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Wednesday, August 10, 2011

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.


Anonymous said...

Scum protecting scum....

Anonymous said...

Very few people involved in the justice system's corral of politicos doing A DISGUSTING job of equal and fair justice under the NY State law that affects the entire public...are ever brought to justice for their violations of laws, they are obligated to uphold per oath.

The only people who suffer injustice and severe punishment working within the NEW YORK STATE court's system of wild cowboys...are it's employees...and almost exclusively women and minorities!

American and specifically NY Courthouses...are a bungle of attempts at justice interwined with the circumvention of justice that manifests at the whims of the Judges, Prosecutors, Court Administrators....and the thousands of political hacks and nepotistic employees who remain on this massive payroll. All of this non-punishment of rogue justice workers, serves to enrich themselves, family and friends with cash and power to sustain all of them in the future and to continue the perpetuation of their family networks in the court system for decades to come.

Never will this system change until Americans get involved in inundating the Newspapers and Media of all kinds ...through social networking.. to get the younger generation upset and angry at All levels of Gov.,esp the JUDCIAL BRANCH...and let us see then....what we can create through this type of reform networking!

This nation has always been..POWER TO THE PEOPLE!

Anonymous said...

The feral judicial system and it's fruits

Anonymous said...

The People vs NY Court Corruption
Exhibit A -Tembeckjian.
Exhibit B Any NY Attorney grievance committee.
Exhibit C Esposito case in above list as "New Meaning of Oral Argument."
The moral hazard is so great that almost all of the system is corrupt. The media is the enabler and accomplices. In federal law the media is a Principle. An honest judge or an honest reporter/editor is rarer than hen's teeth in NY. The NY Attorney General defends the corrupt in the courts. Cuomo financed his campaign with contributions from attorneys with actions against the State of NY.

Anonymous said...

It never ends with the Women and Minorities. Do you mean the women
who routinely get everything handed to them in a divorce case including
the court ripping the children away from the father ? Or maybe you mean the minorities that get free legal counsel and rarely ever get in any real trouble for the 60 million violent crimes that they have committed against white americans
since 1960 ?

Anonymous said...

Persecutors never behave badly because they never do anything!

Anonymous said...

Your issues are outside of what I have described...and I am so sorry you feel that women and minorities are a privileged group in America, as the facts show differently.
Your experiences with a few of the above, make you think, you as a white male are the abused in the White controlled America..corporations..supreme ct bench...judicial administration...who happen to be the ones you should address your anger you kind( white males) are the people screwing you!
But...I was speaking about OCA'S extreme bias against its female and minority EMPLOYEES...and yes it is constant , extreme and abusive..even today as lawsuits sit against them with tons of evidence, and they fight and fight discovery that they produce in perjurorous and always untimely get the adjournments(that are always granted for them with their feeble excuses, over the pltf's constant objections) and stalling that these tactics they think the complts who endure will eventually collapse and withdraw.
OCA's crimes against their employees described a REFLECTION OF HOW THEY FEEL ABOUT THE PUBLIC WHO CARRY THE SAME TAGS.
OCA is a white man;s haven of I should know through decades of experiencing the evidence and misconduct!
Copy this exposes the truth you are hiding in Federal ct.

Anonymous said...

Your're correct. Women and minorities are not protected. The claw of evil and corruption will go after anyone that gets in their way.

It's really an matter of who has the money and who can provide economic benefits and privileges.

Remember the saying that 'power corrupts and absolute power corrupts absolutely.

When you look at what is going on in Washington, a small number of politicians are perfectly willing to bring down the economy of the US to protect the most wealthy from paying anymore taxes or changing any tax laws or business regulations. They are willing to do this because it is those at the top that finance their campaigns and provide them perks. (Not that there aren't problems, but the problems are not new and have been ignored and covered up for decades. But that's for another tirade.)

If you look at who is in control, it is mostly white men. That's not to say that anyone else who becomes powerful, won't throw their own under the bus. Charles Rangle and Pedro Espada are other examples among many.

People need to start looking past the 'talking points' that these people throw out and start looking at the motivations of these politicians.

The bottom line is that you just need to follow the money. To paraphrase the quote on this site 'injustice to one is injustice to everyone.'

Anonymous said...

Your comments are very accurate...and if talking points could only CONVERT to accountability for the NY and Federal Court Systems......then NEVER talking about this entity would be a pleasure for all of us.

Who ever really desires to think about men/women in dresses ruining this country and livlihoods of the most vulnerable,because we all know not one single person in power or the media...... will object or prosecute judicial terrorism.


Women are the largest voting block in they out number men in the voting booths...but they always get in the way of their own selves and their heavily embedded learned submissiveness to the male in their lives. My friends are a perfect example of females who want a man to think and order and pay for.... dinner or drinks for them!

The one best solution is for women and minorities to force themselves to independently vote in numbers in every election from here on in....CAN WE GET THAT TO HAPPEN..LADIES?


Federal Ct has been watering down Title VII, by not acting on it timely enough..7-10 plus yrs for the simple cases, as well as ruling against them in SUMMARY JUDGMENT if the Gov Esp or the big Corps are involved ... and this is the civil rights act of 1964...your only clear protection. The Federal EEOC, a mandatory for Fed Ct. may employ many women and minorities..but they are just toilet paper for the same courts and corporations.

This Federal Ct behavior condones bias and discrimination in the workplace, and provides a cesspool for the continuation of said behavior.. with women suffering insurmountable stress and terminations with forced expensive and difficult alternatives like litigation, that absolutely create even more abuse and stress that can cause suicides and breakdowns... which I have seen with several fired or continually terrorized... OCA employees.

The voices of all people and esp women..even OCA women who are beaten into submission..I have seen it for years and now hear it is even worse...must end...and end with women esp...taking up the verbal fight on all social networks and media outlets that will allow it.. and circumvent it if you must.

Freedon of speech..the biggest American joke of our time, must be utilized in creative fashions to our success! Don't use your name, as you will be punished behind the scenes esp, if you use the freedom.

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