Wednesday, April 2, 2008

Like Caesar's Wife (Julius, Not Sid)

A defendant in a criminal case moved to disqualify the prosecutor on the ground that he had previously represented her in a case involving similar charges. The Missouri Supreme Court held that disqualification was appropriate. The court concluded that the matters were substantially related and that it need not attempt to weigh actual prejudice as "prosecuting officials, like Caesar's wife, ought to be above suspicion." Further:

"The unstated rationale of the... cases [discussed] is that prejudice must be presumed because of the concern that the prosecutor has obtained confidential information while representing defendant that can be used while prosecuting her. And although the foregoing cases are distinguishable to the extent that the prosecuting attorney had represented the defendant in the same matter, rather than in a substantially related matter, the principle behind the holdings applies nonetheless. Where, as here, the two matters in question have such close temporal proximity and similarity of subject matter, the appearance of impropriety is inherent, and a defendant need not plead the use of any confidential information, or show actual prejudice, in a prosecution by her former defense counsel. In this situation, the appearance of impropriety, without more, requires disqualification, and respondent abused his discretion in failing to order it." (Mike Frisch)

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