant's guilt as to the
offense charged, or which would tend to reduce the defendant's punishment therefore, including
all prior felony convictions of witnesses whom the prosecutor expects to call at trial.
34
B. DISCUSSION OF THE SCENARIOS
SCENARIO #1
The defendant is charged with Aggravated Driving While Under the Influence, a
class 5 felony. The arresting officer observed the defendant's driving, administered
field sobriety tests, and administered the breath test. The arresting officer testified at
the preliminary hearing and a record was made of his testimony. Soon thereafter, he
passed away. The Deputy County Attorney offered the defendant a stipulated
sentence prior to the officer's passing. The defendant is contemplating whether to
take the offer or proceed to trial. Must the Deputy County Attorney disclose the fact
that the officer passed away? If so, when?
Authorities have held that, where a witness furnished sworn testimony at a preliminary
hearing and was subjected to cross examination, use of the transcript was permissible at a trial
held after the witness had expired. James v. Wainwright, 680 F.2d 102 (11th Cir. 1982);
Morrow v. Wyrick, 646 F.2d 1229 (8th Cir. 1981). Admission of the transcript is not allowed in
every case, however, and objections can be made for a variety of reasons including that the cross
examination conducted was not "the equivalent of significant cross-examination". Id. 646 F.2d
at 1233.
While disclosure of the death of the officer may be required under ER 3.8(d), it is not
necessary to reach that question in this scenario. Given the requirement of Rule 15.1(a)(1), Ariz.
R. Crim. P., that the names of all witnesses be disclosed, the prosecutor would have an obligation
to tell the defense lawyer that the officer will not be a witness or to correct any previous listing
of the officer as a witness. ER 3.4(c) prohibits a lawyer from "knowingly disobeying an
obligation under the rules of a tribunal except for an open refusal based on an assertion that no
valid obligation exists." As this committee has recognized when dealing with a criminal defense
attorney's duty to turn over physical evidence of the crime which comes into his possession, "If a
legal obligation attaches, the attorney is ethically required to obey the law." Opinion No. 85-4
(March 14, 1985) at p. 6. See also Hitch v. Superior Court, 146 Ariz. 588, 708 P.2d 72 (1985).
The prosecutor has a legal obligation to inform the defendant of all witnesses to be called in
the case-in-chief. If the officer has been listed, then the prosecutor has an obligation to notify the
defense lawyer that the officer will no longer be a witness. To do otherwise would be to deceive
and mislead the defendant and be prejudicial to the administration of justice. ER 8.4(c) and (d).
This disclosure should be made as soon as the prosecutor learns of the unavailability of this
witness, and certainly before the defendant is asked to respond to the plea offer. See Virginia
State Bar Ethics Opinion 1477, Law. Man. on Prof. Conduct (ABA/BNA) p. 1001:8713
(8/24/92) (lawyer who learns that client's answers to interrogatories were false may not attempt
to effectuate settlement before answers are corrected).
***
35
DISSENT:
One member of the committee, in dissent, wrote:
I believe we have gotten off course in speculating on the law in connection with Arizona
Rule of Criminal Procedure 15, but that is not what has compelled me to dissent.
The issue which is of considerable concern to me is the proposal that Ethical Rule 3.8(d) is
not coextensive with the Constitution. Such an opinion would confer greater rights to defendants
than the Constitution does and has the effect of creating a super-exclusionary rule. It would be
elevating the opinions of this committee and the Ethical Rules above decisions of the Supreme
Court of Arizona and the Supreme Court of the United States, with the power to create
substantive rights for defendants not existing in the Constitution. This is not within the province
of this committee; and it may well be a violation of the separation of powers doctrine of the
Constitution (See, U.S. v. Simpson, 927 F.2d 1088, 1090-1091 (9th Cir. 1991)); and a violation
of the Supremacy Clause of the United States Constitution if applied to federal prosecutors. See,
Baylson v. Disciplinary Board of Supreme Court of Pa., 975 F.2d 102, 111-113 (3rd Cir. 1992).
Additionally, the practical realities should be considered. What better way to interfere with
law enforcement efforts than to threaten a prosecutor with a bar complaint? This weapon is
certainly more effective than the existing exclusionary rule which merely excludes inadmissible
evidence. One might expect that such an opinion would be used as a weapon by defense counsel
to threaten that the government must now open its entire file despite the fact that the
Constitution, as interpreted by the Arizona and United States Supreme Courts, does not require
such a result. Prosecutors will be chilled by the thought of defending a bar complaint to the
detriment of law enforcement.
As the Supreme Court of the United States, in establishing the requirements of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), stated in United States v. Bagley, 473 U.S. 667,
105 S. Ct. 3375 (1985):
An interpretation of Brady to create a broad, constitutionally required right of
discovery "would entirely alter the character and balance of our present systems of
criminal justice." [Citation omitted.] Furthermore, a rule that the prosecutor commits
error by any failure to disclose evidence favorable to the accused, no matter how
insignificant, would impose an impossible burden on the prosecutor and would
undermine the interests in the finality of judgments.
105 S. Ct. at 3380, n.7.
What is more, such open discovery provides the possibility of subornation of perjury,
harassment and witness tampering. Many witnesses in criminal investigations involving public
and organized crime figures would never cooperate if they knew their information would be
prematurely disclosed.
This opinion does violence to well-established constitutional law, and creates adverse
consequences to law enforcement. Therefore, I dissent.
36
Extrajudicial comments on criminal cases
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. GANSLER
835 A.2d 548 (Md. 2003)
Douglas Gansler , a Maryland Prosecutor, was charged with violating Rule 3.6 by making
statements to the press following four cases:
A. The Cook Case: In late January of 2001, Sue Wen Stottsmeister was found beaten and
unconscious. Ms. Stottsmeister ultimately died from the injuries she suffered during that attack.
Nearly six-months later, Albert W. Cook, Jr. allegedly attacked a woman near his home. While
the police were investigating the attack, they began to focus their attention on Cook as a suspect
in the murder of Stottsmeister. In the afternoon of June 5, 2001, police officials convened the
media for a press conference.
Gansler attended that press conference and made several statements to the media regarding the
anticipated prosecution of Cook. He commented on Cook’s confession to the police and stated
that investigators had "boot print matches and that type of thing, or actually in this case the
sneaker matches, but we're very confident, obviously more than confident that we have
apprehended the right person . . . ." for the Stottsmeister case. After the press conference, police
charged Cook with the murder of Stottsmeister. The statement of charges stated: "Cook
provided a full and detailed account of the assault and murder of Stottsmeister. . . . Cook
provided details about the murder that would only be known by the perpetrator of the crime."
B. The Lucas Case: While asleep during the middle of the night, Monsignor Thomas Martin
Wells was beaten and killed in the rectory at his parish. The police arrested Robert P. Lucas and
charged him with the murder of Monsignor Wells. The statement of charges stated that the police
had observed Lucas "wearing shoes having a shoe print consistent with the ones found on the
crime scene" and that after Lucas was arrested, he "admitted breaking into the church rectory and
responsibility for Well's murder." He offered several remarks about the evidence against Lucas,
which he described as "a confession from the perpetrator as well as scientific and forensic
evidence to corroborate that confession . . . ." Additionally, Gansler commented at the press
conference that Lucas "has a criminal record which includes residential burglaries and that will
be obviously something that will come out later on as well."
C. The Perry Case: James Edward Perry was convicted of first-degree murder and sentenced to
death for his role in the 1993 killings of an 8 year-old quadriplegic boy, the boy's mother, and a
nurse. Although upheld on direct appeal, in post- conviction proceedings, Perry's conviction was
reversed by this Court on December 10, 1999.
The Washington Post ran an article describing Gansler's discussions with family members of
the victims of the 1993 murders. The article explained that Gansler had asked the family
37
members whether Perry should be retried or offered a plea agreement. While preparing for
Perry's retrial, Gansler made extrajudicial statements that the Gazette Community News
published. According to the Gazette's report, Gansler had announced that "he has decided to
offer [Perry] a plea bargain" and that, "when the offer is formally presented, Perry would have
six weeks to make a decision." At a subsequent press conference, Gansler remarked that "the
Court of Appeals' decision to reverse the original conviction of Mr. Perry was a completely
result oriented opinion." Gansler expressed his view that the "four to three" opinion "was clearly
an effort to overturn the death penalty in the Perry case."
D. The Bomb Threat Case: On February 8, 2000, the Montgomery County Journal published an
article reporting the dismissal of charges against two Montgomery County teenagers who had
been accused of calling bomb threats to Wheaton High School. At the juveniles' trial, the State
presented evidence of two telephone calls that purportedly were the bomb threats. One of the
calls, the article stated, could not be linked to either juvenile, and the other had been made three
days prior to the alleged bomb threat. The article quoted the presiding judge, who in dismissing
the charges, said, "I have no idea who did this" and "I have no evidence." The Journal account
relayed Gansler's comments that "his office will continue to prosecute youths suspected of
making bomb threats, even if the case is not strong enough to warrant a conviction." Gansler was
quoted as saying, "We try hard cases. . . . Juveniles who phone in bomb threats will be
prosecuted. It's more important to prosecute someone and have them acquitted (sic) than let them
commit crimes with impunity."
***
Gansler argued that the statements were proper because they came within the public records
exception under the safe harbor provisions of MRPC 3.6(c). The safe harbor provision states that
circumstances exist, where an attorney “may disclose, through extrajudicial statements and
"without elaboration," "the scheduling or result of any step in litigation," even if that
information, in some way, would have a "substantial likelihood of materially prejudicing an
adjudicative proceeding." MRPC 3.6 (c)(4). Another such "safe harbor" permits attorneys to
comment outside the courtroom and without elaboration on "information contained in a public
record." MRPC 3.6(c)(2).” The Court adopted a different definition of public record stating that
"information in a public record" includes anything in the public domain, including public court
documents, media reports, and comments made by police officers.]
***
Under this broad interpretation, it is clear that a number of Gansler's extrajudicial statements
do not warrant discipline, as the hearing judge determined. Gansler did not violate MRPC 3.6 by
commenting on the sneaker print matches in Cook's case because, shortly before Gansler's
extrajudicial comments, a television reporter had broadcast an account of that evidence nearly
mirroring Gansler's version. Additionally, in the Lucas case, Gansler made statements to the
media about a shoe print at the crime scene that matched shoes Lucas had been observed
wearing. This information was already public as recorded in the statement of charges filed by the
police the day before. Also contained in the statement of charges was an account of Lucas's
admission to police that he broke into the church rectory and murdered Monsignor Wells.
Therefore, the next day, when Gansler relayed information about the admission to the media, he
38
revealed "information contained in a public record." We overrule Bar Counsel exceptions as they
relate to Gansler's extrajudicial statements about physical evidence in the Cook and Lucas cases
as well as the confession in the Lucas case.
Gansler argues that the "public record" safe harbor also should protect his reference to
Lucas's history of convictions. MRPC 3.6(b)(1) informs lawyers that extrajudicial statements
relating to the "criminal record of a party" are ordinarily likely to be intolerably prejudicial.
Nevertheless, during the June 18, 2003 press conference announcing the arrest of Lucas, Gansler
mentioned that Lucas "has a criminal record which includes residential burglaries." To support
his assertion that this statement should be protected by the "public record" safe harbor, Gansler
points to Deputy State's Attorney Winfree's testimony, characterizing Lucas's prior arrest and
conviction record as "part of the public record."
Based on this testimony, we hold that Gansler's reference to Lucas's criminal record falls
under our broad definition of "information in a public record." We reach this result because we
have inferred from Deputy State's Attorney Winfree's testimony that she was referring to
publicly accessible court records in Maryland, either case files or docket sheets, which indicate
that an individual has been convicted of a crime. Maryland law does not bar an ordinary citizen
from combing these court documents to learn information about someone's criminal history. For
this reason, Lucas's history of convictions could have existed in the public domain before
Gansler spoke of it. Under the circumstances of this case, the extrajudicial reference to Lucas's
convictions qualifies for the protection of the "public record" safe harbor, as we have broadly
defined it for this Opinion. Because of the strong prejudicial impact of the public disclosure of
criminal record information, future respondents will have the burden of establishing that such
information was contained in a bona fide public court record accessible to the general public.
In any event, no matter whether one defines "information in a public record" broadly to
include everything in the public domain or narrowly, Gansler violated the MRPC 3.6 by making
several extrajudicial statements at issue in this case. Initially, we must point out that Gansler has
not challenged that his comments qualify, under MRPC 3.6(a), as statements that "a reasonable
person would expect to be disseminated by means of public communication." The only contested
issues in this case concern whether Gansler knew or should have known that his statements
would have a substantial likelihood of materially prejudicing an adjudicative proceeding and
whether the statements are protected under the safe harbor provisions of MRPC 3.6(c). As we
discuss in detail below, Gansler did violate MRPC 3.6 by commenting on Cook's confession, by
discussing the plea offer to Perry, and by providing his opinion as to the guilt of Cook and Lucas.
39
First, Gansler violated MRPC 3.6 by discussing Cook's confession to the Stottsmeister
murder. MRPC 3.6(b)(2) provides that a statement relating to the "existence or contents of any
confession, admission, or statement given by a defendant" is "ordinarily likely" to have a
"substantial likelihood of materially prejudicing an adjudicative proceeding." Notwithstanding
the cautionary language of the rule and prior to the filing of murder charges, Gansler publicly
stated that police were able to obtain a confession from Cook. Apparently seeking shelter again
under the "public record" safe harbor, Gansler points out that his reference to "incredible details"
mirrored the information and even the language of the charging document. This observation fails
to acknowledge that officials did not file the statement of charges against Cook until after the
press conference. The "public record" safe harbor, whether construed narrowly or broadly, could
not apply possibly to any statement that introduced information to the public for the first time.
Gansler should have known that these statements, by themselves, would prejudice Cook in the
public's eye.
Not only did Gansler announce the existence of Cook's confession, but he also furnished
specific information of the surrounding circumstances, including that Cook provided "incredible
details that only the murderer would have known." Gansler magnified the prejudicial effect of his
statements by bolstering the believability of the confession. He stated that, before Cook traveled
to the crime scene and "went over in detail by detail every step of" the murder, the police had
provided him with a restful night's sleep. If we found no fault with such public disclosures, we
would be allowing attorneys, in effect, to evade the operation of the exclusionary rule by taking
advantage of the probative value of the confession without regard to its constitutionality or
admissibility as evidence. That is, Gansler made Cook's confession public even though its
contents might never reach the jury as a result of a constitutional challenge. His actions, in this
regard, run afoul of our principles of criminal justice, as Chief Justice Rehnquist illustrated [in
Gentile]:
The outcome of a criminal trial is to be decided by impartial jurors, who know as
little as possible of the case, based on material admitted into evidence before them
in a court proceeding. Extrajudicial comments on, or discussion of, evidence
which might never be admitted at trial and ex parte statements by counsel giving
their version of the facts obviously threaten to undermine this basic tenet.
Accordingly, with respect to Gansler's remarks on the Cook confession, we sustain Bar
Counsel's exception because Gansler knew or should have known that his announcement would
have a substantial likelihood of causing material prejudice.
Gansler also committed a violation of MRPC 3.6, as Judge Stevenson concluded, by
commenting extrajudicially on the matter of Perry's plea bargain. MRPC 3.6(b)(2) states that a
statement is "ordinarily likely" to have a substantial likelihood of materially prejudicing an
adjudicative proceeding, if the statement relates to "the possibility of a plea of guilty to the
offense." Gansler's reported statement in April of 2000 disclosed, for the first time, his decision
"to offer [Perry] a plea bargain."
40
Gansler argues, though, that his comments to the Gazette about the plea offer should be
covered by the "public record" safe harbor because the public already knew of his conversations
with the victims' family members, in which they were consulted about whether to retry Perry or
plea bargain. The public's general knowledge about plea bargains and how they normally play a
part in every prosecution does not equate, however, to the public having actual knowledge that a
plea bargain would be offered in this particular case. The decision to offer a plea bargain does
not qualify as "information contained in a public record," even under the broadest meaning of
that phrase.
Besides announcing the plea offer, Gansler also discussed the impending deadline for Perry
to accept that offer, all during a very public and controversial prosecution of a multiple murder
suspect. Public comments such as these place greater pressure on the defendant to accept the plea
offer. More importantly, the comments likely influenced potential jurors in Perry's case by
communicating that the lead prosecutor believed the defendant was guilty. We, therefore,
overrule Gansler's exception to Judge Stevenson's conclusion that the comments related to
Perry's plea offer violated MRPC 3.6.
MRPC 3.6(b)(4) specifically addresses attorney comments discussing "any opinion as to the
guilt or innocence of a defendant." Although several of Gansler's extrajudicial statements fall
under this category of restricted speech and were not covered by any safe harbor, the hearing
judge determined that the evidence did not show that any "material prejudicial effect" stemmed
from them. Gansler's statements, indicating that "they" had apprehended the person who
committed the crimes in the Cook and Lucas cases, came soon after the defendants had been
arrested and well before the eve of trial. This, coupled with the fact that neither Lucas's nor
Cook's attorneys claimed that Gansler's statements caused prejudice, persuaded the hearing judge
to conclude that Bar Counsel had not shown a substantial likelihood of material prejudice.
We disagree with the hearing judge's conclusion that the evidence failed to show that Gansler
knew or should have known that his statements of opinion would have a substantial likelihood of
material prejudice. In considering the propriety of a statement under MRPC 3.6, we determine
the likelihood that a particular statement will cause prejudice at the time the statement was made,
not whether that statement, in hindsight, actually worked to the detriment of a defendant.
Whether Cook or Lucas claimed at their trials to be prejudiced by Gansler's statements, therefore,
does not weigh in our analysis. Rather, we concentrate on the point in time when Gansler offered
his public comments to determine the probability of prejudice.
According to the hearing judge, the point in time when Gansler made the extrajudicial
statements minimized whatever prejudicial effect flowed from his remarks. As support for this
conclusion, the hearing judge cited Part II of Justice Kennedy's minority opinion in Gentile.
Justice Kennedy suggested that statements made well before a defendant's trial have less
prejudicial impact than statements made closer to the empaneling of a jury. Gentile had made his
controversial statements six months prior to voir dire, enough time, according to Justice
Kennedy, for the content of the message to fade from the public's memory. The timing of
Gentile's statement, however, was not the only factor that Justice Kennedy considered in
determining that no prejudice had occurred in that case. He also analyzed the contents of
Gentile's message, which, Justice Kennedy stated, "lack any of the more obvious bases for a
finding of prejudice."
41
We agree with Gansler's theory that the timing of an extrajudicial statement may affect its
prejudicial effect, but we do not believe that the timing element in this case neutralizes the
obvious prejudicial content of Gansler's statements of opinion. Like in Gentile, the timing of
Gansler's statements came well before the beginnings of Cook's and Lucas's trials; however,
Gansler's proclamation that "they" had apprehended the persons who committed the crimes in the
Cook and Lucas cases directly contravened the provisions of MRPC 3.6(b)(4) (opinion on guilt
of innocence). The comments blatantly expressed Gansler's opinion of the guilt of the
defendants. In contrast to the lawyer in Gentile, who refused to comment on confessions and
evidence from searches, Gansler supported his opinions of guilt by pointing to specific
circumstances, such as confessions and physical evidence, to make his views more reliable.
Gentile differs from the case before us for yet another reason: Gansler is a prosecutor, not a
defense lawyer. Prosecutors play a unique role in our system of criminal justice. We recognized
this recently in Walker v. State, where Judge Harrell for the Court stated:
Prosecutors are held to even higher standards of conduct than other attorneys due to their
unique role as both advocate and minister of justice. The special duty of the prosecutor to seek
justice is said to exist because the State's Attorney has broad discretion in determining whether to
initiate criminal proceedings. The office of prosecutor is therefore "not purely ministerial, but
involves the exercise of learning and discretion," and he or she "must exercise a sound discretion
to distinguish between the guilty and the innocent." The responsibilities of the prosecutor
encompass more than advocacy. The prosecutor's duty is not merely to convict, but to seek
justice. "His obligation is to protect not only the public interest but the innocent as well and to
safeguard the rights guaranteed to all persons, including those who may be guilty."
In addition to their special role as ministers of justice, prosecutors have limitations not
experienced by criminal defense attorneys in that defense attorneys have the benefit of their
client's presumption of innocence. In other words, a criminal defense attorney may announce an
opinion that his or her client is innocent with a lesser risk of causing prejudice because the law,
itself, presumes the defendant's innocence.
On the other hand, a prosecutor's opinion of guilt is much more likely to create prejudice,
given that his or her words carry the authority of the government and are especially persuasive in
the public's eye. As lawyers, prosecutors are so distinct that some commentators have argued
that the rules against extrajudicial statements should apply only to them. Although we do not
embrace this position, it nonetheless reinforces the notion that prosecutors, in particular, should
be even more cautious to avoid making potentially prejudicial extrajudicial statements. Because
we hold that Gansler knew or should have known that his public opinions of Cook's and Lucas's
guilt would have a substantial likelihood of material prejudice, we sustain Bar Counsel's
exception with respect to those statements.
B. MRPC 3.1, 3.8(a), and 8.4(d)
Bar Counsel excepted to the hearing judge's conclusion that Gansler did not violate MRPC
3.1, 3.8, and 8.4(d). The charges under these rules arose from two events: (1) Gansler's
unsuccessful prosecution in District Court of two juveniles based on charges that they called
bomb threats to a Montgomery County High School, and (2) Gansler's statements regarding his
42
intention to prosecute "juveniles who phone in bomb threats" even if "the case is not strong
enough to warrant a conviction." Bar Counsel argues that by prosecuting the two juveniles with
minimal evidence, Gansler brought a frivolous claim in violation of MRPC 3.1 and prosecuted a
charge not supported by probable cause in violation of MRPC 3.8(a). Furthermore, in Bar
Counsel's view, Gansler's violated MRPC 8.4(d) because the statements about future bomb-threat
prosecutions communicated to the public that "someone acquitted of a crime was guilty
nonetheless and warranted to be prosecuted . . . ." Gansler responds that he prosecuted the
juveniles because he believed that they had committed a crime beyond a reasonable doubt. He
contends that the judge's decision to acquit the juveniles represented only that she disagreed with
his evaluation of the evidence, not that the prosecution lacked probable cause.
MRPC 3.1 prohibits attorneys from bringing frivolous suits, and MRPC 3.8(a) prohibits
prosecutors from knowingly prosecuting a charge that is not supported by probable cause.
Expressly addressing only the comments Gansler made, the hearing judge concluded that Bar
Counsel had not presented clear and convincing evidence that Gansler "intended to prosecute in
violation of [MRPC] 3.1 and [MRPC] 3.8(a)." Although she did not specifically address the issue
in her Report and Recommendations, the hearing judge, by finding no violation under MRPC 3.1
and MRPC 3.8(a), determined implicitly that insufficient evidence supported Bar Counsel's
charge concerning the actual prosecution of the juveniles. Likewise, the hearing judge also
implicitly concluded that the evidence did not support a violation of MRPC 8.4(d).
We agree with Judge Stevenson that, based on the evidence presented, Gansler did not
commit a violation of MRPC 3.1, MRPC 3.8(a), or MRPC 8.4(d), when he commented on future
prosecutions of juveniles who phone bomb threats. Gansler testified and responded to Request
for Admissions that he never intended to prosecute any charges in bad faith. Rather, according to
Gansler's testimony, by making the comments about prosecuting bomb threats, he intended to
communicate that his office must try "hard cases." The hearing judge found this testimony
credible, a determination that we readily accept.
Gansler's actual prosecution of the youths also did not amount to a violation of MRPC 3.1, as
Bar Counsel contends. Evidence before the hearing judge related to this charge came solely from
a newspaper article covering the juveniles' case. The article reported that the District Court
judge acquitted the juveniles, stating, "I have no idea who did this" and "I have no evidence." As
further reported by the article, the State's evidence of telephone calls could not link the juveniles
to the bomb threat. Without more, the news article does not demonstrate by clear and convincing
evidence that Gansler violated MRPC 3.1. Consequently, we overrule Bar Counsel's exceptions
to Judge Stevenson's ruling that Gansler's prosecution of the juveniles as well as his reported
comments about future prosecutions do not violate MRPC 3.1, MRPC 3.8, or MRPC 8.4(d).
IV. Sanction
We must determine the appropriate sanction for Gansler's violations of MRPC 3.6 and
MRPC 8.4(a). This case marks the first time in Maryland that we have disciplined an attorney for
a violation of MRPC 3.6. We remain guided, however, by the well established principles
determining the sanction for an attorney who failed to meet our State's standards of
professionalism. In sanctioning an attorney, we seek "to protect the public, to deter other lawyers
from engaging in violations of the Maryland Rules of Professional Conduct, and to maintain the
43
integrity of the legal profession." To protect the public adequately, we impose a sanction that is
"commensurate with the nature and gravity of the violations and the intent with which they were
committed." Our sanction, therefore, "depends upon the facts and circumstances of each
particular case, including consideration of any mitigating factors."
Bar Counsel recommends that we issue a reprimand. On numerous occasions, Gansler spoke
outside of court about matters that had a substantial likelihood of depriving several criminal
defendants of fair trials. Gansler presented no evidence of mitigating circumstances. The
appropriate sanction in this case is one "which demonstrates to members of this legal profession
the type of conduct that will not be tolerated" and which maintains the integrity of the Bar by
preventing Gansler's transgressions "from bringing its image into disrepute." A reported
reprimand satisfactorily communicates to Gansler and other members of the Bar that improper
extrajudicial statements dangerously jeopardize the foundational principles of our system of
criminal justice. Accordingly, Gansler is hereby reprimanded.
MORRISSEY v. VIRGINIA STATE BAR
538 S.E.2d 677 (Va. 2000)
HASSELL, Justice.
I.
In this appeal of right by an attorney from an order of suspension, the central question is whether
an excessive sanction was imposed.
II.
***
The Harris Matter
Joel W. Harris was indicted by a multi-jurisdiction grand jury impaneled from the City of
Richmond and the Counties of Chesterfield, Hanover, and Henrico for violation of certain felony
drug laws. He retained Morrissey as his defense attorney. The Commonwealth terminated
prosecution of the charges against Harris by nolle prosequi.
Morrissey hired an investigator to interview witnesses who had testified against Harris before the
multi-jurisdiction grand jury. The investigator interviewed John F. Buerkley, one of the multijurisdiction grand jury witnesses. The investigator subsequently arranged an interview between
Morrissey and Buerkley. During the videotaped interview, Buerkley recanted much of the
testimony that he had provided to the multi-jurisdiction grand jury.
Two days after this interview, a federal grand jury indicted Harris on federal narcotics
distribution charges. On the day that the federal grand jury indicted Harris, James B. Comey, an
Assistant United States Attorney assigned to prosecute the Harris case, forwarded a letter dated
February 4, 1997, by hand and facsimile, to Morrissey and attached a copy of Local Rule 57,
promulgated by the United States District Court for the Eastern District of Virginia. Local Rule
57 prohibits lawyers from making public statements about the identity, testimony, or credibility
of prospective witnesses, or from giving any opinion about the merits of a pending case.
***
44
On February 11, 1997, Comey learned that Morrissey intended to hold a press conference at 3:00
p.m. on that date and permit the media to view Morrissey's videotaped interview of Buerkley,
who was a potential witness in the federal prosecution. Comey immediately sent a letter, by
facsimile, to Morrissey, warning him not to proceed with the press conference. Morrissey
received Comey's letter and contacted certain attorneys and solicited their opinions about
whether he should proceed with the press conference. Some of the attorneys, including a former
Assistant United States Attorney, advised Morrissey that he would have "a problem" if he
proceeded with the press conference. Nonetheless, Morrissey held the press conference, issued a
press release, and permitted the media to view the videotape of the Buerkley interview.
On February 12, 1997, the United States District Court for the Eastern District of Virginia issued
a show cause order against Morrissey for his alleged willful violation of that court's Local Rule
57. During a hearing on the show cause motion, the court issued a contempt citation against
Morrissey and gave the following warning to him: "I want it understood from here on out that
this case will not be tried in the media. It will be tried in this Court. And any infractions of that
admonition will be met with a harsh result."
On April 1, 1997, about two weeks before Harris' scheduled federal trial, Morrissey made
statements to a newspaper reporter about the Harris case, which were subsequently published in
the Richmond Times-Dispatch newspaper. Morrissey stated that the charges against Harris were
"vindictive and vicious," and Morrissey questioned whether the charges should have ever been
filed. Morrissey also remarked that if these charges had been filed when he was the
Commonwealth's Attorney for the City of Richmond, the charges would have been "laughed ...
out of court."
The United States District Court issued another show cause order against Morrissey, and the
court found that he had "willfully, intentionally, and contumaciously" violated Local Rule 57.
The court entered an order which sentenced Morrissey to 90 days' imprisonment and three years'
probation for two counts of contempt, and the court suspended his license to practice law in the
federal court for the Eastern District of Virginia for two years. Morrissey's appeal from that
judgment was affirmed by the United States Court of Appeals for the Fourth Circuit.
***
IV. Conclusion
Finding no merit in Morrissey's assignment of error, we will affirm the judgment of the court
suspending Morrissey's license to practice law for a period of three years.
Affirmed.
Notes:
1. The National Association of District Attorneys proposed new rules that would allow
prosecutors to make a “reasonable and fair response” to defense statements. Under the proposed
rules, a prosecutor could talk about a confession or give out other information to assure the
public that the case is being handled properly. See Proposal Would Loosen Gag on DAs, NAT.
L. J., July 21, 1997, at A8.
45
2. Connecticut Prosecutor Frank Maco was investigating allegations that actor and film-maker
Woody Allen molested his seven-year old daughter, Dylan, in August 1992. At the conclusion
of his investigation, Maco held a widely-publicized press conference during which he stated that,
although he would not prosecute Allen, he had proof that Allen had molested his daughter. Allen
charged that Maco’s statements essentially convicted him of child abuse, leaving him no way to
clear his name and hurting his efforts to win more liberal visitation rights in a custody battle with
actress Mia Farrow. In June, 1997, a three-member panel of the Statewide Grievance Committee
recommended that Allen’s misconduct complaint be dismissed. The panel concluded that Maco
acted within his rights when he held the press conference. Allen v. Maco, Connecticut Statewide
Grievance Committee Decision, Complaint # 93-0322 (July 28, 1997).
3. Much ink was spilled over Independent Counsel Kenneth Starr’s admitted off-the-record
conversations with reporters. In his defense, Starr cited Department of Justice guidelines that
allow prosecutors to talk about their investigations under limited circumstances. Critics
questioned whether these guidelines actually provided authorization under the circumstances in
which Starr spoke to reporters. See Daniel C. Richman, Grand Jury Secrecy: Plugging the Leaks
in an Empty Bucket, 36 Am. Crim. L. Rev. 339 (1999).
4. Durham prosecutor, Mike Nifong, brought charges against three Duke University lacrosse
players for the rape of an exotic dancer during a party at an off-campus location. Up until the
time of arrest, the prosecutor held many press conferences and by his own estimation gave over
five interviews discussing evidence that had been collected in the case and telling reporters that
he had “no doubt” that a woman had been raped that night. In an interview with a local TV
station, Nifong stated, “my reading of the report of the emergency-room nurse would indicate
that some type of sexual assault did in fact take place” and when there proved to be no DNA
matches, he made the assertion that condoms were most likely used. The district attorney
claimed that the players on the team were stonewalling the investigation although the three
captains who lived in the house voluntarily went to the station for questioning and were willing
to take lie detector tests. Nifong refused to look at exculpatory evidence that defense attorneys
attempted to present him and refused to meet with attorneys for one defendant, who had evidence
that appeared to prove his innocence in the matter. See Evan Thomas and Susan Meadows,
“Doubts about Duke”, Newsweek, June 26, 2005, p. 24-27.
5. Attorney General Ashcroft came under criticism and investigation for public statements he
made at the outset of a Detroit terrorist case that was ultimately prosecuted unsuccessfully. For a
discussion, see Peter Margulies, Above Contempt?: The Attorney General, the Courts, and
Information al Overreaching in Terrorism Prosecutions, 34 Sw. U L. Rev 449 (2005).
6. When he announced corruption charges against Illinois Gov. Rod Blagojevich, U.S. Attorney
Patrick Fitzgerald stated that the Governor’s “conduct would make Lincoln roll over in his
grave." He promptly came under criticism for his remarks, including from former high-ranking
DOJ official Victoria Toensing, who wrote in a Wall Street Journal op-ed: “Mr. Fitzgerald’s
statement would, at the very least, make well-regarded former Attorney General Robert Jackson
flinch in his. Almost seven decades ago, Jackson admonished a meeting of U.S. attorneys that
46
they should be dedicated ‘to the spirit of fair play and decency . . . . A sensitiveness to fair play
and sportsmanship is perhaps the best protection against the abuse of power . . . .’” Years later,
when he left office in May 2012, Fitzgerald expressed regret over his comments, saying, they
“seemed like a good idea at the time.”
47