The Key Prosecution Witness is Dead. Can The Prosecutor Negotiate A Plea?

I got into a very interesting discussion last night at the Morris K. Udall American Inn of Court meeting, taking the position, as a legal and disciplinary matter, that the death of an indispensable prosecution witness did not preclude a prosecutor from negotiating a plea, even without first disclosing that the witness has become unavailable.  The leading case is the unanimous People v. Jones, 375 N.E.2d 41(N.Y.), cert. denied, 439 U.S. 846 (1978), which begins: "We hold that defendant was not denied due process when the District Attorney's office did not disclose during plea negotiations that it had received information that the complaining witness had died."  Brady does not apply: death of a witness was not "exculpatory evidence i.e., evidence favorable to an accused where the evidence is material either to guilt or to punishment."  In addition, the court found no cases faulting "the failure of a prosecutor before trial or during plea negotiations to disclose nonevidentiary information pertinent to the tactical aspects of a defendant's determination not to proceed to trial."  Does anyone know of any cases to the contrary?  I found none.

So if there is no defect in the judgment of conviction, is there at least an ethical impropriety?  Surely a prosecutor should unilaterally dismiss a prosecution if there is insufficient admissible evidence to proceed to trial, if the prosecutor knows that without a plea dismissal is the only option.  But under positive law ethical rules, this is not so. Arizona Ethical Rule 3.8(a), like the ABA Model, provides that a prosecutor must "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."  There is no greater evidentiary requirement.

If the ethical rules do not require dismissal, how about the more aspirational ABA Criminal Justice Standards, Prosecution Function, which offer many "shoulds," indicating good practice, beyond the "musts" of the disciplinary rules? In addition to requiring probable cause, Standard 3-3.9(a) provides: "A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction."  This might be read to suggest that a prosecutor should unilaterally dismiss when the key witness dies. But the Official Comments reject this interpretation: "This Standard takes no position on this question."

Of course, a prosecutor cannot make false or misleading statements, or violate other rules.  For example, Arizona Ethics Opinion 94-07 holds that it is unethical to negotiate a plea with if the prosecution's material discovery obligations are unfulfilled, so a witness list must be updated to show that the key witness will not be called.  But in the bustle of fast pleas and form pleadings in in a misdemeanor court, it is easy to imagine that accurate disclosure would not be closely examined in the face of a sweet plea.

At first, I thought that even if non-disclosure was legal and would not subject a prosecutor to discipline, it was bad practice, because other lawyers in the community would feel deceived.  But then I wondered whether it was appropriate to protect a lawyer's own reputation at the expense of potentially convicting a dangerous felon.   Maybe it is not unjust if a plea offer unaccompanied by factual misrepresentations or discovery violations leads a defendant with a lawyer, in open court, to truthfully admit their criminal offense and take responsibility for it.  What am I missing?

Jack Chin