A closer eye on lawyers

Editor's note: Your ProbateShark believes that as long as the IARDC casts a blind eye to pillaging of estates such as Alice R. Gore's estate, nothing will be done to punish corruption. Lucius Verenus, Schoolmaster, ProbateSharks.com

 

A closer eye on lawyers

By TU Editorial Board on August 3, 2015 3:30 AM

 

Dishonest or incompetent lawyers and prosecutors are not being sufficiently held accountable in New York.

Compelling cases for this astounding assertion were made during hearings held last week in the courtroom of the Court of Appeals, the state’s top court. In testimony before the Commission on Statewide Attorney Discipline, a panel assembled by Chief Judge Jonathan Lippman, speakers recommended harsher penalties for lawyers who steal from their clients. They also urged that more be done to stem prosecutorial misconduct, especially instances in which district attorneys withhold evidence that could favor or even exonerate the accused.
Allegations of wrongdoing by lawyers are now investigated through grievance committees in the state’s many judicial departments. Justices on the Appellate Divisions of State Supreme Court then mete out the discipline, which can range from a private letter of caution to censure, suspension or disbarment.
Timothy J. O’Sullivan, executive director of The Lawyers Fund for Client Protection, urges that lawyers who keep money belonging to clients be disbarred. Period.
Mr. O’Sullivan, whose group provides compensation to the victims of crooked lawyers, argues that automatic disbarment for any lawyer found guilty of stealing a client’s money will deliver a solid message to victims, the public and to other lawyers about the administration of justice in New York. He also proposed random audits on attorneys across the state to ensure honesty.

 

As long as an accused lawyer’s own legal rights are protected, Mr. O’Sullivan’s case is hard to argue. It would hold lawyers practicing in the state to appropriately high standards.
A civil rights attorney described for the committee an equally disturbing situation: huge gaps in New York’s monitoring of district attorneys. Stephen K. Downs observed that while there is a watchdog commission for judges, no equivalent mechanism oversees district attorneys. Because they are members of the bar, prosecutors who violate the law or commit other kinds of misconduct would be subject to the same grievance process that investigates other lawyers. But such probes and disciplinary actions involving prosecutors are rare, Mr. Downs said, leaving judgment solely in the hands of voters.
If that is true, a crackdown is needed. Prosecutorial misconduct is as intolerable as police wrongdoing.

 

This initiative by Chief Judge Lippman – who unfortunately must step down at the end of this year due to mandatory retirement rules covering state judges – deserves full support. That will occur only if the courageous testimony delivered by the speakers in Albany is followed by equally assertive recommendations from the committee.
Demanding more accountability for the action of all attorneys, including prosecutors, will elevate both the legal profession’s standards and the public’s confidence in New York’s justice system. That would be a fine addition to Judge Lippman’s legacy.

Categories: Editorials

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For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man

For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man

Posted: 11/08/2013 4:12 pm

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Innocence Project, Barry Scheck, Ken-Anderson, Mark-Godsey, Michael Morton, Ohio-Innocence-Project, Police Brutality, Prosecutorial Misconduct, Wrongful Convictions, Crime News

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Today in Texas, former prosecutor and judge Ken Anderson pled guilty to intentionally failing to disclose evidence in a case that sent an innocent man, Michael Morton, to prison for the murder of his wife. When trying the case as a prosecutor, Anderson possessed evidence that may have cleared Morton, including statements from the crime's only eyewitness that Morton wasn't the culprit. Anderson sat on this evidence, and then watched Morton get convicted. While Morton remained in prison for the next 25 years, Anderson's career flourished, and he eventually became a judge.
In today's deal, Anderson pled to criminal contempt, and will have to give up his law license, perform 500 hours of community service, and spend 10 days in jail. Anderson had already resigned in September from his position on the Texas bench.
What makes today's plea newsworthy is not that Anderson engaged in misconduct that sent an innocent man to prison. Indeed, while most prosecutors and police officers are ethical and take their constitutional obligations seriously, government misconduct--including disclosure breaches known as Brady violations--occurs so frequently that it has become one of the chief causes of wrongful conviction.
What's newsworthy and novel about today's plea is that a prosecutor was actually punished in a meaningful way for his transgressions.
I give speeches about the Innocence Movement, and tell stories from real cases, all around the world. No matter where I am, when I finish speaking the first question usually is, "What happened to the police/prosecutors who did this to the poor guy?" The answer is almost always, "Nothing," or worse, "The police officer was promoted and now is the chief of his department." The adage that the powerful go unpunished is no truer or more visible than with police officers and prosecutors in America--even when they send innocent people to prison from their misconduct.
My client Roger Dean Gillispie of Dayton, Ohio, for example, spent 20 years in prison as a result of police misconduct. In 2007, we presented overwhelming evidence that the police officers, like Anderson in the Morton case, failed to turn over evidence to the defense before trial that would have cleared Gillispie. We also supplied the court with evidence that the police officer in charge had harassed and intimidated witnesses helpful to the defense, and had manipulated the evidence. Before going to court to clear Gillispie, we met with the local prosecutors, hopeful that they wouldn't tolerate such misconduct and would do a thorough (and neutral) investigation to get to the truth. Instead, they simply denied everything in knee-jerk fashion, and fought to keep Gillispie in prison until a federal court finally found government misconduct and threw out his charges in December 2011. To this day, the police officer in the case has not been investigated by a neutral, independent body. The only thing he has received is promotions.
Rogue cops and prosecutors going unpunished is the rule rather than the exception. In Illinois, two police officers whose improperly grueling interrogation techniques led to the wrongful conviction of Juan Rivera and others were not penalized when their 3rd degree tactics came to light. Rather, they were recently hired at taxpayer expense to teach interrogation courses to other police officers around the state.
A recent study found prosecutorial misconduct in nearly one-quarter of all capital cases in Arizona. Only two of those prosecutors have been reprimanded or punished. This led the Arizona Republic to conclude:

There seldom are consequences for prosecutors, regardless of whether the miscarriage of justice occurred because of ineptness or misconduct. In fact, they are often congratulated.

Other studies/articles with similar troubling results can be found here, here, here, and here.
Fortunately, there is something very simple that judges across the country can do to eradicate this problem. All judges, state and federal, should issue the standing "ethical rule order" proposed by the Hon. Nancy Gertner and Innocence Project Co-Founder Barry Scheck. The proposed order requires prosecutors to disclose, pre-trial, all evidence that "tends to negate the guilt of the accused or mitigates the offense." Details regarding the proposed ethical rule order, including all the justifications supporting it, can be found in this article by Barry Scheck.
The reason such standing ethical rule orders are important is that they allow prosecutors, like Ken Anderson, to be held in criminal contempt if they are later found to have engaged in misconduct. Anderson could be punished today only because such an order had been issued in the Morton case.
Today's conviction of Ken Anderson stands out as an extreme aberration in a society where police and prosecutorial misconduct goes largely unpunished. But it is a step in the right direction. Hopefully, today's result will deter rogue cops and prosecutors in the future from engaging in similar misconduct. But this will happen only if judges across the country do what the judge did more than 25 years ago in the Morton case: issue an order requiring that proper disclosure to the defense, or risk criminal contempt proceedings.

 

Professional Discipline of Federal Prosecutors Reaches a New Low

Professional Discipline of Federal Prosecutors Reaches a New Low

Posted: 04/09/2013 3:57 pm

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Ted Stevens , Henry Schuelke , Justice Department , Professional-Ethics , Prosecutorial Misconduct , Crime News

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An administrative judge has vacated suspensions of two federal prosecutors who were disciplined by the Justice Department for their flagrant misconduct in prosecuting and convicting the late Senator Ted Stevens. The two prosecutors - James Goeke and Joseph Bottini - were excoriated by the trial judge, Federal District Judge Emmet G. Sullivan, for their willful and repeated acts of misconduct. (A third prosecutor, Nicholas Marsh, committed suicide after the case unraveled). Attorney General Eric Holder believed that the misconduct was so severe that he asked that the conviction be vacated and the charges dismissed. Henry Schuelke, a private lawyer appointed by the trial judge to see if a contempt charge against the prosecutors was warranted, conducted a two-year investigation, reviewed over 128,000 documents, and issued a scathing 514-page report in which he concluded that the prosecution of Senator Stevens was "permeated by the systematic concealment of significant exculpatory evidence which would have corroborated Stevens and seriously damaged the credibility of the government's key witness." The Justice Department's Office of Professional Responsibility (OPR) conducted its own investigation and concluded that the prosecutors had engaged in reckless misconduct and ordered them suspended for 15 and 40 days respectively.
The administrative judge has now vacated those suspensions. It is not possible to reconcile the result of the administrative judge's ruling with the conclusions of Judge Sullivan, Attorney General Holder, the Schuelke Report, and the OPR. Indeed, the Schuelke Report is probably the most extensive post mortem of a criminal trial ever in the way it analyzes the prosecutors' conduct and mindset based on their private emails, notes, memos, conversations, court filings and courtroom arguments, as well as their depositions, and which reveals quite powerfully their sordid and clandestine actions to win a criminal conviction at all costs. The Report methodically and exhaustively dissects the way the prosecutors manipulated flimsy, ambiguous, and unfavorable evidence, systematically concealed exculpatory evidence from the defense and jury, and thwarted defense attempts to locate favorable evidence. If anything, the Justice Department's imposition of the rather modest suspensions on the prosecutors was grossly inadequate and disappointing. And now even those meager suspensions have been removed. Why?
The convoluted opinion of the administrative judge provides a revealing picture of why federal discipline of prosecutors for their misconduct is so dysfunctional. The judge concluded that the disciplinary proceedings by the Professional Misconduct Review Unit (PMRU), the body responsible for disciplining prosecutors after the OPR finds misconduct, contained a "harmful procedural error" which prejudiced the prosecutors and required the suspensions to be vacated. Trying to describe this so-called "prejudicial error" requires a serious and steady grip on reality, because the judge's reasoning is unprincipled.
According to the PMRU policy, a Justice Department attorney assigned to the unit makes an initial decision on the appropriate punishment, either a reprimand, suspension, or removal. This attorney - hardly an independent decision-maker but rather a colleague of the prosecutors being reviewed - "became convinced that the prosecutors had not committed professional misconduct" and concluded that he did not have the authority to propose any discipline. Given the OPR's finding that the Stevens' prosecutors had engaged in reckless misconduct, and given the fact that the attorney assigned to propose discipline did not believe that any discipline was warranted, the Justice Department, pursuant to PMRU policy, appointed the chief of the PMRU to review the matter and impose discipline if he believed discipline was warranted, which he did - the 15 and 40 day suspensions.
But the administrative judge, in contravention of unambiguous language spelling out the policy of the PMRU which authorizes the chief of the unit to "issue or propose disciplinary action," ruled that the chief of PMRU has no authority to impose discipline after his underling has decided that no discipline is warranted when, in the opinion of the underling, the Stevens' prosecutors had done nothing wrong to warrant discipline. By ignoring the clear-cut policy that authorizes the chief of the unit to overrule his subordinate and impose discipline if he believes discipline is warranted, as well as ignoring plain common sense, the administrative judge, using Alice in Wonderland reasoning, ruled that since the initial attorney "had not made a final decision about the level of discipline" (and of course he made no final decision since he did not believe that any discipline was warranted in the first place), the chief of the unit was disabled to take any action on his own, even if he believed that misconduct had been committed (as the OPR had concluded), and discipline was warranted. In other words, the underling, not a particularly independent and unbiased decision-maker, gets the last word on official policy.
Hopefully, the Justice Department will appeal this preposterous decision, both to vindicate the soundness of its own disciplinary policy and procedures, however impotent they are, and to counteract the absurd claim of the disciplined prosecutors that they have been "vindicated" by the administrative judge's ruling.

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