WITH IMPUNITY: THE LACK OF ACCOUNTABILITY OF A …

TRANSCRIPT-GHETTI-KILLEBREW.FORMATTED 5/16/2012 1:38 PM

351

WITH IMPUNITY: THE LACK OF ACCOUNTABILITY OF A CRIMINAL

PROSECUTOR

In November 2011, the Journal hosted a symposium on Prosecutorial Immunity at Loyola University New Orleans College of Law. The symposium included an in depth analysis of Connick v. Thompson. The following transcript consists of a presentation by Michelle Ghetti and Paul Killebrew. The Journal has attempted to preserve the character and substance of the discussion. While this is not a traditional Article, the Journal felt that it would be fitting to include it in its Spring volume.

Michelle Ghetti1

and Paul Killebrew2

PAUL KILLEBREW, ATTORNEY – INNOCENCE PROJECT NEW ORLEANS:

What we are looking at under JT’s (John Thompson) case3 is all of the various ways that we hold government actors responsible for their behavior in such a way that future government actors may not act the same way. JT’s case removed one way that we do that. So, we have to ask ourselves what is left. How else are we going to hold government actors accountable? This is the overview of our presentation.

1. Professor Michelle W. Ghetti is a Fellow with the United States Supreme Court. She is on sabbatical from Southern University Law Center where she is the Louisiana Outside Counsel for Health and Ethics Endowed Professor of Law. She is also a member of the United States Commission on Civil Rights, Louisiana Advisory Committee. Professor Ghetti would like to thank her research assistants, Paul Barker and Sarah Margaret Smith, for their invaluable assistance in preparing this presentation. 2. Paul Killebrew is a staff attorney at the Innocence Project New Orleans. About Us, Staff, INNOCENCE PROJECT NEW ORLEANS, http://www.ip-no.org/about-us/staff (last visited Apr. 15, 2012). 3. Connick v. Thompson, 131 S. Ct. 1350 (2011).

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352 Loyola Journal of Public Interest Law [Vol. 13

We are going to talk about bad lawyering and wrongful convictions. To us, this applies to both prosecutors and defenders, we will get into that. We will take a quick tour of the existing accountability mechanisms, and then we are going to talk a little bit about the application of ethical rules—the rules that govern a professional’s responsibilities in criminal cases, because that is going to be much of the focus of our discussion. Then, we will talk a little about the shortfalls of using ethical rules to achieve legal compliance, which is sort of what many are looking for nowadays. Then, finally we are going to talk about some forward looking efforts that are being made right now; one of them is called the Criminal Attorney Accountability Working Group. We are looking for a new name—if you have one.

This is the Innocence Project’s beautiful new logo (referring to a powerpoint slideshow).4 The Innocence Project operates in Louisiana and southern Mississippi, the two states with the highest incarceration rates in the world.5 We work on cases of actual innocence. To date, we have freed or cleared the name of twenty-one wrongfully convicted prisoners. This includes the clearing of the name of one man who died before his exoneration—died in prison.6 So, here is a very general point to be made; bad lawyers cause wrongful convictions. That is sort of why the Innocence Project got interested in this entire arena. We saw this issue repeatedly come up in our cases. I mentioned earlier that we had about twenty cases at the Innocence Project New Orleans, where we have gotten people out or have the exoneration of a man who passed away.7 Four of those cases I want to take out of consideration because they were purely DNA cases where we were not able to do the sort of extensive investigation of the record that we often do in our post-conviction cases. That leaves us with 16 cases that I want to talk about. In these 16 cases, we found evidence of prosecutorial misconduct and the ineffective assistance of counsel.8 Now, let me be clear about one thing, when I say we found evidence of misconduct, when we

4. INNONCENCE PROJECT NEW ORLEANS, http://www.ip-no.org/ (last visited Apr. 16, 2012). 5. Quick Facts, Exonerees/Clients, INNOCENCE PROJECT NEW ORLEANS, http://www.ip-no.org/exonerees-clients (last visited Apr. 16, 2012). 6. History and Successes, INNOCENCE PROJECT NEW ORLEANS, http://www.ip-no.org/about-us/history-successes. 7. Id. 8. See generally Bad Lawyering, INNOCENCE PROJECT NEW ORLEANS, http://ip-no.org/bad-lawyering (last visited Apr. 16, 2012).

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2012] With Impunity 353

got these cases reversed, it was not necessarily on the grounds of there being a Brady violation9 or there being ineffective assistance. We have to raise all of these claims however we can. I am just talking about what we as lawyers saw in the cases in reviewing the records. As far as prosecutorial misconduct goes, there were thirteen instances out of sixteen cases. We also saw thirteen cases of ineffective assistance of counsel. Now thirteen and thirteen is twenty-six, not sixteen; ten of these men were so fortunate to have both. The point here is simple: this is the math portion, 13 = 13. From our perspective, ineffective assistance of counsel is as profound a cause for wrongful convictions in this state as prosecutorial misconduct. The two really have to be seen as, duly mentioned earlier, the failure of the profession. These are lawyers causing wrongful convictions. Now, we are going to turn it to Michelle. She is going to talk about some of the existing accountability mechanisms that are out there. I would call it variations on inadequacies, and so, how each of these mechanisms fail in some way.

MICHELLE GHETTI, PROFESSOR, SOUTHERN UNIVERSITY LAW CENTER:

Good afternoon, it is good to actually see all of you here. I wanted to mention one thing as I begin, actually, two things before I begin. Here is the concern I have, as I did my research. I noticed - and I think Professor Ridolfi10 had her slides up - and you saw that spike in the number of articles that were being written about this particular area. Well, that spike came right after the $14 million judgment11 came in the John Thompson case. My concern now with the conclusion of this case is that you have a lot of attention - you have media articles, you also have law review articles, just a slew of law review articles, you have these types of symposiums being held at a number of different law schools with resultant law review articles being written. So, it really received attention. I mean a $14 million dollar judgment

9. Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that a defendant's due process rights are violated when the prosecution withholds exculpatory evidence from the defense only if that evidence is material). 10. Professor Kathleen M. Ridolfi (“Cookie”) is a Professor of Law at Santa Clara University of Law and the Executive Director of the Northern California Innocence Project. Faculty, Kathleen M. Ridolfi, SANTA CLARA LAW, http://law.scu.edu/faculty/ profile/ridolfi-kathleen.cfm (last visited Apr. 13, 2012). 11. Connick v. Thompson, 131 S. Ct. 1350, 1355 (2011).

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against the district attorney’s office gets attention.12 Now that the Supreme Court has reversed this judgment, a concern I have is that the attention is going to go away. I hope that does not happen. I think and hope that it got the attention necessary to keep the interest going. Also, I am hoping that the attention that this case received was in part from the reasoning in the decision that—well, we do not need to hold the district attorney’s office accountable because (1) the supreme court of each state is holding lawyers accountable through the disciplinary process, and (2) the law schools are teaching them what they need to be taught. So between that, continuing legal education, and ethical accountability, we should be fine.13 This is the most naïve statement I think I have ever heard the Supreme Court make. I mean you cannot describe it any other way but just naïve, because they were looking in the face of the information that training does not happen. My hope is at least, that given their focus or their excuse that the disciplinary process is taking care of these lawyers, or is an adequate remedy of some kind, that maybe that got the attention of the [Louisiana] Supreme Court. I know they have some people from their office today listening to all that we are saying. I am hoping that it gets back to them and they realize the seriousness of the problem.

I. EXISTING ACCOUNTABILITY MECHANISMS

In my view, there are really two forms of accountability. You have accountability to the defendant and you have accountability to the system. I think it is very important to divide accountability up into two things as you explore, study, and discuss it. I am afraid that other than the state’s wrongful convictions statutes,14 there’s not much left in terms of remedies to the defendant. We will talk about why they do not work. They are different from the remedies to the system, and the goals are different. You are trying to remunerate the defendant for what the defendant went through when you talk about remedies to the defendant. You are trying to fix the system and so, you talk about remedies to the system.

12. Id. 13. Id. at 1361-63. 14. Lousiana law grants compensation for wrongful convictions and imprisonment. See LA. REV. STAT. ANN. § 15:572.8.



A. ACCOUNTABILITY TO THE DEFENDANT

1. REVERSAL

If we look first to the accountability to the defendant, a reversal is one measure. Fortunately for Mr. Thompson that ultimately happened. The problem is that is rare. In the past ten years, we have done a study here in Louisiana of the cases. We have approximately 150 reported cases in Louisiana where the court found prosecutorial misconduct.15 For those of you that have materials, this information is referenced in Exhibits 1, 2, and 3.16 Of those 150 cases, there were only 20 cases that led to reversals.17 So for 130 cases in the state of Louisiana, the courts found prosecutorial misconduct but did not reverse the case.18 So, thinking that a reversal is going to cure a wrong that was done within the system is once again, naïve.19 Of those 150 cases, the court found harmless error in 101 cases where the defendant was not ultimately harmed, even though the prosecutor misbehaved during the trial.20 In another twenty-nine of those cases, there

15. See generally Prosecutors Rarely Sanctioned for Acts of Intentional Misconduct, LOUISIANA COALITION FOR ALTERNATIVES TO THE DEATH PENALTY, http://www.dpalternatives.org/category/issues/prosecutorial-misconduct-issues/ (last visited April 3, 2012) (“A 2003 study by the Center for Public Integrity found that 168 Louisiana cases alleged prosecutorial misconduct in the period 1970 to 2003.”); see infra apps. 1-4. 16. Id. 17. In twenty-seven of those cases, the prosecutor’s conduct resulted in the reversal or remand of a conviction, sentence or indictment. Fourteen of those cases involved the prosecution withholding exculpatory evidence from the defense, nine of which were out of the New Orleans District Attorney’s Office. In an additional thirteen cases, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant even though the appellate court did not reverse or remand. Id; see infra apps. 1-3. 18. Id. 19. See Adam Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct, 42 U.C. DAVIS L. REV. 1059, 1062-63 (2009) (Because “many prosecutors’ offices do not sternly discipline prosecutors whose cases have been overturned… there is little external pressure from the criminal justice system to prevent prosecutorial misconduct. Put simply, other than their own personal moral code, there is little incentive for prosecutors to avoid misconduct.”). 20. Dr. Emily M. West, Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits among the First 255 DNA Exoneration Cases, INNOCENCE PROJECT, http://www.innocenceproject.org/docs/Innocence_ Project_Pros_Misconduct.pdf. Overall, about half (48%) of appeals and suits alleging prosecutorial misconduct resulted in court findings of error (harmless or harmful)—such findings include both intentional and negligent acts of the prosecutors. When looking at outcomes separately for harmless and harmful findings, 18% of appeals/suits resulted in findings of harmful error—leading to convictions being

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was an instance where a defendant complained and the court found prosecutorial misconduct, but said “oops, you did not raise it in time; it is time barred and you did not object; it is ineffective assistance of counsel, or you waived it in some other way.”21 That’s twenty-nine of those cases; so in only twenty did you get the reversal. Reversals obviously are not going to be a truly effective remedy to the defendant.22

2. CIVIL DAMAGES

Of course, the second area is civil damages, which could either come through the civil rights statutes, or they could come through tort statutes within a state. But most states that I could find have basically adopted the Imbler23 absolute immunity for prosecutors rule, even as to tort liability. I want to mention, real quickly, that before I became a law professor twenty-one years ago, I practiced as a civil litigator for eight years, for two of which I had my own law firm. While I am talking about this, I understand that I am coming from a number of different perspectives, but I was a lawyer that was not in the criminal system for a number of years. So, as I read all this and started to do my research, I started to think, “Oh lord, I am just a lawyer within the system.” As I look at a number of these statistics, I’m thinking that the equivalent to these civil damage suits for any other lawyer that practices law in this state is a malpractice suit against you. Every other lawyer, other than a prosecutor, can be sued by their client for legal malpractice, and be awarded money to recompense him for the damages. A prosecutor is special, in that they get this protection that no other lawyer in the state gets, and I am not going to go into any detail on immunity because we have discussed that all day.

3. BRADY INSTRUCTIONS

The other thing that I wanted to mention, that I do not think I have heard mentioned today is this concept of Brady

reversed. Nearly one-third (29%) of appeals/suits resulted in court findings of harmless error—the court acknowledged that the prosecutor made an error, but that the error was not enough to have changed the outcome of the original trial. In the other cases (52%), courts dismissed the claims either by rejecting the misconduct claim(s) outright or waiving/not responding to the claim(s). Id. 21. Id. 22. Id. 23. Imbler v. Pachtman, 424 U.S. 409 (1976).



instructions.24 I could only find about three cases where a court gave what is being called a Brady instruction at the trial level. But a number of commentators have talked about doing that, and again as a civil litigator, it made me think, “that’s interesting.” Why isn’t this being done? In a civil case, under basic evidentiary standards, you are entitled. If you find in a civil case that the other side has hidden evidence from you or does not offer it at trial for one reason or the other, you are entitled to a jury instruction. It says, you know what, you can draw an inference, a negative inference, from the fact that if the evidence would have been good for the defense’s case they would have used it, revealed it, whatever.25 So, you can draw an inference that the prosecution’s case is weak because they did not use the evidence that was hidden. A number of courts have decided and commentators are suggesting that there is this other remedy in criminal cases that is not really being used today. It is that the judge gives an instruction to the jury - and allows the defense attorney to argue at closing argument - that hey, this could be done either if evidence is turned over late, on the evening before the trial begins, or it gets discovered once the trial has begun. You are entitled to that instruction and the ability to make that argument in closing. However, if the case is ultimately overturned and now we are looking at a re-trial, then certainly upon the re-trial, you should be able to argue that the court should instruct the jury that they can draw a negative inference from the fact that the prosecutor hid this evidence. So, that is another remedy to the defendant either during the trial or upon reversal.

24. Brady Instructions refer to a type of remedy for a Brady violation in which the court instructs the jury that the government withheld evidence from the defense to explain, for instance, why the defense counsel may not have had the ability to fully prepare for the information or why certain exculpatory witnesses could not be located and did not testify. See Brady v. Maryland Outline: Prepared by the Special Litigation Division, THE PUBLIC DEFENDER FOR THE DISTRICT OF COLUMBIA 62 (2012), http://www.pdsdc.org/Resources/SLD/BradyOutlineFINAL2012.pdf (last visited Apr. 6, 2012). 25. See FED. R. CIV. P. 37(c)(1)(B). The Federal Rules of Civil Procedure provide that if a party fails to disclose certain information then the court may inform the jury of the party’s failure; see also Elizabeth Dewar, A Fair Trial Remedy for Brady Violations, 115 YALE L.J. 1450, 1463 (2006) (“Under Federal Rule of Civil Procedure 37, courts may, for instance, deem the violators to have made admissions in their opponents’ favor on contested issues, disallow certain claims or defenses or evidence, strike pleadings, dismiss or default, treat the violation as contempt, require the party to pay expenses caused by the violation, or instruct the jury on misconduct.”).



4. WRONGFUL CONVICTIONS STATUTES

Then we have talked about the state wrongful convictions statutes, which, again, are certainly a positive move. It is not enough, arguably, and it is going to be more difficult unless you have DNA to prove innocence, which is going to be a requirement in those cases.

B. ACCOUNTABILITY TO THE SYSTEM

Other than that, you also have accountability to the system or remedies to the system. I also thought it was naïve of the court both in Imbler,26 by the way - which held a prosecutor himself or herself to be immune from owing damages - and then again in the Connick v. Thompson case,27 for the Court to suggest there are other remedies: “you can bring criminal charges against them or you can utilize the disciplinary system.”28 But those are not remedies to the defendant. A criminal charge against the prosecutor does not help the defendant who has been in jail for nineteen years. Making changes in the system does not help the defendant; but, it certainly would help the system if those changes were made.

1. LACK OF HARM

One of the things related to that and connected to the defendant is the concept of harm. I can tell you again, just generally in the disciplinary system, that there is case after case where the Supreme Court - that enforces discipline in this state -says, essentially, “We do not care if you have harmed your client or not. That has absolutely nothing to do with whether you can be disciplined. We want to know did you violate a rule. Once we have determined that you violated the rule, then you can start talking about there being a lack of harm and that will help us decide how to punish you.” However, this concept of “we do not need to worry about some of these other kinds of prosecutorial misconduct, because it does not harm the defendant” is not made anywhere else. So, distinct to a prosecutor, who again is getting special protection from that concept. Harm should not be an issue. It is not in any other case including, by the way, the

26. Imbler, 424 U.S. 409. 27. 131 S. Ct. 1350 (2011). 28. Id. at 1362-63. An attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension and disbarment.



defense attorney in the same case. They are not going to worry about that.

2. STIGMA

So, what can happen that will help the system actually go directly at the prosecutor? Stigma—here is another amazing thing to me. Prosecutors never get their name published in the published opinions. That is just fascinating to me. You go and do the research and you want to talk about repeat offenders in the systems but you can’t find names. Now, take Mr. Thompson’s case. One of the prosecutors involved in his case (correct me, Paul, if I am wrong), I think, was the prosecutor in four other wrongful conviction cases that were reversed (six?). The same man that was involved in his case was also involved in other death penalty reversals. How can you know that? You would have to really do deep research because that person’s name is not in any published decision in this case. All of the criminal appeals that went all the way up, and the exonerations that came down and released these people, did not mention the prosecutor’s name. Some would say, “Well obviously, purposefully.” There is no stigma attached to a reversal. If you look at a civil case, where the attorney has screwed up the case; first of all, their name is going to be out there because their client sues them for malpractice. So, that is going to be client v. attorney’s name, and it is in the records. Second of all, when you read just the case, where the screw-up is, the lawyers are named in the case (I have complete examples of that). Not only that, the judge’s name is in there, so where you have a judge that erroneously ruled in the case or made mistakes, or did not see it when it happened, or whatever happened that the judge did not do right, the judge’s name is in there. So, we do not protect the defense attorney and we do not protect the judge. Yet, we feel this need to protect the prosecutor.

In an Oklahoma court, one judge said:

“the practice of naming trial counsel as a part of critical review of their conduct is tantamount to public censure, wherein trial counsel is denied the basic rights of due process. Further, such a public censure is outside the scope of our appellate review, as the plenary power of attorney discipline is



vested in the Oklahoma Supreme Court.”29

So, somehow this judge felt, “Well, I do not have jurisdiction. We cannot name the attorney.” But again, it is only the prosecutors that they feel that way about, because they are still naming the civil attorneys and the judges involved.

3. CONTEMPT

In Louisiana there has been only one contempt case ever that has gone all the way up to the Supreme Court.30 Now I could find a number of other cases where it was mentioned within the case that the trial judge held “so and so” lawyer in contempt but those cases were not appealed. Even so, that is generally the defense attorney that was held in contempt, not the prosecutor. I could only find one or two cases, three cases, actually, where there was a reference to a prosecutor being held in contempt, or a show cause hearing pending.31 So, it is not happening. The courts are not holding prosecutors in contempt (or at least it does not get up on appeal). I will admit that I hear anecdotal stories constantly about these and the contempt power at the trial level. If they do not get appealed, though, there is no written opinion on that. First of all, in Louisiana there is only a $500 fine or six months in jail.32

29. Peninger v. State, 811 P.2d 609, 613 n.1 (Okla. Crim. App. 1991). 30. In re Burns, 2001-KK-1080 (La. 11/28/2001); 800 So.2d 833. 31. In re Jordan, 2004-2397 La. 6/29/05, 913 So. 2d 775, 783 (referring to In re Lionel Burns, 800 So.2d 833 (La. 2001)). There are four other cases which reference that a prosecutor was held in contempt: State v. Hooker, 763 So.2d 738 (4th Cir. 2000) (where Judge Sharon Hunter (who was later removed from the bench) held the Orleans Parish District Attorney’s office in contempt for sending a document to the Sheriff telling him not to release a prisoner after the court ordered the prisoner released); State v. Casey, 775 So.2d 1043 (La. 2000) (failure to timely file a document with the court); State v. Hogan, 404 So.2d 488 (La. 1981) (district attorney did not supply name of witness until held in contempt); State v. Smith, 591 So.2d 1219 (La. Ct. App. 1991) (prosecutor was held in contempt for trial misconduct and comments in Judge Marullo’s court in Orleans Parish). One other case references that a show cause order was issued to the prosecutor for sharing transcripts of grand jury testimony with an expert witness and an investigator but there is no record of what happened at that show cause hearing. See State v. Gutweiler, 940 So.2d 160 (La. Ct. App. 2006). There are numerous cites to courts threatening to hold a prosecutor in contempt if he/she did something one more time but no record of any follow through to that threat. 32. The statute states in pertinent part, “…a court may punish a person adjudged guilty of contempt of court in connection with a criminal proceeding by a fine of not more than five hundred dollars, or by imprisonment for not more than six months, or both.” LA. CODE CRIM. PROC. ANN. art 25 (B)(2012).



The only case that went all the way up that we have a record of is the Lionel Burns case.33 Mr. Burns, the prosecutor, planted evidence in a case.34 The criminal case was tried three times. He got involved the second time and then he was lead counsel the third time. Then, all of a sudden, after all these years, and three full trials, a napkin showed up in the pants of the defendant in the court room.35 The trial judge in the case held Burns in contempt and sentenced him to six months in jail, which was the maximum penalty.36 The case was immediately taken up to the Fourth Circuit and the court sent it back saying the defendant had to have a hearing because the contempt proceeding was not a direct contempt proceeding; it was an indirect contempt proceeding.37 This is a criminal contempt proceeding and a defendant is entitled to all the protections that any criminal defendant would have, which means notice, due process, a hearing, and a standard of proof that is beyond a reasonable doubt.

How often do you think an attorney is going to be held in contempt of court? The judge has to stop the trial completely and reverse to a full blown criminal contempt proceeding and give 24-48 hour notice in order to have a full blown hearing. Now, the prosecutor gets to hire a lawyer that comes in and argues for him at that stage. This is all in the middle of the trial that this is going to happen.

It did happen in this case. In Mr. Burns’ case, all of that did happen.38 The judge found him, again, in contempt of court.39 Everybody testified and nobody knew anything about the napkin and had never seen it before. The evidence clerk received the evidence.40 The police officer said that he had shaken the pants and he could not swear that he stuck his hand in the pocket, but he always did.41 The evidence clerk said, “I can’t swear I stuck my hand in the pocket, but we tend to go through everything in a

33. Burns, 800 So.2d 833. 34. Id. at 835. 35. Id. at 835-38. 36. Id. at 837-38. 37. Id. at 840. 38. Burns, 800 So.2d at 837-40. 39. Id. 40. Id. 41. Id.



pair of pants before we check them into the evidence room.”42 All of that and Burns gets six months again.43 The Fourth Circuit says no to the six months, but upholds the sanction.44 It goes to our Supreme Court, and the court says, “No, I do not think there is sufficient evidence to meet the beyond a reasonable doubt standard here.”45 Nothing happened to him and he was never disciplined at all for that. When you are looking in the face of that kind of a situation, and there is no contempt, it is clear that contempt is not an effective way of doing it.

Also, there are numerous cases when you look at the discipline of judges. Judges are getting disciplined for holding lawyers in contempt of court.46 They will get publicly reprimanded and censured, even taken off the bench for a period of time, because they “wrongfully” held someone in contempt of court.47 So, if you do not think that has a chilling effect on judges, I will just say that there are not a lot of judges who like to get censured either.

4. TRAINING

Training is not being done at all. Yet, in the federal system at the federal level they have tried to implement some of this training. However, even after the alleged training is being implemented in the U.S. Attorneys’ offices, they are still not providing the evidence of that.48 The lawyers that report on this

42. Id. 43. Burns, 800 So.2d at 840. 44. Id. 45. Id. at 841-43. 46. See, e.g., In re Cresap, 2006-1242 (La. 10/17/06); 940 So. 2d 624, 635, 640. The Louisiana Supreme Court sanctioned Judge Cresap for, among other things holding defense counsel in contempt of court four times during the recusal proceedings and suspended him for 30 days without pay. Id. 47. See In re Jefferson, 1999-1313 (La. 1/19/00); 753 So. 2d 181, 185-89, 196 (removing Judge Jefferson from judicial office for inappropriate use of contempt charges). 48. See Brad Heath & Kevin McCoy, Prosecutors’ Conduct Can Tip Justice Scales, USA TODAY, Sept. 23, 2010, http://www.usatoday.com/news/washington/judicial/ 2010-09-22-federal-prosecutors-reform_N.htm?loc=interstitialskip (stating prosecutors were not required to get regular training in ethics such as their constitutional duty to share evidence with defendants). See also Scott Horton, An Ethics Meltdown at the Justice Department, HARPER’S, Sept. 24, 2010, http://harpers.org /archive/2010/09/hbc-90007650 (stating that the Justice Department resists any disciplinary action against federal prosecutors for prosecutorial misconduct and blocks public exposure of their misconduct).



are saying it is still not doing any good. My personal opinion is, it is really not about the training. Most of the time, these are prosecutors who full well know the law, and they push it because there are no consequences.

5. CRIMINAL LIABILITY

Lastly, as the criminal prosecutor suggested, it is incredibly naïve to suggest that you can prosecute them criminally. I could only find two cases ever, nationally. There are a number of different statutes you can talk about. The court in the Thompson case mentioned 18 U.S.C § 242.49 Yet, at the state level you have obstruction of justice statutes which would be more common. There are some bribery statutes where we have had bribery of the prosecutors—usually the prosecutors have accepted bribes.

I could only find two cases; one was United States v. Toomey, which is a 1986 case.50 This is where the prosecutor was being paid by the drug dealers and was bringing them all the testimony from the grand jury hearing.51 He would be in the grand jury hearing and then he’d leave and bring the transcript from the grand jury hearing to the drug dealers and get paid for that.52 He was ultimately prosecuted and convicted.53 Another case was Disciplinary Counsel v. Phillips, which is an Ohio 2006 case that involved bribery and fixing cases.54

We really only have one prosecutor in Louisiana that has been disciplined. But we do have two city prosecutors - one, literally, this month and one in 2006 in New Orleans - that have been prosecuted for accepting bribes to fix cases.55 These were six traffic cases and they were receiving a couple of hundred a case.

49. 18 U.S.C. § 242 (2006). 50. 764 F.2d 678 (9th Cir. 1986). 51. Id. at 681-82. 52. Id. 53. Id. 54. 843 N.E. 2d 775 (Ohio 2006). 55. The attorney was a senior prosecutor for the city of Baton Rouge who was convicted of accepting bribes in exchange for fixing criminal and traffic matters pending in the Baton Rouge City Court. The court permanently disbarred the attorney. See In re Bell, 72 So.3d 825 (La. 2011); see In re Burks, 964 So.2d 298 (La. 2007) (convicting an attorney of computer fraud related to his act of accepting money to dismiss traffic charges from an undercover federal agent, among other ethical violations).



In return, they would dismiss the charges for traffic tickets.56 That is the only other discipline that I have seen where there were criminal consequences. What prosecutor is going to bring criminal charges against one of his brethren in his office? I am sure the Attorney General would have to step in and do that, but that is unlikely. Again, the burden of proof is beyond a reasonable doubt. It was very difficult to reach that burden of proof in most of these cases because it is about getting inside of their heads most of the time to show purposeful intent. The judges are not willing to hold them in contempt. How willing are they going to be to find them criminally liable for the acts that they have done? So, I do not think that is going to happen either. That is what we have right now. That is where we stand. The only thing left is discipline.

There are basically two reasons why people are hesitant to report prosecutors to the Office of Disciplinary Counsel.57 What I hear expressed is very similar to the Imbler prosecutorial immunity reasons.58 One is that disciplinary proceedings would cause a deflection of the prosecutor’s energies from his public duties.59 Another reason is the possibility that prosecutors would shade their decisions, instead of exercising their independence of judgment, because they are concerned about discipline.60 Of course, Imbler says that it is because they are concerned about damages.61 Understand that in Imbler and Connick v. Thompson,62 those reasons existed and were discussed in all of the courts. We have a case here in Louisiana that adopted Imbler.63 Our Supreme Court said that they are not going to award damages, but you can get these other things, including discipline.64 So they are saying it, they are just not doing it.

Now, understand that prosecutorial immunity is based on the same reasoning as immunity for judges. In fact, prosecutors are found to be part of the judicial system and that is why they

56. Id. 57. THE LOUISIANA ATTORNEY DISCIPLINARY BOARD, http://www.ladb.org/about_ the_board.asp (last visited Apr. 22, 2012). 58. Imbler v. Pachtman, 424 U.S. 409, 423-25 (1976). 59. Id. at 991; see also Knapper v. Connick, 681 So.2d 944, 947-48 (La. 1996). 60. Id. 61. Id. 62. Connick v. Thompson, 131 S.Ct. 1350 (2011). 63. Knapper, 681 So.2d 944 (La. 1996). 64. Id. at 950.



are afforded immunity like judges. The irony is, judges get disciplined. We hear about cases of judges being disciplined for their behavior on the bench. In the last ten years - the same amount of time that we studied the prosecutorial cases - in that ten-year period, judges have been disciplined twenty-five times for their behavior in the courtroom or from the bench. So, judges have been disciplined twenty-five times and prosecutors, once.

Again, all of this is not new. The concept of disciplining prosecutors has been discussed for well over thirty years. In fact, Georgetown Law Journal, just as an example, has an annual section of their publication that is called Prosecutorial Misconduct.65 So, there has always been a gathering of the cases and a discussion of prosecutorial misconduct every year in the Georgetown Law Journal for 30 years, since 1982.66 It’s not like it’s something new. The New York Bar Association found that prosecutorial misconduct caused 50% of the wrongful convictions and there is no discipline, not even one case in New York of a prosecutor being disciplined.67 In 2010, The Center for Public Integrity also did a nationwide study, looked at over 11,000 cases nationally from a lot of different places.68 They found prosecutorial misconduct in over 2,000 of those cases that caused a reversal of the sentence in those cases.69 And yet, no discipline.70 The newspaper, USA Today, did another study in 2010 with 201 criminal cases where federal judges found federal prosecutorial misconduct, and there was no discipline.71

II. THE TYPES OF MISCONDUCT

We mentioned Rule 3.8.72 Rule 3.8 is a rule in our ethics

65. See, e.g., Prosecutorial Misconduct, 37 GEO. L.J. ANN REV. CRIM. PROC. 590 (2008). 66. See Robert W. McFarland, Prosecutorial Misconduct, 72 GEO. L.J. 572 (1983) 67. Barry Kamins, Final Report of the New York State Bar Association’s Task Force on Wrongful Convictions, NEW YORK STATE BAR ASSOCIATION, Apr. 4, 2009, http://www.nysba.org/Content/NavigationMenu42/April42009HouseofDelegatesMeetingAgendaItems/FinalWrongfulConvictionsReport.pdf. 68. See Harmful Error, IWATCH NEWS, http://www.iwatchnews.org/accountability/ harmful-error (last visited May 9, 2012). 69. Id. 70. Id. 71. Heath and Kevin McCoy, Prosecutor’s Conduct can Tip Justice Scales, USA TODAY , Sept. 23, 2010, http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm. 72. MODEL RULES OF PROF’L CONDUCT R. 3.8, AM. BAR ASS’N,



codes that was written just for prosecutors. So, conceptually, that we should not discipline prosecutors, for whatever reasons might be argued, just belies the whole concept. It is common sense, why do you write a rule - a long rule? We had a whole rule, had it for tens of years, never enforced. What is the point? There is a recognition that prosecutors are supposed to act a certain way. Forget 3.8. There are rules that all lawyers have to abide by and all lawyers are disciplined for, when violated. It could be 8.473 or it could be Respect for Rights of a 3rd Party (4.4).74 In a Batson violation,75 where you are eliminating jurors based on race or gender, in particular, then it is not even about the defendant. The court recognizes that it is about the citizen who has a right to serve on a jury. All lawyers have a duty not to violate the rights of citizens. No prosecutor has ever been disciplined for a Batson violation. In fact, people hardly talk about it, and that is of concern with this case. It is about Brady76 but Brady was not the only problem. I fear that the focus will get on Brady and we will do some little thing to fix Brady, and the bigger problem will not go away.77

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor.html (last visited Apr. 5, 2012). 73. See MODEL RULES OF PROF’L CONDUCT R. 8.4, AM. BAR ASS’N, http:// www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct.html (last visited Apr. 5, 2012). 74. MODEL RULES OF PROF’L CONDUCT R. 4.4, AM. BAR ASS’N, http:// www.americanbar.org/groups/professional_responsibility/publications/model_rules__professional_conduct/rule_4_4_respect_for_rights_of_third_persons.html, (last visited Apr. 5, 2012). 75. State v. Green, 655 So.2d 272, 287 (La. 1995). In Batson, the Supreme Court adopted a three-step analysis to determine whether the constitutional rights of prospective jurors have been infringed by impermissible discriminatory practices: First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. For a Batson challenge to succeed it is not enough that a racially discriminatory result be evidenced; rather, that result “must ultimately be traced to a racially discriminatory purpose” Id. Thus, the sole focus of the Batson inquiry is upon the intent of the prosecutor at the time he exercised his peremptory strikes. Id. 76. Brady v. Maryland, 373 U.S. 83 (1963). 77. Id.

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor.html

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor.html



A. FALSE TESTIMONY (3.3)78

There have been forty-four reported cases of disciplining lawyers for lack of candor to the Tribunal. Not one prosecutor is included in this statistic. Those lawyers have been suspended from the practice, some of them for over a year. In fact, some of those, if I remember, were even disbarred. Forty four lawyers have been without pay for a couple of months or more, yet not a single prosecutor.

B. KNOWINGLY VIOLATING THE RULES OF A TRIBUNAL (3.4c)79

This is a big one that you see all the time. The prosecutors know they cannot offer other crimes evidence. Perhaps the court has already ruled on it, in a motion in limine, and yet they still, in questioning a witness, will ask, or bring into the records somehow, the defendant’s commission of other crimes at the time. Nothing gets done. There is nothing to dissuade a prosecutor from committing these errors.

C. EXERCISING REASONABLE DILIGENCE (1.3), FAILURE TO COMMUNICATE (1.4)

The next ones we have applied to defense lawyers as well. Obviously, defense lawyers are bound by the rules of professional responsibility when they perform no independent investigation, which is something that is required just for baseline constitutional effectiveness. That also is the violation of Rule 1.3, Exercising Reasonable Diligence.80 If they fail to communicate critical information to the defendant, that is a violation of Rule 1.4b.81 Giving parties enough information to intelligently participate in this process, and failing to make critical objections

78. MODEL RULES OF PROF’L CONDUCT R. 3.3, AM. BAR ASS’N, http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html (last visited Apr. 22, 2012). 79. MODEL RULES OF PROF’L CONDUCT R. 3.4 (C), AM. BAR ASS’N, http://www. americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_4_fairness_to_opposing_party_counsel.html(last visited Apr. 12, 2012). 80. See MODEL CODE OF PROF’L CONDUCT R. 1.3, AM. BAR ASS’N, http://www. americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence.html. 81. See MODEL CODE OF PROF’L CONDUCT R. 1.4, AM.BAR.ASS’N, http://www. americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_diligence.html.

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal.html

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_4_fairness_to_opposing_party_counsel.html(last





at trial, is just failure to use legal knowledge necessary for representation. The point here is simply that when we are looking at the disciplinary system and the criminal system, there are many ways that the rules of professional conduct overlap with existing legal obligations. We are not seeing discipline enforced against lawyers in the criminal system.

KILLEBREW:

I am going to make four, what I call, descriptive points about attorney discipline systems that I think will illuminate some of the limitations of attorney discipline as a mechanism for achieving accountability in the criminal system. I am in some ways in the same camp as Steve Singer when he said earlier that he has some skepticism about using attorney discipline to achieve legal compliance. I think that there are some severe limitations on our disciplinary systems as it is currently organized. These are all things—maybe these descriptive points are also areas that we would focus on for change, but some of them go far outside of the criminal system. Again, I do want to make a note of why discipline has become such a focal point in this debate and it is because the Supreme Court is actively telling us to look at it. In John Thompson’s case, they made it clear that part of the reason that they ruled the way they did is that prosecutors are subject to professional discipline like other lawyers.82 That was important to them in finding that there should be immunity in this area and they are just quoting Imbler, which is the ultimate prosecutorial immunity case.83 Imbler says that “a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.”84 I do not know what planet they live on, but they are on one where this is used. Here, attorney discipline is not used against people in a criminal system. That is an assumption that travels through these cases.

Here is audio from the oral argument made in the Corey Maples case – Maples v. Thomas.85 He is an Alabama death row inmate, whose state post-conviction application was denied.86 He was represented by two lawyers at the New York firm of Sullivan

82. Connick v. Thompson, 131 S. Ct. 1350, 1362-63 (2011). 83. Imbler v. Pachtman, 424 U.S. 409, 429 (1976). 84. Id. 85. 131 S. Ct. 912, 913 (2012). 86. Id. at 914.



and Cromwell.87 The denial of his application was sent to the law firm; however, those lawyers had since moved on to other jobs.88 The mail was returned unopened.89 No one who represented Corey Maples or-Corey Maples himself-received the notice which ended up making him unable to access federal courts later on.90 And, the question there is “Should he get some sort of excuse to go into federal court because it was his lawyers misconduct?” Justice Scalia, of all people, asked this question during oral argument: 91

Justice Scalia: “If we find that these lawyers did abandon their client, will there be some sanction imposed upon them by the bar? I often wonder, just when we find that there has been inadequate assistance of counsel on a capital case, does anything happen to the counsel who have been inadequate in a capital case?”92

John C. Neiman, Jr: “Your honor I suppose it would depend on exactly what the allegations are.”93

Justice Scalia: “Have you ever heard of anything happening to them other than them getting another capital case?”94

John C. Meiman, Jr.: “Your honor, I have not.”95

It’s a dark joke, right? They do get more capital cases, these lawyers return to this system. The prosecutor from the Kyles96 case, which we talk about all the time, is now one of the chief lawyers with the Attorney General’s Office in northern Louisiana and is responsible for teaching Kyles and Brady in North Louisiana.97 He’s teaching it wrong, so I’ve been told.

87. Id. 88. Id. 89. Id. 90. Id. 91. The following is from oral argument in the case accessible at http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=10-63. 92. Transcript of Oral Argument at 53-54, Maples v. Thomas, 131 S. Ct. 912 (2012) (No. 10-63). 93. Id. 94. Id. 95. Id. 96. See Kyles v. Whitley, 514 U.S.419 (1995) (finding a violation of the prosecutor’s duty to disclose exculpatory evidence). 97. See OFFICE OF THE ATTORNEY GENERAL, State of Louisiana, http://www.ag.

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=10-63

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=10-63



I just want to make a very quick point about discipline systems nationally. One million four hundred eighty-two thousand two hundred seventy-one - that’s how many lawyers there are in the US, and $1,482,271 that’s how many complaints have been filed - that number is 125,596.98 Seven hundred and ninety seven (797) lawyers were disbarred in 2009.99 Just to get a sense of the scale of our attorney discipline system, we have that many lawyers, and when the process finally figures who really should be disciplined, it only takes out 797 players from the system.100 That is .6% of the lawyers against whom complaints are brought. We don’t have a discipline system that’s terribly active in the United States. This is a criticism that obviously extends beyond the criminal context, so it’s just a point I want to make about looking to the discipline systems to bring about compliance among prosecutors and defense attorneys may not be an answer.

GHETTI:

To give you an example, a number of years ago, we had a problem with lawyers using what were called runners, and that lawyers were paying non-lawyers usually around $500 a case to go run out and get a personal injury case and bring it back into the law firm.101 It was causing all sort of things, and it got to be a problem, the federal government got involved and there was insurance fraud taking place. Nothing had ever been done, no lawyers had ever been disciplined for this prior to this coming up, in fact, it was so widely known here in New Orleans it got a nickname, and the media was involved and they would go and film the people having the little car wrecks and stuff, and had all that kind of evidence in the cases.102 My point is that it got so big that it got the attention of the Supreme Court, and it was because of that that permanent disbarment was even enacted in Louisiana. Prior to that time if you got disbarred, it meant five years, and then you got back in. One of the lawyers involved, Mr. state.la.us/ (last visited May 15, 2012); also based on personal knowledge. 98. AMERICAN BAR ASSOCIATION, 2009 ABA SURVEY ON LAWYER DISCIPLINE SYSTEMS (S.O.L.D), http://www.americanbar.org/content/dam/aba/migrated/cpr/disci-pline/09-ch2.authcheckdam.pdf (last visited Apr. 23, 2012). 99. Id. 100. Id. 101. Michelle LaBorde Ghetti, The Gingerbread Man’s Run Is Over!: Permanent Disbarment Is Penalty for Using Runners, 54 LA. B. J. 80 (2006). 102. Id.



O’Keefe, who had been Speaker of the House, or President of the Senate here, was one of the lawyers that got disbarred permanently.103 He had been disbarred once, was back into practice and started doing this again. Within like a five year period, a number of lawyers got caught and disbarred. One of the few “lawyers not reporting misconduct” disciplinary cases comes from that because young lawyers that were in these firms did not report, and they got disciplined for not reporting. If you can get the Supreme Court’s attention, they’ll step in and do something about it, so hopefully, Mr. Thompson, we’ve got their attention with this.

KILLEBREW:

A few more points about this one system, generally. If you do innocence work, this is your client: Rip Van Winkle. He is waiting in prison for years and years and when he finally gets out, all of the conduct that you’re complaining about is so long ago. The disciplinary authority, at least in Louisiana, and I believe in many other states, has a policy position within their offices that they will not get involved in ongoing criminal litigation. They don’t want to be perceived as a replacement for post-conviction review, so they are only going to start even looking at a case after the legal process is over. At that point, the actors in the system who are responsible have moved on to other careers, have died, many other things that basically make it an ineffective way to punish them.

Also, the disciplinary system in most states is complaint driven, meaning that they don’t just go out and read the Southern Reporter. They don’t go out and look at the Brady reversals to say “Oh these are the people we need to be going after.” They wait for complaints to be filed. That’s a key structural problem in our discipline system.

Discipline for attorneys in the criminal system has been rare. I’m going to have to be frustratingly vague about this. I’ve done some research over ten years of case law in Louisiana, similar to what the Northern California Innocence Project has done as reported in USA Today and other states. Our research looks at prosecutors and defense attorneys. We basically found this green circle; this is supposed to represent the hundreds of case in which courts found presumptive ethics violations. I’m only

103. Id.



saying hundreds, because we’re reviewing these cases now with Charles Plattsmier, the Chief Disciplinary Counsel for the Office of Disciplinary Counsel in Louisiana, which is responsible for discipline enforcement.104 He’s going to review them to give his opinion on whether or not it was disciplinable conduct. Out of these hundreds of cases, that dot (referring to a powerpoint slideshow) is the one attorney who has been disciplined for conduct the courts found to be problematic, and that is just one prosecutor.

We also found no defense attorneys from our case set who were disciplined; there were defense attorneys who were disciplined but who were not in our case law set. But, the point is that we are not seeing the disciplinary system finding the violations.

One quick thing I wanted to point out, the repeating names coming up over and over again-one of the fascinating things we found . . . we track the names of the prosecutors and the judges involved and, interestingly, the same judges come up over and over again. Graymond Martin105 earlier talked about how this was a corrosive system and that you are not stainless steel, at best you’re an iron bar. I would argue that the corrosive system in many of these instances is the courtrooms in which this conduct is allowed to happen. I certainly think that the defense attorney is not being as thorough as they could be, which could be an effect of a courtroom that’s run very quickly, whatever.

Just a few points about this research that we’ve done, Chuck Plattsmier106 is looking at our case law set and he’s going to actually do something remarkable; we don’t think it’s been done in the other studies. He’s going to look and see in all those cases whether complaints were filed against the attorneys. That information is not public when a complaint is filed. So, he can’t give us the names of the attorneys who are complained about, but he can give us the numbers. He’s going to give us how many complaints were filed, and he’s going to tell us where complaints were filedand wheter charges sustained. He has to decide whether to pursue charges and submit that to a group of lawyers and tell them whether or not he can pursue the case. He’s also 104. Chief Prosecuting Attorney with the Louisiana Office of Disciplinary Counsel, http://www.mochiefcounsel.org/. 105. First Assistant District Attorney, Orleans Parish. 106. Supra, note 104.



going to tell us if charges were sustained, was discipline imposed. That’s one of the beautiful things of the discipline system, too, is that you can be privately admonished for breaking ethics rules. Again, there is no public access to that information. As I said, the Office of Disciplinary Counsel right now is doing this research and, hopefully, will make it into Michelle’s paper when that’s published.

GHETTI:

The big question in all of this with discipline - that we touched on earlier - is who is in the best position to report misconduct? If we have a complaint driven system, then who should be making those complaints? Obviously, prosecutors have no clients, so the clients don’t report. The one case where there has been discipline, it was the defendant who reported, he and his sister together, who reported. That may say something, anyway, about them taking the case all the way up. The district attorney’s office - I hate to throw out the blue wall of silence that police officers have with each other - but just talking to prosecutors they kind of, maybe it’s “there but for the grace of God go I,” I don’t know, but they don’t self-report or report each other. Defense attorneys have a legitimate concern, they have to continue to represent clients opposite of these prosecutors, and it’s not in the best interest, necessarily, of the next client that they have, if they reported a prosecutor and now the prosecutor starts taking it out on them. Not only does it hurt the lawyer but the client potentially. Then of course there’s always the concern that “they are going to start reporting us,” which I do hear from defense attorneys; that is “what’s going to happen to us.”

The judges are the ones who are in a position to report. I have already said that once when speaking to the Judicial College and, apparently, got some attention because I got a phone call from the chief prosecutor about two days later. The judge was really shocked and surprised at the numbers that we presented in this discipline lesson so, hopefully, then, we have got their attention. The problem with the judges possibly. . . Judges are disciplined, if they were to be, for not reporting by the Judiciary Commission. Louisiana should adopt a lesser standard for them in terms of reporting. The ABA rule says that they must report when they see it; our rule says that they should, which is just



kind of encouraging them to do it.107

To me, again, professors possibly are actually in the best position to report. We don’t have a “dog in the hunt,” we don’t have these other concerns, and for criminal professors and ethics professors that can do both, we are reading all the cases. It’s not like the ODC108 where we’re not going to read all those reporters. We read them, and we’re lawyers, so maybe we’re the ones that need to be making the complaints, at least those of us that are tenured, and maybe there are no ramifications to us for doing that. My suggestion is, I think the judges . . . there should be a requirement in the Judicial Code of Conduct that they must report in two situations: trial judges must report when they rule for a mistrial because of prosecutorial misconduct or when they hold the prosecutor in contempt for misconduct. That should be an automatic report to the ODC.109 Appellate judges should have to report when they reverse a case, or even if they don’t reverse a case, and they find prosecutorial misconduct, whether they call it harmless error or time barred, or whatever it is. They must report that; it should be automatic.

I think I understand that California has something like that. They require it, but found out that no one was doing it. The chief justice of California, at the time, basically took it on and they have training in place now over there. I don’t know if they are doing it yet, but something happened.

The other thing is that the disciplinary system should be changed. Right now a complaint goes to a hearing committee that is made up of lawyers and citizens. There should be special hearing committees set up where those committees have criminal lawyers and defense attorneys on it. Right now assignment to a committee is totally random, so you could have two civil litigators on a hearing committee trying to determine whether there was prosecutorial misconduct they don’t know anything about. Both for defense attorneys and prosecutors, the committee should be

107. See MODEL OF JUDICIAL CONDUCT R. 2.15, AM. BAR ASS’N, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2011_mcjc_rule2_15.authcheckdam.pdf (last visited Apr.22, 2012); see MODEL RULES OF PROF’L CONDUCT R. 8.3 (1983), AM. BAR ASS’N, http://www. americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_3_reporting_professional_misconduct.html (last visited Apr. 22, 2012). 108. Louisiana Office of Disciplinary Counsel. 109. Id.

http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2011_mcjc_rule2_15.authcheckdam.pdf

http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2011_mcjc_rule2_15.authcheckdam.pdf



made up of prosecutors and defense attorneys not in the district where that lawyer is practicing law. Also, the standard should be changed. For example, a non-willful first offense gets a private reprimand, so there’s no public record for that, although, at least, there’s a record made that someone has offended. A second non-willful or later offense gets a public reprimand; a willful first offense, where there’s no “harm to the defendant” receives a public reprimand, and a second or more willful offense, where harm has occurred to the defendant, and harm being defined as any wrongful conviction, should get some suspension of some kind. You know, when you raise kids they tell you you need to tell them when you’re going to discipline them and what the consequences of their actions are. Right now there are none. At least tell them this is what’s going to happen to you and then make a record.

KILLEBREW:

Looking forward . . . the Criminal Attorney Accountability and Working Group. These are the folks that are involved: multiple DAs offices, judges, defense attorneys, and prosecutors. What we are doing right now is we’re going to establish a training curriculum and we are doing this collaboratively, so the defense attorneys and prosecutors will work together to figure out what are the biggest headaches from the other side and what are some training materials that could address that. You have heard some of that today, and we will be following up with a few people here about what their ideas for good training is. We’re hoping to launch this next fall. The launch will actually be like a workshop of the training materials themselves. Again, the focus on training is simply because-in John Thompson’s case Justice Ginsberg goes on in a couple of ways to talk about how law schools aren’t properly training on this; the Bar is certainly not requiring this for admission.110 She’s talking there about the Brady obligations, specifically, but I don’t think anyone would doubt that you can become a defense attorney, a paid defense attorney, in this state and have no idea what the baseline requirements for effective representation are. These things are simply not part of the Bar Exam; they are not part of the legal curriculum. That is why we want to focus on those things in particular. Down the road, what we are hoping is to make CLE require that criminal ethics materials are a required part of the law school curriculum;

110. Connick v. Thompson, 131 S. Ct. 1350, 1385 (2011) (Ginsberg, J., dissenting).



possibly certification for attorneys in criminal practice, the way we have it for attorneys in capital practice; and maybe we can work together to come up with best practices for defender offices and prosecutor offices on reporting misconduct by their own staff.

GHETTI:

Some other ideas down the road: naming the offending lawyer would be progress; requiring judges to report; mandatory forms of discipline and discipline for entire offices. The rules of professional conduct talk about failure to supervise as an ethical violation—why don’t we pursue that in discipline as well?

KILLEBREW:

Thank you for coming.



APPENDIX 1

COURT GRANTED RELIEF

ON THE GROUND OF PROSECUTORIAL MISCONDUCT

I. IN THE FOLLOWING CASES, THE COURT FOUND THAT THE PROSECUTOR ENGAGED IN

PROSECUTORIAL MISCONDUCT BY VIOLATING BRADY:

State v. Lee, 00-0831 (La. App. 4 Cir. 5/8/00) 767 So. 2d 97; see also, 00-2429 (La. App. 4 Cir. 1/4/01) 778 So. 2d 656; see also 02-1793 (La. App. 4. Cir. 4/2/03) 844 So. 2d 970.

State v. Gobert, 00-0924 (La. App. 3 Cir. 2/28/01) 780 So. 2d 616.

State v. Garrick, 02-0712 (La. App. 3 Cir. 12/11/02) 832 So. 2d 1110.

State v. Lindsay, 02-2363 (La. App. 4 Cir. 4/2/03) 844 So. 2d 961.

State v. Greco, 03-0709 (La. App. 4 Cir. 12/17/03) 862 So. 2d 1152.

State v. Bright, 02-2793 (La. 5/25/04) 875 So. 2d 37.

State v. Miller, 05-1111 (La. 3/10/06) 923 So. 2d 625.

State v Johnson, 07-2034 (La. 10/9/09) 23 So. 3d 878.

II. IN THE FOLLOWING CASES, THE COURT FOUND THAT THE PROSECUTOR ENGAGED IN

PROSECUTORIAL MISCONDUCT BY VIOLATING BATSON:

State v. Myers, 99-1803 (La. 4/11/00) 761 So. 2d 498.

State v. Lewis, 01-0155 (La. App. 5 Cir. 8/28/01) 798 So. 2d 468.

State v. Harris, 01-0408 (La. 6/21/02) 820 So. 2d 471.

State v. Coleman, 06-0508 (La. 11/2/07) 970 So. 2d 511.



III. IN THE FOLLOWING CASES, THE COURT FOUND THAT THE PROSECUTOR ENGAGED IN

PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER/PREJUDICIAL ARGUMENTS:

State v. Elzey, 05-0562 (La. App. 4 Cir. 1/11/06) 923 So. 2d 182.

State v. Groot, 07-1273 (La. App. 1 Cir. 1/16/08) 2008 WL 142506.



IV. IN THE FOLLOWING CASES, THE COURT FOUND THAT THE PROSECUTOR ENGAGED IN

PROSECUTORIAL MISCONDUCT FOR OTHER/MISCELLANEOUS REASONS:

State v. Kemp, 00-2228 (La. 10/15/02) 828 So. 2d 540 (Discovery Violation: Prosecution did not timely disclose witness statement).

State v. Gutweiler, 06-0561 (La. App. 3 Cir. 9/27/06) 940 So. 2d 160; see also, 979 So. 2d 469 (Prosecutor violated grand jury secrecy by sharing testimony with another grand jury witness).

V. CASES THAT FALL INTO MORE THAN ONE OF THE CATEGORIES OF VIOLATIONS:





APPENDIX 2

COURT’S RULING SUGGESTS THAT AN ETHICAL VIOLATION OCCURRED,

BUT THE ATTORNEY ERROR WAS NOT HARMFUL OR PREJUDICIAL ENOUGH TO WARRANT RELIEF FOR

THE DEFENDANT:


PROSECUTORIAL MISCONDUCT BY VIOLATING BRADY, BUT IT FOUND SUCH ERROR TO BE

HARMLESS:

State v. Biagas, 99-2652 (La. App. 4 Cir. 2/16/00) 754 So. 2d 1111.

State v. Laymon and Rogers, 97-1520 (La. App. 4 Cir. 3/15/00) 756 So. 2d 1160.

State v. Deruise, 98-0541 (La. 4/3/01) 802 So. 2d 1224.

State v. Bowie, 00-3344 (La. 4/3/02) 813 So. 2d 377.

State v. Crawford, 02-2048 (La. App. 4 Cir. 2/12/03) 848 So. 2d 615.

State v. Price and Honore, 02-0360 (La. App. 4 Cir. 4/2/03) 842 So. 2d 491.

State v. Herron, 03-2304 (La. App. 1 Cir. 5/14/04) 879 So. 2d 778.

State v. Goodwin, 04-0466 (La. App. 4 Cir. 8/18/04) 881 So. 2d 1229.

State v. Jones, 38, 579 (La. App. 2 Cir. 8/18/04) 880 So. 2d 962.

State v. Tate, 38, 576 (La. App. 2 Cir. 8/18/04) 880 So. 2d 255.

State v. Pitre, 04-0545 (La. App. 1 Cir. 12/17/04) 901 So. 2d 428.


State v. Sholes, 05-1290 (La. 1/9/06) 920 So. 2d 212.



State v. Mayeux, 06-0944 (La. App. 3 Cir. 1/10/07) 949 So. 2d 520.

State v. Lacaze, 06-1059 (La. 2/2/07) 947 So. 2d 716.

State v. Guerin, 06-1237 (La. App. Cir. 2/9/07) 2007 WL 437679.

State v. Brown, 42, 188 (La. App. 2 Cir. 9/26/07) 966 So. 2d 727.

State v. Beaner, 42, 532 (La. App. 2 Cir. 12/5/07) 974 So. 2d 667.

State v. Jones, 08-0516 (La. App. 4 Cir. 02/11/09) 3 So. 3d 92.

State v. Manning, 44, 403 (La. App. 2 Cir. 6/24/09) 15 So. 3d 1204.


PROSECUTORIAL MISCONDUCT BY VIOLATING BATSON, BUT IT FOUND SUCH ERROR TO BE

HARMLESS:

State v. Hoffman, 98-3118 (La. 4/11/00) 768 So. 2d 542.

State v. Bridgewater, 00-1529 (La. 1/15/02) 823 So. 2d 877.

State v. Rodriguez, 01-2182 (La. App. 1 Cir. 6/21/02) 822 So. 2d 121.

State v. White, 36, 935 (La. App. 2 Cir. 6/6/03) 850 So. 2d 751.

State v. Manning, 03-1982 (La. 10/19/04) 885 So. 2d 1044.


State v. Draughn, 05-1825 (La. 1/17/07) 950 So. 2d 583.


PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER/PREJUDICIAL ARGUMENTS, BUT SUCH

CONDUCT TO BE HARMLESS:

State v. Casey, 99-0023 (La. 1/26/00) 775 So. 2d 1022.

State v. Biagas, 99-2652 (La. App. 4 Cir. 2/16/00) 754 So. 2d 1111.




State v. Clem, 30, 686 (La. App. 2 Cir. 11/1/00) 779 So. 2d 763.

State v. Palmer, 00-0216 (La. App. 1 Cir. 12/22/00) 775 So. 2d 1231.

State v. Smith, 98-1417 (La. 6/29/01) 793 So. 2d 1199.

State v. Deal, 00-0434 (La. 11/28/01) 802 So. 2d 1254.

State v. Huckabay, 00-1082 (La. App. 4 Cir. 2/6/02) 809 So. 2d 1093.

State v. Harry, 01-2336 (La. App. 4 Cir. 6/26/02) 823 So. 2d 987.

State v. Juarbe, 01-2250 (La. App. 4 Cir. 7/31/02) 824 So. 2d 1240.

State v. Breaux, 02-0382 (La. App. 5 Cir. 10/16/02) 830 So. 2d 1003.

State v. Robertson, 02-0373 (La. App. 5 Cir. 10/29/02) 831 So. 2d 389.

State v. Conner, 02-0363 (La. App. 5 Cir. 11/13/02) 833 So. 2d 396.

State v. Walker, 02-0761 (La. App. 5 Cir. 12/30/02) 836 So. 2d 618.


State v. Fradieu, 02-0077 (La. App. 4 Cir. 6/25/03) 851 So. 2d 345.

State v. Mack, 37, 174 (La. App. 2 Cir. 6/27/03) 850 So. 2d 1035.

State v. Olivieri, 03-0563 (La. App. 5 Cir. 10/28/03) 860 So. 2d 207.

State v. Wallace, 03-0193 (La. App. 4 Cir. 11/26/03) 862 So. 2d 286.

State v. Legrand, 02-1462 (La. 12/3/03) 864 So. 2d 89.



State v. Fielding, 37, 943 (La. App. 2 Cir. 12/10/03) 862 So. 2d 420.

State v. Lagarde, 03-0606 (La. App. 4 Cir. 12/10/03) 861 So. 2d 871.

State v. Washington, 03-1135 (La. App. 5 Cir. 1/27/04) 866 So. 2d 973.

State v. Williams, 03-0942 (La. App. 5 Cir. 1/27/04) 866 So. 2d 1003.

State v. Lee, 38, 114 (La. App. 2 Cir. 3/3/04) 868 So. 2d 256.

State v. Falkins and Simms, 04-0250 (La. App. 5 Cir. 7/27/04) 880 So. 2d 903.

State v. Cowden, 04-0707 (La. App. 5 Cir. 11/30/04) 889 So. 2d 1075.

State v. Lacoste, 04-1625 (La. App. 4 Cir. 2/16/05) 896 So. 2d 1180.

State v. Francois, 05-1385 (La. App. 3 Cir. 4/5/06) 926 So. 2d 744.

State v. Hill, 41, 031 (La. App. 2 Cir. 5/17/06) 930 So. 2d 336.

State v. Leger, 05-0011 (La. 7/10/06) 936 So. 2d 108.


State v. Stukes, 05-0892 (La. App. 4 Cir. 10/25/06) 944 So. 2d 679.

State v. Daniel, 06-1978 (La. App. 1 Cir. 3/23/07) 2007 WL 865484.

State v. Garrett, 06-1588 (La. App. 1 Cir. 3/23/07) 2007 WL 865906.

State v. Blank, 04-0204 (La. 4/11/07) 955 So. 2d 90.

State v. Frank, 99-0553 (La. 5/22/07) 957 So. 2d 724.

State v. Kennedy, 05-1981 (La. 5/22/07) 957 So. 2d 757.

State v. Camper, 08-0314 (La. App. 4 Cir. 10/1/08) 996 So. 2d 571.



State v. Robertson, 08-0297 (La. App. 5 Cir. 10/28/08) 995 So. 2d 650.

State v. Bradley, 43, 593 (La. App. 2 Cir. 10/29/08) 997 So. 2d 694.

State v. Sartain, 08-0266 (La. App. 4 Cir. 12/30/08) 2 So. 3d 1132.

State v. Longo, 08-0405 (La. App. 5 Cir. 1/27/09) 8 So. 3d 666.

State v. Collins, 09-0283 (La. App. 5 Cir. 12/8/09) 2009 WL 4640646.

State v. Simon, 09-0623 (La. App. 3 Cir. 12/9/09) 2009 WL 4653743.

IV. IN THE FOLLOWING CASES, THE COURT FOUND THE PROSECUTOR’S MISCONDUCT FOR

OTHER/MISCELLANEOUS REASONS WAS HARMLESS ERROR:

State v. Johnson, 34, 009 (La. App. 2 Cir. 1/24/01) 778 So. 2d 706 (Discovery Violation: prosecution failed to timely disclose victims’ medical records).

State v. Deal, 00-0434 (La. 11/28/01) 802 So. 2d 1254 (Defendant also claimed “pervasive prosecutorial misconduct” unspecified in the opinion).

State v. Black, 34, 688 (La. App. 2 Cir. 5/9/01) 786 So. 2d 289 (Discovery Violation: prosecution failed to disclose a prior misidentification by a witness, which was revealed at trial).

State v. Jones, 00-2837 (La. 6/29/01) 791 So. 2d 622 (Discovery Violation: Prosecution withheld witness’ prior statements before suppression hearing).

State v. Mathews and Gage, 00-2115 (La. App. 1 Cir. 9/28/01) 809 So. 2d 1002 (Discovery Violation: prosecution failed to timely disclose impeachment evidence).

State v. Baker, 00-2520 (La. App. 4 Cir. 11/21/01) 801 So. 2d 1196 (Discovery Violation: prosecution failed to disclose statement of key witness until after voir dire)

State v. Deal, 00-0434 (La. 11/28/01) 802 So. 2d 1254 (Defendant claimed “pervasive prosecutorial misconduct”



unspecified in the opinion)

State v. Stokes, 36, 212 (La. App. 2 Cir. 9/18/02) 828 So. 2d 631 (Discovery Violation: prosecution failed to timely disclose lab report and police officer’s report that were exculpatory).

State v. Paddio, 02-0722 (La. App. 3 Cir. 12/11/02) 832 So. 2d 1120 (Prosecutor called defendant as first witness. Mistrial declared. Defendant claims that trial court erred when it found that the prosecutor had not acted intentionally, and that he was no prejudiced by the retrial).

State v. Garrick, 03-0137 (La. 4/14/04) 870 So. 2d 990 (Discovery Violation: prosecution failed to timely disclose exculpatory content of co-defendant’s testimony).

State v. Jones, 03-0829 (La. App. 4 Cir. 12/15/04) 891 So. 2d 760 (Discovery Violation: prosecution failed to timely disclose evidence.

State v. Donnaud, 04-0624 (La. App. 5 Cir. 2/15/05) 896 So. 2d 1151 (Discovery Violation: State introduced items that may have been purchased with the stolen credit card. Defendant does not claim Brady violation; the evidence was not exculpatory).

State v. Kennedy, 05-1981 (La. 5/22/07) 957 So. 2d 757 (Discovery Violation: State delayed in disclosing exculpatory evidence.

State v. Palms, 08-0553 (La. App. 3 Cir. 12/17/08) 2008 WL 5244649 (Discovery Violation: prosecution failed to timely disclose evidence that the lineup in which defendant was identified was tainted).

State v. Butler, 08-0662 (La. App. 5 Cir. 05/26/09) 15 So. 3d 1091 (Discovery Violation: prosecutor told defendant that witness would only testify on certain topics at trial, which turned out to be incorrect)

State v. Simon, 09-0623 (La. App. 3 Cir. 12/9/09) 2009 WL 4653743 (Discovery Violation: prosecution failed to timely turn over tapes of interviews with certain witnesses).


State v. Biagas, 99-2652 (La. App. 4 Cir. 2/16/00) 754 So. 2d



1111.


State v. Deruise, 98-0541 (La. 4/3/01) 802 So. 2d 1224.

State v. Deal, 00-0434 (La. 11/28/01) 802 So. 2d 1254.

State v. Bridgewater, 00-1529 (La. 1/15/02) 823 So. 2d 877.


State v. Kennedy, 05-1981 (La. 5/22/07) 957 So. 2d 757.


State v. Manning, 03-1982 (La. 10/19/04) 885 So. 2d 1044.

State v. Pitre, 04-0545 (La. App. 1 Cir. 12/17/04) 901 So. 2d 428.


State v. Draughn, 05-1825 (La. 1/17/07) 950 So. 2d 583.

State v. Guerin, 06-1237 (La. App. Cir. 2/9/07) 2007 WL 437679.



APPENDIX 3

COURT DID NOT GRANT RELIEF DUE TO ALLEGED ATTORNEY ERROR

DUE TO WAIVER, BAR, OR OTHER REASONS


PROSECUTORIAL MISCONDUCT BY VIOLATING BRADY:

State v. Haynes, 99-1973 (LA. App. 1 Cir. 6/23/00) 762 So. 2d 1247.

State v. Derouselle, 97-2590 (La. App. 4 Cir. 8/30/00) 769 So. 2d 141.

State v. Thompson, 02-0361 (La. App. 4 Cir. 7/17/02) 825 So. 2d 552.

State ex rel. Guise v. State, 00-2185 (La. 10/15/02) 828 So. 2d 557.

State v. Dilosa, 01-0024 (La. App. 1 Cir. 5/9/03) 849 So. 2d 657.

State v. Kenner, 05-1052 (La. 12/16/05) 917 So. 2d 1081; see also, (La. 8/27/08) 989 So. 2d 765.

State v. Orman, 41, 183 (La. App. 2 Cir. 3/16/06) 925 So. 2d 761.

State v. Smith, 07-0403 (La. App. 1 Cir. 9/14/07) 2007 WL 2685611.

State v. D.T., 08-0814 (La. App. 3 Cir. 12/11/08) 998 So. 2d 1258.

State v. Johnson, 09-0259 (La. App. 4 Cir. 9/16/09) 22 So. 3d 205.




PROSECUTORIAL MISCONDUCT BY VIOLATING BATSON:

State v. Miller, 99-0192 (La. 9/6/00) 776 So. 2d 396.

State v. Mitchell, 99-0283 (La. App. 1 Cir. 6/22/01) 808 So. 2d 664.

State v. Jacobs, 99-1659 (La. 6/29/01) 789 So. 2d 1280; see also (La. App. 5 Cir. 5/12/09) 13 So. 3d 677; See also (La. App. 5 Cir. 4/5/10) 32 So. 3d 277.

State v. Richardson, 35, 450 (La. App. 2 Cir. 2/27/02) 811 So. 2d 154.

State v. Drake, 08-0002 (La. App. 1 Cir. 5/2/08) 2008 WL 2082143; see also, (La. 1/30/09) 2 So. 3d 416.

State v. Cheatteam, 07-0272 (La. App. 5 Cir. 5/27/08) 986 So. 2d 738.

State v. Maxwell, 08-1007 (La. App. 4 Cir. 8/19/09) 17 So. 3d 505.


PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER/PREJUDICIAL ARGUMENTS:

State v. Wesley, 33, 402 (La. App. 2 Cir. 5/10/00) 759 So. 2d 286.


State v. Lowery, 33, 905 (La. App. 2 Cir. 2/28/01) 781 So. 2d 713.


State v. Benoit, 04-0436 (La. App. 5 Cir. 9/28/04) 885 So. 2d 625.

State v. Nellon, 04-1253 (La. App. 5 Cir. 4/26/05) 902 So. 2d 434.



State v. Leonard, 05-1382 (La. 6/16/06) 932 So. 2d 660.

State v. Jackson, 07-0084 (La. App. 5 Cir. 6/26/07) 963 So. 2d 432.

State v. Galindo, 06-1090 (La. App. 4 Cir. 10/3/07) 968 So. 2d 1102.

State v. Granier, 07-0807 (La. App. 1 Cir. 12/21/07) 2007 WL 4480675.

State v. Jenkins, 43, 294 (La. App. 2 Cir. 6/4/08) 986 So. 2d 235.

State v. Robbins, 43, 240 (La. App. 2 Cir. 6/4/08) 986 So. 2d 828.

State v. Pennison, 08-0244 (La. App. 1 Cir. 6/6/08) 2008 WL 2330740.

State v. Webb, 09-0720 (La. App. 1 Cir. 10/27/09) 2009 WL 3448297.

IV. IN THE FOLLOWING CASES, THE COURT FOUND THAT THE PROSECUTOR ENGAGED IN

PROSECUTORIAL MISCONDUCT FOR OTHER/MISCELLANEOUS REASONS:

State ex rel. Seals v. State, 00-2738 (La. 10/25/02) 831 So. 2d 828 (Unspecified Brady violation was raised at an earlier stage of the case, in an application for post-conviction relief. The claim was held in abeyance while another claim was decided).

State ex rel. Walker v. State, 04-0714 (La. 1/27/06) 920 So. 2d 213 (Unspecified Brady violation: Defendant has found evidence that was arguably suppressed; the district court is ordered to hold a hearing at which the State may show that it is prejudiced by the delay in defendant’s untimely filing. If the State does not do so, the court may determine whether the State violated Brady.

State v. Etienne, 08-1108 (La. App. 1 Cir. 12/23/08) 2008 WL 6809582 (Prosecutor elicited inadmissible other crimes testimony – court held that the defendant failed to object and preserve the issue for review).

State v. Scott, 08-2418 (La. App. 1 Cir. 6/19/09) 20 So. 3d 1089 (Prosecutor asked defendant about prior arrests [not convictions, in order to reference a gun charge for which he had



not been convicted]; court found the issue moot; the convictions were reversed on other grounds.

State v. Steward, 09-1226 (La. App. 1 Cir. 12/23/09) 2009 WL 4981464 (Prosecutor brought bill of information without probable cause for all of the charges; court found that the defendant failed to object to any instances of misconduct or to the trial court’s determination of probable cause, thus failed to preserve the issue for review. While there was a lack of evidence at trial [convictions on many counts were vacated], there was not a lack of probable cause).


State v. Derouselle, 97-2590 (La. App. 4 Cir. 8/30/00) 769 So. 2d 141.

State v. Mitchell, 99-0283 (La. App. 1 Cir. 6/22/01) 808 So. 2d 664.

State v. Richardson, 35, 450 (La. App. 2 Cir. 2/27/02) 811 So. 2d 154.



APPENDIX 4

COURT FOUND THERE WAS NO ATTORNEY ERROR:

I. IN THE FOLLOWING CASES, THE COURT FOUND THAT THERE WAS NO MERIT IN THE ALLEGATION OF

A BRADY VIOLATION BY THE PROSECUTOR:

State v. Porter, 98-0279 (La. App/. 4 Cir. 3/15/00) 756 So. 2d 1156.

State v. Snavely, 99-1223 (La. App. 5 Cir. 4/12/00) 759 So. 2d 950.


State v. Dawson and Veal, 00-1241 (La. App. 4 Cir. 6/28/00) 768 So. 2d 647.

State v. Schmidt, 99-1412 (La. App. 3 Cir. 7/26/00) 771 So. 2d 131.

State v. Moore, 99-2684 (La. App. 4 Cir. 12/20/00) 777 So. 2d 600.

State v. Jacobs, 99-0991 (La. 5/15/01) 803 So. 2d 933.

Jenkins v. Baldwin, 00-0802 (La. App. 4 Cir. 8/29/01) 801 So. 2d 485.

State v. M.M., 00-1296 (La. App. 3 Cir. 8/29/01) 802 So. 2d 43.

State v. Singleton, 01-0282 (La. App. 4 Cir. 11/7/01) 801 So. 2d 1150.

State v. Howard, 00-2700 (La. App. 4 Cir. 1/23/02) 805 So. 2d 1247.

State v. Hampton, 00-0522 (La. 3/22/02) 818 So. 2d 720.

State v. Nightengale, 35, 805 (La. App. 2 Cir. 5/8/02) 818 So. 2d 819.

State v. Collins, 01-1459 (La. App. 4 Cir. 8/21/02) 826 So. 2d 598.



State v. Louviere, 00-2085 (La. 9/4/02) 833 So. 2d 885.

State v. Glosson, 36, 999 (La. App. 2 Cir. 4/11/03) 843 So. 2d 649.

State v. James, 02-2079 (La. App. 1 Cir. 5/9/03) 849 So. 2d 574.

State v. Garrett, 38, 069 (La. App. 2 Cir. 12/19/03) 862 So. 2d 1207.

State v. Bounds, 38, 330 (La. App. 2 Cir. 5/12/04) 873 So. 2d 901.

State v. Myers, 04-1219 (La. App. 4 Cir. 11/3/04) 888 So. 2d 1002.

State v. Hopkins, 39, 258 (La. App. 2 Cir. 3/2/05) 897 So. 2d 854.

State v. Higgins, 03-1980 (La. 4/1/05) 898 So. 2d 1219.

State v. Haywood, 04-2097 (La. App. 4 Cir. 6/15/05) 907 So. 2d 168.

State v. McGinnis, 04-1286 (La. App. 5 Cir. 10/6/05) 917 So. 2d 471.


State v. Singleton, 05-0634 (La. App. 5 Cir. 2/14/06) 923 So. 2d 803.

State v. Jackson, 40, 949 (La. App. 2 Cir. 4/12/06) 926 So. 2d 815.

State v. Lande, 06-0024 (La. App. 5 Cir. 6/28/06) 934 So. 2d 280.

State v. Smith, Grant, and Hill, 40, 894 (La. App. 2 Cir. 7/26/06) 936 So. 2d 255.

State v. Magdison, 06-1236 (La. App. 1 Cir. 3/23/07) 2007 WL 866265.

State v. Trahan and Verdin, 06-1719 (La. App. 1 Cir. 5/4/07) 2007 WL 1300844.

Johnson v. Stalder, 06-2314 (La. App. 1 Cir. 9/19/07) 2007



WL 2713393.

State v. Jarrell, 07-0412 (La. App. 1 Cir. 9/19/07) 2007 WL 2726718.

State v. Taylor, 07-0093 (La. App. 5 Cir. 11/27/07) 973 So. 2d 83.

State v. Gordy, 07-1032 (La. App. 3 Cir. 3/12/08) 981 So. 2d 45.

State v. McGinnis, 07-1419 (La. App. 3 Cir. 4/30/08) 981 So. 2d 881.

State v. Carter, 43, 304 (La. App. 2 Cir. 6/18/08) 987 So. 2d 364.

State v. Davis, 08-0165 (La. App. 5 Cir. 7/29/08) 993 So. 2d 295.

State v. Champ, 07-1281 (La. App. 4 Cir. 8/13/08) 991 So. 2d 1143.

State v. Copp, 08-1012 (La. App. 1 Cir. 12/23/08) 2008 WL 6809595.

State v. Godfrey, 08-0828 (La. App. 3 Cir. 2/18/09) 4 So. 3d 265.

State v. Foreman, 08-0902 (La. App. 4 Cir. 4/29/09) 10 So. 3d 1238.

State v. Harrison, 08-1110 (La. App. 4 Cir. 6/25/09) 16 So. 3d 447.

State v. Nalls, 09-0772 (La. App. 1 Cir. 10/23/09) 2009 WL 3453003.

State v. Horton, 09-0250 (La. App. 5 Cir. 10/27/09) 2009 WL 3448207.

II. IN THE FOLLOWING CASES, THE COURT FOUND THAT THERE WAS NO MERIT IN THE ALLEGATION OF

A BATSON VIOLATION BY THE PROSECUTOR:

State v. Dickerson, 99-0353, (La. App. 5 Cir. 1/28/00) 751 So. 2d 425.

State v. Wade, 33, 121 (La. App. 2 Cir. 5/15/00) 758 So. 2d



987.

State v. Tilley, 99-0569 (La. 7/6/00) 767 So. 2d 6.


State v. Taylor, 99-1311 (La. 1/17/01) 781 So. 2d 1205.

State v. Pena, 00-0614 (La. App. 4 Cir. 3/14/01) 788 So. 2d 472.


State v. Anderson, 34, 670 (La. App. 2 Cir. 5/9/01) 786 So. 2d 917.


State v. Neal, 00-0674 (La. 6/29/01) 796 So. 2d 649.

State v. Baker, 34, 973 (La. App. 2 Cir. 9/26/01) 796 So. 2d 145.

State v. Duncan, 99-2615 (La. 10/16/01) 802 So. 2d 533.

State v. Joseph, 01-0360 (La. App. 5 Cir. 10/17/01) 802 So. 2d 735.

State v. Loper, 00-1936 (La. App. 5 Cir. 12/26/01) 807 So. 2d 316.

State v. Wilson, 01-0625 (La. App. 3 Cir. 12/28/01) 806 So. 2d 854.

State v. Ball, 00-2277 (La. 1/25/02) 824 So. 2d 1089.

State v. Zeno, 01-1340 (La. App. 3 Cir. 3/13/02) 811 So. 2d 1222.

State v. Odoms, 01-1033 (La. App. 5 Cir. 3/26/02) 815 So. 2d 224.

State v. Thornton, 36, 757 (La. App. 2 Cir. 1/29/03) 836 So. 2d 1235.

State v. Trotter, 37, 325 (La. App. 2 Cir. 8/22/03) 852 So. 2d 1247.



State v. Perrilloux, 03-0917 (La. App. 5 Cir. 12/30/03) 864 So. 2d 843.

State v. Poole, 38, 000 (La. App. 2 Cir. 1/28/04) 864 So. 2d 900.

State v. Alexander, 03-1291 (La. App. 5 Cir. 3/30/04) 871 So. 2d 483.

State v. Robinson, 02-1869 (La. 4/14/04) 874 So. 2d 66.

State v. Spivey, 38, 243 (La. App. 2 Cir. 5/12/04) 874 So. 2d 352.

State v. Bailey, 04-0085 (La. App. 5 Cir. 5/26/04) 875 So. 2d 949.

State v. Burgess, 04-0121 (La. App. 3 Cir. 6/16/04) 876 So. 2d 263.

State v. Newman, 03-1721 (La. App. 4 Cir. 7/7/04) 879 So. 2d 870.

State v. Kirsch, 04-0214 (La. App. 5 Cir. 7/27/04) 880 So. 2d 890.

State v. Parker, 04-1017 (La. App. 5 Cir. 3/29/05) 901 So. 2d 513.

State v. Brown, 03-0897 (La. 4/12/05) 907 So. 2d 1

State v. Magee, 04-1887 (La. App. 1 Cir. 5/6/05) 916 So. 2d 191.

State v. Allen, 03-2418 (La. 6/29/05) 913 So. 2d 788.

State v. Juniors, 03-2425 (La. 6/29/05) 915 So. 2d 291.

State v. Heard, 40, 284 (La. App. 2 Cir. 12/14/05) 917 So. 2d 658.

State v. Price, 40, 408 (La. App. 2 Cir. 12/16/05) 917 So. 2d 1201.

State v. Scott, 04-1312 (La. 1/19/06) 921 So. 2d 904.

State v. Qualls, 40, 630 (La. App. 2 Cir. 1/27/06) 921 So. 2d 226.

State v. Harris, 05-1362 (La. App. 3 Cir. 3/1/06) 924 So. 2d



1184.

State v. Lawrence, 40, 278 (La. App. 2 Cir. 3/15/06) 925 So. 2d 728.

State v. Elie, 05-1569 (La. 7/10/06) 936 So. 2d 791.

State v. Wilson, 40, 767 (La. App. 2 Cir. 8/23/06) 938 So. 2d 1111.

State v. Gant, 06-0232 (La. App. 5 Cir. 9/26/06) 942 So. 2d 1099.

State v. Hudson, 05-1232 (La. App. 1 Cir. 11/3/06) 2006 WL 3108264.

State v. Handon, 06-0013 (La. App. 1 Cir. 12/28/06) 952 So. 2d 53.

State v. Coleman, 41, 764 (La. App. 2 Cir. 1/24/07) 949 So. 2d 570.


State v. Edwards, 06-0643 (La. App. 5 Cir. 3/27/07) 957 So. 2d 185.


State v. Benton, 42, 121 (La. App. 2 Cir. 6/20/07) 960 So. 2d 1192.



State v. Williams, 07-1385 (La. App. 1 Cir. 12/21/07) 2007 WL 4480198.

State v. Reed, 07-1069 (La. App. 1 Cir. 5/2/08) 2008 WL 2065925.

State v. Anderson, 06-2987 (La. 9/9/08) 996 So. 2d 973.

State v. Harmon, 08-0454 (La. App. 3 Cir. 11/5/08) 2008 WL 4801743.



State v. Jackson, 08-0428 (La. App. 3 Cir. 11/5/08) 2008 WL 4801744.

State v. Brastfield, 08-0560 (La. App. 4 Cir. 12/10/08) 3 So. 3d 9.

State v. Jacobs, 07-0887 (La. App. 5 Cir. 5/12/09) 13 So. 3d 677.

III. IN THE FOLLOWING CASES, THE COURT FOUND THAT THERE WAS NO MERIT IN THE

DEFENDANT’S ALLEGATION THAT THE PROSECUTOR MADE IMPROPER OR PREJUDICIAL ARGUMENTS:

State v. Lucas, 00-0258 (La. App. 5 Cir. 8/29/00) 767 So. 2d 921.

State v. Weaver, 99-2376 (La. App. 4 Cir. 9/27/00) 770 So. 2d 831.

State v. Holmes, Bowie, & Bailey, 99-0898 (La. App. 4 Cir. 11/8/00) 791 So. 2d 669.

State v. Eskano, 00-0101 (La. App. 5 Cir. 1/30/01) 779 So. 2d 148.

State v. Coston, 00-1132 (La. App. 4 Cir. 9/5/01) 800 So. 2d 907.

State v. Robichaux, 00-1234 (La. App. 4 Cir. 3/14/01) 788 So. 2d 458.



State v. Robinson, 01-1305 (La. App. 4 Cir. 4/17/02) 820 So. 2d 571.

State v. Melancon, 01-1656 (La. App. 4 Cir. 8/21/02) 826 So. 2d 633.

State v. Clark, 01-2087 (La. App. 4 Cir. 9/25/02) 828 So. 2d 1173.

State v. Steele, 01-1414 (La. App. 5 Cir. 9/30/02) 829 So. 2d 541.



State v. Doleman, 02-0957 (La. App. 4 Cir. 12/4/02) 835 So. 2d 850.

State v. Davis, 02-2059 (La. App. 4 Cir. 1/22/03) 839 So. 2d 176.

State v. Sykes, 03-0397 (La. App. 3 Cir. 10/8/03) 857 So. 2d 638.

State v. Toups, 00-1944 (La. App. 4 Cir. 10/8/03) 859 So. 2d 768.

State v. Cooper, 03-0161 (La. App. 3 Cir. 12/23/03) 862 So. 2d 512.

State v. Brown, 03-1616 (La. App. 4 Cir. 3/31/04) 871 So. 2d 1240.

State v. Hall and Barnes, 03-0906 (La. App. 5 Cir. 5/26/04) 875 So. 2d 996.


State v. Leger, 04-1467 (La. App. 3 Cir. 6/1/05) 907 So. 2d 739.



State v. Jefferson, 04-1960 (La. App. 4 Cir. 12/21/05) 922 So. 2d 577.

State v. Housley, 05-0502 (La. App. 5 Cir. 1/31/06) 922 So. 2d 659.

State v. Smart, 05-0814 (La. App. 5 Cir. 3/14/06) 926 So. 2d 637.

State v. Smith, 41, 048 (La. App. 2 Cir. 6/30/06) 935 So. 2d 797.

State v. Jackson, 05-1281 (La. App. 4 Cir. 11/29/06) 947 So. 2d 115.

State v. Gage, 42, 279 (La. App. 2 Cir. 8/29/07) 965 So. 2d 592.

State v. Adragna, 07-0400 (La. App. 1 Cir. 9/14/07) 2007 WL



2685150.

State v. Hinojosa, 07-0586 (La. App. 1 Cir. 11/2/07) 2007 WL 3407732.

State v. Clement, 07-0650 (La. App. 3 Cir. 2/6/08) 2008 WL 315146.



State v. Davenport, 43, 101 (La. App. 2 Cir. 3/19/08) 978 So. 2d 1189.

State v. Bourgeois, 07-1726 (La. App. 1 Cir. 3/26/08) 978 So. 2d 1259.

State v. Jackson, 43, 139 (La. App. 2 Cir. 3/26/08) 979 So. 2d 678.

State v. Greer, 43, 177 (La. App. 2 Cir. 4/9/08) 981 So. 2d 133.


State v. Stewart, 43, 149 (La. App. 2 Cir. 5/7/08) 982 So. 2d 353.

State v. Hebert, 08-0118 (La. App. 1 Cir. 6/6/08) 2008 WL 2330572.

State v. Holmes, 06-2988 (La. 12/2/08) 5 So. 3d 42.

State v. Warren, 43, 671 (La. App. 2 Cir. 12/17/08) 2 So. 3d 523.

State v. Rios, 44, 132 (La. App. 2 Cir. 4/8/09) 7 So. 3d 832.

State v. Ashley, 44, 655 (La. App. 2 Cir. 9/23/09) 22 So. 3d 1045.

State v. Williams, 07-1407 (La. 10/20/09) 22 So. 3d 867.

State v. Wiltz, 08-1441 (La. App. 4 Cir. 12/16/09) 2009 WL 4842784.



IV. IN THE FOLLOWING CASES, THE COURT FOUND NO MERIT IN THE DEFENDANT’S

ALLEGATIONS OF PROSECUTORIAL MISCONDUCT THROUGH OTHER/MISCELLANEOUS CONDUCT:

State v. Givens, 99-3518 (La. 1/17/01) 776 So. 2d 443; See also 04-0765 (La. App. 4 Cir. 10/27/04) 888 So. 2d 329 (J.E.B. Violation: Prosecution eliminated potential male jurors because of their gender; court found allegation to lack merit; LA Supreme Court ruled that defendant had made prima facie case of purposeful gender discrimination, and remanded to the trial court for a hearing for the State to present gender-neutral reasons. The trial court did so and rejected defendant’s claims. The Court of Appeals then upheld that ruling).

State v. Robichaux, 00-1234 (La. App. 4 Cir. 3/14/01) 788 So. 2d 458 (Discovery Violation: prosecutor withheld exculpatory evidence [lab results] and suppressed or destroyed other evidence; Court found allegation to lack merit; the information in question was produced at trial; defendant was acquitted of the rape charge, so he can show no prejudice. No evidence that the State suppressed/intentionally destroyed anything. It was the jury’s responsibility to reconcile conflicting testimony).

State v. Bourgeois, 00-1353 (La. App. 5 Cir. 4/11/01) 786 So. 2d 771; See also 08-0457 (La. App. 5 Cir. 12/16/08) 1 So. 3d 733 (J.E.B. Violation: prosecution eliminated potential male jurors because of their gender; defendant made prima facie case of discrimination during jury selection. The case was remanded to determine if defendant proved purposeful discrimination. On remand, the trial court ruled that defendant failed to do so. The court of appeals affirmed).

State v. Burbank, 01-0831 (La. App. 4 Cir. 2/27/02) 811 So. 2d 1112 (The trial court allowed the introduction of inadmissible evidence, while excluding certain testimony; court found that allegation lacked merit and that the trial court did not abuse its discretion).

State v. Smith, 04-0340 (La. App. 5 Cir. 10/26/04) 888 So. 2d 280 (Co-defendant asserted his 5th Amendment privilege not to testify, and was held in contempt because he had already been convicted; court found allegation was without merit; the state was not involved in co-defendant’s decision not to testify).



State v. Persely, 40, 271 (La. App. 2 Cir. 12/16/05) 918 So. 2d 491 (Discovery Violation: prosecution withheld information on witnesses until just before their testimony; without merit; the witnesses testified at defendant’s first trial, at which counsel [the same attorney represented defendant at both trials] questioned them. Further, defendant was given time to review the witnesses’ statements).

State v. Lande, 06-0024 (La. App. 5 Cir. 6/28/06) 934 So. 2d 280 (Brady and Discovery Violations: prosecution failed to disclose or to timely disclose several pieces of evidence; without merit; none of the items were exculpatory or had impeachment value).

State v. Jiles, 06-1206 (La. App. 1 Cir. 2/14/07) 2007 WL 466792 (Conflict of interest, as the prosecutor was prosecuting the victim at the same time, and did not resolve that case until the defendant’s case was over, in order to induce the defendant to testify. The prosecutor also elicited inadmissible other crimes evidence; without merit; defendant failed to show that he was prejudiced by any misconduct. The issue regarding other crimes evidence was not preserved).

State v. Verret, 06-1337 (La. App. 1 Cir. 3/23/07) 960 So. 2d 208 (Discovery Violation: prosecution withheld favorable evidence until after the defense had rested; without merit; the state only received the evidence shortly before the defense rested, and disclosed it upon learning that it was possibly Brady material. Defendant was not substantially prejudiced).

State v. Tassin, 08-0752 (La. App. 3 Cir. 11/5/08) 998 So. 2d 278 (Prosecution vindictively sought imposition of enhanced penalties for habitual offenders against defendant; without merit; defendant produced no evidence to show that the state’s pursuit of the habitual offender bill was vindictive).

State v. Copp, 08-1012 (La. App. 1 Cir. 12/23/08) 2008 WL 6809595 (Discovery Violation: prosecution failed to timely disclose Prieur evidence. Brady Violation: prosecution suppressed the existence of a deal made with a witness; without merit; state did not violate Prieur guidelines. Defendant failed to prove that state deliberately disclosed evidence late; any arrangement with the witness in question, if it existed, would not be Brady material).

State v. Wilson, 44, 586 (La. App. 2 Cir. 10/28/09) 26 So. 3d



210 (Prosecution chose to try defendant as a habitual offender because of vindictiveness, due to suspicions that defendant was involved in an unprosecuted crime many years before; without merit; defendant does not offer any evidence to support his claim; further, he has a significant criminal history, so that the habitual offender bill was warranted).


State v. Schmidt, 99-1412 (La. App. 3 Cir. 7/26/00) 771 So. 2d 131.

State v. Robichaux, 00-1234 (La. App. 4 Cir. 3/14/01) 788 So. 2d 458.






State v. Lande, 06-0024 (La. App. 5 Cir. 6/28/06) 934 So. 2d 280.


State v. Copp, 08-1012 (La. App. 1 Cir. 12/23/08) 2008 WL 6809595.

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