Prosecutors Behaving Badly Seldom Get Sanctioned

Prosecutors Behaving Badly Seldom Get Sanctioned
The Connecticut Law Tribune by Mark Dubois  -  August 8, 2011

I readily admit that I am not a criminal law maven. During my seven-plus years in the disciplinary system, I had very few discipline cases involving state’s attorneys. Thus, I was more than a bit surprised last year when I was sitting in the state Supreme Court preparing to argue a lawyer discipline case and realized that the case preceding mine, State v. Lenarz, involved an alleged violation of Rule 1.6, the rule of attorney/client confidentiality. Kind of like hitting the daily double—a lawyer misconduct case and in the criminal context to boot.  The facts of Lenarz were not disputed, and are well laid out in the decision recently released by the Supreme Court. Patrick Lenarz was accused of sexual assault on two children. Police served a search warrant and seized his computer. Within 24 hours, his lawyer was in court complaining that the computer contained a lot of correspondence between the accused and the lawyer, and that it should not be reviewed by the state’s attorneys. Despite an order not to do so, the crime lab folks found and printed all of the attorney/client correspondence and gave it to the police.  It eventually made its way to the state’s attorney prosecuting the case as it became a part of the case file. Despite the fact that it was clearly lawyer/client stuff, the state’s attorney read it all.  After being convicted, Lenarz appealed on the grounds that the correspondence with his lawyer contained sensitive material and trial strategy and that he was prejudiced by having the state’s attorney in the possession of this stuff. The Supreme Court agreed. So much so that within a few days of oral argument they ordered Lenarz released pending the release of their decision.  Finding that the materials seized by the police, printed out by the crime lab, and read by the state’s attorney were part of the most sacred of privileged communications, and that no amount of prophylaxis could un-ring the bell and provide a fair retrial, the court has now remanded and ordered dismissal. Though not referencing it, the decision seems to follow the 1991 case of Philips v. Warden which presumed prejudice in a case involving a violation of a fundamental aspect of an attorney/client relationship. In Philips, the violation was a conflict of interest so egregious that the court presumed prejudice. Here the violation was invasion of confidential communications. Again, so egregious that prejudice had to be found.  One part of the decision troubled me though. In Lenarz, the majority noted that it was “extremely troubled” by the conduct of the state’s attorney because the communications were clearly of an attorney/client nature, even being noted that at the top of some of the pages. Yet despite being troubled, the court imposed no discipline on the prosecutor.  Practice Book 2-32(a)(2)(F) allows the Grievance Committee to screen out and dismiss any case where the alleged conduct occurred in a court, “and the court has been made aware of the allegations of misconduct and has rendered a decision finding misconduct” or has either determined that no misconduct has occurred or has declined to refer the matter to the Grievance Committee. Yes, “or” can be used conjunctively—“would you like cream or sugar in your coffee?” — but the common use of the word is as a disjunctive. The use of “or” instead of “and” in the rule seems to suggest a presumption that if a court finds misconduct, it will impose discipline. The Grievance Committee, being only an “arm of the court,” cannot act where a court has already taken jurisdiction and found misconduct, even if no discipline is imposed.  A quick Westlaw search reveals many cases where courts have found misconduct by prosecutors, ranging from Brady violations to evidence destruction to calling defendants “fiends” and “rats.” While some of the misconduct has been sufficient to warrant new trials or dismissals, none if it that I can think of has resulted in discipline of the lawyers involved. Perhaps the appellate courts think that the Grievance Committee will clean up that loose end. But it never happens. And as prosecutors are immunized from civil liability, the conduct goes unpunished.  I do not want to debate the extent that rules of conduct have a deterrent effect on lawyer conduct, though general and specific deterrence have often been used as justifications for the imposition of discipline. If that is true, then a complete lack of any consequence for ethics violations in criminal cases may encourage what, at best, appears to be a casual approach towards, and, at worst, deliberate disregard of ethics standards. Neither is a good situation.   Mark Dubois, the former chief disciplinary counsel for Connecticut, is now an attorney at the New London firm of Geraghty & Bonnano.