December 9, 2008
"A Mild Mannered Person"
An Arizona hearing officer has recommended a censure with probation for one year of an attorney for conduct in defending a client on charges of first-degree murder and drive-by shooting. The lawyer had prevailed on a motion to exclude "prior bad act" evidence including a conviction for second-degree murder that had been vacated, carrying a concealed weapon and acts of (and a conviction for) domestic violence. In closing argument, the attorney stated:
You know a lot about Jesse through the various witnesses in this case. You know that Jesse is married, has kids, went to Apollo College. He's a masseuse. Handled a conflict or a potential conflict by writing a letter. That he has no prior, has no prior felony convictions. No evidence of trouble. A mild mannered person who has handled his problems not in a violent sort of way, but with some sort of intellectual way or by presenting some letter.
It was too late for the prosecutor to rebut the argument with the bad acts evidence. The client was found guilty of manslaughter and drive-by shooting.
The lawyer accepted a settlement that acknowledged knowingly making a false statement of fact or law to a tribunal, alluding to irrelevant or inadmissible evidence and conduct prejudicial to the administration of justice. Otherwise, "she is one of the best defense attorneys in [Pima] County." The attorney was "very remorseful" and the misconduct was "an isolated misstep in what has otherwise been a fairly long and accomplished career." (Mike Frisch)
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Is it really true that the prosecution had no recourse within the trial itself? The impression I have is that the prosecution made the strategic decision to allow the case to go to the jury and then, after they obtained their conviction, complained of professional misconduct. There is little or no discussion of the facts in the opinion but I’m not as sure as they are that she lied. I think that the point is debatable.
What would have happened had a prosecutor done this? Mistrial or overturned on appeal (presuming not determined to be harmless error). Is it likely that the prosecutor would also have faced disciplinary charges? Possibly but I have seen few such cases. Yet the prosecutor is a “minister of justice”. The defence counsel does not share that obligation.
Posted by: FixedWing | Dec 9, 2008 9:49:26 AM