I find more and more that defense lawyers are combing the records in order to manufacture prosecutorial misconduct and Brady violations to allege on appeal or writs. They label the most innocuous conduct or comment as such. Does the defense bar run the risk of losing credibilty in the appeal courts when they engage in this course of conduct? (would that it were so) I can say this: nothing makes me hopping mad quicker than some ill-founded and bad faith claim of misconduct.
I know some defense lawyers who have the attitude that it is just business, nothing personal, you know....I'm just zealously representing my client. I say baloney. There is no more serious charge than unethical conduct and it is not one to be tossed about lightly.
Ben, some of them just got tired of accusing each other of poor lawyering, so they had to focus elsewhere. And that's the way it is. Anytime you have unpredictability as with the Strickland or Brady standards the claims will be made, with or without any merit.
I know, Martin. I've been around long enough not to be suprised by much but I just cannot accept such accusations as business as usual. I believe the vast majority of prosecutors go the extra mile to make sure their disclosure is complete. Tossing around claims of unethical behavior undermines confidence in our system of justice and contributes to the overall creeping lack of collegiality in the profession. I have seen unfounded claims like these inspire anger just shy of fisticuffs and I say I understand completely that impulse.
Having been falsely accused of such rubbish in a Motion for New Trial (literally, the defense alledged that I knew a juror was a cousing of a witness and did not disclose such - even though the defense and prosecution went over a list of witnesses in voir dire), I take those type of allegations seriously. I believe it is against our code of ethics to bring it up unless it is a clear, serious violation.
All of this points to the need for an open-file policy, especially in capital cases, so these accusations cannot be made successfully.
While I agree that providing access to your file will solve much of the "hidden evidence" complaints, an open file policy won't protect you from everything: e.g, the claim regarding the juror-witness relationship that Beck mentioned. And even with an open file policy, you have to maintain some private work-product, which will no doubt lead to the defense claiming that some of that concealed discoverable material. Not to mention evidence that you never knew about, which they turn up later and claimed you hid from them, since it wasn't in your open file.
The problem is, if we are going to have an adversarial system, we are going to turn lawyers into adversaries. While many lawyers may be able to avoid falling into the trap of thinking the other side is the enemy, there are going to be lawyers who really do think that prosecutors have no motive but to seek convictions, and really think that we are the unethical ones, and simply assume that we are going to hide everything we can and do whatever it takes to convict their clients, guilty or not. You're not going to be able to convince them otherwise, because they don't trust you to begin with.
That is the maddening thing, Ken. here in Tarrant County, our files are as open as they can possibly be. We give everything and the defense bar maintains their own copier here on our floor!
Be careful about depending on a open file for Brady. I think there is case law out there that says a open file policy is not sufficient to meet Brady requirements.
See now that just hacks me right off.
So not only have I opened the whole file and played my hand with my cards face up, I'm responsible for highlighting, underlining, flagging, copying, illuminating, and stressing the most innocuous moments of my case file just in case the defense attorney doesn't bother to read the whole file?
Seems like we're one stray judge from providing a little bowl of candy and a diaper change too.
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