In a clear, well-reasoned decision, the DC Court of Appeals has held that a prosecutor’s ethical responsibility to disclose exculpatory evidence is significantly broader than the Brady standard and does not contain a “materiality” requirement. While the decision is binding only on attorneys who practice in DC it will cover many federal prosecutors.
The case came to the court based on a report and recommendation of the Board on Professional Responsibility that had recommended a 30-day suspension for a federal prosecutor who violated Rule 3.8(a) of the DC Rules of Professional Conduct. The charges arose in a felony assault case involving a drive-by shooting where the defendant filed an alibi notice. The issue was the reliability of the identification; significantly, what the prosecutor failed to disclose was that the victim had said after the shooting, at the hospital, was that he did not know who shot him. The first trial ended in a mistrial when the jury could not agree. Although after the first trial a subsequently assigned prosecutor revealed the statement, the second trial ended in a conviction.
Among his various arguments, Kline argued that his ethical obligation was co-extensive with his Brady obligation. The court soundly rejected this argument, and its explanation for why post-conviction materiality cannot be used to judge ethical conduct is notably clear and to the point. The court also surveyed the various conflicting decisions nationwide about whether the two standards are co-extensive. Meanwhile, because of a confusing sentence in the commentary to the DC rule, the court determined not to sanction the prosecutor.
A Columbia County Supreme Court Judge has ordered a new parole hearing for a defendant convicted of murder and sentenced to 20 years to life imprisonment who has already served 32 years in prison. The defendant had sought to produce the minutes of his original sentence, which he claimed contained a sentencing recommendation and showed that the sentencing court had decided to impose a 20 year minimum and rejected the maximum of 25 years to life. The district attorney’s office claimed that despite numerous attempts to locate the original sentencing minutes they could not be found.
The judge’s chambers undertook its own search and found the minutes within approximately 30 minutes.
The court expressed concern about the district attorney’s conduct and characterized it as either lack of diligence or deliberate indifference. It expressed concern that the conduct was routine, and declined to wait until it could be determined if that conduct was sanctionable.
A tip to practitioners: the court’s search had uncovered a 2008 letter from the chief court reporter for Nassau County that indicated the minutes were not unavailable. The court noted, however, that under 22 NYCRR §800.9(b)(5), sentencing minutes are required to be part of the record on appeal from a conviction and are archived by the State Library.
The court also took the parole board to task for considering materials, including victim impact statements, that contained “unfounded assertions” and were “emotional,” “extremely inflammatory.” It also criticized the parole board for failing to comply with N.Y. Executive Law §259-i(2)(a), which requires that the board’s recommendation against parole directly address comments before the board.
In his newest op-ed New Commission to Regulate Prosecutorial Misconduct, Prof. Bennett Gershman of Pace Law School introduces the nation’s first public commission, proposed in New York State, that is designed to investigate complaints of misconduct by prosecutors and impose discipline upon prosecutors who violate the rules.
Prof. Gershman recaps some of the most egregious recent instances of prosecutorial misconduct and points out that prosecutors are rarely disciplined for their misconduct. He points out that misconduct by prosecutors is costly because it leads to wasting money on re-litigating the same case over and over, it diminishes public confidence in the criminal justice system when prosecutors are not held accountable for their misconduct, and it imposes unimaginable pain and suffering on the innocent and their families. Prof. Gershman then concludes that
a commission that is independent from the legal profession, and independent from the prosecutor’s office, will be able to conduct investigations in a nonpartisian, non-political, and objective manner.
Read the full Bennett L. Gershman, New Commission to Regulate Prosecutorial Misconduct, HuffPost Crime (May 20, 2014).