Thursday, June 27, 2013

"The Dark, Unseen, Ugly, Shocking Nightmare Vision Of A Prosecutor Who Loves Victory More Than He Loves Justice"

We have a second instance (following a recent Florida decision) of discipline imposed on a state prosecutor for misconduct in a death penalty trial, here in a case arising from a drive-by shooting.

The Oklahoma Supreme Court suspended the prosecutor for 180 days.

The court's majority opinion on sanction:

This Court is the sole arbiter of bar discipline. We are free to attribute as much weight to the trial  panel's recommendations as we see fit. Under the facts presented, appropriate discipline falls  somewhere between a private reprimand and a year suspension. Most recently,  private reprimands have involved: failure to respond to grievances, failure to  account for client funds and communicate with clients, selling marital property  and concealing it, pleading nolo contendere with pointing a firearm, entering a  plea to child abuse by injury. Cases of prior public censure have fallen into  categories such as sexual contact or inappropriate sexual advances, dismissals of client's cases, or failing to do anything  on a client's behalf or other types of client's case mismanagement.

We must recognize that the respondent was acting under the direction,  supervision, and policies of the then elected District Attorney. Responsibility  for the respondent's conduct and trial tactics falls partially to the District  Attorney as the chief administrator of the office. Although he exercised his rights to object and disagree  to the charges, the respondent has also been fully cooperative with the Bar  Association in this lengthy and tedious process.

Hindsight is 20-20. Instances of prosecutorial misconduct from previous  decades, such as withholding evidence, were often met with nothing more than a  reprimand or a short suspension.  Some scholars writing during that time theorized that  discipline was imposed so rarely and so lightly that it was not effective in  deterring misconduct.  Reprehensible though Miller's conduct may have been,  and even if such misconduct is punished more harsly [sic] when it occurs now, Miller's  actions took place decades ago and it would be unfair to hold him to a harsher  standard than he would have been subjected to when his actions took place. Make  no mistake, if this conduct were to happen today, the punishment would have been  much more severe. This is not to say that the Court condones his conduct, merely  that we are not inclined to apply the harsher standards of today to conduct that  occurred at a time when it was punished lightly, if at all.

There is a dissent from Justice Taylor:

Whether it was "decades ago" or today, no attorney should ever commit the  "reprehensible" conduct in death penalty (or any other) litigation as detailed  in the Majority Opinion and Trial Panel Report. The actions of the Respondent  take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor  who loves victory more than he loves justice. I agree with the recommendation of  the Oklahoma Bar Association that the Respondent should be disbarred.

 The San Francisco Chronicle had this report. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/06/we-have-a-second-instance-following-a-recent-florida-decision-of-discipline-imposed-on-a-state-prosecutor-for-misconduct-in.html

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