My students have been quite interested in the complaints filed against now-Justice Brett Kavanaugh, so I prepared some materials for our class today. I have a set of slides I’m happy to share – email me @ email@example.com. For quick research, two pieces I can recommend, both from Russell Wheeler @ the Brookings Institute, are the recent short but concise and clear summary article “What’s happening with the ethics complaints against Brett Kavanaugh?” along with 56 Ariz. L. Rev. 479 (2014), A Primer on Regulating Federal Judicial Ethics.
I discuss who polices the judges in a recent interview with the Texas Standard: http://www.texasstandard.org/stories/when-a-defendant-is-mistreated-in-court-who-polices-the-judges/ This four minute clip is great conversation-sparker to play in class if you are teaching judicial ethics.
The first African-American state attorney in Florida history, Aramis Ayala, made national news this spring when she announced that she would never seek the death penalty in any of her cases. As a result, Florida Governor Rick Scott transferred two dozen cases to another prosecutor in the state from another county, one known to be a death penalty proponent. Ayala’s claims that these cases should be returned to her jurisdiction were heard by the Florida Supreme Court on Wednesday, June 28.
The following article from the Miami Herald (June 29. 2017) provide a good overview of the Supreme Court hearing. This is a great case for highlighting the competing roles and professional responsibilities of the prosecutor. Keep a lookout for the Florida Supreme Court’s forthcoming decision in a case that has many legal experts filing briefs already on all sides of the issue.
Extrajudicial Statements Featuring Displays of Seized Contraband Are Prohibited by Rule of Professional Conduct 3.6 and 3.8 according to the recently issued Opinion 731 of the New Jersey Supreme Court’s Advisory Committee on Professional Ethics.
The Committee rejected a prosecution request to relax New Jersey’s long-standing stricture on prosecutorial display of contraband. The ACPE adhered to the plain language of RPC 3.6 (Trial Publicity):
(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
The Inquiring prosecutor argued that the display of seized drugs and paraphernalia would be an educational deterrent to drug abuse – particularly in light of the opioid use crisis which is a current focus of the administration of Governor Chris Christie. The Governor has appeared in a series of television advertisements urging users to seek treatment.
The Inquirer found support in RPC 3.6 (d) which provides:
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
The ACPE rejected the Inquirer’s argument. It relied on RPC 3.8 (Special Responsibilities of a Prosecutor) which provides, in part:
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6 or this Rule.
According to an article in the New Jersey Law Journal the Inquirer’s request found little support – even among prosecutors. The Supreme Court Committee’s rulings are binding on the entire bar subject to discretionary review by the Supreme Court itself. It is expected that the Inquirer will seek such review.
According to a recent opinion from the New York City Bar’s Ethics Committee, a prosecutor’s ethical obligation to disclose evidence favorable to a defendant is broader than the constitutional minimums imposed by the Supreme Court in Brady v. Maryland.
Under the holding in Brady, prosecutors are only required to provide the defense with exculpatory evidence that is “material either to guilt or to punishment.” The materiality standard in Brady has been the subject of great criticism, prompting a divide on the issue of whether the lawyer conduct rule governing prosecutors’ disclosure contradicts federal constitutional standards.
New York City Bar’s Ethics Committee concluded that New York Rule of Professional Conduct 3.8(b)requires a prosecutor to turn over to the defense any exculpatory evidence regardless of whether the prosecutor believes it is “material.” Opinion 2016-3 reaffirms the position taken by the ABA in 2009, which advised that the ethical obligations imposed by Rule 3.8 are more demanding than the standard in Brady, because Rule 3.8 requires disclosure of any evidence or information favorable to the defense regardless of the prosecutor’s assessment of the impact on a trial’s outcome. The New York opinion also notes that under Rule 3.8 favorable information must be provided to the defense “as soon as reasonably practicable,”regardless of the timing requirements of other substantive law.
The New York City opinion can be read here.
The Alabama Court of the Judiciary on May 7 filed a complaint against Chief Justice Roy Moore for obstruction of the duty of Probate Judges to comply with the order of a federal court. Moore has been suspended with pay. Moore was previously removed for defiance of an order to remove the Ten Commandments monument from the courthouse. He was reelected.
The Court of the Judiciary complaint relates to a January 6, 2016 Administrative Order by Moore which – after Obergefell v. Hodges – declared “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act [which]remain[s] in force and effect.”
The Court asserts six counts of violation of the Code of Judicial Conduct, including Canon 2A for failure to respect and comply with the law”.