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Tuesday, May 10, 2005

Dis-Grace-ful

Over at the Legal Ethics Forum, a blog to which I regularly contribute, I discuss the Nancy Grace case. For those of you who haven’t been following this, Nancy Grace is the CNN/Court TV commentator who was recently chastised by the 11th Circuit for having "played fast and loose" with her ethical duties as a Fulton County, Georgia prosecutor in 1990. See Stephens v. Hall, No. 03-15251 (11th Cir., May 2, 2005).

As a public defender with an interest in legal ethics, I’ve continued to ponder the case and wonder what, if anything, can be done.

Yesterday I had lunch with two noted legal ethics scholars, Monroe Freedman and Roy Simon (both currently teaching at Hofstra, where I will be visiting come August), and Grace’s conduct came up in conversation. Both professors Freedman and Simon wondered if a disciplinary action could be filed against Grace in

Georgia, potentially resulting in public censure or the loss of her bar license (presumably inactive, but probably still functioning).

Granted, Stephens was originally tried in 1990 (fifteen years ago), but the case obviously is still active, as evidenced by the 11th Circuit’s recent opinion. Grace's conduct in the Stephens case, combined with Grace’s other problematic conduct as a prosecutor--resulting in two censures (and one reversal) from the Georgia Supreme Court, in 1994 and 1997, for withholding evidence and improper summations--shows this was not just a one-time incident.   I think that a case could be made to disbar her.

Of course, whether this would help or hurt her burgeoning television career is another matter entirely.    My suspicion is  that  any publicity, including this current flap, will only increase her ratings.   

Posted by Laura I Appleman on May 10, 2005 at 09:27 AM in Law and Politics | Permalink

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Comments

I don’t think it’s picking on prosecutors so much as questioning whether prosecutors’ ethical violations are excused, or simply not reviewed, by disciplinary committees more often than other lawyers’ misdeeds, and if so why. If, for instance, a defense lawyer did something analogous to a serious Brady violation—like consciously secret non-privileged evidence from the authorities—it surely would be deemed obstruction of justice, and the matter quickly would be referred to the relevant disciplinary committee, if the lawyer not arrested. And properly so. A defense lawyer with the judicially-embossed ethical record of Nancy Grace certainly would be viewed differently than Grace seemingly still is. So why the sense that no disciplinary action generally results when a prosecutor does something like suppress material exculpatory evidence, even in a death penalty case, as we all have seen happen over time? Is this impression consistently accurate? Does the remedy of reversal of a defendant’s sentence or conviction cause the legal community not to care about sanctioning individual prosecutors or their offices—no harm no foul? Is the legal community seeking to protect prosecutors from fearing every discretionary ethical decision with which they are charged? Does society simply tolerate a certain degree of over-zealousness in the pursuit of convictions, whereas the reverse is not true? Something else, perhaps?

Posted by: Brooks | May 10, 2005 12:33:38 PM

Thanks, Roy and John. I wonder why New York and New Jersey are the only two states that censure entities, not just individual lawyers?

I don't mean to pick only on prosecutors here. But I know from personal experience that the defense bar has a third party always prepared to file a discliplinary complaint--the criminal defendant. Unfortunately, sometimes these discplinary complaints are filed due to the client's dissatisfaction with defense counsel's job (i.e., losing at trial), not for ethical violations. Certainly public defenders get used to having disciplinary actions filed against them on a semi-regular basis.

Posted by: Laura | May 10, 2005 12:02:56 PM

I think that Bruce Green (Fordham), Fred Zacharias (USD), and others whose names escape me have written on the dearth of disciplinary cases for prosecutors.

Posted by: John Steele | May 10, 2005 11:54:39 AM

Censuring an entire office might be more effective than just censuring an individual prosecutor, especially if the D.A. and other high ranking supervisors did little or nothing to discourage the misconduct (or even tacitly encouraged it with a "win at all costs" or "we won't get caught" attitude). But currently New York and New Jersey are the only states that subject law firms as entities to professional discipline.

Posted by: Roy Simon | May 10, 2005 11:02:03 AM

Brooks,

You raise a good point that disbarment may be a little severe, even in such egregious cases such as Nancy Grace. I agree with you that in the heat of trial, mistakes can be made, and should not always be punished. But certainly Grace's repeated ethical violations as a prosecutor merit some initiation of a disciplinary action--it's not like this was a one-time thing with her, as evidenced by the two Georgia Supreme Court cases.

More generally, I have not looked into whether prosecutors are ever disciplined for Brady violations. My sense, at least in NYC, is no. I wonder if censuring an entire office would be more effective than just censuring the individual prosecutor? As you point out, often there are immense institutional pressures, and if a prosecutor's office has repeated ethical violations, perhaps censure should be directed from the top down.

Posted by: Laura I Appleman | May 10, 2005 10:49:48 AM

Laura—I wondered whether you have looked much into the more general question of how often prosecutors have, or have not, been disciplined for ethical violations relating to their courtroom advocacy. I am particularly curious about Brady violations. I cannot recall reading about a prosecutor being professionally disciplined for even an egregious Brady violation. The prevailing view, I sense, is that whatever remedy a defendant achieves in his or her criminal case is sanction enough. While this result may motivate prosecutor’s offices to change policy, it does little, in my mind, to motivate individual prosecutors, particularly if they have competing institutional pressures to lock-down cases. Nevertheless, having spent enough time in the trenches of criminal trial work, I am reluctant to see every instance of over-zealous prosecutorial advocacy transformed into a disciplinary proceeding. And, I am always reluctant to start a conversation about a disciplinary inquiry with talk of someone’s disbarment. Disbarment is a very serious position to take that I think should be an unavoidable end point, not the presumptive starting point, to such an ethical investigation (except, of course, with automatic 86’ers, like a felony conviction).

Posted by: Brooks | May 10, 2005 10:30:08 AM

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