Recently in Legal Ethics Category

January 4, 2011

The Governator Becomes The Commutator

As Arnold Schwartzenegger's term as California governor drew to a close in 2011, he commuted Esteban Lopez's prison term from 16 to 7 years. Schwarzenegger's decision was controversial, as many last-minute executive favors of this sort tend to be. 

In this case, Esteban Nunez was the son of Schwarzenegger's political crony, formerr CA Speaker Fabian Nunez.  Estaban had pleaded guilty in 2007 to voluntary manslaughter.after he was part of a group of inebriated idiots who took out their anger at being refused admission to a San Diego fraternity party by attacking and stabbing some party-goers, killing student Luis Dos Santos.

Predictably, Esteban's lawyer praised the justness of Schwarzenegger's decision, claiming that his client's 16 year sentence was overly harsh, a result of the judge trying to avoid any question of favoritism.  But for many San Diego community leaders, Santos' family and Esteban's prosecutors, Schwartzenegger's decision was unfair payback to a good buddy.

In a criminal justice system devoted to fair and open procedures, the executive power of pardon and clemency seems anachronistic.  Why should state governors and the US President be able to override a judicial system that already provides for multiple ways to redress possible unfairness?  But the power extends back to ancient Babylonian and Hebrew law, and it seems that no system of government can live without it.     

February 22, 2010

In Texas, Justice is for Lovers

Someone close to you is charged with capital murder.  Would you be upset to know that the trial judge and prosecutor had recently carried on an extra-marital affair?

This happened in Charles Dean Hood in 1989.  Hood was apparently just that-- he was convicted in Texas of a double murder in 1990.  What Hood didn't know was that trial judge Verla Sue Holland and prosecutor Thjomas S.O'Connell Jr had recently ended an extra-marital affair.  

Texas's highest court has upheld the conviction, ruling that Hood took too long to complain about the possible conflict of interest. That's a surprising ruling since the judge and prosecutor didn't admit to the affair until 2008, 18 years after Hood's conviction.  The court took refuge in the procedural point to avoid confronting the real issue, which is whether the judge and the prosecutor had an ethical obligation to disclose their affair to the defense. 

The answer to this question is easy: YES!  Hood's attorneys should not have had to ask for this information, Holland and O'Connell should have revealed it and given the defense a chance to object. If the judge and prosecutor were concerned about protecting their privacy, one or both of them could have stepped aside and let others handle the case.  Hood has appealed to the U.S. Supreme Court, and hopefully the Court will reverse the conviction and eliminate this blight on the US system of justice.  As for Holland and O"Connell, at the very least these worthies should repay the Texas taxpayers for the cost of a trial that was a sham all along.    

December 16, 2009

Hang Down Your Head, South Carolina

In Dec. 2009, South Carolina's House Judiciary Committee decided not to impeach Gov. Mark Sanford (R) for carrying on a lengthy extra-marital affair at taxpayer expense and lying about it.  Remarkably, the Committee decided that Sanford's behavior does not amount to "serious misconduct."

To some extent I agree with the committee- Sanford is a criminal, not just a bad boy.  Instead of holding onto his office and thanking the committee for its "deliberative approach," Sanford should have resigned months ago.

How sad that Sanford remains in office in an era when the U.S. repeatedly rebukes other countries for their corrupt politics.  The South Carolina Committee's decision shames our entire country.    

October 15, 2009

Jose Padilla Asks the Supremes to Void HIs Guilty Plea

Jose Padilla pleaded guilty in Kentucky to 3 felony drug charges, in exchange for the state agreeing to drop a fourth charge. According to Padilla, his lawyer never told him that his guilty plea would almost surely mean that he will be deported after he serves his sentence.  Padilla has petitioned for the right to set aside his guilty plea and go to trial. His case is now awaiting a decision by the U.S. Supreme Court.

Padilla's claim involves the SIxth Amendment right to counsel in criminal cases. The Court has to decide whether defense attorenys are constitutionally deficient if they fail to advise defendants about the likely collateral legal consequences of guilty pleas. If the Supreme Court rules in Padilla's favor, the question of whether Padilla's attorney in fact failed to advise him that he'd probably be deported is a matter that a lower court will have to decide after conducting a hearing. 

Had I been in Padilla's position, I think I would have expected my attorney to know and tell me that if I pleaded guilty I'd probably be deported.  It seems reasonable to expect all defense attorneys to live up to that standard. They're the paid professionals, and they ought to know or be willing to find out about the likely legal consequences of guilty pleas before giving legal advice to clients. 

September 10, 2009

Mike Duvall: Another Hypocrite Bites the Dust

Assemblyman Mike Duvall, who represents a section of Orange County in the California legislature, has resigned after his boastful comments to a colleague about his sexual conquests were recorded and broadcast. Duvall is another in a growing parade of family values married political hypocrites who have traded on their power to attract sexual partners.

Duvall's resignation comments were pitiful.  He said that he was saddened that his inappropriate comments had become a distraction for his colleagues.  Apparently he wasn't sad about bedding a woman who apparently is a lobbyist who did business with the committee of which Duvall was chair.

Duvall's resignation should not be the last we hear of him.  If he had an affair with a lobbyist, his behavior is criminal as well as unethical.  At least now we know what he and the other hypocrites mean by the term "family values": Try to establish as many families as you can.

April 7, 2009

Prosecute the Sen. Stevens Prosecutors?

The muck that increasingly envelops the U.S. criminal justice system has spread to prosecutors. In 2008, the government seemingly won a big victory by convicting former Alaska Senator Ted Stevens of corruption.  However, just a few months later, at the instigation of recently-appointed U.S. Attorney General Eric Holder, judge Emmet Sullivan (who presided over Stevens' trial) has dismissed all the charges against him

Prosecutorial misconduct led to the dismissal -- prosecutors failed to turn over documents to Stevens' defense lawyers that contained information that potentially could have undermined the credibility of government witnesses.  The mistake is inexcusable -- any law student who takes a criminal procedure course knows that prosecutors have a Constitutional duty to turn over potentially exculpatory information to defendants.  Judge Sullivan is now considering whether to file criminal contempt charges against some of the prosecutors. 

Ironically, in the recent case of Van de Kamp v. Goldstein, the U.S. Supreme Court decided that prosecutors are "absolutely immune" from civil damages claims for their mistakes. In Goldstein, Justice Breyer stressed the "public trust" that we place in prosecutorial offices.  But Goldstein will not protect Stevens' prosecutors against contempt of court charges.  If they abused their powers, they deserve to experience for themselves Judge Sullivan's wrath -- and his sentencing powers.

February 12, 2009

Juvenile Court, Adult Corruption

Greed and corruption seem to be the only recent growth industries in the U.S. economy. The latest example involves two Pennsylvania juvenile court judges named Ciavarella and Conahan who allegedly demanded and received kickbacks in exchange for imprisoning youths in facilities run by private corporations.

The judges allegedly raked in $2.6 million without even having to go to all the hassle of operating a Ponzi scheme.  The more youths that Ciavarella and Conahan sent to the private prisons -- and the longer the terms of their imprisonment -- the more government money the prison operators made and the more they'd return to the judges as kickbacks.  Not surprisingly, even kids with clean records who committed the most minor of infractions often found themselves locked up.

Since juveniles charged with crimes have a right to counsel (see In re Gault, U.S. Sup. Court, 1967), you'd think that Ciavarella and Conahan would have been quickly found out. On the other hand, juvenile court proceedings are closed to the public, and perhaps the judges figured out how to dispose of cases as quickly as cattle auctioneers sell off livestock. Whatever means they used, they apparently managed to keep the kickbacks coming for 3 years.

Ciavarella and Conahan have been removed from the bench and have been charged with crimes.  If they are convicted, too bad they won't be sentenced by a judge with a financial incentive to give them the longest possible prison terms.

September 10, 2008

Sex Appeal

Charles Dean Hood was sentenced to death in Texas for committing a double murder.  ("Hood" is certainly an unfortunate surname for a person facing criminal charges.) On the eve of his execution, Hood may gain a reprieve based on a "sex appeal". Hood's lawyers have uncovered evidence that while Judge Verla Sue Holland was presiding over Hood's trial and D.A. Thomas O'Connell Sr. was assisting in his prosecution, they were carrying on a secret love affair.      

If Holland and O'Connell were indeed litigating by day and fornicating by night, they grossly disregarded their ethical responsibilities and wasted a lot of Texas taxpayers' money if Hood (and possibly many other convicted criminals whose cases they participated in) have to be re-tried. 

The American Bar Association Code of Judicial Conduct (which admittedly does not have the force of law) admonishes judges not to engage in conduct that "would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." While this language may be vague and hortatory, certainly the perception (if not the reality) of partiality arises when a judge and a prosecutor are literally in bed together.

As for D.A. O'Connell, Standard 3-1.3 of the American Bar Assoiation Criminal Justice Standards states in part that, "A prosecutor should not permit his or her professional judgment or obligations to be affected by... personal interests."

If the evidence of the affair is accurate, Holland's and O'Connell's behavior is irresponsible and unfathomable. After all, Hood was charged with capital murder, not spitting on the sidewalk. Legal ethics required either Holland or O'Connell to leave the case. Since they did not do so, they apparently felt a greater responsibility to their secret love affair than to their professional obligations. The episode undercuts the claim that while the U.S. system of justice cannot guarantee correct outcomes, it can guarantee a fair process.