Monday, March 23, 2015

Second Attorney Charged In Death Penalty Defense Litigation

We recently reported on (and were highly critical of) ethics charges filed in North Carolina against an ACLU attorney for her role in preparing two affidavits for use in a death penalty appeal.

The charges:

Failure to act with reasonable diligence by failing to follow up on the discrepancies between the interview and trial transcript and conduct prejudicial to the administration of justice "[b]y failing, prior to moving to introduce into evidence the affidavits... to ensure that the information contained in the affidavits that could be verified by referencing the trial transcript comported with the trial transcript."

Note that the allegations do not involve the knowing offering or use of false testimony. Nor is there a charge of misleading the tribunal. Finally, there is no allegation that the attorney presented legally frivolous arguments. 

The mere fact that there are inconsistencies between an affidavit and  rough notes does not, in my view, remotely establish an ethical violation. Nor does the fact that assertions put in an affidavit do not track the trial record.

In an adversary system, inconsistencies and arguable propositions exist in every case. The duty to diligently represent a client facing the death penalty - to push the envelope - requires the attorney to shed her life's blood for her client. 

I find these charges hard to understand.

Well, the State Bar was not content with those charges and has now filed a complaint against a second attorney on what are essentially the same allegations.

The accused attorney is the Director of Post-Conviction Litigation for the Center for Death Penalty Litigation.

Multiplication of the charged attorneys, in my view, adds nothing to this misbegotten prosecution.

I hope and expect that first-rate volunteer lawyers will represent these attorneys. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2015/03/we-recently-reported-on-and-were-highly-critical-of-ethics-charges-filed-in-north-carolina-against-an-aclu-attorney-for-her.html

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