The Weird Problems Of Additional Ethics Rules For Prosecutors

The Laurie Levenson and Barrry Scheck wrote an editorial in December 15, 2014 outlining several examples of Brady violations, including the case of one defendant named “Kash Register.”  None of these men were proven innocent, but they were released as the result of Brady violations by the prosecution.

Current Rules

Under current law, a prosecutor’s duty to disclose exculpatory evidence is found in three places.  First, the Due Process Clause of the 14th Amendment requires a prosecutor to provide a defendant with material favorable evidence relevant to either guilt or punishment.  (Brady v. Maryland (1963) 373 U.S. 83, 87.)   Second, Penal Code § 1054.1(e) mandates that a prosecutor must disclose to a defendant “[a]ny exculpatory evidence.”  Third, the California Rules of Professional Conduct state that “[a] member shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or produce.”  (Rules Prof. Conduct, Rule 5-220.)

Failure to follow these rules can result in contempt of court, suppression of evidence (including witness testimony), reversal of a conviction, and suspension or disbarment from the practice of law.  (Kyles v. Whitley (1994) 514 U.S. 419, 421-422; Pen. Code § 1054(b); Price v. State Bar (1982) 30 Cal.3d 537, 547-550.)  Under the current rule, 20% of attorney discipline cases for prosecutors are the result of discovery violations.

The Proposed Rules

Levenson and Scheck propose a new ethical rule mandating disclosure of any “potentially helpful” evidence.  They argue that the “materiality” standard is presents “cognitive difficulties” that would be resolved with a “potentially helpful” standard.  They don’t explain how simply substituting one set of words describing evidence to another set of words would simplify things.

They also argue for statewide adoption of the ABA Model Rule 3.8.  This imposes a broader, independent duty of disclosure on prosecutors.  A prosecutor shall

“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[…].”

The Differences

The difference between the new rule and the rules proposed by Levenson and Scheck seems to be that a prosecutor violates the current rule only when she “suppresses” evidence.  The proposed rule would mean that a prosecutor commits an ethical violation when they “fail to disclose” evidence “known  to the prosecutor.”  Just looking at the black letter of the two versions of the rule, they don’t appear to be very different.  A closer look, however, seems to show that the new rule would impose a stricter ethical duty on the prosecutor to disclose evidence that he or she doesn’t know about.  Under the current rule, a prosecutor cannot suppress evidence that she is unaware of.  The new rule seems to be the same, except that the Courts have given a broad interpretation to the concept of what the prosecutor is aware of.  Courts have held that prosecutors are aware of any information in her possession, or that she might discover in the possession of law enforcement.

Scheck and Levenson say that the new rule is “not about making the average prosecutor’s job more difficult or punishing prosecutors for innocent mistakes.”  Although that may not be their intention, that is exactly what this rule change would do.  The rule change makes an ethical violation of any failure to disclose evidence, even inadvertent failures.  A prosecutor violates Brady, and would violate this ethical rule, when the existence of the undisclosed material evidence is unknown to the prosecutor.  (Kyles v. Whitley (1994 514 U.S. 419, 437.)

Prosecutors, who already handle a shocking number of cases, would be faced with an ethical violation in each case if they mistakenly fail to disclose evidence.  As defense lawyers are fond of reminding us, Brady imposes a duty of investigation, not just disclosure.  All evidence in the prosecutor’s possession, and also in the possession of law enforcement, must be turned over, whether or not the prosecutor herself is aware of the evidence.  The new rules, as proposed, would mean that a prosecutor would have to painstakingly review each case, and follow up with the investigating agency, to determine whether they have any evidence they have not disclosed, even if she is not aware of anything that might lead her to suspect undisclosed evidence.  This is simply not possible for many prosecutors, who handle a calendar of 30 cases each day.  These prosecutors are being set up to fail.

With the proposed rule, the consequences of failing to disclose Brady evidence would be a crippling ethics violation that would follow a prosecutor around for the rest of her career, ethical violations are listed for the public to see on the California State Bar website.  This is not a change for the better.

Prosecutors Love Their Badges, Which They Should Never Show Anyone

Not every prosecutor gets a badge, but those that have them love them.  They are a shiny symbol of authority (and maybe danger) that most bookish law students never thought they might have.  When they are given out they are accompanied by the stern warning that you should never try to use them and God help you if you do.  I did a little investigation into our (seemingly contradictory) attitude towards these badges and found out something about the potential for abuse, the danger they pose, and the unexpected benefits they might provide.

The internet is full of cautionary tales.  Predictably, people try to use their badges to get out of being arrested.  A Dallas County Assistant District Attorney was fired after flashing his badge during a DUI stop.  He showed his prosecutor’s badge to police instead of his driver’s license.  He then made several racially charged comments (while wearing what appears to be a fur coat).  His lawyer explained that prosecutors are specifically told not to misuse their badges.  The same thing happened to a Bexar County Assistant District Attorney in San Antonio.  And to a San Francisco prosecutor, who asked for a pass on his DUI because he was “well known” among local police officers. Obviously, that did not work, and the man was convicted of driving under the influence and other crimes. The incident resulted in a California Bar Journal article. The State Bar Court also got involved, as they should. Their opinion contains the following helpful definition:

Respondent engaged in the practice known as “badging.” Badging, involves the presentation of one’s employment identification by an individual, such as a judge, attorney, policeperson or a fireperson, to a law enforcement office in order to gain special treatment and/or avoid arrest based on one’s status as a public servant.

In 2013, a Florida prosecutor tried to use his badge to get into a dance club.  After being told to leave by bouncers, the prosecutor “flashed his gold badge at [the bouncer] and stated, ‘we work on the same side.'”  He also said, “I will do what I want” and “I am the one who will dictate how things go.”  Another Florida prosecutor used his badge to gain free admission to a strip club.  A few hours later, he used the badge to avoid paying a 15% credit card surcharge on lap dances he purchased.  He was later fired. The manager had to remind prosecutors “there is nothing more dangerous than a person who defends the law and then abuses the law and his position for self-gain.” Nothing is more embarrassing than getting an ethics check from a guy who runs a strip club. You can read the prosecutor’s abject apology letter here.

There’s more.  A Georgia Assistant District Attorney ate a hot dog without paying.  He was confronted by police and denied eating the hot dog despite the fact that he had ketchup and mustard on his shirt.  The officer told him to just pay for the dog, but the prosecutor pulled out his badge and cautioned the officer, saying, “you need to be careful” and “are you sure you want to do this?”  

In 2014, a District Attorney’s brother flashed an honorary DA’s Office badge at officers as he tried to explain why they shouldn’t do anything about the incapacitated woman slumped in the back seat of his car. The brother had groped the woman at a restaurant and somehow gotten her into his car. He was sentenced to two years in prison. The district attorney who gave the brother the badge in the first place was also convicted of corruption and sentenced to five years in an unrelated matter.

Carrying your badge in your wallet may lead to more severe consequences than embarrassment, job loss, and even prison.  Gil Epstein, an assistant district attorney in Fort Bend County, Texas, had just left Houston’s Jewish Community Center after playing basketball in September 1996 when a robber confronted him. The 21-year-old robber, was already on parole after committing an attempted murder.  The robber shot Epstein after he saw Epstein’s prosecutor’s badge in his wallet. The badge was found lying at Epstein’s feet after the murder.  Epstein’s killer, Marcus Cotton, was convicted of murder in 1997 and later executed.

It’s Not All Bad

The Boca Raton News has my favorite badge story, especially after reading about the tragedy of Gil Epstein’s murder.  I’ll quote the entire thing:

“Manhattan, Kan. – A bullet-blocking badge saved a masked gunman who fired from a passing pickup as the prosecutor drove to work, officials said.  The gunman, crouched in the back of the truck, fired fire shots through the windshield of a car driven by Eric Stonechiper, a Geary County special prosecutor.  One bullet hit Stonechiper, 32, in the arm, and three lodged in the headrest.  The fifth bullet hit the drug task force badge in a chest pocket.  Stonechiper was treated and released from a Manhattan hospital and placed under police protection.”


Some prosecutor’s offices used to give badges out to the press. I can only assume it led to the same kind of problems for reporters.

Police horses get a badge. I think the concept is basically the same for giving badges to prosecutors.

San Jose police horse badge

Wives get badges too. They’re the only ones that actually deserve them.

How Safe Are Prosecutors?

People often ask me if I feel like my job puts me in danger of violence by a criminal out for revenge.  They point out that it is virtually impossible to remove identifying information from the internet; anyone could find out where I live and come to my house. I also heard about Sean May, a prosecutor killed a few years ago in Denver who was survived by his pregnant wife.  I did a little looking and found out that despite this story the number of prosecutors killed is relatively small.

Adams County prosecutor Sean May was killed outside his home four years ago.[/caption]

14 prosecutors have been killed in the past 100 years.  At least 8 of them were killed because of their work.  By contrast, at least 20 teachers have been killed since 1992.  Six staff members were killed in the Sandy Hook Elementary shooting alone.  During the 2011-2012 school year, 5% of teachers were physically attacked by a student from their school.  9% of teachers reported being threatened with injury by a student from their school.  This was down from 12% in 1993-1994.

It’s not a perfect comparison: I wasn’t able to find anything about the rate of killings among either profession, and there are a lot more teachers than prosecutors.  But I think it’s safe to say that teachers are in just as much danger from school violence, if not more danger, than prosecutor’s are from defendants’ reprisals.

Lifting Protective Orders

It’s hard to figure out where you stand as a prosecutor when a victim comes in and wants a protective order lifted.  On the one hand, you don’t represent them, you represent the people, but on the other hand, the order specific relates to them.  Should you refer the victim to the public defender and ask them to make the motion?  Should you make a screening decision before you let the victim talk to the court, and tell the victim whether you think the order should be modified?  Or immediately pass the buck up to your supervisor?

When I think about protective orders, the first case I think about is the murder of Monica Thomas-Harris by her estranged husband.  In that case, the district attorney’s office did not seek a criminal protective order against the husband, Curtis Harris, even though he had a long rap sheet and had acosted his estranged wife several times.  He pled guilty to false imprisonment of Monica and possession of a firearm and was released from jail to get his affairs in order prior to serving a prison term.  He abducted Monica Thomas-Harris again, killed her, and then killed himself.

I had a person in court today who wanted to lift a protective order that had been in place for three years so that he could take better care of the one-year-old child in common he had with the restrained woman.  Wait, what?  If we start over-issuing protective orders, especially in situations that don’t involve serious abuse, we undermine them all.  Still, I think the big picture is that you never want a victim to be harmed in a way that a protective order could have avoided.

Filling out a protective order could easily be considered just another part of the avalanche of paperwork that prosecutors are faced with every day.  It seems to me that a calendar deputy could easily have 5 cases a day that involve aspects of domestic violence and call for a protective order.  But if you treat these like paperwork, and especially if you do them sloppily or fail to do them altogether, you may be contributing to something like what happened to Monica Harris.  It’s a sobering thought.

Alcohol Programs

Picture of the author.

Alcohol programs are part of virtually all plea deals for defendants who have driven under the influence of an alcoholic beverage.  The programs are provided by court approved providers but are not free.  Everyone convicted of driving under the influence should be referred to their county alcohol-assessment program.  (Veh. Code § 23646.)  The program monitors their addiction and need for rehabilitation.  A defendant may, if they can afford to, be ordered to pay a $50 alcohol assessment fee.  (Veh. Code § 23645.)

Under Vehicle Code § 23538, first time DUI defendants must complete the first-conviction program.  This program ranges from three to 12 months and typically includes both education and chemical dependency group meetings.

There are four main programs:

AB 541 is a 3 month program.  Everyone convicted of a first-time DUI in California is required by law to attend and complete this class, which involves 30 hours of classes.  The classes meet twice per week.  Participants hear lectures, watch videos, and participate in group discussions.  Each school structures its own classes.  Some have better reputations than others.

AB 762 is a six month program.  This is the mandatory minimum for those convicted of a DUI with .20 % or greater blood alcohol.  (Veh. Code § 23538(b)(2).)

AB 1353 is a nine month program.  A first time DUI offender whose concentration of blood alcohol was .20 % or greater and who refused to take a chemical test will be ordered to participate in this program, which consists of at least 45 hours of program activities, including education, group counseling, and individual interview sessions.  (Health and Safety Code § 11837(c)(2).)

SB 38 is sometimes called “Multiple Driving Under the Influence Program.”  It is an 18 month program which entails 52 hours of group counseling, 12 hours of alcohol and drug education, 6 hours of community reentry monitoring, and biweekly interviews during the first year of the program.  This program is intended to educate second and subsequent DUI offenders.

Read Everything

The most helpful thing that I’ve found so far to prepare me for misdemeanor calendar work was hidden away in a stack of papers on a desk in my assigned courtroom.  It’s hard to tell exactly when it was written, because it is undated, but based on some of the content I think it was put together in late 2008 or 2009.  It is 19 pages of stiffs, slightly yellowed paper titled “Welcome to Misdemeanors.”  No one told me to read it.  No one even told me it exists.  But it is far superior to the 5 page orientation document that I received when I got to my assignment.  So superior, in fact, that I have to wonder why anyone would replace it.

I Don’t Know What I’m Doing

On my first day as a calendar deputy in misdemeanor court, I remember sitting at the long table and texting my fiancee “we are about to start and I have no idea what I’m doing.”  I had done a weeks work of training for the job but I still had no real clue what I was getting into.  I had the basics down: I knew generally that I was supposed to keep track of what was happening in each case; I knew that if a trial came up that I would get it; and I knew that I was supposed to argue against motions brought by the defense.  But that was about it.  My strategy on the first day was to hope that no one asked me any questions.  People did, of course.  It was very discouraging to watch everybody else in the courtroom realize that I have no idea what I’m doing.  But little by little I’ve been piecing it together for the last three weeks.  And now I’m at the point where I know just enough to say things that might be right and might be wrong.  The little knowledge I now have is just enough to increase the annoyance they cause exponentially but not enough to actually change legal outcomes.  I’m going to keep going; what else can I do?  Maybe by the end of my rotation I’ll just be annoying to the public defender and no one else.

My First Trial

I just finished my first trial with a guilty verdict.  During my celebratory lap around the office, another prosecutor gave me some good advice.  He said that after a win most prosecutors pat themselves on the back and tell themselves what great lawyers they are.  They look back on their trial as a perfect performance: no errors, no mistakes.  Instead, he suggested that I think of all of the things that I had done wrong during the trial and to write them down so that I wouldn’t forget.  This would also help balance what might otherwise be an extremely optimistic and congratulatory narrative developing around the trial.

First, I should have been more specific with my motions in limine.  The judge took one look at my trial brief and asked me if there was anything in the motions in limine section that wasn’t “standard.”  There was nothing.  I could have litigated the issue of defendant’s prior convictions, for example.  I could have made sure that the judge would allow me to elicit testimony about what happened after the incident so that the jury had more of a complete picture.

I could have thought of more questions for voir dire.  I only had a few lines of questioning about reasonable doubt being an “abiding conviction.”  I could have asked about how they use their common sense to tell if their children are lying, for example.  Luckily I was able to clean up some of this on the second day.

I should have interviewed the witnesses earlier on in the trial process. Because I didn’t interview them until the day before they testified, I was totally blindsided when one of them mentioned facts that were not in the police report.  I had also just made myself a witness.  When I tried to amend the complaint later to add a count regarding the new facts, the judge denied the amendment as untimely.

There were certain questions that I didn’t ask on cross-examination because I had no set plan for cross-examination.  That tended to work out well in some ways but led me to missing what might have been some of the most important questions.

Finally, everyone tells you to make sure your technology works, but I didn’t, and I couldn’t get my upright projector working in time for closing.  Although this worked out fine because I was able to use a whiteboard, that was just pure luck.  I could have fooled around with it a little bit over the lunch hour.  And my failure to get it going meant that most of the time I spent working on my powerpoint was wasted.