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Prosecutor to his witness: “That is defendant’s lawyer. You do NOT have to talk with him”

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As in the rest of life inside and outside of various professions, we have good apples, bad apples, and everything in between with prosecutors. Actually, being human, people fluctuate from day to day and moment to moment, sometimes being at their best, at their worst and in between, including one of my once more favorite prosecutors who went out of the character I had set up for him when he opened the windowed courthouse conference room door I was in with my client without knocking (violating the sanctity of attorney-client confidentiality), let alone seeking my okay to open the door, and started talking about the case (contrary to the ethics rule prohibiting lawyers from discussing the case with a represented party without their lawyer’s permission).

Some prosecutors earn well-deserved reputations for years as heartless and unpleasant at best. One of them recently left his nearby prosecutor’s office. If he goes into private practice for criminal defense, I wonder how many criminal defense colleagues will bother returning his phone calls or emails for advice, after the repeated times he showed no humanity as a prosecutor. He may wish to have War And Peace by his side during those long silences waiting for a criminal defense lawyer to call back.

Another such prosecutor has remained a prosecutor for years, surviving several changes of chief prosecutors in his office, and seems to stay up at night devising devious new ways for criminal defense lawyers not to like him. For instance, one day when I went to speak in court with a civilian witness subpoenaed by the prosecutor in a misdemeanor case he was prosecuting, without even saying “excuse me”, this prosecutor firmly exhorted the witness: “Mr. Jones: That is defendant’s lawyer. You do NOT have to talk with him.” I replied firmly to this prosecutor about how inappropriate his coaching reply was.

The lawyers ethics rules and governing law generally prohibit lawyers, including prosecutors, from advising or encouraging non-party witnesses from talking with opposing lawyers. Just in case anyone was going to call me paranoid about my view that too many prosecutors and police do just that, I have such proof on paper, all the more pathetically because it involves President Obama’s and Loretta Lynch’s own Justice Department, where I do not think that President Obama wants prosecutors playing dirty. I am wondering at what prosecutorial echelons the following prosecutorial behavior was approved, and whether the offending prosecutors who devised and directed such behavior have been disciplined for it. Here, the offending behavior only was discovered because prosecutors admitted it when confronted; not all prosecutors will admit to such misbehavior.

On October 9, 2015, U.S. District Judge Gerald Bruce Lee (E.D. Va., Alexandria) determined that federal prosecutors in a pending white collar felony prosecution being defended by the federal public defender’s office, had improperly asked prosecution witnesses to let them know about defense requests to speak with them, and to arrange for a federal agent to be present for such discussions. Judge Lee issued a remedy of granting the defendant’s  motion to continue the trial date for three weeks, and also directed the prosecutors to send the witnesses letters on judicial letterhead that such requests to prosecutorial witnesses was improper, and to tell them of their option to speak with defense counsel.

The Eastern Districti of Virginia in Alexandria is generally a more favorable forum for the prosecution side with juries than in neighboring District of Columbia and Maryland. That makes this prosecutorial misstep all the more pathetic and potentially damaging to civil liberties.

Praised be Judge Lee for this order, as much as it is only a band aid, because it does not rule out other prosecutorial misconduct that has not been discovered, and does not govern state-level prosecutors nor federal prosecutors in other districts. How many prosecutors are continuing to pursue such underhanded, at best, behavior, without that behavior seeing the light of day?

Prosecutors: Fight fairly and within the bounds of the law, and with a heart and empathy.