2 21 12 Filing Ready Sanctions Motion in Rcr11-063341 With 2 Law Reviews Attached On Prosecutorial Misconduct

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Document Code:
Zach Coughlin,Esq.
121 River Rock St.
Reno, N !"#$1
%ele: &&#'((!'!11!
De)endant
*+S%,CE C-+R% REN- %-.NS/,0
.1S/-E C-+N%2, NE1D1
State o) Nevada3
0lainti)),
vs.
Z1C/1R2 41R5ER C-+6/7,N3
De)endant.
Carl /8lin, .C0D *oe 6oodnight, DD1 Zach
2oung, inter9led 9arties, real 9arties in interest
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C1SE N-: ;;;
DE0%. <e)ore *udge S)erra==a
>-%,-N ?-R S1NC%,-NS 1ND
1%%-RNE2@S ?EES
0-,N%S 1ND 1+%/-R,%,ES
CoughlinADe)endant, Zach Coughlin, Esq., here<8 )iles >-%,-N ?-R S1NC%,-NS 1ND
1%%-RNE2@S ?EES <ased on the 9a9ers on )ile in this action, all corres9ondence <etBeen
6oodnight, Coughlin, DD1 2oung, /8lin, and others, and the 9oints and authorities herein
contained. Court'a99ointed attorne8 as su<Cect to lia<ilit8 under D2 +.S.C.1. E 1"!(. (F 1.7.R. ?ed.
#"D G-riginall8 9u<lished in 1"&!:. 0u<lic de)enders are not immune )rom lia<ilit8 under D2
+.S.C.1. E 1"!( )or alleged con' s9irac8, Bith state o))icials, under color o) state laB, to de9rive
clients o) )ederal rights. %oBer v. 6lover, DF& +.S. "1D, 1$D S. Ct. 2!2$, !1 7. Ed. 2d &#! G1"!D:.
0u<lic de)ender ma8 <e held lia<le under E 1"!( i) he or she engaged in a cons9irac8 Bith o))icials
acting under the color o) state laB to de9rive a 9erson o) a right secured <8 the Con' stitution. D2
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Coughlin@s >otion )or Sanctions 1gainst 0u<lic De)ender 6oodnight and DD1 2oung
in D2
RCR2011-063341
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+.S.C.1. E 1"!(. .arren v. ?ischl, (( ?. Su99. 2d 1&1 GE.D.N.2. 1""":. Count8 9u<lic de)ender
acted under Hcolor o) state laBH in )ailing to request indigenc8 hearing on <ehal) o) motorist
convicted and )ined )or misdemeanor reckless driving, 9rior to motorist@s incarceration )or )ailure to
9a8 his )ine, )or 9ur9ose o) E 1"!( action against count8 9u<lic de)ender@s o))ice, alleging that it had
a 9olic8 or custom o) )ailing to seek such indi' genc8 hearings3 the act o) not requesting indigenc8
hearing Bas administrative, as it Bas due to the o))ice@s alleged s8stemic inaction. D2 +.S.C.1. E
1"!(. 0oBers v. /amilton Count8 0u<lic De)ender Com@n, #$1 ?.(d #"2 GFth Cir. 2$$&:. 199ointed
de)ense attorne8 Bas not immune )rom action under D2 +.S.C.1. E 1"!( and E 1"!#, either in his
oBn right or derivativel8 )rom alleged co'cons9irators@ a<solute immunit8, )or cons9irac8 Bith Cudge
and 9rosecutor to im9anel all'Bhite Cur8 )or de)endants criminal tri' al and ma8 <e regarded as having
acted under color o) state laB in vieB o) cons9irac8 alleged Bith 9u<lic o))icals. .hite v 4loom
G1"!$, C1! >o: F21 ?2d 2&F. 1ttorne8@s lia<ilit8 )or mal9ractice in connection Bith de)ense o)
criminal case, #( 1.7.R.(d &(1. Negligence, inattention, or 9ro)essional incom9etence in handling
client@s a))airs as ground or disci9linar8 action, "F 1.7.R.2d !2(.
*oe 6oodnight has indicated to his client, Coughlin, that his su9eriors at the .C0D have
made him )eel uncom)orta<le doing much in the Ba8 o) de)ending Coughlin, and that doing so Bith
much =eal Bould adversel8 a))ect his o99ortunities )or advancement at the .C0D and 9erha9s even
his Co< securit8. ,ne))ective 1ssistance o) Counsel, # 1m. *ur. 0roo) o) ?acts 2d 2F& Strategies )or
En)orcing the Right to E))ective Re9resentation, DF 1m. *ur. %rials #&1 1voiding 7egal >al9ractice
Claims in 7itigation, DF 1m. *ur. %rials (2# 0risoners@ Rights litigation, 22 1m. *ur. %rials 1 1ctions
1gainst 1ttorne8s )or 0ro)essional Negligence, 1D 1m. *ur. %rials 2F# Cause o) 1ction )or
>al9ractice 1gainst De)ense 1ttorne8 )or ,ne))ective Re9resentation During 0retrial 0hase o)
Criminal Case, D2 Causes o) 1ction 2d &$&. 4ines, Remed8ing ,ne))ective Re9resentation in
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Criminal Cases: De9artures )rom /a<eas Cor9us. #" a 7 Rev "2& >allen, %he Court'199ointed
7aB8er and 7egal >al9racticeI7ia<ilit8 or ,mmunit8. 1D 1m Crim 7 Rev #" Note, Remed8ing
,ne))ective Re9resentation <8 0u<lic De)endersI1n 1dministrative 1l' ternative to %raditional Civil
1ctions. F$ >inn 7 Rev 12( Note, %he Right o) the ,ndigent Client to Sue /is Court'199ointed
1ttorne8 )or >al9rac' tice. (( 7a 7 Rev &D$. ,n each o) the )olloBing cases, a 9u<lic de)ender Bas
held not to <e immune )rom lia<ilit8 )or 9ro)essional mal9ractice. ,n S9ring v Constantino G1"&#: 1F!
Conn #F(, (F2 12d !&1, an action <8 a state criminal de)endant against a 9u<lic de)ender )or
mal9ractice, the court held that an attorne8 occu98ing the 9osition o) 9u<lic de)ender and assigned to
re9resent an indigent de)endant did not enCo8 immunit8 )rom lia<ilit8 )or 9ro)essional mal9ractice.
Stating that a 9u<lic de)ender is like an8 other attorne8 Bhose duties as an o))icer o) the court and to
an individual client and Bhose 9rinci9led and )earless conduct o) the de)ense are not deterred <8 the
9ros9ect o) lia<ilit8, the court reCected the contention o) the 9u<lic de)ender that the doctrine o)
Cudicial immunit8 should <e e;tended to 9u<lic de)enders on the ground that the immunit8 rule is
designed to 9romote 9rinci9led and )earless decisionmaking <8 removing the )ear that unsatis)ied
litigants might <ring harassing actions. %he court also reCected the contention that the common'laB
doctrine o) sovereign immunit8 Bhich e;tends to 9u<lic o))icials a99lied to a mal9ractice ac' tion
<rought against a 9u<lic de)ender, sa8ing that a 9u<lic de)ender, in re9resenting an indi' gent, is not a
9u<lic o))icial, since even though the state must insure that indigents are re9res' ented <8 com9etent
counsel, it could not <e argued that the actual conduct o) the de)ense o) an individual is a
governmental act. %he court also reCected the third suggested ground o) im' munit8: the statutor8
immunit8 o) 9u<lic o))icers and state em9lo8ees. %he court said that Bhile it Bas true that a 9u<lic
de)ender could <e told Bhen he is to Bork and Bithin Bhat area, those elements o) control Bere
indicia o) the master'servant relationshi9 and incidents o) a 9u<lic de)ender@s em9lo8ment Bhich are
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not Bithin the sco9e o) the attorne8'client relation' shi9. Stating that the inde9endence o) the 9u<lic
de)ender Bas a ke8 constitutional under9in' ning o) the 9u<lic de)ender s8stem, the court said that
other than the source o) the 9u<lic de' )ender@s com9ensation, the relationshi9 o) 9u<lic de)ender and
client is the same as that o) 9rivatel8 em9lo8ed counsel and client. 1 9u<lic de)ender Bas held not to
<e immune )rom lia<ilit8 )or mal9ractice, in Reese v Dan)orth G1"&": D!F 0a D&", D$F 12d &(#, F
17RDth &#!, ,n holding that the 9u<lic de)ender Bas not a 9u<lic o))icial entitled to immunit8, the
court said that the overriding dut8 o) =eal' ous re9resentation o) a client@s interest attaches to the role
o) the 9u<lic de)ender and thus the 9er)ormance o) that dut8 <8 the de)ender Bas similar to the
9er)ormance o) 9rivatel8 retained counsel. Stating that the relationshi9 <etBeen the count8 and the
9u<lic de)ender Bas similar to that <etBeen an inde9endent contractor and the 9art8 contracting his
services, the court said that Bhile the availa<ilit8 o) court'a99ointed counsel to re9resent indigents is
indu<ita<l8 the 9u<lic <usiness, once the a99ointment o) a 9u<lic de)ender in a given case is made,
his state or 9u<lic )unction ceases and therea)ter he )unctions 9urel8 as a 9rivate attorne8 concerned
Bith servicing his client, and his 9ro)essional relationshi9 Bith his client takes on all the o<liga' tions
and 9rotections attendant u9on a 9rivate attorne8'client relationshi9 e;ce9t that the 9u<' lic 9a8s the
attorne8@s )ee. %he court also reCected the contentions that not granting immunit8 to the 9u<lic
de)ender Bould hinder the recou9ment o) a<le laB8ers to re9resent indigents, and Bould inhi<it the
de)ender@s 9ro)essional discretion in declining to 9ress the )rivolous, to assign 9riorities <etBeen
indigent litigants, and to make strategic decisions Bith regard to a 9articular litigant as to hoB his
interest ma8 <est <e advanced. ,n the )olloBing case, a 9u<lic de)ender Bas held not lia<le )or the
mal9ractice o) one o) his de9uties. 1 9u<lic de)ender Bas held not to <e lia<le solel8 <8 virtue o) his
o))ice, )or the mal9rac' tice o) one o) his de9uties, in Sanche= v >ur9h8 G1"&D, DC Nev: (!# ? Su99
1(F2. Stating that the 9ro)essional relationshi9 <etBeen court'a99ointed counsel and indigent
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criminal de' )endants under 9u<lic de)ender s8stems is no di))erent than that <etBeen a client and
9rivatel8 retained counsel, the court Bent on to sa8 that the relationshi9 o) the 9u<lic de)ender and his
de9uties among themselves Bas not a 9artnershi9 relationshi9, since the economic Custi)ica' tion )or
holding one 9artner lia<le )or the misconduct o) another 9artner Bas grounded on the )act that )ees )or
services are shared, Bhereas each o) the 9u<lic de)ender attorne8s Bas com' 9ensated inde9endentl8
<8 salar8 )or his oBn services. Stating that a de9ut8 9u<lic de)ender is an inde9endent o))icer, the
court noted that there Bas su<stantial authorit8 in su99ort o) the rule that in the a<sence o) statute
im9osing lia<ilit8 or o) negligence on his 9art in a99ointing or su9ervising his assistants, a 9u<lic
o))icer is not lia<le )or the de)ault and mis)easance o) assistants a99ointed <8 him. Related
1nnotations are located under the Research Re)erences heading o) this 1nnotation. C+>+71%,E
S+007E>EN% Cases: 0lainti))@s mal9ractice action against 9u<lic de)ender Bas not 9recluded <8
quasi'Cudicial immunit8. .ilco; v. 4rummer, &(" So. 2d 12!2 G?la. Dist. Ct. 199. (d Dist. 1""":.
0u<lic de)ender attorne8s Bere not entitled to sovereign immunit8 )rom legal mal9ractice claims
<rought <8 )ormer client convicted in criminal case and later e;onerated3 attorne8s@ dut8 to client
arose inde9endentl8 o) their state em9lo8ment. *ohnson v. /alloran, (12 ,ll. 199. (d F"#, 2D# ,ll.
Dec. D$!, &2! N.E.2d D"$ G1st Dist. 2$$$:, a99eal alloBed, 1!" ,ll. 2d F!! G2$$$:. %he court in
D=iu<ak v >ott G1""(, >inn: #$( N.2d &&1 held that a 9u<lic de)ender is immune )rom lia<ilit8 )or
mal9ractice: ,n contrast, the court in eneri v 0a99ano G1""(, 0a Su9er: F22 12d "&& noted that a
9u<' lic de)ender is not immune )rom lia<ilit8 )or mal9ractice.
1ttorne8@s lia<ilit8 )or mal9ractice in connection Bith de)ense o) criminal case, #(
1.7.R.(d &(13 %he inde9endence o) the 9u<lic de)ender is o) utmost im9ortance to its duties to
indigent de)endants. Crist v. ?lorida 1ss@n o) Criminal De)ense 7aB8ers, ,nc., "&! So. 2d 1(D G?la.
2$$!:. %rial court@s comments on 9erceived de)iciencies o) 9u<lic de)ender s8stem, made in its order
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den8ing de)endant@s request )or (#Jda8 9retrial continuance o) ca9ital murder trial, did not create a
con)lict o) interest <etBeen de)endant and 9u<lic de)ender Bhich required 9u<lic de)ender to
BithdraB )rom the re9resentation. Su9. Ct. Rules, Rule (.1($, Rules o) 0ro). Con' duct, Rule 1.1FGa:.
?urnish v. Com., "# S...(d (D G58. 2$$2:, as modi)ied, GDec. 1$, 2$$2:.
1t the hearing on the Com9etenc8 Evaluation, *udge S)erra==a could <e heard, during a
recess, making an e;cited utterance Bherein he commented that the <ill )or the ridiculous, <aseless,
and clearl8 motivated <8 a retaliator8 intent request )or a Com9etenc8 Evaluation made <8 0D /8lin
Bould not <e acce9ted <8 the Reno *ustice Court, and that it Bould <e returned to the 0u<lic
De)ender@s -))ice and the8 could 9a8 the <ill )or the Com9etenc8 Evaluation i) the8 Banted to Baster
mone8 so <ad.
>r. 6oodnight, 0lease 9rovide, in Briting an inventor8 o) ever8thing 8ou <elieve 8ou have 9rovided
me. ?urther, 8our )li9 disregard and non res9onse in relation to m8 ?-,1 requests and other
requests, made in Briting, asking 8ou to )ile a >otion to Dismiss, and other motions is trul8 trou<ling
and re)lects e;ceedingl8 9oorl8 on 8our level o) 9ro)essional res9onsi<ilit8. ,n )act, , have
commenced an inquir8 into Bhether 8ou have EER )iled a >otion to Dismiss on <ehal) o) 1N2
client and, similarl8, Bhether 8ou, in 8our long tenure at the .C0D have ever asked )or sanctions o)
an8 sort against the D1. ,n court, at a hearing )eaturing DD1 2oung, 8ou Balked over to DD1
2oung@s )ile, Bithout a hint o) consternation )rom DD1 2oung, and ri)led through his )ile looking )or
something, 8et 8ou den8 me access to m8 )ile. %hat sort o) )raterni=ation Bith the D1@s -))ice G8ou
still have not ansBered Bhether DD1 2oung Bas in 8our retinue at the )ree trade co))ee 9lace that
da8 , saB 8ou on the street: is ina99ro9riate an re)lects 9oorl8 on the legal 9ro)ession and the
.C0D@s -))ice, 9articularl8 in the conte;t o) 8our m8riad re)usals to )ile even a single document in
m8 de)ense, 8ou cohorts )orcing me into a <urdensome and insulting Com9etenc8 Evaluation, 8our
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non res9onse to m8 ?-,1 request, the 9atentl8 retaliator8 )alsehoods >r. /8lin attri<utes to *essica,
8our rece9tionist, >r. 4osler@s hiring <8 D1 6ammick, and all the other 1(th chimes o) the clock one
hears in the ta9e )rom this case. *ust a )eB turns on the EK, and this case could <e a s8m9hon8 o)
trans9arenc8.
Coughlin )urther moves )or sanctions against 0u<lic De)ender 6oodnight and DD1 2oung
9ursuant to NRS &.$!#, )or the attorne8s@ )ees Coughlin has needlessl8 incurred due to 6oodnight@s
and 2oung@s coBardl8, lethargic, largesse and reckless uses o) this court@s 9rocesses.
ANALYSIS
,) a De9ut8 District 1ttorne8 has in his or her 9ossession e;cul9ator8 video and audio evidence, in
addition to audio and video evidence Bhich shoBs material Bitnesses not onl8 com9letel8
contradicting themselves, <ut also seeking to dissuade other material Bitnesses )rom testi)8ing, it
Bould <e trou<ling to see that De9ut8 District 1ttorne8 or someone )illing in )or him as some
9reliminar8 hearing to continue to a99ear in court and stand <ehind the Criminal Com9laint, all Bhile
collecting a 9a8check that is more and more 9ut into rather stark relie) in com9arison to that Bhich
similarl8 e;9erienced and educated inviduals garner in the 9rivate sector. ?urther, i) other material
Bitnesses can <e seen in audio and video evidence assaulting and <attering an investigator asking
questions related to e;cul9ating the accused in a matter, it Bould <e all the more trou<ling to see a
9rosecutor continue to a99ear in court advocating orall8 and )iling documents in su99ort o) the
allegations o) the criminal com9laint.

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,t is im9ortant to clari)8 statements made in court toda8 Bith res9ect to Bhether NRC0 Rule 11
sanctions ma8 <e levied against a 9rosecutor. Such a 9ro9osition Bas met Bith general dou<t toda8.
/oBever, Nevada laB is quite clear in this regard. Clearl8, the8 can.

Contrar8 to an8 indication in court toda8, the D1 does not 9la8 Bith some sort o) s9ecial sa)et8 net
the rest o) the attorne8s in the state )ail to have:
-))ice o) .ashoe Count8 Dist. 1tt8. v. Second *udicial Dist. Court e; rel. Count8 o) .ashoe, 11F
Nev. F2", # 0.(d #F2 G2$$$: . %he D1 a<solutel8 is su<Cect to NRC0 11, and so is an8 Bith the
.ashoe Count8 0u<lic De)ender@s -))ice. H,n a case <rought <8 the district attorne8 to en)orce a
.ashington child su99ort order in Nevada, the district court im9osed NRC0 11 sanctions against the
district attorne8 )or )ailing to discontinue en)orcement o) the su99ort order a)ter the district court@s
9revious ruling that .ashington had continuing e;clusive Curisdiction to adCudicate the arrearage
amount.H District attorne8@s o))ice, as a non'9art8 in underl8ing 9roceedings to en)orce out'o)'state
child su99ort order, did not have right to a99eal district court@s order im9osing Rule 11 sanctions
against the o))ice, and thus Brit o) mandamus Bas an availa<le remed8. -))ice o) .ashoe Count8
Dist. 1tt8. v. Second *udicial Dist. Court e; rel. Count8 o) .ashoe, 2$$$, # 0.(d #F2, 11F Nev. F2".
District Cudge a<used his discretion in im9osing L2,#$$ sanctions against cit8 manager and cit8
attorne8 )or their alleged )ailure to 9artici9ate in good )aith in settlement con)erence and, there)ore,
9etition )or Brit o) mandamus to 9revent district court )rom en)orcing sanctions Bould <e granted3
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sanctions levied did not )it 9ur9orted violations at issue. Cit8 o) S9arks v. Second *udicial Dist. Court
,n and ?or Count8 o) .ashoe, 1""F, "2$ 0.2d 1$1D, 112 Nev. "#2.
,n the +nited States Su9reme Court case o) 4uckle8 v. ?it=simmons, #$" +.S. 2#", 11( S.Ct. 2F$F,
12# 7.Ed.2d 2$" G1""(:, the 9etitioner alleged the 9rosecutors and 9olice cons9ired to link the <oot
9rint at the murder scene Bith his 9rint <8 Bitness Msho99ing.N M1t the time o) this Bitness sho99ing
the assistant 9rosecutors Bere Borking hand in hand Bith the sheri))@s detectives....N ,d. at 2&2, 11(
S.Ct. 2F$F. %he Court held the 9rosecutors Bere not entitled to a<solute immunit8, stating: 1
9rosecutor@s administrative duties and those investigator8 )unctions that do not relate to an advocate@s
9re9aration )or the initiation o) a 9rosecution or )or Cudicial 9roceedings are not entitled to a<solute
immunit8. ,d. at 2&(, 11( S.Ct. 2F$F.
See 6entile v. Count8 o) Su))olk, "2F ?.2d 1D2 G2d Cir. 1""1: Gholding that a count8 district
attorne8@s long 9ractice o) ignoring evidence o) 9olice misconduct and sanctioning and covering u9
Brongdoing could make the count8 lia<le:3 Claude /. v. Count8 o) -neida, F2F N.2.S.2d "(( G199.
Div. 1""#: Gholding that district attorne8@s command that 9lainti)) <e unlaB)ull8 arrested could
su99ort action against count8 )or )alse im9risonment:.
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Nevada Rules o) 0ro)essional Conduct, Rule (.!. S9ecial Res9onsi<ilities o) a 0rosecutor.
H %he 9rosecutor in a criminal case shall: Ga: Re)rain )rom 9rosecuting a charge that the 9rosecutor
knoBs is not su99orted <8 9ro<a<le cause3 G<: >ake reasona<le e))orts to assure that the accused has
<een advised o) the right to, and the 9rocedure )or o<taining, counsel and has <een given reasona<le
o99ortunit8 to o<tain counsel3 Gc: Not seek to o<tain )rom an unre9resented accused a Baiver o)
im9ortant 9retrial rights, such as the right to a 9reliminar8 hearing3 Gd: >ake timel8 disclosure to the
de)ense o) all evidence or in)ormation knoBn to the 9rosecutor that tends to negate the guilt o) the
accused or mitigates the o))ense, and, in connection Bith sentencing, disclose to the de)ense and to
the tri<unal all un9rivileged mitigating in)ormation knoBn to the 9rosecutor, e;ce9t Bhen the
9rosecutor is relieved o) this res9onsi<ilit8 <8 a 9rotective order o) the tri<unal3 Ge: Not su<9oena a
laB8er in a grand Cur8 or other criminal 9roceeding to 9resent evidence a<out a 9ast or 9resent client
unless the 9rosecutor reasona<l8 <elieves: G1: %he in)ormation sought is not 9rotected )rom
disclosure <8 an8 a99lica<le 9rivilege3 G2: %he evidence sought is essential to the success)ul
com9letion o) an ongoing investigation or 9rosecution3 and G(: %here is no other )easi<le alternative
to o<tain the in)ormation3 G): E;ce9t )or statements that are necessar8 to in)orm the 9u<lic o) the
nature and e;tent o) the 9rosecutorOs action and that serve a legitimate laB en)orcement 9ur9ose,
re)rain )rom making e;traCudicial comments that have a su<stantial likelihood o) heightening 9u<lic
condemnation o) the accused and e;ercise reasona<le care to 9revent investigators, laB en)orcement
9ersonnel, em9lo8ees or other 9ersons assisting or associated Bith the 9rosecutor in a criminal case
)rom making an e;traCudicial statement that the 9rosecutor Bould <e 9rohi<ited )rom making under
Rule (.F or this Rule.H
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+nder 4rad8 v. >ar8land, (&( +.S. !(, !& G1"F(:, Mthe su99ression <8 the 9rosecution o) evidence
)avora<le to an accused ... violates due 9rocess Bhere the evidence is material either to guilt or to
9unishment....N+nited States v. Sha8gan, FF1 ?.Su99.2d 12!", 1(2# GS.D. ?la. 2$$": GCudge reserved
the right Mto im9ose an8 )urther sanctions andAor disci9linar8 measures as ma8 <e necessar8 against
Pthe )ederal 9rosecutorsQ a)ter revieBing the results o) the *ustice De9artmentOs investigation.N:3
+nited States v. *ones, No. CR $&'1$2!"' >7., 2$1$ .7 #F#D&! GD.>ass. 2$1$: Gcourt
determined that im9osition o) sanctions against 1+S1 or government )or )ailure to adequatel8 train
1+S1 <ased on )ailure to disclose 9lainl8 material e;cul9ator8 evidence Bere neither necessar8 nor
a99ro9riate Bhere, since violation disclosure, 1+S1, +S 1ttorne8Os -))ice and D-* o))icials took
actions such as 9artici9ating in discover8 training 9rograms, Bhich o<viated need )or sanctions:.

1s )or the 0u<lic De)ender: Ro8 4. ?lemming, ,) 2ou 0a8 the 0i9er, Do 2ou Call the %uneR 0u<lic
De)enders in 1merica@s Criminal Courts, 1D 71. S S-C. ,NK+,R2 ("( G1"!":@ Such a decision
Bould constitute an Ho<CectiveH o) the re9resentation. See >-DE7 R+7ES -? 0R-?ESS,-N17
C-ND+C% Rule 1.2Ga:3 141 Standards )or Criminal *ustice, Standard D'#.2 HControl and Direction
o) the CaseH G1""2: Gs9eci)8ing that the decisions to <e made <8 the accused a)ter )ull consultation
Bith counsel include Bhat 9leas to enter, Bhether to acce9t a 9lea agreement, Bhether to Baive Cur8
trial, Bhether to testi)8, and Bhether to a99eal:. %he laB8ers Bho characteristicall8 gravitate toBard
indigent de)ense Bould not, it seems, easil8 adCust to a 9ractice that involved adhering to a set o)
overriding institutional o<Cectives. Neither their training nor their im9ulses Bould t89icall8 9re9are
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9u<lic de)enders to <end to the o))ice@s larger goals. ,n )act, the anti'authoritarian nature o) the Bork
a99ealed to me as a sta)) laB8er. , e;9ected to re9resent m8 clients Bithout either intervention or
inter)erence )rom m8 su9ervisors. >8 clients@ o<Cectives Bere not onl8 im9ortant, <ut the onl8 ones
that mattered. , remain sensitive that <8 im9osing institutional controls that to some e;tent cur< the
re<ellious s9irit o) de)enders, the de)ender o))ice might run the risk o) changing <oth the nature o)
de)enders@ 9ractice and the t89e o) laB8ers Bho choose to Coin the o))ice.

Clearl8, i) a criminal de)endant has a legitimate and articula<le <asis )or Banting a >otion to Dismiss
)iled, it should <e )iled, even <8 a 0u<lic De)ender Bhose <oss Bas chosen, in 9art, <8 the District
1ttorne8. %his is 9articularl8 true Bhere e;cul9ator8 audio and video evidence e;ists, and even more
so Bhere e;tortion or other 9olice misconduct is evident, such as coercive attem9ts to garner consent
to search, threats to <ad mouth one to a 9ro)essional licensure <od8, e;cessive )orce, se;ual <atter8,
overcharging in a retaliator8 manner in light o) an assertion o) ?ourth or ?i)th 1mendment rights,
)alse im9risonment, etc....
48 noB, the actions o) >ichael Ni)ong, the )ormer District 1ttorne8 o) Durham Count8, North
Carolina, that led to his dis<arment are Bell knoBn. See generall8 Ro<ert 0. >osteller, %he Duke
7acrosse Case, ,nnocence, and ?alse ,denti)ications: 1 ?undamental ?ailure to MDo *usticeN, &F
?ordham 7. Rev. 1((& G2$$&:. Some argue that the situation involving Ni)ong is an isolated case. 2et
9rosecutorial overreaching has <een an issue Bell <e)ore this headline'gra<<ing case came along. 1
recent re9ort issued <8 the Cali)ornia Commission on the ?air 1dministration o) *ustice re)erred to a
stud8 that revieBed 2,1($ Cali)ornia a99ellate cases in Bhich a claim o) 9rosecutorial misconduct
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Bas raised. Cal. CommOn on the ?air 1dmin. o) *ustice, Re9ort and Recommendations on
0ro)essional Res9onsi<ilit8 and 1ccounta<ilit8 o) 0rosecutors and De)ense 7aB8ers G2$$&:,
availa<le at htt9:AABBB.cc)aC.orgAdocumentsAre9ortsA9rosecutorialAo))icialAo))icial re9ort on re9orting
misconduct.9d). -) those 2,1($ cases, DD( resulted in )indings that 9rosecutorial misconduct actuall8
occurred. ,n #( o) the DD( cases, a reversal o) conviction Bas the resultIthe rest concluding that the
misconduct Bas harmless error. 0erha9s the most distur<ing statistic is that a )olloB'u9 stud8 looking
at hal) o) the cases resulting in a reversed conviction concluded that the 9rosecutor Bas not re)erred
to the Cali)ornia State 4ar )or disci9line, Bhich is required under Cali)ornia laB. ,) there is a 9ositive
as9ect to the Duke 7acrosse saga, it is that Ni)ongOs actions and ultimate dis<arment have served to
highlight the im9ortant issue o) 9rosecutorial misconduct and the need )or e))ective remedies.
0rosecutorial >isconduct and .rong)ul Convictions: Sha9ing Remedies )or a 4roken S8stem, 2$$F
.is. 7. Rev. ("", D$( G2$$F:. >oreover, assuming that the de)endant is )actuall8 cul9a<le, a
conviction secured through the im9ro9er actions o) a 9rosecutor could <e unconstitutional and, thus,
su<Cect to reversal. %he result is that the innocent are convicted and the guilt8 go )ree, Bhich can onl8
e;acer<ate the 9u<licOs loss o) trust in the integrit8 o) the criminal Custice s8stem.
0R-SEC+%-R,17 6+,DE7,NES ,n 9er)orming their duties to seek Custice, 9rosecutors are <ound
<8 constitutional standards, case laB governing trial conduct, and various ethics rules and standards
9ertaining to the 9rosecutorial )unction. Rule (.! o) the 141 >odel Rules o) 0ro)essional Conduct
GM>odel RulesN: s9eci)icall8 covers the actions and res9onsi<ilities o) 9rosecutors. 1ll state
Curisdictions have an ethics rule im9osing s9ecial res9onsi<ilities on 9rosecutors, most <ased on
>odel Rule (.!. 0rosecutors are also guided <8 standards )ound in the 141 Standards )or Criminal
*ustice 0rosecution ?unction and De)ense ?unction G(d ed. 1""(: GM141 StandardsN: and the
National District 1ttorne8s 1ssociation 0rosecution Standards G2d ed. 1""1: GMND11 StandardsN:.
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,n assessing the conduct o) 9rosecutors, courts have o)tentimes looked to the 141 Standards )or
guidance. See, e.g., >iller v. North Carolina, #!( ?.2d &$1, &$F n.F GDth Cir. 1"&!:. ?or 8ears, the
+.S. De9artment o) *ustice GMD-*N: took the 9osition that 1ssistant +nited States 1ttorne8s
GM1+S1sN: Bere e;em9t )rom state ethics rules. %he >cDade 1mendment in 1""" laid to rest this
argument. %he amendment, attached as a rider to an a99ro9riations <ill, 9rovides: 1n attorne8 )or the
6overnment shall <e su<Cect to State laBs and rules, and local ?ederal court rules, governing
attorne8s in each State Bhere such attorne8 engages in that attorne8Os duties, to the same e;tent and
in the same manner as other attorne8s in that State. 2! +.S.C. E #($4Ga:. %he 0ro)essional
Res9onsi<ilit8 1dvisor8 -))ice Bithin the D-* 9rovides advice to 1+S1s regarding ethical issues
and choice'o)'laB matters. ET1>07ES -? 0R-SEC+%-R,17 >,SC-ND+C% M7ike the /8dra
slain <8 /ercules, 9rosecutorial misconduct has man8 heads.N +nited States v. .illiams, #$D +.S.
(F, F$ G1""2: GStevens, *., dissenting:3 see also *o8, su9ra, at D$2 Glisting numerous )orms o)
9rosecutorial misconduct:. %his article )ocuses on )ive categories: G1: su99ression o) evidence, G2:
misuse o) the media, G(: misconduct involving Bitnesses, GD: investigative misconduct, and G#: trial
misconduct. 1n8 s9eci)ic act o) 9rosecutorial misconduct ma8 )all into more than one categor8. ?or
e;am9le, knoBingl8 9resenting 9erCured testimon8 Bould <e misconduct involving a Bitness, as Bell
as a violation o) the dut8 to disclose e;cul9ator8 evidence. Ni)ong committed investigative
misconduct in devising the 9hoto arra8 that led to the arrest o) the
three lacrosse 9la8ers. %he accuser in the case, Cr8stal >angum, had <een shoBn tBo 9hoto arra8sI
one on >arch 1F, 2$$F and another on >arch 21, 2$$FIthat did not contain an8 M)illers.N Ever8
single 9icture, (F in total, that >angum looked at Bas a lacrosse 9la8er. >angum Bas una<le to
identi)8 an8 o) her alleged attackers. %hen, on >arch (1, 2$$F, Ni)ong suggested to the 9olice that
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>angum <e shoBn 9hotogra9hs o) all DF Bhite mem<ers o) the team at the same time. See
>osteller,
su9ra, at 1("!. During this 9rocedure, Bhich occurred on 19ril D, 2$$F, >angum, at the direction o)
Ni)ong, Bas told that the 9olice had reason to <elieve that all o) the men she Bas looking at Bere at
the 9art8 Bhere she Bas allegedl8 ra9ed. 1gain, the arra8 contained no M)illers.N ,n essence,
>angum
Bas told that she could not make a Brong choice. ,t Bas at this time that >angum identi)ied the
9la8ers Bho Bere later charged. %he direct consequence o) this investigative misconduct Bas the
indictment o) three innocent 9eo9le.
%rial >isconduct
0rosecutorial misconduct during the course o) trial covers a <road s9ectrum. ?or e;am9le, a
9rosecutor ma8 im9ro9erl8: introduce evidence, assassinate the character o) a de)endant, re)er to the
)act that a de)endant did not talk to the 9olice or take the stand in his or her de)ense, make
in)lammator8 statements during closing argument, or attem9t to <olster the credi<ilit8 o) a
9rosecution
Bitness. See generall8, 7aBless, su9ra, EE "J1$3 6ershman, >isconduct, su9ra, EE 1$J11.
141 Standard ('#.! and ND11 Standard !#.1 govern the sco9e o) closing arguments. %he ND11
Standard sim9l8 states: MClosing arguments should <e characteri=ed <8 )airness, accurac8, rationalit8,
and a reliance u9on the evidence or reasona<le in)erences draBn there)rom.N ND11 Standard !#.1.
%he 141 Standard goes )urther and s9eci)icall8 states that a 9rosecutor should not e;9ress his or her
9ersonal <elie) as to the veracit8 o) an8 evidence or guilt o) the de)endant. %he 141 Standard also
9rovides that a 9rosecutor should not a99eal to the 9reCudices o) the Cur8. See 141 Standard ('
#.!G<:J
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Gc:.
Case laB is )illed Bith innumera<le instances o) im9ro9er trial conductImost o) Bhich is deemed
harmless. -ne 9rosecutor Bho re9eatedl8 Bent over the line according to a99ellate courts is Ro<ert
/. >ac8, the )ormer District 1ttorne8 o) -klahoma Count8, -klahoma. See 5en 1rmstrong,
MCoB<o8 4o<N Ro9es .insI4ut at Considera<le Cost, Chi. %ri<., *an. 1$, 1""", at 1(. Called a
Mtrue
9atriotN <8 )ormer 1ttorne8 6eneral .illiam 4arr and honored as M1mericaOs 9rosecutorN <8 the
-klahoma Senate u9on his retirement in 2$$1, >ac8 le)t <ehind a string o) cases commenting
un)avora<l8 on his trial conduct. 0a;ton v. .ard, 1"" ?.(d 11"& G1$th Cir. 1""":3 .ashington v.
State,
"!" 0.2d "F$ G-kla. Crim. 199. 1""":3 -choa v. State, "F( 0.2d #!( G-kla. Crim. 199. 1""!:3
%orres
v. State, "F2 0.2d ( G-kla. Crim. 199. 1""!:3 7e v. State, "D& 0.2d #(# G-kla. Crim. 199. 1""&:3
Duckett v. State, "1" 0.2d & G-kla. Crim. 199. 1""#:3 Ro<inson v. State, "$$ 0.2d (!" G-kla. Crim.
199. 1""#:3 /aBkins v. State, !"1 0.2d #!F G-kla. Crim. 199. 1""#:3 /ooker v. State, !!& 0.2d
1(#1
G-kla. Crim. 199. 1""D:3 /oBell v. State, !!2 0.2d 1$!F G-kla. Crim. 199. 1""D:3 >cCart8 v. State,
&F# 0.2d 121# G-kla. Crim. 199. 1"!#:3 Cantrell v. State, F"& 0.2d "F! G-kla. Crim. 199. 1"!#:
G0arks, *., dissenting:. %he re<ukes seem not to have had an8 e))ect on his conduct.
Nevada Rules o) 0ro)essional Conduct Rule 1.2. Sco9e o) Re9resentation and 1llocation o) 1uthorit8
4etBeen Client and 7aB8er. Ga: Su<Cect to 9aragra9hs Gc: and Gd:, a laB8er shall a<ide <8 a clientOs
decision concerning the o<Cectives o) re9resentation and, as required <8 Rule 1.D, shall consult Bith
the client as to the means <8 Bhich the8 are to <e 9ursued. 1 laB8er ma8 take such action on <ehal)
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o) the client as is im9liedl8 authori=ed to carr8 out the re9resentation. 1 laB8er shall a<ide <8 a
clientOs decision Bhether to settle a matter. ,n a criminal case, the laB8er shall a<ide <8 the clientOs
decision, a)ter consultation Bith the laB8er, as to a 9lea to <e entered, Bhether to Baive Cur8 trial and
Bhether the client Bill testi)8. G<: 1 laB8erOs re9resentation o) a client, including re9resentation <8
a99ointment, does not constitute an endorsement o) the clientOs 9olitical, economic, social or moral
vieBs or activities. Gc: 1 laB8er ma8 limit the sco9e o) the re9resentation i) the limitation is
reasona<le under the circumstances and the client gives in)ormed consent. Gd: 1 laB8er shall not
counsel a client to engage, or assist a client, in conduct that the laB8er knoBs is criminal or
)raudulent, <ut a laB8er ma8 discuss the legal consequences o) an8 9ro9osed course o) conduct Bith
a client and ma8 counsel or assist a client to make a good )aith e))ort to determine the validit8, sco9e,
meaning or a99lication o) the laB. P1dded3 e))ective >a8 1, 2$$F.Q >odel Rule Com9arisonI2$$F
Rule 1.2 G)ormerl8 Su9reme Court Rule 1#2: is the same as 141 >odel Rule 1.2. Rule 1.(.
Diligence. 1 laB8er shall act Bith reasona<le diligence and 9rom9tness in re9resenting a client.
P1dded3 e))ective >a8 1, 2$$F.Q >odel Rule Com9arisonI2$$F Rule 1.( G)ormerl8 Su9reme Court
Rule 1#(: is the same as 141 >odel Rule 1.(.
,nvestigative >isconduct 0ressure to solve a crime might lead a 9rosecutor to get intimatel8 involved
in the 9re'trial investigation o) a matter. See 141 Standard ('(.1 GMP%Qhe 9rosecutor has an
a))irmative res9onsi<ilit8 to investigate sus9ected illegal activit8 Bhen it is not adequatel8 dealt Bith
<8 other agencies.N:. RE>ED,ES %o date, 9rosecutorial misconductIeven the most egregiousIhas
largel8 gone unchecked. See 6ershman, >isconduct, su9ra, at vi GMRelativel8 )eB Cudicial or
constitutional sanctions e;ist to 9enali=e or deter misconduct3 the availa<le sanctions are s9aringl8
used and even Bhen used have not 9roved e))ective.N:. ,n *anuar8 1""", the Chicago %ri<une
9u<lished a )ive'9art series titled: %rial S Error: /oB 0rosecutors Sacri)ice *ustice to .in. 1nal8=ing
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thousands o) cases, the neBs9a9er )ound that since 1"F( at least (!1 de)endants had their convictions
reversed either <ecause 9rosecutors su99ressed e;cul9ator8 evidence or su<orned 9erCur8.
1larmingl8, o) those (!1 cases, Mnot one o) those 9rosecutors Bas convicted o) a crime. Not one Bas
<arred )rom 9racticing laB. ,nstead, man8 saB their careers advance, <ecoming Cudges or district
attorne8s. -ne <ecame a congressman.N 5en 1rmstrong S >aurice 0ossle8, %he erdict: Dishonor,
Chi. %ri<., *an. 1$, 1""", at 1. Criminal 0rosecutions %he criminal 9rosecution o) a 9rosecutor is
e;tremel8 rare. 1ccording to the Chicago %ri<une series, MP)QeB 9rosecutors nationall8 have <een
indicted, and the8 Bere acquitted or, at Borst, convicted o) a misdemeanor and )ined.N 5en
1rmstrong S >aurice 0ossle8, 4reak Rules, 4e 0romoted, Chi. %ri<., *an. 1D, 1""", at 1 Phereina)ter
1rmstrong S 0ossle8, 4reak RulesQ. %his statistic seems not to have changed in the last nine 8ears.
Su<sequent to the %ri<une series, tBo se9arate cases Bere <rought against 9rosecutors )or acts
committed in their o))icial ca9acit83 neither resulted in convictions. %he )irst occurred in mid'1"""I
a case in Bhich three )ormer ,llinois state 9rosecutors Bere charged Bith cons9iring to )rame a man
<8 the name o) Rolando Cru= )or murder. Cru= s9ent nearl8 1$ 8ears on Death RoB <e)ore it <ecame
clear that the 9rosecution had su99ressed evidence that another 9erson had committed the crime and
that 9rosecutors had cons9ired Bith 9olice o))icers to introduce a Mdream statementN o) Cru=Os into
evidence at his original trial and tBo re'trials. 1 Cudge dismissed charges against tBo o) the
9rosecutors )or insu))icient evidence. G-ne later <ecame an ,llinois CudgeIthe other, an 1+S1.: 1
Cur8 acquitted the third a)ter a 2!'da8 trial. See 1ndreB 4luth, 0rosecutor and D Sheri)) Os De9uties
1re 1cquitted o) .rong)ull8 1ccusing a >an o) >urder, N.2. %imes, *une #, 1""", at 1".
Rule 1.D. Communication. Ga: 1 laB8er shall: G1: 0rom9tl8 in)orm the client o) an8 decision or
circumstance Bith res9ect to Bhich the clientOs in)ormed consent is required <8 these Rules3 G2:
Reasona<l8 consult Bith the client a<out the means <8 Bhich the clientOs o<Cectives are to <e
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accom9lished3 G(: 5ee9 the client reasona<l8 in)ormed a<out the status o) the matter3 GD: 0rom9tl8
com9l8 Bith reasona<le requests )or in)ormation3 and G#: Consult Bith the client a<out an8 relevant
limitation on the laB8erOs conduct Bhen the laB8er knoBs that the client e;9ects assistance not
9ermitted <8 the Rules o) 0ro)essional Conduct or other laB. G<: 1 laB8er shall e;9lain a matter to
the e;tent reasona<l8 necessar8 to 9ermit the client to make in)ormed decisions regarding the
re9resentation. ...1dded3 e))ective >a8 1, 2$$F3 as amended3 e))ective Novem<er 21, 2$$!.Q >odel
Rule Com9arisonI2$$& Rule 1.D G)ormerl8 Su9reme Court Rule 1#D: is the same as 141 >odel
Rule 1.D, e;ce9t that the 2$$& amendments include language in 9aragra9h Gc: that Bas 9reviousl8 9art
o) re9ealed Rule &.21Ga: through Gd: and G): G)ormerl8 Su9reme Court Rule 1"F.#: Bhich is Nevada'
s9eci)ic language and has no counter9art in the >odel Rules.
Disci9linar8 1ctions Each state <ar has a mechanism in 9lace )or the disci9line o)
misconduct <8 attorne8s licensed in that state. Se9aratel8, )ederal courts ma8 disci9line attorne8s
Bho a99ear <e)ore them, Bhich ma8 result in the sus9ension or dis<arment o) attorne8s )rom that
9articular court. See, e.g., ,n re 5ramer, 2!2 ?.(d &21 G"th Cir. 2$$2:. ?urther, the D-*Os -))ice o)
0ro)essional Res9onsi<ilit8 GM-0RN: has res9onsi<ilit8 )or investigating allegations o) misconduct
committed <8 1+S1s. ,t a99ears that these 9rocedures are rarel8 e))ective in dealing Bith
9rosecutorial misconduct. %he disci9linar8 action against Ni)ong is unusual in that not onl8 did it
result in dis<arment, <ut <ecause it Bas initiated Bhile charges against the Duke students Bere still
9ending. Recentl8, the Center )or 0u<lic ,ntegrit8 conducted a stud8 that )ound onl8 DD instances o)
disci9linar8 actions against 9rosecutors since 1"&$. -) those DD: R in &, the court dismissed the
com9laint or did not im9ose 9unishment3 R in (, the court remanded the case )or )urther 9roceedings3
R in 2D, the court assessed the costs o) the 9roceedings against the 9rosecutor3 R in 2$, the court
im9osed a 9u<lic or 9rivate re9rimand or censure3 R in 1, the 9rosecutor Bas 9laced on 9ro<ation3 R
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in 12, the 9rosecutorOs license Bas sus9ended3 R in 2, the 9rosecutor Bas dis<arred. Neil 6ordon,
>isconduct and 0unishment: State Disci9linar8 1uthorities ,nvestigate 0rosecutors 1ccused o)
>isconduct G2$$&:, htt9:AABBB.9u<licintegrit8.orgA9mAde)ault.as9;RactUside<ars<Said U("3 see
generall8 Steve .ein<erg et al., Ctr. )or 0u<. ,ntegrit8, /arm)ul Error: ,nvestigating 1mericaOs
7ocal 0rosecutors G2$$(:. 1 )olloB'u9 to the %ulia case discussed a<ove revealed that the 9rosecutor,
Bhose su<ornation o) 9erCur8 and 4rad8 violations led to the Brong)ul convictions o) scores o)
9eo9le, received tBo 8ears o) 9ro<ation. See Disci9linar8 1ctions, F! %e;. 4.*. &#(, &#! G2$$#:. %he
-0R has the authorit8 to determine Bhether an 1+S1 committed M9ro)essional misconduct in the
e;ercise o) his or her authorit8 to investigate, litigate or 9rovide legal advice.N +.S. De9Ot o) *ustice
-))ice o) 0ro)Ol Res9onsi<ilit8, 1nal8tical ?rameBork Grev. 2$$#:, availa<le at
htt9:AABBB.usdoC.govAo9rA)rameBork.9d). 0ro)essional misconduct is de)ined as the intentional or
reckless disregard Mo) an o<ligation or standard im9osed <8 laB, a99lica<le rule o) 9ro)essional
conduct, or De9artment regulation or 9olic8.N ,d. ,) the -0R determines that an 1+S1 committed
9ro)essional misconduct, it recommends a certain sanction to the attorne8Os su9ervisor. 1vaila<le
sanctions range )rom a Britten re9rimand to removal. %he -0R ma8 also re)er the matter to the <ar
disci9linar8 authorit8 in the Curisdiction in Bhich the attorne8 is licensed. See +.S. De9Ot o) *ustice
-))ice o) 0ro)Ol Res9onsi<ilit8, 0olicies S 0rocedures, availa<le at htt9:AABBB.usdoC.govAo9rA
9oland9roc.htm. ,n 2$$1, a 6eneral 1ccounting -))ice re9ort concluded that the -0R Bas ine))ective
in dealing Bith 9rosecutorial misconduct. See NeBs 1dvisor8, +.S. /ouse o) Re9resentatives,
Committee on the *udiciar8, 61- Re9ort ?inds Signi)icant 0ro<lems Bith *ustice De9artmentOs
-))ice o) 0ro)essional Res9onsi<ilit8 G?e<. 2$, 2$$1:, availa<le at
htt9:AABBB.Cudiciar8.house.govAlegac8AneBs$22$.htm. 1 recent highl8'9u<lici=ed case illustrates the
9ro<lem. Chie) *udge >ark .ol) o) the +.S. District Court, District o) >assachusetts )ound
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Me;traordinar8 misconduct <8 the De9artment o) *ustice in its investigation and 9rosecution o)
mem<ers o) the 0atriarca ?amil8 o) 7a Cosa Nostra.N ?errara v. +nited States, (!D ?. Su99. 2d (!D,
(!& GD. >ass. 2$$#:, a)) Od, D#F ?.(d 2&! G1st Cir. 2$$F:. Chie) *udge .ol) )ound that 1+S1
M*e))re8 1uerhahn, violated PhisQ clearl8 esta<lished constitutional dut8 to disclose . . . <e)ore trial,
im9ortant e;cul9ator8 in)ormation that directl8 negated Pincent ?erraraOs and 0asquale 4aroneOsQ
guilt onN murder charges. ,d. %he su99ression o) the evidence Bas intentional according to Chie)
*udge .ol). See id. at ("(J "!. %he ?irst Circuit agreed, stating: MP%Qhe governmentOs actions in this
case . . . 9aint a grim 9icture o) <latant misconduct. %he record virtuall8 com9els the conclusion that
this )eckless course o) conduct . . . constituted a deli<erate and serious <reach o) its 9romise to
9rovide e;cul9ator8 evidence.N ?errara v. +nited States, D#F ?.(d 2&!, 2"( G1st Cir. 2$$F: G)ootnote
omitted:. %he -0R investigated 1uerhahn and concluded that he had acted in reckless disregard o)
his dut8 to disclose e;cul9ator8 evidence. %he sanction Bas a 9rivate Britten re9rimand. Not
satis)ied, Chie) *udge .ol) initiated his oBn disci9linar8 action against 1uerhahn and Brote then'
1ttorne8 6eneral 1l<erto 6on=ales a letter on *une 2", 2$$& critici=ing the -0R. 1ssociate De9ut8
1ttorne8 6eneral David >argolis re9lied <8 letter to Chie) *udge .ol), asserting that Mthe disci9line
im9osed <8 the De9artment Bas consistent Bith, correlated to, and 9ro9ortional Bith the )indings that
resulted )rom -0ROs investigation.N 7etter )rom David >argolis to %he /onora<le >ark 7. .ol)
G-ct. 2, 2$$&:. Still not satis)ied, Chie) *udge .ol) Brote 1ttorne8 6eneral >ichael >ukase8. ,n this
letter, Chie) *udge .ol) noted that he assisted in the esta<lishment o) -0R, <ut noB has Mserious
questions a<out Bhether Cudges should continue to rel8 u9on the De9artment to investigate and
sanction misconduct <8 )ederal 9rosecutors.N 7etter )rom %he /onora<le >ark 7. .ol) to %he
/onora<le >ichael 4. >ukase8 G*an. 2, 2$$!:. %he letters ma8 <e )ound in the court )iles o) 4arone
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v. +nited States, No. "!'111$D GD. >ass. 1""!: and ?errara v. +nited States, No. $$'11F"( GD.
>ass. 2$$$:.
Sellers v. ?ourth *udicial Dist. Ct., 11" Nev. 2#F, &1 0 .(d D"# G2$$(:, <ut, see: NOTE:
Awarding Attorney's Fees to Pro Se Litigants Under Rule 11, *une, 1""&, "# >ich. 7. Rev. 2($!,
*erem8 D. S9ector. Sellers s9eaks to aBards o) attorne8@s )ees to 9revailing 9arties in civil actions.
,t does not 9ur9ort to s9eak to attorne8@s )ees aBards stemming )rom Rule 11 violation, a situation
Bhere the granting o) attorne8@s )ees to an attorne8 9ro se litigant is )ar more acce9ted throughout
1merican Curis9rudence.
%o Bit:
Mstates that have considered Bhether an attorne8 9ro9er 9erson litigant ma8 <e
aBarded attorne8 )ees are divided, Bith a slight maCorit8 9ermitting such )ees.
Decisions a99roving )ee aBards to attorne8 9ro9er 9erson litigants generall8 do so
on the <asis that an attorne8 is 9aid )or rendering legal services, and i) he renders
such services on his oBn <ehal), it results in as much 9ecuniar8 loss to him as i) he
9aid another attorne8 to render the same services. So, i) a losing 9art8 must 9a8
attorne8 )ees an8Ba8, it should make no di))erence Bhether the )ees are to <e 9aid
to an attorne8 re9resenting himsel) or another attorne8 em9lo8ed <8 him. ,n short,
Ha laB8er@s time and advice are his stock in trade.H....e inter9ret NRS F".$($ to
require that all 9ro9er 9erson litigants, Bhether attorne8 or non'attorne8, <e
o<ligated to 9a8 attorne8 )ees as a 9rerequisite )or an aBard o) 9revailing 9art8
attorne8 )ees. %his inter9retation gives e))ect to the 7egislature@s clear intent that the
9revailing 9art8 in Custice@s court <e reim<ursed <8 the losing 9art8 )or out'o)'
9ocket costs incurred to 9rosecute the suit. %o inter9ret the statute otherBise Bould
' 22 '
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require us to rede)ine Bhat is meant <8 an attorne8 )ee, Bhich is commonl8
understood to <e the sum 9aid or charged )or legal services. 4ecause >attheBs
re9resented himsel) and did not 9a8 or incur an8 o<ligation to 9a8 attorne8 )ees, the
Custice@s court e;ceeded its Curisdiction <8 aBarding such )ees. .e there)ore grant,
in 9art, the 9etition )or a Brit o) certiorari.N Sellers v. ?ourth *udicial Dist. Ct., 11"
Nev. 2#F, &1 0 .(d D"# G2$$(:.
NRS F".$($ M0revailing 9art8 alloBed attorne8@s )ee to <e ta;ed as costs in Custice court. %he
9revailing 9art8 in an8 civil action at laB in the Custice courts o) this State shall receive, in addition to
the costs o) court as noB alloBed <8 laB, a reasona<le attorne8 )ee. %he attorne8 )ee shall <e )i;ed <8
the Custice and ta;ed as costs against the losing 9art8.N
AFFIRMATION Pursuant to NRS 239B.030
%he undersigned does here<8 a))irm that the 9receding document does not contain
the social securit8 num<er o) an8 9erson.
D1%ED this Novem<er 2(
rd
, 2$11
VAsA Zach Coughlin
Zach Coughlin
' 2( '
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PROOF OF SERVICE
,, Zach Coughlin, declare:
-n Novem<er 2(rd, 2$11, ,, >r. Zach Coughlin served the )oregoing >-%,-N ?-R
S1NC%,-NS 1ND 1%%-RNE2@S ?EES3 emailing a true co98 thereo) to:
*oe 6oodnight
.C0D
Zach 2oung
.CD1
CgoodnightWBashoecount8.us3 =8oungWda.Bashoecount8.us
'''''''''''''''''''''''''''''
Zach Coughlin
' 2D '
FILING READY SANCTIONS MOTION
AND NOW ON FEBRUARY 21, 2012, COUGHLIN HEREBY FILES THIS MOTION
AND SERVES IT UPON THESE TWO ATTORNEYS VIA FAX AND DELIVERY TO THEIR
RESPECTIVE OFFICES AND DEPOSITIN IN THE US MAIL TO THE ADDRESSES LISTED FOR
EACH ATTORENY ON THIS DATE WITH THE STATE BAR OF NEVADA
From: Zach Coughlin (zachcoughlin@hotmail.com)
Sent: Tue 1/17/12 8:54 PM
To: jgoodnight@washoecounty.us

Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
ZachCoughlin@hotmail.com
Nevada Bar No: 9473
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and may
contain confidential information intended for the specified individual (s) only. If you are not the intended recipient or an agent responsible for delivering it to
the intended recipient, you are hereby notified that you have received this document in error and that any review, dissemination, copying, or the taking of any
action based on the contents of this information is strictly prohibited. This message is confidential, intended only for the named recipient(s) and
may contain information that is privileged, attorney work product or exempt from disclosure under applicable law. If you are not the
Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=11...
1 of 105 2/21/2012 7:43 AM
intended recipient(s), you are notified that any disclosure, copying, distribution or any action taken or omitted to be taken in
reliance on the contents of this information is prohibited and may be unlawful. If you receive this message in error, or are not the
named recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any copies in any form
immediately. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work product, or other
applicable privilege.
Sent: Tue 1/17/12 8:56 PM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
2 of 105 2/21/2012 7:43 AM

Subject: RE: I respectfully request a jury trial
Date: Fri, 16 Dec 2011 13:30:02 -0800
From: JGoodnight@washoecounty.us
To: zachcoughlin@hotmail.com
Mr. Coughlin,
As J udge Sferrazza explained, we don't have a right to a jury trial in your case. The pertinent statute is NRS
175.011 and the case he is likely referring to is State v. Smith, 99 Nev. 806. I've attached both to this email.
Because misdemeanors are "petty" offenses, the right to a jury trial does not attach.
Additionally I've attached Supreme Court Rule 253. It is clear that you are unsatisfied with how I am handling
your case despite my numerous attempts to arrange a meeting with you to discuss the motions you are suggesting
and consult with you in preparation for trial. Again, you have the right to represent yourself. Please let me know if
you wish to do so.
Sincerely,
J oe Goodnight

**********************************************************
Joseph W. Goodnight
Deputy Public Defender
(775) 337-4839
jgoodnight@washoecounty.us
** Notice** This message and accompanying documents are covered by the electronic
Communications Privacy Act, 18 U.S.C. 2510-2521, and may contain confidential
information intended for the specified individual (s) only. If you are not the intended recipient
or an agent responsible for delivering it to the intended recipient, you are hereby notified that
you have received this document in error and that any review, dissemination, copying, or the
taking of any action based on the contents of this information is strictly prohibited.

From: Zach Coughlin [mailto:zachcoughlin@hotmail.com]
Sent: Friday, December 16, 2011 7:04 AM
To: Sferrazza, Pete; Goodnight, J oseph W; Young, Zach
Subject: I respectfully request a jury trial
I have made clear previously that I wanted a jury trial and strenuously objected the the setting that
occurred before J udge Pearson recently and ask that I be affored my right to a jurty trial, especially to the
extent that Mr. Goodnight continues to refuse to file any of the motions I ask him to file, Motions in
Limine, Motions to Dismiss, to take any depositions, or otherwise do anything that would seem to result
in zealously advocating onmy behalf. Additionaly, Mr. Leslie ordered Mr. Goodnight not to speak at the
last hearing.

3 of 105 2/21/2012 7:43 AM

RULE 38. J URY TRIAL OF RIGHT
(a) Right Preserved. The right of trial by jury as declared by the Constitution of the State or as given
by a statute of the State shall be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving
as required by Rule 5(b) upon the other parties a demand therefor in writing at any time after the
commencement of the action and not later than the time of the entry of the order first setting the case for
trial.
[As amended; effective J anuary 1, 2005.]
(c) Same: Specification of Issues. In the demand a party may specify the issues which the party
wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so
triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days
after service of the demand or such lesser time as the court may order, may serve a demand for trial by
jury of any other or all of the issues of fact in the action.
(d) Waiver; Deposit of Jurors Fees. The failure of a party to serve a demand as required by this
rule and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury. Unless the
district in which the action is pending has adopted a local rule pursuant to Rule 83 declaring otherwise, at
the time a demand is filed as required by Rule 5(d), the party demanding the trial by jury shall deposit
with the clerk an amount of money equal to the fees to be paid the trial jurors for their services for the
first day of trial. A demand for trial by jury made as herein provided may be withdrawn only with the
consent of the parties, or for good cause shown upon such terms and conditions as the court may fix.
Zach Coughlin, Esq.
817 N. Virginia St. #2
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18
4 of 105 2/21/2012 7:43 AM
U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are not the
intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have
received this document in error and that any review, dissemination, copying, or the taking of any action based on the contents
of this information is strictly prohibited. This message is confidential, intended only for the named recipient(s) and may
contain information that is privileged, attorney work product or exempt from disclosure under applicable law. If you
are not the intended recipient(s), you are notified that any disclosure, copying, distribution or any action taken or
omitted to be taken in reliance on the contents of this information is prohibited and may be unlawful. If you receive
this message in error, or are not the named recipient(s), please notify the sender, delete this e-mail from your
computer, and destroy any copies in any form immediately. Receipt by anyone other than the named recipient(s) is
not a waiver of any attorney-client, work product, or other applicable privilege.
Sent: Tue 1/17/12 9:01 PM
To: jgoodnight@washoecounty.us; enovak@washoecounty.us

5 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Mon 1/23/12 3:20 PM
6 of 105 2/21/2012 7:43 AM

Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473

Date: Mon, 23 Jan 2012 14:14:58 -0800
Mr. Coughlin,
Why do you think a jury trial is in your best interest?
J oe Goodnight

**********************************************************
Joseph W. Goodnight
7 of 105 2/21/2012 7:43 AM
(775) 337-4839
Sent: Tuesday, J anuary 17, 2012 8:56 PM
To: Goodnight, J oseph W
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
8 of 105 2/21/2012 7:43 AM

Date: Fri, 16 Dec 2011 13:30:02 -0800
Mr. Coughlin,
As J udge Sferrazza explained, we don't have a right to a jury trial in your case. The pertinent statute is NRS
175.011 and the case he is likely referring to is State v. Smith, 99 Nev. 806. I've attached both to this email.
Because misdemeanors are "petty" offenses, the right to a jury trial does not attach.
Additionally I've attached Supreme Court Rule 253. It is clear that you are unsatisfied with how I am handling
your case despite my numerous attempts to arrange a meeting with you to discuss the motions you are suggesting
and consult with you in preparation for trial. Again, you have the right to represent yourself. Please let me know if
you wish to do so.
Sincerely,
J oe Goodnight

**********************************************************
Joseph W. Goodnight
(775) 337-4839

Sent: Friday, December 16, 2011 7:04 AM
To: Sferrazza, Pete; Goodnight, J oseph W; Young, Zach
Subject: I respectfully request a jury trial
I have made clear previously that I wanted a jury trial and strenuously objected the the setting that
occurred before J udge Pearson recently and ask that I be affored my right to a jurty trial, especially to the
extent that Mr. Goodnight continues to refuse to file any of the motions I ask him to file, Motions in
Limine, Motions to Dismiss, to take any depositions, or otherwise do anything that would seem to result
in zealously advocating onmy behalf. Additionaly, Mr. Leslie ordered Mr. Goodnight not to speak at the
last hearing.

9 of 105 2/21/2012 7:43 AM

RULE 38. J URY TRIAL OF RIGHT
(a) Right Preserved. The right of trial by jury as declared by the Constitution of the State or as given
by a statute of the State shall be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving
as required by Rule 5(b) upon the other parties a demand therefor in writing at any time after the
commencement of the action and not later than the time of the entry of the order first setting the case for
trial.
(c) Same: Specification of Issues. In the demand a party may specify the issues which the party
wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so
triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days
after service of the demand or such lesser time as the court may order, may serve a demand for trial by
jury of any other or all of the issues of fact in the action.
(d) Waiver; Deposit of Jurors Fees. The failure of a party to serve a demand as required by this
rule and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury. Unless the
district in which the action is pending has adopted a local rule pursuant to Rule 83 declaring otherwise, at
the time a demand is filed as required by Rule 5(d), the party demanding the trial by jury shall deposit
with the clerk an amount of money equal to the fees to be paid the trial jurors for their services for the
first day of trial. A demand for trial by jury made as herein provided may be withdrawn only with the
consent of the parties, or for good cause shown upon such terms and conditions as the court may fix.
Zach Coughlin, Esq.
817 N. Virginia St. #2
Reno, NV 89501
tel: 775 229-6737
fax: 949 667 7402
Nevada Bar No: 9473
** Notice** This message and accompanying documents are covered by the electronic Communications Privacy Act, 18
10 of 105 2/21/2012 7:43 AM
U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s) only. If you are not the
intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that you have
received this document in error and that any review, dissemination, copying, or the taking of any action based on the contents
of this information is strictly prohibited. This message is confidential, intended only for the named recipient(s) and may
contain information that is privileged, attorney work product or exempt from disclosure under applicable law. If you
are not the intended recipient(s), you are notified that any disclosure, copying, distribution or any action taken or
omitted to be taken in reliance on the contents of this information is prohibited and may be unlawful. If you receive
this message in error, or are not the named recipient(s), please notify the sender, delete this e-mail from your
computer, and destroy any copies in any form immediately. Receipt by anyone other than the named recipient(s) is
not a waiver of any attorney-client, work product, or other applicable privilege.
Sent: Mon 1/23/12 4:41 PM
1 attachment
scr 111 attorney nevada lawyer article on reporting conviction for crime theft.pdf
(20.9 KB)

11 of 105 2/21/2012 7:43 AM

Rule 101. Grounds for discipline. Conviction of a crime or acts or omissions by an
attorney, including contempt of a hearing panel, individually or in concert with another person,
which violate the rules of the supreme court or the Nevada Rules of Professional Conduct are
misconduct and constitute grounds for discipline.
[ Rule 104. State bar counsel.
1. State bar counsel shall:
(a) Investigate all matters involving possible attorney misconduct or incapacity called to bar counsels
attention, whether by grievance or otherwise.
(b) Subject to Rule 105(1), dispose of all matters involving alleged misconduct by dismissal of the
allegation(s) or by the filing of a written complaint.
(c) Prosecute all proceedings under these rules before all forums in the name of the State Bar of
12 of 105 2/21/2012 7:43 AM
Nevada.
(d) File with the supreme court petitions with certified copies of proof of conviction demonstrating
that attorneys have been convicted of serious crimes, as defined in Rule 111.
(e) Maintain permanent records of all matters investigated under these rules except as otherwise
required under Rule 121.
2. Bar counsel may meet with an attorney against whom a grievance has been received to informally
resolve a matter that does not involve the commission of a serious crime, as defined in these rules.
3. A grievance against bar counsel or bar counsels staff shall be investigated at the direction of the
president of the state bar and heard by the board of governors. A decision of the board of governors
against bar counsel may be appealed to the supreme court under the Nevada Rules of Appellate
Procedure.
[Added; effective J anuary 2, 1996; amended effective March 1, 2007.]
Rule 111. Attorneys convicted of crimes.
1. Conviction defined. For purposes of this rule, in addition to a final judgment of conviction, a
conviction shall include a plea of guilty or nolo contendere, a plea under North Carolina v. Alford, 400
U.S. 25 (1970), or a guilty verdict following either a bench or a jury trial, regardless of whether a sentence
is suspended or deferred or whether a final judgment of conviction has been entered, and regardless of
any pending appeals.
2. Duty to inform bar counsel. Upon being convicted of a crime by a court of competent
jurisdiction, other than a misdemeanor traffic violation not involving the use of alcohol or a
controlled substance, an attorney subject to these rules shall inform bar counsel within 30 days.
3. Court clerks to transmit proof of conviction. The clerk of any court in this state in which an
attorney is convicted of a crime, other than a misdemeanor traffic violation not involving the use of
alcohol or a controlled substance, shall transmit a certified copy of proof of the conviction to the supreme
court and bar counsel within 10 days after its entry.
4. Bar counsels responsibility. Upon being advised that an attorney subject to the disciplinary
jurisdiction of the supreme court has been convicted of a crime, other than a misdemeanor traffic violation
not involving the use of alcohol or a controlled substance, bar counsel shall obtain a certified copy of
proof of the conviction and shall file a petition with the supreme court, attaching the certified copy. Upon
being advised that an attorney subject to the disciplinary jurisdiction of the supreme court has been
convicted of a misdemeanor involving the use of alcohol or a controlled substance and the offense is not
the attorneys first such offense, bar counsel shall investigate and present the matter to the appropriate
panel of the disciplinary board prior to the filing of the petition. The petition shall be accompanied by the
panels recommendation regarding the appropriate disciplinary action, if any, to be imposed under these
or any other rules of the supreme court that pertain to the conduct of attorneys.
5. Certified document conclusive. A certified copy of proof of a conviction is conclusive evidence
of the commission of the crime stated in it in any disciplinary proceeding instituted against an attorney
based on the conviction.
13 of 105 2/21/2012 7:43 AM
6. Definition of serious crime. The term serious crime means (1) a felony and (2) any crime
less than a felony a necessary element of which is, as determined by the statutory or common-law
definition of the crime, improper conduct as an attorney, interference with the administration of
justice, false swearing, misrepresentation, fraud, willful failure to file an income tax return, deceit,
bribery, extortion, misappropriation, or an attempt or a conspiracy or solicitation of
another to commit a serious crime.
7. Suspension on certification. Upon the filing with the supreme court of a petition with a certified
copy of proof of the conviction, demonstrating that an attorney has been convicted of a serious crime, the
court shall enter an order suspending the attorney, regardless of the pendency of an appeal, pending final
disposition of a disciplinary proceeding, which shall be commenced by the appropriate disciplinary board
upon referral by the supreme court. For good cause, the court may set aside its order suspending the
attorney from the practice of law.
8. Referral to disciplinary board. Upon receipt of a petition filed under subsection 4 of this rule,
demonstrating that an attorney has been convicted of a serious crime, the supreme court shall, in addition
to suspending the attorney in accordance with the provisions of subsection 7 of this rule, refer the matter
to the appropriate disciplinary board for the institution of a formal hearing before a hearing panel in which
the sole issue to be determined shall be the extent of the discipline to be imposed. The panel may, for
good cause, postpone the proceeding until all appeals from the conviction have been concluded.
9. Conviction for other than a serious crime. Upon receipt of a petition demonstrating that an
attorney has been convicted of a crime which is not a serious crime, the supreme court may refer the
matter to the appropriate disciplinary board for any action it may deem warranted under these or any other
rules of the supreme court that pertain to the conduct of attorneys, provided, however, that the supreme
court may decline to refer a conviction for a minor offense to the board. If the conviction adversely
reflects on the attorneys fitness to practice law, the supreme court may issue an order to show cause,
requiring the attorney to demonstrate why an immediate temporary suspension should not be imposed.
10. Reinstatement. An attorney suspended under the provisions of subsection 7 or 9 of this rule may
be reinstated by filing a certificate with the supreme court demonstrating that the underlying conviction
has been reversed, but reinstatement will not terminate any formal proceeding pending against the
attorney, the disposition of which shall be determined by the hearing panel on the basis of the available
evidence.
11. Conviction of attorney who is prohibited from practicing. If an attorney convicted of a crime
is at that time prohibited from practicing due to a disciplinary suspension or transfer to disability inactive
status under Rule 117, then the petition filed under subsection 7 or 9 of this rule shall state that the
attorney is prohibited from practicing and under what provision. If the attorney has been suspended as
discipline, then the petition shall indicate the suspensions length and whether the attorney must file a
reinstatement petition under Rule 116 to regain active status. The supreme court shall then enter an
appropriate order directing how the conviction shall be addressed.
Sincerely,

Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
14 of 105 2/21/2012 7:43 AM
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473

Subject: RE: update please and confirmation of next meeting
Date: Mon, 23 Jan 2012 14:04:04 -0800
Mr. Coughlin,
The date for our next meeting was J anuary 6, 2012. You failed to appear. We discussed this date at our prior
meeting on 12/30 and you agreed to meet on 1/6, stating you had a training on 1/5 (something about bankruptcy
filing I believe). Let me know if you would like to meet again before trial and we can try to schedule something. I
have taken your comments regarding the Motion to Supress draft I provided you into consideration and will be filing
the motion in the near future. The last day for filing pre-trial motions is 15 days before trial (see NRS 174.125).

It has been brought to my attention that since your arrest in RCR11-063341, you have been arrested or put in
custody an additional five times, the most recent of which for an alleged Gross Misdemeanor offense. This is
concerning and indicative of someone who truly needs some help. Are you aware of the SOLACE program offered
through the State Bar of Nevada? Here is a link if you are interested: http://www.nvbar.org/content/solace-support-
program

Sincerely,
J oe Goodnight
15 of 105 2/21/2012 7:43 AM
Subject: update please and confirmation of next meeting

Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
16 of 105 2/21/2012 7:43 AM
Sent: Tue 1/24/12 10:26 PM
To: jgoodnight@washoecounty.us; jbosler@washoecounty.us
2 attachments
fv12-00188 Foreshee protection order and notice of february hearing 2012.pdf (4.8
MB) , tpo application combined by zach coughlin against chris allaback and laura
foreshee.pdf (469.3 KB)
17 of 105 2/21/2012 7:43 AM
18 of 105 2/21/2012 7:43 AM
19 of 105 2/21/2012 7:43 AM
20 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Subject: RE: please confirm trial date
Date: Mon, 23 Jan 2012 14:28:37 -0800
21 of 105 2/21/2012 7:43 AM
CC: ENovak@washoecounty.us
Mr. Coughlin,
The current trial date is February 29, 2012 at 8:30 a.m. in Reno J ustice Court. You have previously been provided
a copy of the documents you requested. The time deadlines you are looking for can be found in the Nevada
Revised Statutes (see NRS 174.125; 174.233-174.295) and the J ustice Court Rules of Reno Township.
J oe Goodnight

**********************************************************
Joseph W. Goodnight
(775) 337-4839
To: Goodnight, J oseph W; Novak, Evo
Subject: please confirm trial date

22 of 105 2/21/2012 7:43 AM

Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Wed 1/25/12 8:24 AM
To: rjcweb@washoecounty.us; psferrazza@washoecounty.us;
jgoodnight@washoecounty.us; zyoung@da.washoecounty.us
23 of 105 2/21/2012 7:43 AM
REQUEST FOR JURY
A defendant is not entitled to a trial by jury unless the crime charged carries a potential
sentence of greater than six months in jail. It is in the courts sole discretion (rarely
granted) whether or not to permit a defendant to have a trial by jury. In limited
jurisdiction courts, a case is tried by a jury only if the defendant makes a written
request thirty (30) days before trial. NRS 175.011. Unlike cases in District Court, no
canvass for waiver of jury trial needs to be made.
Upon DDA amending the Complaint, greater than six month jail is possible.
Zach Coughlin,
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Sent: Wed 2/08/12 8:09 PM
To: Goodnight, Joseph W (jgoodnight@washoecounty.us)
Dear Mr. Goodnight,
24 of 105 2/21/2012 7:43 AM
Hi Joe, good to hear from you. I lost most of the stuff I gather for you, but the long story short is that if one review
Bar Counsel reports that invoke SCR 111 you can find stuff that says the deal DDA young proposes (pled to petit
larceny, get 8 months good beahvior shrink, abstain, etc., etc....then if all good da withdraws the guilty plea and
dismisses with prejudice) has come up before and BAr Counsel has rule that that is still a "conviction" within the
meanign of Nevada Supreme Court Rule 111 requiring the attorney to report it to Bar Counsel, and where the
conviction is a "serious offense" as defined in SCR 111, which also defines what a "conviction is" (and its pretty clear,
when reviewing Bar Counsel reports that the plea agreement young offers is basically a loser for me on the SCR 111
thing. now a "distrubing the peace" plea probably would be a good offer, but a "plead to petit larceny" is, in my
opinion, doo doo. its like saying, why even go up to the plate, just gonna strike out.... some examples here:
http://www.google.com/#sclient=psy-ab&hl=en&source=hp&
q=%22scr+111%22+++%22with+prejudice%22+nevada&psj=1&
oq=%22scr+111%22+++%22with+prejudice%22+nevada&aq=f&aqi=&aql=&gs_sm=3&
gs_upl=5882l5882l0l6222l1l1l0l0l0l0l257l257l2-1l1l0&bav=on.2,or.r_gc.r_pw.,cf.osb&fp=6134ab16fe89b6fc&
biw=1044&bih=499
1.Conviction defined.For purposes of this rule, in addition to a final judgment of conviction, a
2.Duty to inform bar counsel.Upon being convicted of a crime by a court of competent
jurisdiction, other than a misdemeanor traffic violation not involving the use of alcohol or a controlled
substance, an attorney subject to these rules shall inform bar counsel within 30 days.
3.Court clerks to transmit proof of conviction.The clerk of any court in this state in which an
4.Bar counsels responsibility.Upon being advised that an attorney subject to the disciplinary
5.Certified document conclusive.A certified copy of proof of a conviction is conclusive
evidence of the commission of the crime stated in it in any disciplinary proceeding instituted against an
attorney based on the conviction.
6.Definition of serious crime.The term serious crime means (1) a felony and (2) any crime
definition of the crime, improper conduct as an attorney, interference with the administration of justice,
25 of 105 2/21/2012 7:43 AM
false swearing, misrepresentation, fraud, willful failure to file an income tax return, deceit, bribery,
extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a
serious crime.
7.Suspension on certification.Upon the filing with the supreme court of a petition with a
certified copy of proof of the conviction, demonstrating that an attorney has been convicted of a serious
crime, the court shall enter an order suspending the attorney, regardless of the pendency of an appeal,
pending final disposition of a disciplinary proceeding, which shall be commenced by the appropriate
disciplinary board upon referral by the supreme court. For good cause, the court may set aside its order
suspending the attorney from the practice of law.
8.Referral to disciplinary board.Upon receipt of a petition filed under subsection 4 of this rule,
9.Conviction for other than a serious crime.Upon receipt of a petition demonstrating that an
I would like to meet as soon as possible to discuss your Trial preparation in RCR11-063341, including why you have
not responded to my written requests for you to file a Motion for Continuance of the February 29th Trial date at
8:00 am before Judge Sferrazza based upon the rationale I previoulsy indicated and your recent failure to
communicate with me or respond to my stated, written requests, objectives, demands, etc. Please see the attached
pdf regarding client's rights. Further, I have not received anything from you in the mail since at least January 1,
2012. I AM HEREBY REITERATING MY PREVIOUS WRITTEN REQUESTS THAT YOU COPY MY ON ALL FILINGS,
CORRESPONDENCE, MAILINGS, DISCOVERY, PAPERS,PLEADINGS IN ANY WAY CONNECTED WITH THIS CASE AND
OR YOUR REPRESENTATION IN IT BY SENDING ME AN ELECTRONIC COPY OF SUCH ITEMS, EITHER TO THIS EMAIL
ADDRESS OR TO MY FAX NUMBER (949 667 7402). FURTHER, I AM REQUESTED A COMPLETE COPY OF THE ENTIRE
CONTENTS OF MY FILE BE PROVIDED TO ME BY FAX OR EMAIL AS SOON AS POSSIBLE. PLEASE ALSO INDICATE
WHETHER YOU HAVE FILED EITHER OF THE DRAFT FILINGS YOU PRESENTED TO ME AT OUR LAST IN PERSON
MEETING. FURTHER, PLEASE INDICATE YOUR NEXT AVAILABLE TIME TO MEET AND DISCUSS THIS MATTER. I AM
AVAILABLE TO MEET WITH YOU AND OR MR. NOVAK OR BOTH ANYTIME THIS WEEK BESIDE PRIOR TO NOON
TOMORROW, TUESDAY, AND PRIOR TO NOON ON THURSDAY, FEBRUARY 2ND, 2012. NEXT WEEK I AM
AVAILABLE anytime besides prior to noon on February 5th, 2012.
Please indicate whether you will pursue settlement negotiations with DDA Young consistent with my stated
objectives of not being convicted, or having exposure to any risk of being convicted of any charges that would
required mandatory reporting to the State Bar of Nevada under SCR 111 (please find attached a collection of State
Bar of Nevada Bar Counsel reports interpreting SCR 111, and would you please provide you legal opinion as to
whether the Plea Agreement offered by DDA Young would or would not require such a mandatory report of a
"conviction" to Bar Counsel?).
Please correct me if I am wrong, but my understanding of the Plea Agreement offered was that the best offer, and
26 of 105 2/21/2012 7:43 AM
only offer, I believe, is memorialized below:
From: Young, Zach
Sent: Tuesday, October 25, 2011 8:35 AM
Cc: Spencer, Darcy
Subject: RE: Coughlin - DA#432068 Sorry, got caught up with a pretrial.
Mr. Coughlin can get mental health eval and if counseling is recommended and medications prescribed, he can
plead guilty to Petit Larceny as charged, set sentencing out 6-8 months (or thereabouts) and if he obeys all laws,
abstains alcohol/non-Rx drugs, takes Rx meds as prescribed, and abides by counseling/medication
recommendations (with updates provided and final letter from counselor saying he is doing well, etc.), State will
allow him to withdraw his plea and dismiss the case with prejudice. An informal diversion if you will.
If no counseling is recommended or if Mr. Coughlin chooses otherwise, he can plead guilty to Disturbing the Peace,
stip 180 days WCJ s/s, mental health eval follow recs, abstain alcohol/non-Rx drugs, obey all laws, take Rx meds
as prescribed.
I am CCing Darcy, who is covering file for me tomorrow afternoon.
Zach"
My independent legal research on this matter (including items such as the attache reports of State Bar of Nevada
Bar Counsel) strongly suggest that the above Plea Agreement would require mandatory reporting to Bar Counsel of
a "conviction" of a "serious crime". I do not really see how this is all that useful to me or in the spirit of settlement.
You, the DA, the RPD, Goble, Zarate, the WCPD, etc all have exposure in connection with this matter. By that I
mean, everyone has risk here which prudence dictates attempting to minimize. I am in no way threatening any
violence or unlawful conduct. I abhor violence and do at all times attempt to maintain the highest fidelity possible to
lawful practices.
My then girlfriend of almost 5 years, Melissa Ulloa, 29 of Reno, Nevada, (whom I co-habitated with for 4 years)
graduate from UNR in mid-May of 2011. I supported her and sacrificed a great deal for her in helping her finish
three years worth of credits at UNR in 4 years and graduate with a degree in J ournalism. She broke up with me
and moved out suddenly two days after graduating. It was devastating. She left with a dog we got together and
shared for 3 years as well that I was quite fond of. Further, my family was extremely fond of Ms. Ulloa an generally
seemed to side with or empathize with her pretty much exclusively. Ms. Ulloa is an insulin dependent diabetic and
a fine person, however, that condition can take a toll on one and their partner given the severe mood swings
attendant to it. On top of that, I received an email from our landlord on August 11th, 2011 indicating that Ms. Ulloa
had failed to pay half of the rent for May and all for J une 2011 despite my providing her with my share of the rent for
those months, unbeknowst to me. Ms. Ulloa and I had an arrangement for about four years where I would provide
her a check or cash for my share of our rent and she would add hers and forward the sum to our landlord. I can
provide an email from Ms. Ulloa that confirms or admits to this.
So, I soon found myself served with an Eviction Notice (actually, I spent 6 days in jail in connection with the arrest
in this case, from August 20th to August 26th due to the difficulties in remembering friends and families cell phone
numbers, delay in getting access to those numbers while in jail, and what has always been a sink or swim approach
to parenting towards me in my family as the only son in a family full of sisters). The eviction notice in
REV2011-001708 was served, or posted to my home law office's door while I was in jail on August 22nd, 2011. I
litigated that summary eviction from what I believe is a commercial lease (the Lease Agreement explicitly allowed
for use of the location as a business, as do the applicable zoning laws) where only a No Cause Eviction Notice was
served (ie, the landlord did not allege failure to pay rent; however, and impermissilby under NRS 40.253(6), J udge
27 of 105 2/21/2012 7:43 AM
Sferrazza ordered me to deposit a rent escrow amount of $2,275 on October 13th, 2011, which I did, in order to go
forward and contest the eviction. The J CRRT do not have an analogue to J CRLV 44, which allows such an Order
to deposit a rent escrow amount within a summary eviction proceeding. Further, NRS 40.253 forbids using a
summary eviction proceeding against a commercial lessee unless a Non Payment of Rent For Cause Eviction
Notice is served (which was not the case in that matter) as the burdens of facing a summary eviction proceeding
(which lack practically all of the protections and due process safeguards of a plenary unlawful detainer action) are
extremely unfair to foist on a business owner, particularly where that owner is not charged with failure to pay rent.
Nonetheless, J udge Sferrazza required the $2,275 deposit into the RJ C's rent escrow account from October 13th
until he Ordered that amount released to me in his November 7th, 2011 Order. I was not afforded a legitimate
opportunity to take possession of that check until after I was released from jail on October 14th, 2011 (I was subject
to a custodial arrest for "trespass" at the former home law office location despite a citation being the more
established practice and where opposing counsel in the eviction matter had arguably rescinded the eviction by
providing me a bill, in writing, for the full rental value of the property for the month of November 2011 (some $900)
rather than asserting a lien on my property consistent with NRS 118.490, which allows for a landlord to charge
"reasonable storage, moving, and inventorying" expenses (ie, not full rental value of a 1,200 sq ft home law office
location with all the attendants rights to use such).

What I really hope for here is a result that will not adversely impact my ability or right to practice law. I do not
harbor any grand illusions about the chances of success of any police misconduct or prosecutorial misconduct or
malpractice actions against the WCPD or the WCDA. I just want to practice law and earn a living, that's it.
Fact that defendant who pled guilty to felony of driving after forfeiture of license was given an alternative sentence
as a misdemeanor did not alter his felony status nor preclude court from suspending his license. Gentry v. State, 526
N.E.2d 1187 (Ind. Ct. App. 1st Dist. 1988).
1.Conviction defined.For purposes of this rule, in addition to a final judgment of conviction, a
2.Duty to inform bar counsel.Upon being convicted of a crime by a court of competent
jurisdiction, other than a misdemeanor traffic violation not involving the use of alcohol or a controlled
substance, an attorney subject to these rules shall inform bar counsel within 30 days.
3.Court clerks to transmit proof of conviction.The clerk of any court in this state in which an
4.Bar counsels responsibility.Upon being advised that an attorney subject to the disciplinary
28 of 105 2/21/2012 7:43 AM
5.Certified document conclusive.A certified copy of proof of a conviction is conclusive
evidence of the commission of the crime stated in it in any disciplinary proceeding instituted against an
attorney based on the conviction.
6.Definition of serious crime.The term serious crime means (1) a felony and (2) any crime
definition of the crime, improper conduct as an attorney, interference with the administration of justice,
false swearing, misrepresentation, fraud, willful failure to file an income tax return, deceit, bribery,
extortion, misappropriation, theft, or an attempt or a conspiracy or solicitation of another to commit a
serious crime.
7.Suspension on certification.Upon the filing with the supreme court of a petition with a
certified copy of proof of the conviction, demonstrating that an attorney has been convicted of a serious
crime, the court shall enter an order suspending the attorney, regardless of the pendency of an appeal,
pending final disposition of a disciplinary proceeding, which shall be commenced by the appropriate
disciplinary board upon referral by the supreme court. For good cause, the court may set aside its order
suspending the attorney from the practice of law.
8.Referral to disciplinary board.Upon receipt of a petition filed under subsection 4 of this rule,
9.Conviction for other than a serious crime.Upon receipt of a petition demonstrating that an
10.Reinstatement.An attorney suspended under the provisions of subsection 7 or 9 of this rule
may be reinstated by filing a certificate with the supreme court demonstrating that the underlying
conviction has been reversed, but reinstatement will not terminate any formal proceeding pending against
the attorney, the disposition of which shall be determined by the hearing panel on the basis of the
available evidence.
11.Conviction of attorney who is prohibited from practicing.If an attorney convicted of a
crime is at that time prohibited from practicing due to a disciplinary suspension or transfer to disability
inactive status under Rule 117, then the petition filed under subsection 7 or 9 of this rule shall state that
the attorney is prohibited from practicing and under what provision. If the attorney has been suspended as
29 of 105 2/21/2012 7:43 AM
discipline, then the petition shall indicate the suspensions length and whether the attorney must file a
reinstatement petition under Rule 116 to regain active status. The supreme court shall then enter an
appropriate order directing how the conviction shall be addressed.
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Subject: Motion to Suppress
Date: Wed, 8 Feb 2012 18:15:32 -0800
Mr. Coughlin,
I'll be filing the attached motion by the end of this week. I took many of your
comments into consideration and used the ones I felt were appropriate.
Sincerely,
J oe Goodnight
<<Coughlin_suppression_motion.pdf>>
*********************************
30 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Date: Wed, 8 Feb 2012 18:15:32 -0800
Mr. Coughlin,
Sincerely,
J oe Goodnight
**********************************************************
Joseph W. Goodnight
(775) 337-4839
31 of 105 2/21/2012 7:43 AM
Sent: Wed 2/08/12 8:12 PM
6 attachments
Attorney's conviction in foreign or federal jurisdiction as ground for disciplinary
action conviction theft scr 111.pdf (999.8 KB) , nevada supreme court Rule 111
Attorneys convicted of crimes..pdf (71.8 KB) , scr 111 attorney nevada lawyer article
on reporting conviction for crime theft.pdf (20.9 KB) , moral turpitude crimes
attorney affecting license to practice law.pdf (8.0 MB) ,
Bar_Counsel_Report__June_2011.pdf (292.1 KB) , Beckett_RI20110404.pdf (113.7 KB)
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
32 of 105 2/21/2012 7:43 AM
Date: Wed, 8 Feb 2012 18:15:32 -0800
Mr. Coughlin,
Sincerely,
J oe Goodnight
**********************************************************
Joseph W. Goodnight
(775) 337-4839
Sent: Thu 2/09/12 1:07 PM
1 attachment
jgoodnight@washoecounty.us negotiations plea agreement correspondence.pdf
(93.2 KB)
33 of 105 2/21/2012 7:43 AM

> Subject: RE: Motion to Suppress
> Date: Wed, 8 Feb 2012 22:12:29 -0800
> From: JGoodnight@washoecounty.us
> To: zachcoughlin@hotmail.com
>
> Mr. Coughlin,
> The times you mention in your email below are for last week (it appears as if you composed a message and then
never sent it until now). I am available tomorrow (2/9) at 1:30 p.m. and Friday at 1:00 or 2:00 p.m. Let me know what
works for you and we can discuss presenting a resolution to the state. I believe I can get "disturbing the peace"
back on the table, but it may require you to submit to a mental health evaluation and following any
recommendations made by the evaluator. We can discuss further when you come in. Let me know if there is anyone
you'd like to bring with you or anyone else from my office that you'd like to be present and I'll try to arrange it.
> Sincerely,
> Joe Goodnight
>
>
> -----Original Message-----
> From: Zach Coughlin [mailto:zachcoughlin@hotmail.com]
> Sent: Wed 2/8/2012 8:09 PM
> To: Goodnight, Joseph W
> Subject: RE: Motion to Suppress
>
>
> Dear Mr. Goodnight,
>
>
>
>
>
> Hi Joe, good to hear from you. I lost most of the stuff I gather for
> you, but the long story short is that if one review Bar Counsel reports
> that invoke SCR 111 you can find stuff that says the deal DDA young
> proposes (pled to petit larceny, get 8 months good beahvior shrink,
34 of 105 2/21/2012 7:43 AM
> abstain, etc., etc....then if all good da withdraws the guilty plea and
> dismisses with prejudice) has come up before and BAr Counsel has rule
> that that is still a "conviction" within the meanign of Nevada Supreme
> Court Rule 111 requiring the attorney to report it to Bar Counsel, and
> where the conviction is a "serious offense" as defined in SCR 111, which
> also defines what a "conviction is" (and its pretty clear, when
> reviewing Bar Counsel reports that the plea agreement young offers is
> basically a loser for me on the SCR 111 thing. now a "distrubing the
> peace" plea probably would be a good offer, but a "plead to petit
> larceny" is, in my opinion, doo doo. its like saying, why even go up
> to the plate, just gonna strike out.... some examples here: http://www.google.com/#sclient=psy-ab&hl=en&
source=hp&q=%22scr+111%22+++%22with+prejudice%22+nevada&psj=1&
oq=%22scr+111%22+++%22with+prejudice%22+nevada&aq=f&aqi=&aql=&gs_sm=3&
gs_upl=5882l5882l0l6222l1l1l0l0l0l0l257l257l2-1l1l0&bav=on.2,or.r_gc.r_pw.,cf.osb&fp=6134ab16fe89b6fc&
biw=1044&bih=499
>
>
>
>
>
> Rule 111. Attorneys convicted of crimes.
>
> 1. "Conviction" defined. For
> purposes of this rule, in addition to a final judgment of conviction, a
> "conviction" shall include a plea of guilty or nolo contendere, a plea under North
> Carolina v. Alford, 400 U.S. 25 (1970), or a guilty verdict following
> either a bench or a jury trial, regardless of whether a sentence is suspended
> or deferred or whether a final judgment of conviction has been entered, and
> regardless of any pending appeals.
>
>
> 2. Duty to inform bar counsel. Upon
> being convicted of a crime by a court of competent jurisdiction, other than a
> misdemeanor traffic violation not involving the use of alcohol or a controlled
> substance, an attorney subject to these rules shall inform bar counsel within
> 30 days.
>
>
> 3. Court clerks to transmit proof of
> conviction. The clerk of any court in this state in which an
> attorney is convicted of a crime, other than a misdemeanor traffic violation
> not involving the use of alcohol or a controlled substance, shall transmit a
> certified copy of proof of the conviction to the supreme court and bar counsel
> within 10 days after its entry.
>
>
> 4. Bar counsel's responsibility. Upon
> being advised that an attorney subject to the disciplinary jurisdiction of the
> supreme court has been convicted of a crime, other than a misdemeanor traffic
> violation not involving the use of alcohol or a controlled substance, bar
> counsel shall obtain a certified copy of proof of the conviction and shall file
> a petition with the supreme court, attaching the certified copy. Upon being
35 of 105 2/21/2012 7:43 AM
> advised that an attorney subject to the disciplinary jurisdiction of the supreme
> court has been convicted of a misdemeanor involving the use of alcohol or a
> controlled substance and the offense is not the attorney's first such offense,
> bar counsel shall investigate and present the matter to the appropriate panel
> of the disciplinary board prior to the filing of the petition. The petition
> shall be accompanied by the panel's recommendation regarding the appropriate
> disciplinary action, if any, to be imposed under these or any other rules of
> the supreme court that pertain to the conduct of attorneys.
>
>
> 5. Certified document conclusive. A
> certified copy of proof of a conviction is conclusive evidence of the
> commission of the crime stated in it in any disciplinary proceeding instituted
> against an attorney based on the conviction.
>
>
> 6. Definition of "serious crime." The
> term "serious crime" means (1) a felony and (2) any crime less than a felony a
> necessary element of which is, as determined by the statutory or common-law
> definition of the crime, improper conduct as an attorney, interference with the
> administration of justice, false swearing, misrepresentation, fraud, willful
> failure to file an income tax return, deceit, bribery, extortion,
> misappropriation, theft, or an attempt or a conspiracy or solicitation of
> another to commit a "serious crime."
>
>
> 7. Suspension on certification. Upon
> the filing with the supreme court of a petition with a certified copy of proof
> of the conviction, demonstrating that an attorney has been convicted of a
> serious crime, the court shall enter an order suspending the attorney,
> regardless of the pendency of an appeal, pending final disposition of a
> disciplinary proceeding, which shall be commenced by the appropriate
> disciplinary board upon referral by the supreme court. For good cause, the
> court may set aside its order suspending the attorney from the practice of law.
>
>
> 8. Referral to disciplinary board. Upon
> receipt of a petition filed under subsection 4 of this rule, demonstrating that
> an attorney has been convicted of a serious crime, the supreme court shall, in
> addition to suspending the attorney in accordance with the provisions of
> subsection 7 of this rule, refer the matter to the appropriate disciplinary
> board for the institution of a formal hearing before a hearing panel in which
> the sole issue to be determined shall be the extent of the discipline to be
> imposed. The panel may, for good cause, postpone the proceeding until all
> appeals from the conviction have been concluded.
>
>
> 9. Conviction for other than a serious
> crime. Upon receipt of a petition demonstrating that an
> attorney has been convicted of a crime which is not a serious crime, the
> supreme court may refer the matter to the appropriate disciplinary board for
> any action it may deem warranted under these or any other rules of the supreme
36 of 105 2/21/2012 7:43 AM
> court that pertain to the conduct of attorneys, provided, however, that the
> supreme court may decline to refer a conviction for a minor offense to the
> board. If the conviction adversely reflects on the attorney's fitness to
> practice law, the supreme court may issue an order to show cause, requiring the
> attorney to demonstrate why an immediate temporary suspension should not be
> imposed.
>
>
> I would like to meet as soon as possible to
> discuss your Trial preparation in RCR11-063341, including why you have
> not responded to my written requests for you to file a Motion for
> Continuance of the February 29th Trial date at 8:00 am before Judge
> Sferrazza based upon the rationale I previoulsy indicated and your
> recent failure to communicate with me or respond to my stated, written
> requests, objectives, demands, etc. Please see the attached pdf
> regarding client's rights. Further, I have not received anything from
> you in the mail since at least January 1, 2012. I AM HEREBY REITERATING
> MY PREVIOUS WRITTEN REQUESTS THAT YOU COPY MY ON ALL FILINGS,
> CORRESPONDENCE, MAILINGS, DISCOVERY, PAPERS,PLEADINGS IN ANY WAY
> CONNECTED WITH THIS CASE AND OR YOUR REPRESENTATION IN IT BY SENDING ME
> AN ELECTRONIC COPY OF SUCH ITEMS, EITHER TO THIS EMAIL ADDRESS OR TO MY
> FAX NUMBER (949 667 7402). FURTHER, I AM REQUESTED A COMPLETE COPY OF
> THE ENTIRE CONTENTS OF MY FILE BE PROVIDED TO ME BY FAX OR EMAIL AS SOON
> AS POSSIBLE. PLEASE ALSO INDICATE WHETHER YOU HAVE FILED EITHER OF THE
> DRAFT FILINGS YOU PRESENTED TO ME AT OUR LAST IN PERSON MEETING.
> FURTHER, PLEASE INDICATE YOUR NEXT AVAILABLE TIME TO MEET AND DISCUSS
> THIS MATTER. I AM AVAILABLE TO MEET WITH YOU AND OR MR. NOVAK OR BOTH
> ANYTIME THIS WEEK BESIDE PRIOR TO NOON TOMORROW, TUESDAY, AND PRIOR TO
> NOON ON THURSDAY, FEBRUARY 2ND, 2012. NEXT WEEK I AM AVAILABLE anytime
> besides prior to noon on February 5th, 2012.
>
>
>
> Please indicate
> whether you will pursue settlement negotiations with DDA Young
> consistent with my stated objectives of not being convicted, or having
> exposure to any risk of being convicted of any charges that would
> required mandatory reporting to the State Bar of Nevada under SCR 111
> (please find attached a collection of State Bar of Nevada Bar Counsel
> reports interpreting SCR 111, and would you please provide you legal
> opinion as to whether the Plea Agreement offered by DDA Young would or
> would not require such a mandatory report of a "conviction" to Bar
> Counsel?).
>
>
>
> Please correct me if I am wrong, but my understanding
> of the Plea Agreement offered was that the best offer, and only offer, I
> believe, is memorialized below:
>
>
>
37 of 105 2/21/2012 7:43 AM
> From: Young, Zach
>
>
>
> Sent: Tuesday, October 25, 2011 8:35 AM
>
>
>
> To: Goodnight, Joseph W
>
>
>
> Cc: Spencer, Darcy
>
>
>
> Subject: RE: Coughlin - DA#432068
>
>
> Sorry, got caught up with a pretrial.
>
>
>
>
> Mr. Coughlin can get
> mental health eval and if counseling is recommended and medications
> prescribed, he can plead guilty to Petit Larceny as charged, set
> sentencing out 6-8 months (or thereabouts) and if he obeys all laws,
> abstains alcohol/non-Rx drugs, takes Rx meds as prescribed, and abides
> by counseling/medication recommendations (with updates provided and
> final letter from counselor saying he is doing well, etc.), State will
> allow him to withdraw his plea and dismiss the case with prejudice. An informal diversion if you will.
>
>
>
> If no counseling is
> recommended or if Mr. Coughlin chooses otherwise, he can plead guilty to
> Disturbing the Peace, stip 180 days WCJ s/s, mental health eval follow
> recs, abstain alcohol/non-Rx drugs, obey all laws, take Rx meds as
> prescribed.
>
>
>
> I am CC'ing Darcy, who is covering file for me tomorrow afternoon.
>
>
>
>
> Zach"
>
>
>
38 of 105 2/21/2012 7:43 AM
>
>
> My
> independent legal research on this matter (including items such as the
> attache reports of State Bar of Nevada Bar Counsel) strongly suggest
> that the above Plea Agreement would require mandatory reporting to Bar
> Counsel of a "conviction" of a "serious crime". I do not really see how
> this is all that useful to me or in the spirit of settlement. You, the
> DA, the RPD, Goble, Zarate, the WCPD, etc all have exposure in
> connection with this matter. By that I mean, everyone has risk here
> which prudence dictates attempting to minimize. I am in no way
> threatening any violence or unlawful conduct. I abhor violence and do
> at all times attempt to maintain the highest fidelity possible to lawful
> practices.
>
>
>
>
>
>
> My
> then girlfriend of almost 5 years, Melissa Ulloa, 29 of Reno, Nevada,
> (whom I co-habitated with for 4 years) graduate from UNR in mid-May of
> 2011. I supported her and sacrificed a great deal for her in helping
> her finish three years worth of credits at UNR in 4 years and graduate
> with a degree in Journalism. She broke up with me and moved out
> suddenly two days after graduating. It was devastating. She left with a
> dog we got together and shared for 3 years as well that I was quite
> fond of. Further, my family was extremely fond of Ms. Ulloa an
> generally seemed to side with or empathize with her pretty much
> exclusively. Ms. Ulloa is an insulin dependent diabetic and a fine
> person, however, that condition can take a toll on one and their partner
> given the severe mood swings attendant to it. On top of that, I
> received an email from our landlord on August 11th, 2011 indicating that
> Ms. Ulloa had failed to pay half of the rent for May and all for June
> 2011 despite my providing her with my share of the rent for those
> months, unbeknowst to me. Ms. Ulloa and I had an arrangement for about
> four years where I would provide her a check or cash for my share of our
> rent and she would add hers and forward the sum to our landlord. I can
> provide an email from Ms. Ulloa that confirms or admits to this.
>
>
>
>
>
>
> So,
> I soon found myself served with an Eviction Notice (actually, I spent 6
> days in jail in connection with the arrest in this case, from August
> 20th to August 26th due to the difficulties in remembering friends and
> families cell phone numbers, delay in getting access to those numbers
> while in jail, and what has always been a sink or swim approach to
39 of 105 2/21/2012 7:43 AM
> parenting towards me in my family as the only son in a family full of
> sisters). The eviction notice in REV2011-001708 was served, or posted
> to my home law office's door while I was in jail on August 22nd, 2011.
> I litigated that summary eviction from what I believe is a commercial
> lease (the Lease Agreement explicitly allowed for use of the location as
> a business, as do the applicable zoning laws) where only a No Cause
> Eviction Notice was served (ie, the landlord did not allege failure to
> pay rent; however, and impermissilby under NRS 40.253(6), Judge
> Sferrazza ordered me to deposit a rent escrow amount of $2,275 on
> October 13th, 2011, which I did, in order to go forward and contest the
> eviction. The JCRRT do not have an analogue to JCRLV 44, which allows
> such an Order to deposit a rent escrow amount within a summary eviction
> proceeding. Further, NRS 40.253 forbids using a summary eviction
> proceeding against a commercial lessee unless a Non Payment of Rent For
> Cause Eviction Notice is served (which was not the case in that matter)
> as the burdens of facing a summary eviction proceeding (which lack
> practically all of the protections and due process safeguards of a
> plenary unlawful detainer action) are extremely unfair to foist on a
> business owner, particularly where that owner is not charged with
> failure to pay rent. Nonetheless, Judge Sferrazza required the $2,275
> deposit into the RJC's rent escrow account from October 13th until he
> Ordered that amount released to me in his November 7th, 2011 Order. I
> was not afforded a legitimate opportunity to take possession of that
> check until after I was released from jail on October 14th, 2011 (I was
> subject to a custodial arrest for "trespass" at the former home law
> office location despite a citation being the more established practice
> and where opposing counsel in the eviction matter had arguably rescinded
> the eviction by providing me a bill, in writing, for the full rental
> value of the property for the month of November 2011 (some $900) rather
> than asserting a lien on my property consistent with NRS 118.490, which
> allows for a landlord to charge "reasonable storage, moving, and
> inventorying" expenses (ie, not full rental value of a 1,200 sq ft home
> law office location with all the attendants rights to use such).
>
>
>
>
>
>
>
>
>
>
> What
> I really hope for here is a result that will not adversely impact my
> ability or right to practice law. I do not harbor any grand illusions
> about the chances of success of any police misconduct or prosecutorial
> misconduct or malpractice actions against the WCPD or the WCDA. I just
> want to practice law and earn a living, that's it.
>
>
>
40 of 105 2/21/2012 7:43 AM
> Fact that
> defendant who pled guilty to felony of driving after forfeiture of
> license was given an alternative sentence as a misdemeanor did not alter
> his felony status nor preclude court from suspending his license.
> Gentry v. State, 526 N.E.2d 1187 (Ind. Ct. App. 1st Dist. 1988).
>
>
> Rule 111. Attorneys convicted of crimes.
>
> 1. "Conviction" defined. For
> purposes of this rule, in addition to a final judgment of conviction, a
> "conviction" shall include a plea of guilty or nolo contendere, a plea under North
> Carolina v. Alford, 400 U.S. 25 (1970), or a guilty verdict following
> either a bench or a jury trial, regardless of whether a sentence is suspended
> or deferred or whether a final judgment of conviction has been entered, and
> regardless of any pending appeals.
>
>
> 2. Duty to inform bar counsel. Upon
> being convicted of a crime by a court of competent jurisdiction, other than a
> misdemeanor traffic violation not involving the use of alcohol or a controlled
> substance, an attorney subject to these rules shall inform bar counsel within
> 30 days.
>
>
> 3. Court clerks to transmit proof of
> conviction. The clerk of any court in this state in which an
> attorney is convicted of a crime, other than a misdemeanor traffic violation
> not involving the use of alcohol or a controlled substance, shall transmit a
> certified copy of proof of the conviction to the supreme court and bar counsel
> within 10 days after its entry.
>
>
> 4. Bar counsel's responsibility. Upon
> being advised that an attorney subject to the disciplinary jurisdiction of the
> supreme court has been convicted of a crime, other than a misdemeanor traffic
> violation not involving the use of alcohol or a controlled substance, bar
> counsel shall obtain a certified copy of proof of the conviction and shall file
> a petition with the supreme court, attaching the certified copy. Upon being
> advised that an attorney subject to the disciplinary jurisdiction of the supreme
> court has been convicted of a misdemeanor involving the use of alcohol or a
> controlled substance and the offense is not the attorney's first such offense,
> bar counsel shall investigate and present the matter to the appropriate panel
> of the disciplinary board prior to the filing of the petition. The petition
> shall be accompanied by the panel's recommendation regarding the appropriate
> disciplinary action, if any, to be imposed under these or any other rules of
> the supreme court that pertain to the conduct of attorneys.
>
>
> 5. Certified document conclusive. A
> certified copy of proof of a conviction is conclusive evidence of the
> commission of the crime stated in it in any disciplinary proceeding instituted
41 of 105 2/21/2012 7:43 AM
> against an attorney based on the conviction.
>
>
> 6. Definition of "serious crime." The
> term "serious crime" means (1) a felony and (2) any crime less than a felony a
> necessary element of which is, as determined by the statutory or common-law
> definition of the crime, improper conduct as an attorney, interference with the
> administration of justice, false swearing, misrepresentation, fraud, willful
> failure to file an income tax return, deceit, bribery, extortion,
> misappropriation, theft, or an attempt or a conspiracy or solicitation of
> another to commit a "serious crime."
>
>
> 7. Suspension on certification. Upon
> the filing with the supreme court of a petition with a certified copy of proof
> of the conviction, demonstrating that an attorney has been convicted of a
> serious crime, the court shall enter an order suspending the attorney,
> regardless of the pendency of an appeal, pending final disposition of a
> disciplinary proceeding, which shall be commenced by the appropriate
> disciplinary board upon referral by the supreme court. For good cause, the
> court may set aside its order suspending the attorney from the practice of law.
>
>
> 8. Referral to disciplinary board. Upon
> receipt of a petition filed under subsection 4 of this rule, demonstrating that
> an attorney has been convicted of a serious crime, the supreme court shall, in
> addition to suspending the attorney in accordance with the provisions of
> subsection 7 of this rule, refer the matter to the appropriate disciplinary
> board for the institution of a formal hearing before a hearing panel in which
> the sole issue to be determined shall be the extent of the discipline to be
> imposed. The panel may, for good cause, postpone the proceeding until all
> appeals from the conviction have been concluded.
>
>
> 9. Conviction for other than a serious
> crime. Upon receipt of a petition demonstrating that an
> attorney has been convicted of a crime which is not a serious crime, the
> supreme court may refer the matter to the appropriate disciplinary board for
> any action it may deem warranted under these or any other rules of the supreme
> court that pertain to the conduct of attorneys, provided, however, that the
> supreme court may decline to refer a conviction for a minor offense to the
> board. If the conviction adversely reflects on the attorney's fitness to
> practice law, the supreme court may issue an order to show cause, requiring the
> attorney to demonstrate why an immediate temporary suspension should not be
> imposed.
>
>
> 10. Reinstatement. An
> attorney suspended under the provisions of subsection 7 or 9 of this rule may
> be reinstated by filing a certificate with the supreme court demonstrating that
> the underlying conviction has been reversed, but reinstatement will not
> terminate any formal proceeding pending against the attorney, the disposition
42 of 105 2/21/2012 7:43 AM
> of which shall be determined by the hearing panel on the basis of the available
> evidence.
>
>
> 11. Conviction of attorney who is
> prohibited from practicing. If an attorney convicted of a
> crime is at that time prohibited from practicing due to a disciplinary
> suspension or transfer to disability inactive status under Rule 117, then the
> petition filed under subsection 7 or 9 of this rule shall state that the
> attorney is prohibited from practicing and under what provision. If the
> attorney has been suspended as discipline, then the petition shall indicate the
> suspension's length and whether the attorney must file a reinstatement petition
> under Rule 116 to regain active status. The supreme court shall then enter an
> appropriate order directing how the conviction shall be addressed.
>
>
> Zach Coughlin, Esq.
>
> 1422 E. 9th St. #2
>
>
>
> RENO, NV 89512tel: 775 338 8118
>
>
> fax: 949 667 7402
> ZachCoughlin@hotmail.com
> Nevada Bar No: 9473
>
>
> ** Notice** This
> message and accompanying documents are covered by the electronic
> Communications Privacy Act, 18 U.S.C. 2510-2521, and may contain
> confidential information intended for the specified individual (s)
> only. If you are not the intended recipient or an agent responsible for
> delivering it to the intended recipient, you are hereby notified that
> you have received this document in error and that any review,
> dissemination, copying, or the taking of any action based on the
> contents of this information is strictly prohibited. This
> message is confidential, intended only for the named recipient(s) and
> may contain information that is privileged, attorney work product or
> exempt from disclosure under applicable law. If you are not the intended
> recipient(s), you are notified that any disclosure, copying,
> distribution or any action taken or omitted to be taken in reliance on
> the contents of this information is prohibited and may be unlawful. If
> you receive this message in error, or are not the named recipient(s),
> please notify the sender, delete this e-mail from your computer, and
> destroy any copies in any form immediately. Receipt by anyone other than
> the named recipient(s) is not a waiver of any attorney-client, work
> product, or other applicable privilege.
>
>
43 of 105 2/21/2012 7:43 AM
>
> Subject: Motion to Suppress
> Date: Wed, 8 Feb 2012 18:15:32 -0800
>
>
>
>
>
>
>
>
>
>
>
>
>
> Mr. Coughlin,
>
>
> I'll be filing the attached motion by
> the end of this week. I took many of your comments into consideration
> and used the ones I felt were appropriate.
>
> Sincerely,
>
>
> Joe Goodnight
>
>
>
>
> <<Coughlin_suppression_motion.pdf>>
>
>
> *********************************
>
> Zach Coughlin, Esq.
>
> 1422 E. 9th St. #2
>
>
>
> RENO, NV 89512tel: 775 338 8118
>
>
> fax: 949 667 7402
> ZachCoughlin@hotmail.com
> Nevada Bar No: 9473
>
>
44 of 105 2/21/2012 7:43 AM
> ** Notice** This message and accompanying documents are covered by the electronic Communications Privacy
Act, 18 U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s) only.
If you are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are
hereby notified that you have received this document in error and that any review, dissemination, copying, or the
taking of any action based on the contents of this information is strictly prohibited. This message is confidential,
intended only for the named recipient(s) and may contain information that is privileged, attorney work product or
exempt from disclosure under applicable law. If you are not the intended recipient(s), you are notified that any
disclosure, copying, distribution or any action taken or omitted to be taken in reliance on the contents of this
information is prohibited and may be unlawful. If you receive this message in error, or are not the named
recipient(s), please notify the sender, delete this e-mail from your computer, and destroy any copies in any form
immediately. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney-client, work
product, or other applicable privilege.
>
>
>
> Subject: Motion to Suppress
> Date: Wed, 8 Feb 2012 18:15:32 -0800
>
>
>
>
>
>
>
>
> Message body
>
>
>
>
> Mr. Coughlin,
>
>
> I'll be filing the attached motion by the end of this week. I took many of your comments into consideration and
used the ones I felt were appropriate.
>
> Sincerely,
>
>
> Joe Goodnight
>
>
>
>
> <<Coughlin_suppression_motion.pdf>>
>
>
> **********************************************************
>
> Joseph W. Goodnight
45 of 105 2/21/2012 7:43 AM
>
> Deputy Public Defender
>
> (775) 337-4839
>
> jgoodnight@washoecounty.us
>
>
> ** Notice** This message and accompanying documents are covered by the electronic Communications Privacy
Act, 18 U.S.C. 2510-2521, and may contain confidential information intended for the specified individual (s) only.
If you are not the intended recipient or an agent responsible for delivering it to the intended recipient, you are
hereby notified that you have received this document in error and that any review, dissemination, copying, or the
>
>
>
>
>
>
>
>
>
Sent: Sun 2/12/12 4:42 AM
To: jgoodnight@washoecounty.us; bdogan@washoecounty.us
46 of 105 2/21/2012 7:43 AM
https://skydrive.live.com
/?cid=43084638f32f5f28#cid=43084638F32F5F28&id=43084638F32F5F28!2003
I have been getting my head handed to me in so many different courts lately...
Joe, I would like something on the record demonstrating that we requested a jury trial. I know the state or court's
here may not view that as required, but I think the constitution requires it (courts here seem to cut corners where it
helps their bottom line, witness denying the sixth amendment right to counsel in cases where jail time is a
possibility...like what Judge Howard did in denying me counsel in my RMC case 11 CR 22176. Ironically, this issue
has been up before in court's involving my family.
Actually, my uncle was the prosecutor in
47 of 105 2/21/2012 7:43 AM
Motions in Limine are definitely used in criminal cases too. but here is a good article from a nevada civil litigation
and appeals guy (he aint that old either), Micah Echols:
Using Motions in Limine at Trial to Effectively Preserve Appeal Issues
By Micah S. EcholsDuring a recent non-jury trial, the Judge asked us why we were filing so many motions in limine.
The Judge did not wait for our response, but it was clear from the question that the prevailing belief was that
motions in limine should only be used in jury trials to prevent the jury from seeing prejudicial evidence. Although
motions in limine can wisely be used to exclude large quantities of irrelevant documents and witness testimony in
non-jury trials, the main purpose behind filing the motions in limine in our non-jury trial was to preserve error for
the expected appeal.
In preparing our motions in limine, we relied upon Richmond v. State, 118 Nev. 924, 59 P.3d 1249 (2002). Richmond
holds that when an evidentiary objection has been fully briefed in a motion in limine, there is no need to make a
contemporaneous objection during trial to preserve the issue for appeal. With dozens of witnesses, multiple expert
witnesses, and hundreds of exhibits, we were content to have the Judges rulings on the motions in limine so that
we could focus on the numerous other tasks, knowing that our position in the motions had been preserved for
appeal, as set forth in Richmond.
Shortly after the conclusion of our trial, the Nevada Supreme Court issued BMW v. Roth, 127 Nev. Adv. Op. No. 11
(Apr. 14, 2011). Roth retreated from the Richmond standard and now requires that a contemporaneous objection be
made during trial if the opposing party has violated the terms of the order in limine. The court reasoned that the
violation of an order in limine creates a new error that must be objected to. After we reviewed the specific language
in the orders in limine from our case and recalled the testimony and arguments, we realized that our Judge had
diligently made all the parties abide by the orders in limine. So, we thankfully did not have a Roth problem for our
appeal in preserving issues. But, we had learned a valuable lesson. This article discusses the policy considerations
and the strict requirements of Richmond, as well as the policy considerations and practical application of Roth to
ensure that motions in limine operate effectively to preserve appeal issues.
Policy considerations and strict requirements of Richmond
The Nevada Supreme Court recounted its prior rulings when it held in Richmond that there is no need to make a
contemporaneous objection during trial to preserve the issue for appeal, when an evidentiary objection has been
fully briefed in a motion in limine. The court first discussed its prior ruling in Daly v. State, 99 Nev. 564, 665 P.2d 798
(1983). In Daly, the court ruled very similar to the current Roth holding and concluded that a motion in limine
without further objection is not sufficient to preserve an issue for appeal when the terms of the order in limine are
violated and there is no contemporaneous objection.
The court then commented upon its ruling in Staude v. State, 112 Nev. 1, 908 P.2d 1373 (1996). Staude involved a
motion in limine that was denied in a first trial to exclude evidence of a prior conviction. Due to a mistrial, there was
a second trial in which the motion in limine was not renewed. On appeal, the Supreme Court ruled that a ruling on a
motion in limine is only advisory, and there must be a further objection at the time the objected-to evidence is
actually introduced. So, the issue of the prior conviction was waived on appeal.
Finally, the court decided Rice v. State, 113 Nev. 1300, 949 P.2d 262 (1997) in which a motion in limine was granted
to exclude the victims cause of death and injuries. However, after hearing the States expert testify outside the
presence of the jury, the trial court allowed evidence on the victims cause of death, but excluded evidence on the
victims injuries. Even though the State mentioned the victims injuries in opening statements, there was no
objection. So, the Supreme Court ruled that the issue was waived on appeal for failure to object.
The facts of Richmond involved the denial of a motion in limine dealing with the scope of allowable testimony that
was later not objected to at the time the witness testified at trial. In reaching its holding, the Supreme Court
considered the policy arguments that (1) it wastes the courts time for counsel to renew all objections at trial; (2)
motions in limine serve no purpose if they cannot preserve issues for appeal; and (3) requiring a defense attorney to
continually object during trial would create prejudice in front of the jury. The Supreme Court then considered a
variety of federal cases addressing the issue and noted that the Federal Circuit Courts are split on whether a
contemporaneous objection is needed after a ruling on a motion in limine.
After considering the policy arguments and the holdings of the federal cases, the Supreme Court adopted the Ninth
48 of 105 2/21/2012 7:43 AM
Circuit rule that when the substance of the motion in limine has been thoroughly explored during the hearing, and
the trial courts ruling on the admissibility of evidence is explicit and definitive, no further action is necessary to
preserve the issue for appeal. The court adopted the Ninth Circuits reasoning, consistent with this rule, that
motions in limine would avoid cluttering up the trial with sidebar conferences and arguments made outside the
presence of the jury. But, the Richmond rule did not make the distinction as to whether the order in limine was
violated at the time of trial, which appears to be at least a factor already present in the cases leading up to and
including Richmond, but just not clearly analyzed.
Policy considerations and practical application of Roth
The holding of Roth did not overrule Richmond, but Roth reconciled the various cases previously decided by the
Supreme Court into a universal rule. In fact, the court noted that Richmond failed to distinguish cases in which there
was a violation of the order in limine. As in the facts of Richmond, since the order in limine was in harmony with the
ruling at the time of trial dealing with the scope of allowable testimony, the order in limine would be sufficient
under Roth to preserve the issues on appeal without a contemporaneous objection at trial. But, if the terms of the
order in limine are violated during trial, there must be a contemporaneous objection to preserve the new error.
The Supreme Courts adoption of the Roth exception was motivated in part by the courts previous ruling in Lioce v.
Cohen, 124 Nev. 1, 174 P.3d 970 (2008), which considered most unobjected-to instances of attorney misconduct as
waived on appeal. The underlying policy of both Roth and Lioce that require contemporaneous objections when
there is perceived error gives the trial judge an opportunity to provide a curative instruction if needed. Otherwise,
counsel can sit idly by without objecting to violations of an order in limine, or attorney misconduct, hoping that if
there is an unfavorable jury verdict, a new trial will be granted. In the end, Roth promotes judicial economy by
limiting the grounds for new trials, especially under the facts of Roth where the trial lasted almost a month.
Gratefully, we did not have a Roth problem with our trial, and the appeal issues were preserved in the orders in
limine from our case. But, in the next trial, we will know that we cannot just forget about the orders in limine after
they are entered. Instead, we will need to be aware and object if any of the evidence or testimony violates the
orders in limine.
Conclusion
Using motions in limine to limit irrelevant or prejudicial evidence and testimony can be a useful tool in both jury
and non-jury trials. However, the rule expressed in Richmond that an order in limine preserves issues for appeal
without any regard for what happens during the course of the trial, is no longer entirely accurate. The Supreme
Court has clarified in Roth that when the evidence presented at trial is not consistent with the orders in limine, there
needs to be a contemporaneous objection based upon the new error. Otherwise, the error is not preserved for
appeal. But, if the evidence presented at trial is consistent with the orders in limine, no new objection is needed.
And, any error set forth in the orders in limine is preserved for appeal.
In order to effectively use motions in limine to preserve appeal issues, keep in mind that even extensive and
detailed motion in limine briefing can result in a waiver of issues on appeal if contemporaneous objections are not
made when the order in limine is violated during the course of the trial.
This e-mail address is being protected from spam bots, you need J avaScript enabled to view it is an attorney
at Marquis Aurbach Coffing in Las Vegas and can be reache
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
49 of 105 2/21/2012 7:43 AM
Nevada Bar No: 9473
Subject: Motion for Continuance
Date: Sat, 11 Feb 2012 17:06:05 -0800
Mr. Coughlin,
Contested motions for continuance must be accompanied by affidavit. Please review
the attached document and let me know if there is anything in there that you do NOT
want me to share with the Court or the Prosecution. Try to get back to me by this
Monday a.m. please.
Sincerely,
J oe Goodnight
<<Coughlin_Continuance.PDF>>
**********************************************************
Joseph W. Goodnight
(775) 337-4839
50 of 105 2/21/2012 7:43 AM
Sent: Sun 2/12/12 4:45 AM
In general, a motion in limine means a motion to obtain an evidence ruling at the outset, before the trial. They are
generally based on the evidence code. In contrast, a motion to suppress seeks an order that certain evidence cannot
be used because the constitution precludes the manner in which it was obtained, even if the evidence code would
allow it.
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Sun 2/12/12 4:52 AM
To: bdogan@washoecounty.us; jgoodnight@washoecounty.us
51 of 105 2/21/2012 7:43 AM
5 attachments
CR11-2064.odt (33.7 KB) , ex 2 to Opposition to Motion to Dismiss eleven page
Declaration of Zach Coughlin.pdf (113.1 KB) ,
12_11_11_final_motion_for_new_trial_city_of_reno_v_coughlin__RMC_11_CR_22176[2].pdf
(12.9 MB) , cr11-2064 1 30 12 opposition to motion to dismiss City v Coughlin.pdf
(168.6 KB) , Bar_Counsel_Report__March_2011.pdf (209.5 KB)
The relationship between a motion to suppress and a motion in limine is clearly explained in our case law. [A]
motion in limine is a preliminary or pretrial motion. . . . Article 53 of Chapter 15A deals with a specific type of a
motion in limine and that is the motion in limine to suppress evidence. . . . The fact that it is a motion to suppress
denotes the type of motion that has been made. The fact that it is also a motion in limine denotes the timing of the
motion regardless of its type. State v. Tate, 300 N.C. 180 (1980). In other words, a motion to suppress made before
trial is a variety of motion in limine. A mid-trial motion to suppress is not a motion in limine.
Its a little harder to figure out the relationship between a motion to suppress and an objection to the admission of
evidence, the latter of which is sometimes also called a motion to exclude evidence. Both types of motions have the
same objective: keeping evidence out. So whats the difference?
The General Statutes seem like a good place to start. Although theres no statutory definition of the phrase motion
to suppress, G.S. 15A-974 is of some relevance. It states that [u]pon timely motion, evidence must be suppressed
if . . . [i]ts exclusion is required by [the state or federal constitutions]; or . . . [i]t is obtained as a result of a substantial
violation of the provisions of [Chapter 15A]. If thats an implicit definition of a motion to suppress, though, its
surprisingly broad. It would suggest that, for example, a defendants Confrontation Clause objection to the states
use of a substitute analyst in a drug case is a motion to suppress, because it is grounded in the Constitution. Maybe
thats right, but my sense is that Confrontation Clause issues usually arent raised prior to trial, and our appellate
courts have been willing to review cases in which the defendant makes only a mid-trial objection to the evidence in
question. See, e.g., State v. Craven, __ N.C. App. __, 696 S.E.2d 750 (2010). On the other hand, if G.S. 15A-974
effectively defines motion to suppress, it is also surprisingly narrow, because established justifications for
suppression such as the denial of a DWI defendants right to have a witness observe a breath test for alcohol, see,
e.g., State v. Hatley, 190 N.C. App. 639 (2008) are mandated neither by the state or federal constitutions nor by
Chapter 15A.
In State v. Wilson, 293 N.C. 47 (1977), the state supreme court said in passing that the first prong of G.S. 15A-974
requires suppression only when the evidence sought to be suppressed is obtained in violation of [a] defendants
constitutional rights. The emphasis on how the evidence is obtained also appears in the commentary to G.S.
15A-974, which refers to evidence gathered in violation of constitutional rights. This is also in keeping with how
the phrase motion to suppress is defined in the federal courts. Rule 12(b)(3) of the Federal Rules of Criminal
Procedure requires motions to suppress to be filed prior to trial. The scope of the Rule was addressed in United
States v. Barletta, 644 F.2d 50 (1
st
Cir. 1981) (citations omitted):
The first question presented by these provisions is the scope of the terms suppress and exclude.
52 of 105 2/21/2012 7:43 AM
At least as used in 12(b), suppress has a rather definite and limited meaning, as explained by the
Advisory Committee notes accompanying the Rule. Motions to suppress are described as objections
to evidence on the ground that it was illegally obtained, including evidence obtained as a result of
an illegal search and other forms of illegality such as the use of unconstitutional means to obtain a
confession. Put generally, then, suppression motions concern the application of the exclusionary
rule of evidence, or matters of police conduct not immediately relevant to the question of guilt;
motions to exclude comprise all other evidentiary matters.
I admit that there are many cases in which the phrase motion to suppress is used to describe other types of
motions, but the analysis in Barletta, which focuses on the exclusion of evidence as a sanction for police misconduct
strikes me as about right. But see State v. Fewerwerker, 492 N.E.2d 873 (Ohio Ct. App. 1985) (categorizing as a
motion to suppress defendants motion to prevent witness from testifying on the basis of a privilege); State v. Myers,
625 P.2d 1111 (Kan. 1981) (holding that trial court properly granted a pretrial motion to suppress raising a
Confrontation Clause issue). Applying the Barletta standard to the examples discussed above, a motion based on an
officers failure to accord a DWI defendant her implied consent rights would be a motion to suppress, but most
Confrontation Clause objections would not be. Both results appear to be consistent with most of our case law, and
arguably to comport with judicial economy (because Confrontation Clause issues will very often be bound up with
other evidentiary issues at trial, while concerns about an officers investigatory conduct are often stand-alone issues
than can be explored in a discrete pretrial hearing).
Even if motion to suppress means something like motion seeking to exclude evidence as a sanction for police
misconduct in obtaining it, there will be some gray areas. For example, if a defendant admits that the police seized
an item of physical evidence legally, but contends that they then lost or destroyed it before trial in bad faith and
that the state therefore should be precluded from introducing testimony about the evidence, is the defendant
making a motion to suppress or a motion to exclude? Cf. generally Arizona v. Youngblood, 488 U.S. 51 (1988)
(discussing destruction of evidence claims generally). As always, I welcome your thoughts.
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
53 of 105 2/21/2012 7:43 AM
Sent: Sun 2/12/12 5:10 AM
1 attachment
cv11-01896 mtn to set aside resubmitted again (Mtn to Set Aside Decree).pdf (412.1
KB)
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
54 of 105 2/21/2012 7:43 AM
Sent: Sun 2/12/12 6:11 AM
10 attachments
what is a crime involving moral turpitude for purposes of having a liquor license.pdf
(16.5 KB) , law review on determining whether a crime involves moral turpitude for
lawyer discipline purposes.pdf (1964.7 KB) , moral turpitude crimes attorney
affecting license to practice law.pdf (8.0 MB) , results list moral turpitude attorney
crimes.pdf (895.8 KB) , moral turpitude character offenses law license medical
involving.pdf (1562.1 KB) , Federal income tax conviction as involving moral
turpitude warranting disciplinary action.pdf (711.6 KB) ,
Bar_Counsel_Report__June_2011-1.pdf (284.4 KB) ,
Bar_Counsel_Report__March_2011.pdf (209.5 KB) , Jan_2011_Bar_Counsel_Report
SCR 111 examples.pdf (272.7 KB) , attorney misdemeanor theft conviction
Disciplinary Matter Involving Schuler, 818 P.2d 138.htm (35.9 KB)
55 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
--Forwarded Message Attachment--
56 of 105 2/21/2012 7:43 AM
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You can search the entire site. or go to the recent opinions, or the chronological or subject indices.
In the Matter of Schuler (9/20/91), 818 P 2d 138
Notice: This is subject to formal correction before publication in the Pacific Reporter. Readers are requested to bring
typographical or other formal errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, in order that corrections may be made prior to permanent publication. THE SUPREME COURT OF THE
STATE OF ALASKA In the Disciplinary Matter ) Involving: ) ) Supreme Court No. S-3986 BRYAN SCHULER, ) ABA FILE
No. 88.010 ) Respondent. ) O P I N I O N ) Proceeding from the Disciplinary Board of the Alaska Bar Association.
Appearances: Bryan Schuler, pro se. Stephen J. Van Goor, Bar Counsel, Anchorage, for the Alaska Bar Association.
Before: Rabinowitz, Chief Justice, Burke, Matthews, Compton and Moore, Justices. COMPTON, Justice. RABINOWITZ,
Chief Justice, dissenting. MATTHEWS, Justice, dissenting. I. FACTUAL AND PROCEDURAL BACKGROUND Bryan E.
Schuler, while employed as a District Attorney for the State of Alaska in Bethel, "enter[ed] the Alaska Commercial
Company Store in Bethel, and place[d] several cassette tapes in a day-pack [he] was carrying. [He] did intend to
leave the store without paying for them." Upon perceiving that store employees were observing him, Schuler
abandoned the day-pack. He went home after a store employee told him not to return to the store. Later, Schuler
was requested to come to the police station. After consultation with counsel, he declined to make a statement. A
criminal complaint was filed against Schuler. It alleged that he did "unlawfully, knowingly, and with intent to
appropriate and deprive the owner of merchandise, conceal about his person unpurchased merchandise valued in
excess of $50.00 . . . ,"a class A misdemeanor under AS 11.46.220(a)(c)(2). Schuler entered a plea of no contest and
was convicted of the offense. On December 4, 1987, imposition of sentence was suspended and Schuler was placed
on probation until June 4, 1989, subject to the conditions that he maintain good behavior, that he continue with
counselling as long as necessary, that he complete 100 hours of community service, and that he commit no
violations of the law. Schuler has since successfully completed the terms of his probation, and the criminal case has
been dismissed. On January 13, 1988, this court entered an order of interim suspension of Schuler from the practice
of law pursuant to Alaska Bar Rule 26(a), on the ground that the conviction involved a serious crime under Alaska
Bar Rule 26(b). We referred the matter to Alaska Bar Association Discipline Counsel for the initiation of a disciplinary
proceeding. Interim suspension was to continue until final disposition of the matter. On December 26, 1989,
Discipline Counsel and Schuler stipulated that the conviction warranted that Schuler be suspended from the
practice of law for six months, and that he take and pass the Multistate Professional Responsibility Exam (MPRE).
The stipulation was accepted by the Disciplinary Board, which in turn recommended that it be accepted by this
court. We rejected the stipulation "on the grounds that [Schuler's] act appear[ed] to be a serious crime under the
Model Standards, Standard 5.11(a), for which disbarment is generally appropriate." In the Disciplinary Matter
Involving Bryan E. Schuler, No. S- 3263 (July 12, 1989). We remanded the matter to the Board. Id. Discipline Counsel
and Schuler thereafter entered a revised stipulation for discipline by consent, which again was accepted by the
Disciplinary Board, and in turn recommended for acceptance by this court. The revised stipulation recommends a
two-year suspension from the practice of law, effective January 13, 1988 (the date interim suspension was imposed),
and requires that Schuler take and pass the MPRE within one year of this court's final order in this matter. Thereafter
this court, sua sponte, requested the parties to provide it with statements "setting out all criminal and juvenile
convictions, criminal complaints or arrests involving Mr. Schuler. The statement shall include appropriate dates and
57 of 105 2/21/2012 7:43 AM
dispositions for each conviction, complaint, or arrest." In the Matter Involving Bryan E. Schuler, No. S-3986 (August
17, 1990). Responses from both Schuler and the Alaska Bar Association disclosed that in 1973, Schuler was
convicted of petty larceny by the District Court for the State of Alaska. Upon receipt of this information, we again
remanded the matter to the Disciplinary Board "so that the Disciplinary Board may reconsider its consent to the
revised stipulation in light of respondent's 1973 conviction." On November 6, 1990 the Disciplinary Board filed its
Determination on Reconsideration. In this document the Board advised that it "considered the 1973 shoplifting
conviction of respondent. Because the 1973 conviction predates respondent's admission to the Bar and is relatively
dated, the Board determined not to modify the stipulation." We now review that stipulation. II. APPROPRIATE
SANCTION In determining the appropriate sanction to be imposed, we are not bound to accept the Board's
recommendation, but may exercise our independent judgment. In re Buckalew, 731 P.2d 48, 51 n.7 (Alaska 1986). In
this matter we are "guided,"but not bound, by the ABA Standards for Imposing Lawyer Sanctions (1986). See Burrell
v. Disciplinary Bd., 777 P.2d 1140, 1143 (Alaska 1989); Buckalew, 731 P.2d at 52 ("[W]e will refer to the ABA
Standards and methodology as an appropriate model for determining sanctions for lawyer misconduct in this
state."). In determining proper sanctions, the ABA Standards provide for a test under which four questions are
posed: (1) What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or the
profession?) (2) What was the lawyer's mental state? (Did the lawyer act intentionally, knowingly, or negligently?) (3)
What was the extent of the actual or potential injury caused by the lawyer's misconduct? (Was there a serious or
potentially serious injury?) (4) Are there any aggravating or mitigating circumstances? Buckalew, 731 P.2d at 52
(citing ABA Standards, Theoretical Framework, ABA/BNA at 01:805-06). These questions are addressed within a
three-step methodology: The initial step requires that we answer the first three [questions] of the ABA test set forth
above. Next, we must look to the ABA Standards to discern what sanction is recommended for the "type" of
misconduct found in our initial inquiry. After determining the recommended sanction, we must ascertain whether
any aggravating or mitigating circumstances exist which warrant increasing or decreasing the otherwise appropriate
sanction. See, ABA Standards, Methodology, ABA/BNA at 01:803-04. Id. A. Step One: The Ethical Duties Violated, the
Mental State of Schuler, and the Injury or Potential Injury. 1. Ethical duties Schuler entered a plea of no contest to,
and was convicted of, a charge of concealment of merchandise, which required as one of its elements an "intent to
deprive the owner . . . or . . . intent to appropriate." AS 11.46.220(a). Schuler admits that he placed the tapes in his
day-pack "intend[ing] to leave the store without paying for them." Such conduct violates both Disciplinary Rule (DR)
1-102(A)(3) and (4): "A lawyer shall not: . . . (3) Engage in illegal conduct involving moral turpitude [nor] (4) Engage
in conduct involving dishonesty . . . ."1 The duties violated2 by Schuler were ones owed to the public. "The public
expects the lawyer to be honest and to abide by the law; public confidence in the integrity of officers of the court is
undermined when lawyers engage in illegal conduct. (Citing, inter alia, DR 1-102A(3) and (4)). ABA Standards,
Violations of Duties Owed to the Public, 5.0, ABA/BNA at 01:828- 29.3 2. Mental state This part of the test requires a
determination of Schuler's mental state with reference to his placement of the tapes into his day-pack. According to
the ABA Standards, Schuler's mental state can be described in descending order of culpability as intentional,
knowing or negligent.4 Schuler's conviction is conclusive proof of all of the elements of the crime for which he was
convicted. See Chadwick v. State Bar, 776 P.2d 240, 245 (Cal. 1989) ("A criminal conviction, including a plea of guilty,
is conclusive proof that the attorney committed all acts necessary to constitute the offense.").5 As noted above, one
of those elements was an "intent to deprive the owner of . . . or . . . intent to appropriate"the tapes. AS 11.46.220(a)
(emphasis added). For purposes of Alaska criminal law, "a person acts 'intentionally' . . . when the person's conscious
objective is to cause [the proscribed] result." AS 11.81.900(a)(1). This definition is in "[a]ccord"with the ABA
Standards' definition of intent. Buckalew, 731 P.2d at 53 n.18. Therefore, Schuler's conviction is conclusive proof that
he acted with intent as defined by the ABA Standards.6 3. Injury or potential injury The ABA Standards define
"injury"and "potential injury"as follows: "Injury" is harm to a client, the public, the legal system, or the profession
which results from a lawyer's misconduct. The level of injury can range from "serious" injury to "little or no"injury; a
reference to "injury" alone indicates any level of injury greater than "little or no"injury. . . . . "Potential injury"is the
harm to a client, the public, the legal system or the profession that is reasonably foreseeable at the time of the
lawyer's misconduct, and which, but for some intervening factor or event, would probably have resulted from the
lawyer's misconduct. ABA Standards, Definitions, ABA/BNA at 01:807. To measure the injury, the standards require
consideration of the type of duty violated. Id. at 01:806. As previously indicated, the duty here was one owed to the
public. In light of Schuler's position as District Attorney, his commission of a crime undoubtedly undermined
confidence in the legal profession. The public most certainly expects obedience to the law by those with authority
58 of 105 2/21/2012 7:43 AM
to prosecute others for its violation. It undermines the foundations of our criminal justice system to uncover a
public servant violating the very statutes he is entrusted with enforcing. By committing a crime, Schuler violated his
oath of office as District Attorney for the State of Alaska, and weakened the moral authority of the state to
condemn other violations of the criminal law. We therefore conclude that Schuler's misdemeanor theft caused
"serious" injury under the relevant ABA Standards. B. Step Two: Initial Determination of Appropriate Sanction. In our
initial reference of this matter to the Bar for disciplinary proceedings, we stated that Schuler's misconduct "appears
to be a serious crime under the Model Standards, Standard 5.11(a), for which disbarment is generally appropriate."
In the Disciplinary Matter Involving Bryan E. Schuler, No. S-3263 (July 12, 1989). Bar Counsel, however, maintains
that Standard 5.11(b) controls, and contends that suspension rather than disbarment is the appropriate sanction for
misdemeanor theft. Standard 5.11 provides as follows: Disbarment is generally appropriate when: (a) a lawyer
engages in serious criminal conduct a necessary element of which includes intentional interference with the
administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale,
distribution or importation of controlled substances; or the intentional killing of another; or an attempt or
conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other
intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the
lawyer's fitness to practice. ABA/BNA at 01:829. It makes no difference to this case whether Schuler's misconduct is
deemed to be "serious criminal conduct a necessary element of which includes . . . misappropriation, or theft"under
subsection (a), or "any other intentional conduct involving dishonesty . . . that seriously adversely reflects on [his]
fitness to practice" under subsection (b). Under either subsection, Standard 5.11 states that "[d]isbarment is
generally appropriate." Id. It is worthy of note that the commentary to Standard 5.11 suggests that the authors'
research focused on felony convictions. The commentary states that "most courts impose disbarment on lawyers
who are convicted of serious felonies." ABA/BNA at 01:829. Bar Counsel argues that disbarment is an excessive
sanction for misdemeanor theft when compared to this court's rulings in other disciplinary cases involving criminal
convictions.7 It is also worthy of note that Schuler's conduct did not take place in connection with his official duties
as District Attorney, or in connection with services performed in the practice of law. Nevertheless, on the basis of
the undisputed facts, we conclude that the sanction of disbarment is the reference point from which we begin our
analysis of aggravating and mitigating factors. In so concluding, we note not only Schuler's misdemeanor conviction
while a member of the Bar, but also his misdemeanor shoplifting conviction prior to his admission to the Bar.8 C.
Step Three: Aggravating and Mitigating Factors. "[A]fter making the initial determination as to the appropriate
sanction, the court [should] then consider any relevant aggravating or mitigating factors." (Emphasis added); ABA
Standards, Theoretical Framework, ABA/BNA at 01:807.9 Bar Counsel argues that none of the aggravating factors
are present in Schuler's case. However, Bar Counsel believes that the following mitigating factors are present:
9.32(a) absence of prior disciplinary record;10 (c) personal or emotional problems;11 (j) interim rehabilitation;12 (k)
imposition of other penalties or sanctions;13 and (l) remorse.14 We agree with Bar Counsel's analysis.15 Other than
the two footnoted grievances filed but found wanting, Schuler has no prior disciplinary record. His misconduct in
regard to the present case would appear to be the product of a self-destructive motivation, rather than a theft for
personal gain. We further note that Schuler has successfully completed the terms of his probation, has lost his job
as District Attorney, and has demonstrated remorse for what he did. It is instructive to compare the facts in our
most recent disciplinary case, Disciplinary Matter Involving West, 805 P.2d 351 (Alaska 1991), with the facts of
Schuler's conduct. West involved the discipline of an attorney who had fraudulently notarized a signature which
purported to be that of his deceased client when in fact the signature was forged by his deceased client's widow.
The signature was made and notarized at the attorney's suggestion to facilitate collection of a settlement
purportedly agreed upon by the client and the state, which had not been apprised of the client's death. The
misconduct occurred in connection with services performed by West in the practice of law, for which he received a
contingent fee. Based on a conclusion that West violated ABA Model Standards 5.11 and 5.12, we affirmed the
Disciplinary Board's "determination that disbarment or suspension are generally appropriate sanctions given the
nature of West's misconduct." West, 805 P.2d at 357-58. We then considered aggravating and mitigating factors.
West's case, unlike Schuler's, involved several aggravating circumstances, one of which we considered "significant."
Id. at 358. It also involved mitigating factors, including personal and emotional problems suffered by West and
testimony as to West's good character and reputation. Notably absent from West's case, however, was any remorse,
any effort to rectify the consequences of his misconduct, or the imposition of any other penalties or sanctions.
Nevertheless, we rejected the recommendation of the Board in that case that West be suspended for two years and
59 of 105 2/21/2012 7:43 AM
imposed only a ninety day suspension on West, though not without dissent.16 Id. at 360. When we announced in
Buckalew that we would be guided by the ABA Standards for disciplining lawyers, we noted that in part those
standards are explicitly designed to promote "consistence in the imposition of disciplinary sanctions for the same or
similar offenses." Buckalew, 731 P.2d at 52 (quoting ABA Standards, Section 1.3, ABA/BNA at 01:809-10). While
Schuler's misconduct may be viewed as more serious than West's, in that it did cause serious injury as defined by
the ABA Standards, the mitigating factors present in Schuler's case are more numerous and more significant than
those present in West's case. Based upon a consideration of all the above factors, we conclude that a sanction of
not more than two years suspension and passage of the MPRE, as recommended by the Board, should be imposed
on Schuler. III. CONCLUSION Schuler's misdemeanor theft constitutes a violation of disciplinary rules prohibiting
illegal conduct involving moral turpitude, and conduct involving dishonesty. Compliance with these rules is a duty
that all attorneys owe to the public. Schuler acted with criminal intent, the most culpable mental state according to
the ABA Standards. Because Schuler's misconduct directly and seriously demonstrated an unfitness to practice law,
he caused "serious" injury or potential injury to public confidence as described in ABA definitions. Having
considered the fact that Schuler's underlying misconduct involves his second conviction of intentional theft, and
that his conduct as a member of the bar violated ABA Standard 5.11, we might ordinarily find disbarment to be the
proper sanction. However, given the relevant mitigating factors in this record, we conclude that a significant period
of suspension from the practice of law is indicated. We therefore hold that the stipulated and recommended
sanction should be approved.17 The Revised Stipulation for Discipline is APPROVED. RABINOWITZ, Chief Justice,
dissenting. My difference with the majority's opinion and the Board's revised recommendation is that I would
commence Schuler's two-year suspension from the date of the issuance of this opinion, rather than from January
13, 1988 (the date of this court's interim suspension of Schuler from the practice of law). Schuler's misdemeanor
theft conviction constitutes a violation of disciplinary rules which prohibit illegal conduct involving moral turpitude
and dishonesty. Compliance with these disciplinary rules is a duty that all attorneys owe to the public. Here Schuler
acted with criminal intent, the most culpable mental state according to the ABA Standards. Schuler's misconduct
clearly demonstrates an unfitness to practice law and causes serious injury to the public's confidence in the legal
profession. Given the relevant facts in this record, I conclude that disbarment is an inappropriate sanction.
Nevertheless, I believe that a significant suspension from the practice of law is indicated. In view of the fact that
Schuler's underlying misconduct involves his second conviction of intentional theft, I would hold that the stipulated
sanction should be accepted with the exception that Schuler's two-year period of suspension from the practice of
law should run from the publication date of this opinion. MATTHEWS, Justice, dissenting. Section 5.11 of the
American Bar Association Standards for Imposing Lawyer Sanctions (1986) indicates that disbarment is generally
appropriate in cases where a lawyer commits an intentional theft. Since this is Schuler's second intentional theft, I
view his case as somewhat aggravated. Thus, I would follow the ABA standards and order Schuler disbarred.
_______________________________ 1. In re Preston, 616 P.2d 1 (Alaska 1980), implies that misdemeanor theft involves
moral turpitude. In discussing the interim suspension rule, Bar Rule 26 (then Rule 23), we stated: "Certain
misdemeanors, dependent upon the moral turpitude of the attorney, are defined as serious crimes." Id. at 5
(emphasis added). Included in this list of serious crimes are felonies and lesser crimes, "a necessary element of
which . . . involves . . . misappropriation [or] theft." Id. at 3 n.3. Likewise, the Supreme Court of Oregon has held that
"a misdemeanor conviction for the crime of theft is a conviction involving moral turpitude." In re Carstens, 683 P.2d
992, 996 (Or. 1984). This is in accordance with other courts which have "defined moral turpitude as acts which
evidence 'a fraudulent or dishonest intent.'" In re Wines, 660 P.2d 454, 456 n.4 (Ariz. 1983). See also Chadwick v.
State Bar, 776 P.2d 240, 245 (Cal. 1989) ("Crimes which necessarily involve an intent to defraud, or dishonesty for
personal gain . . . may establish moral turpitude."). 2. Conduct which results in a conviction of a serious crime
pursuant to Alaska Bar Rule 26(b) is another independent ground for discipline. Alaska Bar R. 15(a)(1). 3. Similarly,
Ethical Consideration 1-5 notes: Because of his position in society, even minor violations of law by a lawyer may
tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers
especially, respect for the law should be more than a platitude. 4. ABA Standards, Theoretical Framework, ABA/BNA
at 01:806 reads in part: The most culpable mental state is that of intent, when the lawyer acts with the conscious
objective or purpose to accomplish a particular result. The next most culpable mental state is that of knowledge,
when the lawyer acts with conscious awareness of the nature or attendant circumstances of his or her conduct both
without the conscious objective or purpose to accomplish a particular result. The least culpable mental state is
negligence, when a lawyer fails to be aware of a substantial risk that circumstances exist or that a result will follow,
60 of 105 2/21/2012 7:43 AM
which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation. 5. To
hold otherwise would allow an attorney to relitigate his or her innocence in a disciplinary proceeding. See In re
Kirschke, 549 P.2d 548, 549 (Cal. 1976). This is implicitly precluded by Alaska Bar Rule 26(f), which provides that in a
proceeding following interim suspension for a serious crime "[t]he sole issue to be determined by the Hearing
Committee will be the extent of the final discipline to be imposed." (Emphasis added). 6. Furthermore, by Schuler's
own admission, he concealed the tapes in his day-pack "intend[ing] to leave the store without paying for them." 7.
The following is a partial summary of pre-Buckalew cases relied on by Bar Counsel: In re Kernan, No. S-1390 (June 9,
1986)(disbarment for sale of marijuana, a felony); In re Pittman, Nos. S-929/1076 (December 19, 1985)(disbarment
for assault in the third degree on a police officer, a felony); In re Preston, 616 P.2d 1 (Alaska 1980) (two-year
suspension for conviction of distributing cocaine to a minor, a felony); In re Webb, 602 P.2d 408 (Alaska 1979)
(disbarment for conviction of accessory after the fact to murder, a felony); In re Robson, 575 P.2d 771, 782 (Alaska
1978) (one-year suspension for aiding and abetting receipt of ammunition by a convicted felon, a felony, and for
violation of order temporarily suspending attorney from practice); Alaska Bar Ass'n v. Benton, 431 P.2d 146 (Alaska
1967) (disbarment for conviction of grand larceny, a felony). 8. On September 6, 1973, Schuler was charged with
petty larceny, a violation of former AS 11.20.140, the complaint alleging that he did "unlawfully take, steal and carry
away, with intent to permanently deprive the owner thereof, . . . one (1) Canon Camera Case, . . . ." On September 10
he pleaded no contest to the charge and was fined $50. He was then nineteen years old. This offense was disclosed
by Schuler on his application for admission to the Alaska Bar Association and on his application for a superior court
judgeship that became vacant in Bethel in 1986, shortly before the incident discussed herein took place. Schuler was
one of two applicants, out of five who applied for the judgeship, found qualified for the position by the Alaska
Judicial Council. 9. Aggravating factors "may justify an increase in the degree of discipline to be imposed,"and
include: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple
offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or
orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices
during the disciplinary process; (g) refusal to acknowledge wrongful nature or conduct; (h) vulnerability of victim; (i)
substantial experience in the practice of law; (j) indifference to making restitution. ABA Standards, 9.21-.22,
ABA/BNA at 01:841-42. Mitigating factors "may justify a reduction in the degree of discipline to be imposed,"and
include: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or
emotional problems; (d) timely good faith effort to make restitution or to rectify consequences of misconduct; (e)
full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the
practice of law; (g) character or reputation; (h) physical or mental disability or impairment; (i) delay in disciplinary
proceedings; (j) interim rehabilitation; (k) imposition of other penalties or sanctions; (l) remorse; (m) remoteness of
prior offenses. ABA Standards, 9.31-.32, ABA/BNA at 01:842. 10. The disciplinary records of the Alaska Bar
Association reflect that previously two grievances were filed against Schuler. One was dismissed and one was not
accepted for investigation. No prior discipline has been imposed against him. 11. In his statement to the Disciplinary
Board, Mr. Schuler says, inter alia: 2. I was accosted by one of the store employees and directed not to return to the
store. I left and returned home, awaiting the next inevitable step in the process. When requested to come to the
police station I sought the advice of my attorney and declined to make a statement to the police at that time. 3.
Soon thereafter, I was suspended by the State in my job as a prosecutor. I went to Anchorage where I sought
treatment from a psychiatrist, Dr. Michael Bernzott. Treatment by Dr. Bernzott helped me to realize not only the
wrongfulness of my conduct, of which I was already aware, but also the sources of my motivation to such an act
which, compared to my standing and reputation in the community, seemed so unreasonable. I came to understand
that I was creating intolerable strain for myself in posing as perfect while suppressing acceptance of my own normal
weakness. This eventually manifested itself in acts, such as this attempted theft, which can only be understood as
self-destructive. Stealing was a way to put myself in the way of punishment for my pose. Once I understood the
roots of this way of thinking, I was able to come to terms with things that I had a choice to do or not to do. One of
the things I became truly free not to do was steal. 3. [sic] Nonetheless, I had put myself in the way of punishment,
and punishment was awarded. I entered a plea of No Contest to the charge of Concealment of Merchandise, and
consequently was terminated by the Department of Law, ending a budding career to which I had totally devoted
myself under trying conditions for over five years. That was not unexpected, but was still very painful indeed. 4. I
also felt acutely the shame associated not only with the punishment, but also the knowledge of my colleagues of
my wrongful act. This was especially ash in my mouth because I had recently put myself before the Bar as a
61 of 105 2/21/2012 7:43 AM
candidate for judicial office and had attained the highest ratings for professional integrity by my peers. 6. I
acknowledge the wrongfulness of my conduct and recognize that bitter consequences flow from it. I know now why
I acted as I did and, armed with that knowledge, know that I will not so act again. I cannot make the events other
than as they are, but I also know that I can, in time, demonstrate to the Bar and the judiciary that the credit I was
once given for integrity can be regained, if given the chance. 12. See footnote 11. 13. On Schuler's plea of no
contest to a violation of AS 11.46.220(a)(c)(2), he was found guilty. Imposition of sentence was suspended and
Schuler was placed on probation for a period of one and one half years on good behavior, ordered to continue
counselling as long as necessary, complete 100 hours of community service work within one and one half years and
provide proof thereof to the court, and not violate the law. He successfully completed the terms of his probation
and the case against him dismissed. 14. See footnote 11. 15. Arguably the remoteness of Schuler's prior offense
could be a mitigating factor under the guidelines. The Board did not so argue. However, the Board did consider the
prior offense in determining whether to modify its Revised Stipulation for Discipline. It declined to do so "[b]ecause
the 1973 conviction predates [Schuler's] admission to the Bar and is relatively dated." 16. Justices Burke and
Compton would have ordered West disbarred. 17. The Revised Stipulation for Discipline was approved by an order
entered by the court on April 1, 1991, with "A written opinion [to] follow." The practical effect of our approval is that
Mr. Schuler will have been suspended in excess of three years and two months. Were Justice Rabinowitz's position
to have prevailed, the suspension would be in excess of five years and eight months.
Sent: Sun 2/12/12 6:42 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
62 of 105 2/21/2012 7:43 AM
Sent: Sun 2/12/12 7:12 AM
Young Zachary Norman DEPUTY D. A. III $101,632.00 $33,236.91 $136,819.61 Washoe County 2010
Zachary Norman Young DEPUTY D. A. III $92,438.24 $29,083.10 $124,710.80 Washoe County 2009
Zachary Norman Young DEPUTY D. A. II $47,985.36 $11,781.10 $60,015.75 Washoe County 2008
Sent: Sun 2/12/12 7:21 AM
63 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Sun 2/12/12 7:38 AM
64 of 105 2/21/2012 7:43 AM
Sent: Sun 2/12/12 8:44 AM
65 of 105 2/21/2012 7:43 AM
66 of 105 2/21/2012 7:43 AM
67 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Sun 2/12/12 9:48 AM
68 of 105 2/21/2012 7:43 AM
You have a tape of everything Duralde heard on the scene when he arrived. Now
he might say he was told stuff by dispatch. The listed disptach personnel includes a female with a last name of
Duralde. Is that his relation? Mother? Sister? Wife? Please find out. please subpoena all the disptach recordings,
Some interesting stuff in the texts from 911. and the notes. The notes say the RP (reporting party?) is yelling at
me. THey also say I called 911. Not many theifs seeking to run away and permanently deprive someone of
somethign call 911 in the process. Further, what about Duralde's discounting my reports of being assaulted and or
battered, or faslely imprisone. He playes judge and lawyer and dismisses them, and conducts no investigation.
Why can't you make any hay with that, Mr. Goodnight. Maybe you just don't like me, maybe you resent me for
some reason.
What about the seizure here? search and seizure are different things, right, though they are often confused as
interchangeable. Wasn't my freedom of movement "seized"?
Further, and this is the kind of thing you miss when you are in a rut/slumber in a job environment that does that to
you, but you are focusing on different senses, or not enough of them. What if Young says fine, he wasn't allowed to
tough....big deal, cuz the officer "heard" the ringer vibrating"....or they may try to say he "saw it light up" (the
phones screen...which the skaters either said they saw it light up in one of the 3 pages of the initial discovery
(officer's suppl dec and witness statments of zarate and goble, or in the videos of interviews of witnesses...SO WHY
DIDN'T OFFICER DURALDE SEE THE IPHONE LIGHT UP LIKE THE WITNESSES SAID THAT HAD SEEN IT LIGHT UP IN
THE ACCUSED'S POCKET. WAS THE PHONE TURNED OFF? IS THAT WHY IT DIDN'T LIGHT UP? ALSO WHY THERE IS
NOT SOUND OF AN IPHONE VIBRATING PRESENT ON THE RECORDING MADE BY A DEVICE 12 INCHES AWAY
FROM THE WHERE THE IPHONE ALLEGEDLY WAS AND THAT CAPTURE MANY, MANY OTHER SOUNDS? SO DOES
THAT MEAN DURALDE LIED ABOUT THE ORDER OF THINGS? DID HE HAVE TO REACH IN THE POCKET AND PULL
OUT THE IPHONE, TURN IT ONE, THEN CALL IT AND CONFIRM HIS SUISPSICIONS, THEN ANNOUNCE HE WAS
MAKING AN ARREST, SAFE IN THE KNOWLEDGE THAT HE WOULD JUST MOTI THAT PART IN HIS REPORT AND
PROCEED AS THOUGH THE POHONE'S OWNERSHIP WAS DEDUCABLE THROUGH MEANS THAT DIDN'T VIOLATE
THE FOURTH AMENDMENT? PERHPAS AT&T KEEPS RECORDS OF WHEN A PHONE IS TURNED OFF OR WHEN
CALLS MADE TO IT GO STRAIGHT TO VOICE MAIL BECUASE THE PHONE IS NOT ON? (no thanks to the worthless
weekend at bernies investigator evo novak,whomyou have a duty to supervise and for which you will face a
negligent hiring training and supervision malpractice lawsuit, believe it or not, I will sue you when I am sitting
around not allowed to pracice law for anyone else, I will just sue you, the PD who mailed it in on my case. I have
you saying you don't know what the deadline to file a criminal appeal from a conviction in muni or justice court is
(somethign every one of your clients should be apprised of, even if you yoruself aren't handlign the appeals) and
saying that you didn't know the washoe county law library has westlaw access. you clearly don't research for shit.
69 of 105 2/21/2012 7:43 AM
you cite cases from bar review chapters on criminal/constitutional law, not real research tailored to the specific facts
of the case. and that probablyjust because the motion is largely from a generic brief bank.
YOU DO CITE THE DICKERSON AND HICKS CASES AND those are pretty good...it would be good to expand on what
is "contraband", ie whether that means theings are are always illegal to possess, or only illegal because they were
ellegedly stolen or what? what does contrabandmean exacty.
I think you need to expound on what it is that the purpose of a terry stop is for. i kind of don't think its just to
check for weapons or insure officers safety, or is it?
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Mon 2/13/12 4:42 AM
23 attachments
70 of 105 2/21/2012 7:43 AM
James A. Boles.pdf (305.5 KB) , Waiver of motion to suppress.pdf (46.8 KB) , right to
allowance public defenders COURT-APPOINTED ATTORNEY IN CRIMINAL CASES.pdf
(25.7 KB) , nv criminal law continuance public defender.pdf (60.1 KB) ,
ADKT_0470_Order amendments to criminal rules of practice in Washoe County
District Court.pdf (109.4 KB) , amend criminal complaint nevada.pdf (95.6 KB) ,
motion for new trial criminal law headnotes keynumbers nevada.pdf (283.8 KB) , set
aside criminal law shoplifting continuance.pdf (1021.4 KB) , officer perjury new trial
criminal shoplifting.pdf (74.6 KB) , headnotes keynumbers continuances criminal law
nevada cases generally.pdf (143.2 KB) , Reno Justice Court criminal records
search.pdf (54.8 KB) , Legal malpractice in defense of criminal prosecution.pdf (6.7
MB) , Police Misconduct LitigationPlaintiff's Remedies.pdf (1385.3 KB) , Police
Misconduct as Municipal Policy or Custom.pdf (1247.1 KB) , police misdemeanor
arrests.pdf (2.3 MB) , police overcharging offenses.pdf (2.5 MB) , overcharging
TAKING THE COP OUT OF COPPING A PLEA ERADICATING POLICE
PROSECUTION.pdf (1365.9 KB) , docket in goodnight case rcr11-063341 front and
back last entry 12 19 12.pdf (380.3 KB) , Beckett_RI20110404[1] similar to DDA
Young's plea agreement.pdf (188.1 KB) , Bar_Counsel_Report__June_2011-1.pdf
(284.4 KB) , Jan_2011_Bar_Counsel_Report SCR 111 examples.pdf (272.7 KB) , LEGAL
REPRESENTATION AND THE NEXT STEPSTOWARD CLIENT CONTROL_ AT.pdf (3.7
MB) , scr 111 attorney nevada lawyer article on reporting conviction for crime
theft.pdf (20.9 KB)
71 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
72 of 105 2/21/2012 7:43 AM
Sent: Mon 2/13/12 6:01 AM
Sent: Mon 2/13/12 3:44 PM
DEAR MR. GOODNIGHT,
73 of 105 2/21/2012 7:43 AM
Please Subpoena Goble's iPhone number's call records for the time between apporoximately 20 minutes before the
arrest through 20 minutes after the arrest. I am interested in whether that alleged phone received numerous calls
during the time of the arrest. If so, then why didn't the audio/video of the arrest contain any exclamations of "see!
its lighting up!" or "Oh, I hear it vibrating". There were approximately 10-20 skater youths gathered, many pumped
up with adrenaline and eager to "show the lawyer". So, I would imagine many of them would be calling the number
the believe belonged to any phone that might be on the suspect. If there is a record of a number of calls, yet the
tape doesn't reveal anythign like the above exclamations or present sense impressions, then wouldn't that indicate
the phone was turned off completely, and Officer Duralde conducted a search as invasive as a search incident to
arrest (for example, by taking the phone out of the suspect's pocket, turning it on, the calling it with another phone
to confirm, the "remixing" the order of these events, or cutting out the part about turning the phone on, and merely
putting the part about calling the phone and hearing it vibrate (odd Duralde makes no mention of "seeing" the
phone light up as the some witness apparently did). Obviously, such an imagining of the actual facts supposedly
supporting either a reasonable suspicion finding or a probable cause finding sufficient to justify both a search and
seizure of the magnitutde seen her, would be police misconduct. If DDA Young had some knowledge of this and
still persists in his current tact, that woudl be prosecutorial misconduct.
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Mon 2/13/12 3:48 PM
74 of 105 2/21/2012 7:43 AM
To: jgoodnight@washoecounty.us; enovak@washoecounty.us
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
75 of 105 2/21/2012 7:43 AM
Sent: Tue 2/14/12 6:40 PM
To: stuttle@washoecounty.us; jgoodnight@washoecounty.us;
zyoung@da.washoecounty.us; rjcweb@washoecounty.us
1 attachment
rcr11-063341 Motion to Dismiss, Motion to Suppress, Motion in Limine, Motion to
Examine Police Personnel Files, Motion for Sanctions, Motion for Continuance or
Extension of Time WITH ATTACHED EXHIBIT 1.pdf (15.5 MB)
Dear Reno Justice Court Administration and Filing Office, DDA Young and DPD Goodnight,
Hello, I am emailing and faxing the document and one exhibit you will find herein as I was denied my right to file it
today. I presented to the court prior to 5pm today but was prevented from filing this document (and today is the
last day to file these pretrial motions absent receiving leave of court to do so prior to the February 29th, 2012 Trial
in Department 2 before Judge Sferrazza. Judge Sferrazza has, in the past, expressed displeasure with regard to any
attempt to file by email, and I do not wish to upset Judge Sferrazza here, and accordingly am not copying him on
this correspondence. However, I believe the "excusable neglect"/"deprivation of rights under color of law" analysis
may dictate that I promptly attempt to make some record of my attempt to file and in that regard I am submitting
this to you now.
Incidentally, I did call the criminal division RJC filing office today shortly before 5pm alerting them to my imminent
attempt to access justice and received confirmation that they would not close prior to 5pm. HOwver, the doors of
the court house were locked prior to 5pm. I have witness timers/clocks in the court to be set approximately 5
minutes fast in that past. I attempted to ask a supervisor about this by alerting Chief Deputy Sexton, and while he
initially refused to get a supervisor, he then finally indicated he would, however, no supervisor ever appeared. Chief
Deputy Sexton, along with another Deputy has sexually assaulted me in that past, and as such, of course, the was a
very unusual and uncomfortable situation.
Additionally, I had another landlord tenant hearing involving myself on Monday, 2/3/12. AS per JCRRT my case was
randomly assigned to Judge Lynch. However, just prior to my case being heard, Deputy Sexton entered the court
room, made some calls, and Judge Sferrazza appeared to hear my case. Judge Sferrazza then proceeded to grant a
property manage a license to practice law on behalf of Park Terrace Homeowners Associations (PTHOA). I, of
course, am very uncomfortable having the Deputy who sexually assaulted me appear in the court room at all my
appeances, as Deputy Sexton seems to do (in fact, he glowered over me at the 12/21/12 Hearing on my Motion to
Contest Personal Property lien) in such a menacing fashion that I was unable to think clearly, much to the detriment
of my case. Further, I am uncomfortable at the appearance given off by the curious changing of the Judge assigned
to my hearing after Deputy Sexton entered the court room and made a few calls. It may be inappropriate to give
off the appearance that Deputy Sexton is able to control the assignment of Judges to certain cases rather than
76 of 105 2/21/2012 7:43 AM
having cases randomly assigned pursuant to JCRRT. I believe this filing and one exhibit you find herein should be
accorded a filing date for 2/14/12, as I was prevented from appropriately accessing justice, and in that regard, I
don't believe this is a request to "bend" the rules or allow a special exception, though I do believe one is able to file
a motion seeking such an exception for cause. Deputy SExton has sexually assaulted me in the past in similar
situations where I attempt to use all of the hours available to filing accorded to any other member of the public.
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Wed 2/15/12 3:19 AM
Joe,
Please copy me on any and all correspondence between you and the State, including DDA Young. Further, I am
again requesting, in writing, for you to provide me a copy of an correspondence (or a copy of an memorandum
memorializing such correspondence) between you and the State.
In that regard, I have no idea what you mean by "our counter offer". What, exactly was the "counter offer". Please
respond in writing. Further, please email or fax me a copy of ever filing in this case, and any other materials that
WCPD will allow me to have, including your notes, work product, internal memorandum, etc.. I get it, there is lots
77 of 105 2/21/2012 7:43 AM
and lots the WCPD is not going to allow me access to. But, please just email or fax me what the WCPD will allow
me, because, I have not received file stamped copies of anything, and while send drafts of things, how do I know
what ultimately was actually filed? I don't. I would like you to fax or email me a file stamped copy of anything you
have filed or received, in addition to the other items I mention herein and previously. Did you file the Motion for
Continuance? Your emails were contradictory. The one sent on or around 2/11/12 indicated you were going to file
it unless I contacted you early Monday to stop you from doing so. Then, you next sent an email indicating you
wouldn't file unless you received an approval. However, I believe the 15 day deadline to file pretrial motions applies
to Motions for Continuances, so you were taking a chance by sending an email so late in the game, especially where
previously you had indicated an intent to so file the Motion.
Wow, your organic, free trade, caramel machiato buddy DDA Young sure kind of screwed you, huh, what with
denying the request for a continuance. This is especially true where the accused had been wrongfully arrested twice
in January, the subject to domestic violence (receiving two different protection orders), and where there are so
many allegations of law enforcement misconduct in connection with the accused's interactions with law
enforcement personnel acting in concert, recently. You would think ol' Zach Norman Young would be appreciative
of you, and not subject you to such exigent circumstances, so fraught with malpractice liability, particularly in a high
profile case like this one, one that may well be what your career is judged on for some time.
So, I would like an answer to the question of who the younger woman attorney was who filled in for DDA Young at
one hearing, and whether she now works for the PD.
regarding your last emal, you wrote:
Please respond in a succinct constructive manner to the questions regarding the affidavit supporting the
continuance you want. WHAT QUESTIONS ARE YOU REFERRING TO, PLEASE SET THEM FORTH IN A
SUCCINCT CONSTRUCTIVE MANNER. YOU WERE SENT THE 22 PAGE EMAIL TO THE wCSO, PUCN, AND
OTHERS THAT SETS FORTH A MYRIAD OF REASONS FOR A CONTINUANCE, BUT YOU HAVE ALSO BEEN
APPRISED OF OTHER SUCH REASONS.
I won't file it until I hear from you. SEE MY NOTES ABOVE REGARDING THE DETRIMENTAL RELIANCE UPON YOUR
EARLIER COMMUNICATIONS
In regards to your Fifth Amendment questions, I think you are focusing on something called Doyle Error.
Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) This occurs when a prosecutor tries to impeach a defendant at trial with
their silence and invocation of their Fifth Amendment right.
WELL, IT MAY BE CALLED DOYLE ERROR AT TRIAL, BUT WE ARE INVOLVED IN THE PRE-TRIAL MOTION
STAGE, SO HOW ABOUT YOU ROLL UP YOUR SLEEVES, J OE, RATHER THAN TELLING THE CLIENT TO,
AND FIND SOMETHING ON POINT. IN THAT REGARD, WHAT METHOD OF LEGAL RESEARCH DO YOU
EMPLOY? I KNOW YOU AT THE PD HAVE A LIMITED LEXIS SUBSCRIPTION, WHEREAS THE DA HAS A
VERY PREMIUM VERSION OF WESTLAW, A PATENT INEQUITY. I DO RECALL SPEAKING WITH YOU
RECENTLY AND BEING SURPRISED TO LEARN THAT YOU, WHO HAS COLLECTED OVER HALF A MILLION
DOLLARS OF WASHOE COUNTY TAXPAYER MONEY AS SALARY IN YOUR CAREER, WERE COMPLETELY
UNAWARE THAT THE WASHOE COUNTY LAW LIBRARY PROVIDES FREE WESTLAW ACCESS. HAVE YOU
DONE ANY LEGAL RESEARCH ON THIS ISSUE, THE ONE CONCERNING WHETHER INVOKINGN ONE'S
FIFTH AMENDMENT RIGHTS CAN BE INCLUDED AS A J USTIFICATION IN A PROBABLE CAUSE ANALYSIS
BY AN OFFICER FOR THE PURPOSES OF J USTIFYING A SEARCH INCIDENT TO ARREST, OR, EVEN
BEFORE THAT, TO J USTIFY A MORE INVASIVE, PRONOUNCED, AND LONGER IN DURATION "TERRY STOP"
NRS 171.123? HOW DOES THAT COMPARE TO THE HIIBEL CASE FROM NV THAT THE US S CT RULED
ON?
This type of impeachment at the trial level is most-often improper. However, the analysis for a probable cause
determination is different and the officers and court can consider the "totality of the circumstances" including your
responses to the officer's questioning when determining whether probable cause existed to arrest you. CAN YOU
PROVIDE SOME CITATION TO SUPPORT THIS POINT, J OE? ARE THERE ANY CASES, EVEN MERE
78 of 105 2/21/2012 7:43 AM
PERSUASIVE AUTHORITY FOUND IN AMERICAN J URISPRUDENCE EMANATING FROM OUTSIDE OF
NEVADA, EVEN A MINORITY VIEWPOINT THAT WOULD GIVE YOU A "BASIS IN FACT OR LAW" (TO QUOTE
YOUR EARLIER QUOTING OF NRCP 11 LANGUAGE WHICH, IRONICALLY YOU THEN TOLD ME DID NOT
APPLY TO CRIMINAL MATTERS WHEN I ASKED YOU TO USE IT AS A TOOL AGAINST THE DA, RATHER
THAN AS A PROMP YOU UTILIZE TO GET OUT OF DOING ANY WORK FOR YOUR CLIENTS. THE COUNTY
MIGHT PAY YOU, J OE, BUT THE DEFENDANT'S ARE YOUR CLIENTS, COUNSELOR.
Thanks,
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Subject: Continuance and Fifth amendment
Date: Tue, 14 Feb 2012 11:42:25 -0800
Mr. Coughlin,
Please respond in a succinct constructive manner to the questions regarding the
affidavit supporting the continuance you want. I won't file it until I hear from you.
In regards to your Fifth Amendment questions, I think you are focusing on something
called Doyle Error.
79 of 105 2/21/2012 7:43 AM
Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) This occurs when a prosecutor tries to impeach a
defendant at trial with their silence and invocation of their Fifth Amendment right. This
type of impeachment at the trial level is most-often improper. However, the analysis
for a probable cause determination is different and the officers and court can consider
the "totality of the circumstances" including your responses to the officer's questioning
when determining whether probable cause existed to arrest you. We can object
during the hearing, but I don't see a basis for a motion at this point. I'm not finding
anything that says otherwise, but if you do, please share it.
J oe Goodnight
PS - The State rejected our counter-offer.
**********************************************************
Joseph W. Goodnight
(775) 337-4839
Sent: Thu 2/16/12 8:29 AM
To: jgoodnight@washoecounty.us; zyoung@da.washoecounty.us;
rjcweb@washoecounty.us; stuttle@washoecounty.us
2 attachments
rcr11-063341 PRE TRIAL MOTION WITH BATE STAMPED EXHIBITS.pdf (16.2 MB) ,
rcr11-063341 affidavit in support of motion to file pre-trail motions late bw.pdf
(224.4 KB)
80 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Subject: RE: attempt to file prior to 5pm denied
Date: Wed, 15 Feb 2012 15:57:28 -0800
From: stuttle@washoecounty.us
To: zachcoughlin@hotmail.com; JGoodnight@washoecounty.us; zyoung@da.washoecounty.us
Mr.Coughlin:
ThedocumentsthatyouemailedandfaxedtoRenoJusceCourtat6:40pmonFebruary14,2012willbeled
stampwithtodaysdate(February15,2012)andplacedinthelefortheJudgesreview.Itwillbenotedthat
thesedocumentswerereceivedbytheCourtaernormalbusinesshoursonFebruary14,2012.
Steve Tuttle
81 of 105 2/21/2012 7:43 AM

Court Administrator
Reno J ustice Court

Sent: Tuesday, February 14, 2012 6:40 PM
To: Tuttle, Steve; Goodnight, J oseph W; Young, Zach; RJ CWEB
Subject: attempt to file prior to 5pm denied

Dear Reno J ustice Court Administration and Filing Office, DDA Young and DPD Goodnight,
Hello, I am emailing and faxing the document and one exhibit you will find herein as I was denied my right to file it
today. I presented to the court prior to 5pm today but was prevented from filing this document (and today is the
last day to file these pretrial motions absent receiving leave of court to do so prior to the February 29th, 2012 Trial
in Department 2 before J udge Sferrazza. J udge Sferrazza has, in the past, expressed displeasure with regard to
any attempt to file by email, and I do not wish to upset J udge Sferrazza here, and accordingly am not copying him
on this correspondence. However, I believe the "excusable neglect"/"deprivation of rights under color of law"
analysis may dictate that I promptly attempt to make some record of my attempt to file and in that regard I am
submitting this to you now.
Incidentally, I did call the criminal division RJ C filing office today shortly before 5pm alerting them to my imminent
attempt to access justice and received confirmation that they would not close prior to 5pm. HOwver, the doors of
the court house were locked prior to 5pm. I have witness timers/clocks in the court to be set approximately 5
minutes fast in that past. I attempted to ask a supervisor about this by alerting Chief Deputy Sexton, and while he
initially refused to get a supervisor, he then finally indicated he would, however, no supervisor ever appeared.
Chief Deputy Sexton, along with another Deputy has sexually assaulted me in that past, and as such, of course, the
was a very unusual and uncomfortable situation.
Additionally, I had another landlord tenant hearing involving myself on Monday, 2/3/12. AS per J CRRT my case
was randomly assigned to J udge Lynch. However, just prior to my case being heard, Deputy Sexton entered the
court room, made some calls, and J udge Sferrazza appeared to hear my case. J udge Sferrazza then proceeded to
grant a property manage a license to practice law on behalf of Park Terrace Homeowners Associations (PTHOA). I,
of course, am very uncomfortable having the Deputy who sexually assaulted me appear in the court room at all my
appeances, as Deputy Sexton seems to do (in fact, he glowered over me at the 12/21/12 Hearing on my Motion to
Contest Personal Property lien) in such a menacing fashion that I was unable to think clearly, much to the
detriment of my case. Further, I am uncomfortable at the appearance given off by the curious changing of the
J udge assigned to my hearing after Deputy Sexton entered the court room and made a few calls. It may be
inappropriate to give off the appearance that Deputy Sexton is able to control the assignment of J udges to certain
cases rather than having cases randomly assigned pursuant to J CRRT. I believe this filing and one exhibit you find
herein should be accorded a filing date for 2/14/12, as I was prevented from appropriately accessing justice, and in
that regard, I don't believe this is a request to "bend" the rules or allow a special exception, though I do believe
82 of 105 2/21/2012 7:43 AM
one is able to file a motion seeking such an exception for cause. Deputy SExton has sexually assaulted me in the
past in similar situations where I attempt to use all of the hours available to filing accorded to any other member of
the public.
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473

From: Zach Coughlin,Esq. (zachcoughlin@hotmail.com)
Sent: Thu 2/16/12 9:55 AM
Yet you di d not t i mel y f i l e. Pl ease f i l e a mot i on and af f i davi t under nr s 174. 125( 4)
wi t h a mot i on f or ot der shor t eni ng t i me and an i nt er l ocuht or y appeal i f deni ed
i mmedi at el y
83 of 105 2/21/2012 7:43 AM
Sent: Thu 2/16/12 5:54 PM
2 attachments
notice of appearance.pdf (386.5 KB) , rcr11-063341 affidavit in support of motion to
file pre-trail motions late bw.pdf (224.4 KB)

prosecution to suppress evidence, for a transcript of former proceedings, for a preliminary hearing,
for severance of joint defendants, for withdrawal of counsel, and all other motions which by their
nature, if granted, delay or postpone the time of trial must be made before trial, unless an opportunity
to make such a motion before trial did not exist or the moving party was not aware of the grounds for
the motion before trial. 2. In any judicial district in which a single judge is provided: (a) All motions
subject to the provisions of subsection 1 must be made in writing, with not less than 10 days notice
to the opposite party unless good cause is shown to the court at the time of trial why the motion could
not have been made in writing upon the required notice. (b) The court may, by written order, shorten
the notice required to be given to the opposite party. 3. In any judicial district in which two or more
84 of 105 2/21/2012 7:43 AM
judges are provided: (a) All motions subject to the provisions of subsection 1 must be made in writing
not less than 15 days before the date set for trial, except that if less than 15 days intervene between
entry of a plea and the date set for trial, such a motion may be made within 5 days after entry of the
plea. (b) The court may, if a defendant waives hearing on the motion or for other good cause shown,
permit the motion to be made at a later date. 4. Grounds for making such a motion after the time
So, of course, you will need to file such a Motion immediately. However, upon calling you shortly before 5 pm
today, instead of addressing that exigent concern, you ran an got your guy DPD Biray Dogan, Esq. to eavesdrop in
on our confidential attorney client, privileged communications. Of course its not probably technically
"eavedropping" when you mincingly say, beforehand, "hang on, I'm going to go grab, Biray...", but given the time
contraints we are operating under and the imbalance of power, it really feels like it. Why did you need to get
Biray? Is the fact that you make so much more money than me, operate under color of law (which will arise in any
subsequent 42 USC Sec 1983 analysis), and have a staff of sullen retaliatory government workers at your diposal
(the receptionist who lied about whether I "kicked" furniture in the WCPD lobby when I was tapping my toes, Cary
Hylin, Esq., the DPD who retailiates against anyone who may even begin to point out that his approach to defense
work is kind of like Bernie's approach to weekending, and Evo Novak, whom demands that absolutely no one tell
him how to do his job, even where he clearly is not doing it at all, much less doing it well...). With all that, you still
need to go and grab Biray? This makes twice today, a most exigent of days in the course of this litigation that you
have slammed down the phone in terrible anger towards me, abruptly ending the call, causing me great anguish
and worry given the path you have led me down, and the proximity to so precarious a situation I now find myself
in. I am, of course referring to the specter of a looming Trial on February 29th, 2012, where you have already blown
extremely important deadlines, on top of where you have flat out refused to take basic, essential that any zealous
advocate would intuitively know to do, and where such an advocate would not even imagine refusing to do them
where a client has laid them out and substantially contributed towards completing the work involved in such tasks.
You really come across as a sot of Dr. Kevorkian for the PD set. Joey Kevorkian, kind of catchy.

Please mitigate the damages you have caused me at once, and cease your attempts to obstruct me from appearing
as co-counsel in this matter, in direct contravention of Judge Sferrazza's explicit indication, on the record, in open
court, that I am allowed to so appear in this matter as co-counsel. Please copy me immediately on your written
indications to that effect to the RJC. Please refrain from taking the, for what seems quite typical for me, futile stance
of suggesting that you will "get this on calendar for next week" the matter of whether Joe Goodnight, Esq., DPD will
grant me the right to appear as co-counsel. For all the money you make Joe, and for the scant contribution you
have made to my defense, it is highly ironic to me that I am the one facing a theft based charge. I would imagine
you are wracked with guilt on a daily basis in consideration of those circumstances and attributes. You are well
aware that given the paucity of days before the Trial is set to occur, for which DDA Zach Young, Esq. refused to even
consider a continuance. Speaking of DDA Young, I have seen you having coffee with at the organic, free trade,
overpriced, bourgie coffee place between the PD's and the RJC ($3.35 for one small coffee, no refills, must be nice,
guys).

Sincerely,

Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
85 of 105 2/21/2012 7:43 AM
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
Sent: Fri 2/17/12 3:43 AM
86 of 105 2/21/2012 7:43 AM
Zach Coughlin, Esq.
1422 E. 9th St. #2
RENO, NV 89512
tel: 775 338 8118
fax: 949 667 7402
Nevada Bar No: 9473
87 of 105 2/21/2012 7:43 AM
Sent: Tue 2/21/12 5:03 AM
To: jgoodnight@washoecounty.us; jbosler@washoecounty.us
88 of 105 2/21/2012 7:43 AM
Sent: Tue 2/21/12 7:23 AM
To: jgoodnight@washoecounty.us; jleslie@washoecounty.us; jbosler@washoecounty.us;
jboles@callatg.com; loodew@hotmail.com

Hotmail Print Message http://by148w.bay148.mail.live.com/mail/PrintMessages.aspx?cpids=3e...
1 of 16 2/21/2012 8:15 AM

2 of 16 2/21/2012 8:15 AM


3 of 16 2/21/2012 8:15 AM
4 of 16 2/21/2012 8:15 AM
Also, with respect to a search incident to arrest, such searches are also applicable to arrests for minor
crimes/traffic violations where custodial arrest occurs (Robinson, Gustafson)' however, note that such searches
are prohibited for non-custodial arrest under both Nevada statutory law and by a US Supreme Court decision
(Knowles) http://en.wikipedia.org/wiki/Knowles_v._Iowa
Plain View Doctrine
requires that:
officer be legally on premises
incriminating nature must be apparent for items seized (i.e. P/C that object is incriminating, R/S
does not suffice) (Arizona v. Hicks; Minnesota v. Dickerson)
officer have lawful right of access to object

5 of 16 2/21/2012 8:15 AM
6 of 16 2/21/2012 8:15 AM
Further, Duralde did not have a "lawful right of access" to the
"object" her, particularly where engaged in some very ill advised penis touching prior to conducting such an
impermissible search.
Stop-and-Frisk and Limited Detention Without P/C
minimal search/ seizure permitted based on R/ S despite absence of P/ C
R/S must be based on objective facts suspect is involved in criminal activity (Brown v. Texas)
(RPD DURALDE HARDLY COULD BE SAID TO HAVE 'OBJECTIVE FACTS HERE WHERE THE
SCANT DISCOVERY THE STATE PRODUCED IS
UNDULY CONRADICTORY AND THAT WHICH THE STATE DID NOT PRODUCE ABSENT A
SUBPOENE (IE THE 911 CALLS) IS EVEN MORE
SUGGESTIVE OF A LACK OF OBJECTIVE FACTS, TO WIT:
THE 911 CALLS SHOW GOBLE IS DIM AT BEST, AND AT WORST WHO POSSESSES A CLEAR
TENDENCY TO LEVERAGE PROCESS
FOR IMPERMISSILBE PURPOSES (IE TO LIE TO THE POLICE
TO GET THEM TO BE HIS ATTACK DOGS)
individual facts may be non-criminal so long as taken together they suggest scenario of
criminal activity (Sokolow)
deference afforded to experienced officers reasoning (Arvizu)
DURALDE WAS ONLY 28 AT THE TIME OF THIS ARREST
R
flight is highly probative in suspicion determination (Wardlow)
HOWEVER, HERE, THE ACCUSED WANTED TO TIE HIS
PEKINGNES DOG UP PRIOR TO ANY DETENTION BECAUSE
"IT LIKES TO RUN AWAY"
evaluation of informants tip in R/S determination based on totality of the circumstances
(Alabama v. White) tHE 911 OPERATORS TAKING
7 of 16 2/21/2012 8:15 AM
GOBLE ET AL'S CALLS (NOT ALL CALLS APPEAR TO HAVE
BEEN PRODUCED (SEEM DISTRUSTING OF GOBLE AND
SLIGHTLY ANNOYED BY HIS CALLOWNESS
SLI
reliability standard is lower than that required for P/C
anonymous tip alone without substantiation insufficient to establish R/S (Florida v.
J.L.) PATENT CONTRADICTIONS ARE NOT SUBSTANTITA
key element is whether tip predicts future events
THE TIPS HERE DID NOT PREDICT FUTURE EVENTS, IN FACT THEY CREATED IMPLICATIONS THAT WERE
SUBSEQUENTLY CONTRADICTED OR SHOWN TO LACK A BASIS....no VIOLENCE no one "socked a minor" no one
"ran away", etc., etc.
seizure determination based on whether reasonable person, in view of all the circumstances,
would have felt free to leave (Mendenhall)
OBVIOUSLY THE ACCUSED HERE DID NOT FEEL "FREE TO LEAVE" IN FACT HE
QUERRIED THE OFFICERS SEVERAL TIMES IN THAT REGARD
probative factors include:
threatening presence of officers
display of weapon by officer
some physical touching of person
use of language or tone of voice
termination of movement rises to seizure only when through means intentionally applied
8 of 16 2/21/2012 8:15 AM
(Brower v. County of Inyo)
mere show of authority, absent submission, does not constitute seizure (Hodari D.)
extent of stop limited by principles of reasonableness:
must not be longer than circumstances require
must not be more intrusive than necessary (Florida v. Royer)
subject to reasonableness analysis (Sharpe)
demand for identification not unreasonable (Hiibel)
may not transport suspect to station absent P/C (Dunaway)
frisk permissible where limited to search for weapons (Dickerson) and officer has reasonable
belief suspect is armed (Ybarra)
rule may be expanded to include plain touch of weapons, contraband, or evidence
on-site fingerprinting permitted based on R/S of crime
limited seizure of property also permitted as incident to stop (Place)
but 90-minute seizure too long to be reasonable (Place)
limited search beyond suspects person (i.e. car) also permissible based on specific and
articulable facts creating R/S of danger (Long)
stops of vehicles also permitted (Adams)
bright line rule allows police to require driver to leave car during stop (Mimms)
passengers also can be required to exit even absent R/S (Maryland v, Wilson)
justified by balancing safety interest vs. de minimis intrusion
rationale;
justified by exigent circumstances
not situation for which warrant would be required
search reasonable under circumstances based on suspicion
frisk justified by risk to officers safety where limited to necessary scope
brief detention on less than P/C of residences occupants permissible during search pursuant to warrant
(Summers)
legality unclear where warrantless search involved
The Miranda Rule and the Fifth Amendment
when an individual is taken into custody or otherwise deprived of his freedom by the authorities in a
significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized
[The suspect] must be warned prior to any questioning:
9 of 16 2/21/2012 8:15 AM
that he has the right to remain silent,
that anything he says can be used against him in a court of law,
that he has the right to presence of an attorney,
and that if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires.
creates irrebutable presumption of involuntariness if warnings not given
based on rationale that custodial interrogation is inherently coercive
rules is indirect constitutional holding creating prophylactic rule (Dickerson)
applies to all crimes (including minor crimes) (Berkemer)
applies only to custodial questioning
inquiry is whether reasonable person in suspects position would have believed he was in custody
(Stansbury)
both parties subjective beliefs irrelevant (Berkemer)
Terry stops are generally not custodial because presumptively temporary and brief (Berkemer)
that investigation has focused on suspect is not dispositive (Beckwith)
location of interrogation is probative
but suspect who voluntarily comes to stationhouse usually not in custody (Mathiason)
interrogation in public usually not custodial (Berkemer)
interrogation in home usually not custodial (Beckwith)
bright line rule that defendant not in custody if unknowingly talking to undercover agents
(including if in prison) (Illinois v. Perkins)
but there may still be violation of right to counsel (Massiah)
applies to any statement during in interrogation:
voluntary statement made in absence of questioning unprotected
functional equivalent to questioning constitutes interrogation (i.e. actions reasonably likely to
elicit an incriminating response) (Innis)
intent of police is not dispositive in such instances (Innis) but may be relevant (Mauro)
standard questions for booking do not implicate Miranda (Muniz)
questions asked by non-police may implicate Miranda
psychiatric exam used for penalty phase may implicate but not where used to assess only
competency/sanity (Estelle)
right exercisable at any time
10 of 16 2/21/2012 8:15 AM
right is waivable
burden of proof on prosecution to show waiver voluntary, knowing, and intelligent (Moran v.
Burbine) by preponderance (Connelly)
requires knowledge of both nature of right and consequences of relinquishment
silence can never constitute waiver
neither express statement nor written waiver always required (Butler)
conditional waiver may be sufficient, even if illogical (Barrett)
coercion is necessary predicate to finding confession involuntary
defendants subjective mental state irrelevant (Colorado v. Connelly)
may be relevant for knowing/intelligent inquiry
police treatment of attorney irrelevant in inquiry (Moran)
police silence as to questionings scope does not render waiver involuntary (Colorado v.
Spring)
affirmative misrepresentation may be different matter
existence of retained attorney not dispositive on nullification of waiver, even where police
prevent contact (Moran v. Burbine)
justification events outside presence of and unknown to suspect can have no
bearing on capacity to waive
relied also on balancing approach (hotly contested)
subjective state of mind of police irrelevant
still potential for Due Process voluntariness violation
request for lawyer explicitly requires that questioning cease
request for non-lawyer (e.g. prob. officer) may not vitiate waiver (Fare v. Michael C.)
police required to demonstrate defendants intent to relinquish right if effort to invocate
right to remain silent has already been made (Brewer)
police may re-initiate interrogation subsequent to invocation of right to silence (Michigan v.
Mosley)
requires right to silence to be scrupulously honored
requires cooling off period between interrogations
unless prior invocation ambiguous or equivocal (Davis)
standard is reasonable officers understanding
clarifying questions permissible
11 of 16 2/21/2012 8:15 AM
police may not re-initiate if suspect invokes right to counsel (Edwards)
bright line rule unless suspect initiates subsequent questioning
requires representation of desire to open more generalized discussion relatingto the
investigation (Bradshaw)
also requires that re-invocation be knowing and voluntary
test is totality of circumstances
unless prior invocation ambiguous or equivocal (Davis)
standard is reasonable officers understanding
clarifying questions permissible
applies to questioning regarding different crime (Roberson)
lawyer must be present for interrogation after invocation (Minnick)
subsequent to valid waiver, rights likely need not be repeated
rule includes right to have lawyer present during questioning
exception applies for questioning prompted by reasonable need to protect public safety (Quarles)
requires application of objective standard
justification that Miranda requirements merely prophylactic, allowing application of cost-benefit
analysis
defendant may still exclude by showing of actual coercion
Miranda-defective statement may be used for impeachment purposes (Harris)
unless obtained involuntarily in which case inadmissible (Mincey)
silence subsequent to Miranda warnings also inadmissible (Doyle)
unless defendant opens the door at trial
silence is implicit to carry no penalty
rule does not apply to pre-Miranda silence (Fletcher, Jenkins)
rationale that Miranda may not be used as license for use of perjury
invocation of
Testmonial Evidence
right against self-incrimination protects only testimonial evidence (Schmerber)
line drawn generally between communications and physical evidence
12 of 16 2/21/2012 8:15 AM
Zach Coughlin, Esq., 1422 E. 9th St. #2, RENO, NV 89512, tel: 775 338 8118, fax: 949 667 7402;
ZachCoughlin@hotmail.com Nevada Bar No: 9473
Sent: Tue 2/21/12 5:54 AM
To: jgoodnight@washoecounty.us; jbosler@washoecounty.us; jboles@callatg.com
Probable Cause Analysis
different standard for arrest vs. search
arrest: more likely than not that a violation of the law has been committed and that the person to
be arrested committed the violatio
The law that Duralde was considering, and whether a violation of it had occured was larceny, not "finding lost or
mislaid property or some "possession of stolen property"" violation
Further, Coughlin asked Duralde to investigate and or arrest the youths who attacked him, yet Duralde's
probable cause analysis in that regard was curiously measured, however, those youths did not even have a
chance to assert any of those troubling consitutional rights that Coughlin may have (the video/audio only reveals
Coughlin asking questions about those matters in a Socratic style), the specter of anyone besides the RPD having
any rights resulting in the RPD Officers getting extremely upset and retaliatiatory.
search: more likely than not that specific items to be searched for are connected with criminal
activities and will be found in place searched
only evidence presented to magistrate relevant in evaluation (JOE, THIS SEEMS VIABLE HERE, AS
DURALDE PRESENTED OT MAGISTRATE THAT WHICH IS IN HIS ARREST SHEET, SUPPLEMENTARY
DECLARATION, AND THE TWO WITNESS STATEMENTS...NOTHING ELSE. THE PATENT INCONSISTENCIES
IN THOSE SCANT MATERIALS ARGUABLY VITIATE THE VIABILITY OF THE PROBABLE CAUSE FINDING, AND
ARGUABLY AUGER TOWARD A FINDING THAT THE SKATER YOUTHS DID ATTACK THE DEFENDANT AND
THAT DURALDE WAS NEGLIGENT IN NOT PROPERLY INVESTIGATING THOSE CHARGES, RATHER THAN
13 of 16 2/21/2012 8:15 AM
CURTLY DISMISSING THEM IN A RETALIATORY MANNER UPON THE SPECTER OF THE BILL OF RIGHTS
RARING ITS "UGLY" HEAD IN DURALDE'S MILLIEU.
14 of 16 2/21/2012 8:15 AM
15 of 16 2/21/2012 8:15 AM
Further, Joe, both you and EVO have indicated to me that you have not performed any investigation with regard
to whether Duralde took the phone out of the accused short's pocket prior to the arrest, why the video/audio of
the arrest does not reveal the vibrating sound that Duralde alleges provided him the probable cause to conduct
a full on search incident to arrest, why Duralde's Declaration mentions "hearing" a vibrating of the phone within
Coughlin's pocket when he called Goble's number in comparison to the skater youth's statements that they "saw
the phone light up", or whether any of the phone records of Goble's friends who were allegedly calling the
phone repeatedly during the detention reveal that such calls were made, and if they were made, then why did it
take Duralde so long to "hear a vibrating sound" coming from Coughlin's shorts. There sure seems to be a
curious delay in Duralde "hearing" that essential bit of information (ie the "plaint hearing" of the phone allegedly
vibrating on its silent ringer setting) upon which he allegedly based his probable cause finding BEFORE
(allegedly) taking the phone out of Coughlin's pocket.
This, when viewed in the context of Duralde's statement upon arriving on the scene, ie, that he was going to get
to do his search for the phone regardless of what any investigation he might conduct might reveal (ie, patent
inconsistencies in Zarate's statements concerning whether the phone was taken directly from where Goble
placed it or whether some "Hippy" freely handedin the phone to the accused) is and not only troubling, but it is
the basis for a pre-trial motion by the guy getting paid $100K to be a defense attorney, and the failure to file one
is likely professional misconduct in addition to be a basis for a malpractice suit.
Zach Coughlin, Esq., 1422 E. 9th St. #2, RENO, NV 89512, tel: 775 338 8118, fax: 949 667 7402;
ZachCoughlin@hotmail.com Nevada Bar No: 9473
16 of 16 2/21/2012 8:15 AM
ABA Section of Litigation Annual Conference, April 16 18, 2008:
Crossing the Line: Responding to Prosecutorial Misconduct
1
Crossing the Line:
Responding to Prosecutorial Misconduct
INTRODUCTION
Among lawyers, a prosecutor is in a unique position. Normally a lawyer is free toindeed, expected
tozealously advocate on behalf of his or her client. Prosecutors, however, are not simply advocates
for the government. They are also ministers of justice whose aim is not to win a case, but that justice
shall be done. Berger v. United States, 295 U.S. 78, 88 (1935). As such, [i]t is as much his duty to
refrain from improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one. Id.; see generally Bennett L. Gershman, The Prosecutors
Duty to Truth, 14 Geo. J. Legal Ethics 309 (2001).
By now, the actions of Michael Nifong, the former District Attorney of Durham County, North
Carolina, that led to his disbarment are well known. See generally Robert P. Mosteller, The Duke
Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to Do Justice, 76
Fordham L. Rev. 1337 (2007). Some argue that the situation involving Nifong is an isolated case. Yet
prosecutorial overreaching has been an issue well before this headline-grabbing case came along.
A recent report issued by the California Commission on the Fair Administration of Justice referred to a
study that reviewed 2,130 California appellate cases in which a claim of prosecutorial misconduct was
raised. Cal. Commn on the Fair Admin. of Justice, Report and Recommendations on Professional
Responsibility and Accountability of Prosecutors and Defense Lawyers (2007), available at
http://www.ccfaj.org/documents/reports/prosecutorial/official/official report on reporting
misconduct.pdf. Of those 2,130 cases, 443 resulted in findings that prosecutorial misconduct actually
occurred. In 53 of the 443 cases, a reversal of conviction was the resultthe rest concluding that the
misconduct was harmless error. Perhaps the most disturbing statistic is that a follow-up study looking
at half of the cases resulting in a reversed conviction concluded that the prosecutor was not referred to
the California State Bar for discipline, which is required under California law. If there is a positive
aspect to the Duke Lacrosse saga, it is that Nifongs actions and ultimate disbarment have served to
highlight the important issue of prosecutorial misconduct and the need for effective remedies.
Few would claim that any prosecutor intentionally sets out to seek the conviction of an innocent
person. Rather, it is argued that prosecutorial misconduct stems from a win at all cost mentality
underlying the desire to further a career, or a firm belief in the defendants guilt notwithstanding
admissible evidence. See Joseph F. Lawless, Prosecutorial Misconduct 1:06, at 1-15 (3d ed. 2003).
Regardless of the causes, the effects of prosecutorial misconduct are distressing. Two different studies
of persons exonerated by DNA evidence have shown that prosecutorial misconduct played a role in
convicting an innocent person nearly half of the time. See Peter A. Joy, The Relationship Between
2
Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006
Wis. L. Rev. 399, 403 (2006). Moreover, assuming that the defendant is factually culpable, a
conviction secured through the improper actions of a prosecutor could be unconstitutional and, thus,
subject to reversal. The result is that the innocent are convicted and the guilty go free, which can only
exacerbate the publics loss of trust in the integrity of the criminal justice system.
PROSECUTORIAL GUIDELINES
In performing their duties to seek justice, prosecutors are bound by constitutional standards, case law
governing trial conduct, and various ethics rules and standards pertaining to the prosecutorial function.
Rule 3.8 of the ABA Model Rules of Professional Conduct (Model Rules) specifically covers the
actions and responsibilities of prosecutors. All state jurisdictions have an ethics rule imposing special
responsibilities on prosecutors, most based on Model Rule 3.8. Prosecutors are also guided by
standards found in the ABA Standards for Criminal Justice Prosecution Function and Defense
Function (3d ed. 1993) (ABA Standards) and the National District Attorneys Association
Prosecution Standards (2d ed. 1991) (NDAA Standards). In assessing the conduct of prosecutors,
courts have oftentimes looked to the ABA Standards for guidance. See, e.g., Miller v. North Carolina,
583 F.2d 701, 706 n.6 (4th Cir. 1978).
For years, the U.S. Department of Justice (DOJ) took the position that Assistant United States
Attorneys (AUSAs) were exempt from state ethics rules. The McDade Amendment in 1999 laid to
rest this argument. The amendment, attached as a rider to an appropriations bill, provides:
An attorney for the Government shall be subject to State laws and rules, and local
Federal court rules, governing attorneys in each State where such attorney engages
in that attorneys duties, to the same extent and in the same manner as other
attorneys in that State.
28 U.S.C. 530B(a). The Professional Responsibility Advisory Office within the DOJ provides
advice to AUSAs regarding ethical issues and choice-of-law matters.
EXAMPLES OF PROSECUTORIAL MISCONDUCT
Like the Hydra slain by Hercules, prosecutorial misconduct has many heads. United States v.
Williams, 504 U.S. 36, 60 (1992) (Stevens, J., dissenting); see also Joy, supra, at 402 (listing
numerous forms of prosecutorial misconduct). This article focuses on five categories: (1) suppression
of evidence, (2) misuse of the media, (3) misconduct involving witnesses, (4) investigative
misconduct, and (5) trial misconduct. Any specific act of prosecutorial misconduct may fall into more
than one category. For example, knowingly presenting perjured testimony would be misconduct
involving a witness, as well as a violation of the duty to disclose exculpatory evidence.
Suppression of Evidence
[V]iolations of Brady are the most recurring and pervasive of all constitutional
procedural violations, with disastrous consequences: innocent people are wrongfully
3
convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful
legal and ethical enforcement and accountability has a corrosive effect on the
publics perception of a justice system that often appears to be arbitrary, unjust, and
simply unreliable.
Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L.
Rev. 13, 15 (2007) [hereinafter Gershman, Litigating].
The key holding of Brady v. Maryland is that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. 373 U.S. 83, 87
(1963). Arguably, because a Brady violation may occur even when the prosecutor acts in good faith,
the term prosecutorial misconduct in the suppression of evidence context should be used only when
the prosecutor intentionally withholds exculpatory material.
In United States v. Agurs, the Supreme Court explained that a prosecutor has a constitutional duty of
disclosure when he or she is in possession of evidence that would deny a defendant a fair trial if that
evidence were not disclosed. See 427 U.S. 97, 108 (1976). The Court has stressed that because a
prosecutor is in a different position to determine the materiality of a piece of evidence than is an
appellate court, the prudent prosecutor will resolve doubtful questions in favor of disclosure. Id.
The Supreme Court has clarified that the constitutional requirement that a prosecutor disclose
evidence that is favorable and material exists regardless of whether the defendant makes a request for
a specific piece of evidence, a general request for favorable evidence, or no request at all. United
States v. Bagley, 473 U.S. 667, 682 (1985). When considering the issue retrospectively, appellate
courts conclude that the duty existed when there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Id. Moreover, a
prosecutor has a duty to learn of any favorable evidence known to the others acting on the
governments behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Finally, there is no constitutional significance between impeachment evidence and evidence that is
directly exculpatory. The key to a Brady violation is the materiality of the withheld evidence. See
Bagley, 473 U.S. at 67678.
Ethical rules require more than the constitutional minimum of Brady. Although the NDAA Standards
seem to require only slightly more than the constitutional minimum, see NDAA Standard 25.4 (The
prosecutor should disclose the existence or nature of exculpatory evidence pertinent to the defense.),
the Model Rules and ABA Standards go further. Model Rule 3.8(d) provides that a prosecutor must:
make timely disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the offense, and,
in connection with sentencing, disclose to the defense and to the tribunal all
unprivileged mitigating information known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a protective order of the tribunal.
4
Likewise ABA Standard 3-3.11(a) provides:
A prosecutor should not intentionally fail to make timely disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which
would tend to reduce the punishment of the accused.
The commentary to ABA Standard 3-3.11 notes that this provision is virtually identical to that
imposed by ABA model ethical codes, [and] goes beyond the corollary duty imposed upon prosecutors
by constitutional law. (Footnote omitted.) See also Kyles, 514 U.S. at 437 (noting that Brady
requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for
prosecutorial disclosures of any evidence tending to exculpate or mitigate). Finally, ABA Standard 3-
3.11(c) warns that [a] prosecutor should not intentionally avoid pursuit of evidence because he or she
believes it will damage the prosecutions case or aid the accused.
Nifong suppressed exculpatory evidence when he did not tell the defense team that DNA from
numerous males, none of it from any of the lacrosse players, was found in items obtained from the
complainant during her medical examination. This evidence was inconsistent with the complainants
allegations that she was raped by several of the team members. It also contradicted her claims that she
had not had sex with anyone in over a week prior to the alleged incident. See generally Stuart Taylor,
Jr. & KC Johnson, Until Proven Innocent (2007).
One of the most egregious cases of a prosecutor failing to disclose impeachment evidence occurred in
the small town of Tulia, Texas. In 1999, 38 people (36 of them black) were arrested on drug charges
and later convicted. The only evidence used to secure their convictions was the uncorroborated
testimony of one undercover officer with severe credibility problems. At a hearing several years later,
a judge determined that the prosecutor had failed to turn over evidence impeaching the officers
credibility, and stood silent when he knew the officer was committing perjury. All of the defendants
were either pardoned or had their convictions overturned. See Laura Parker, Court Cases Raise
Conduct Concerns, USA Today, June 26, 2003, at 3A. A more thorough discussion of how
prosecutors may evade their responsibility to disclose exculpatory evidence may be found in
Gershman, Litigating, supra.
Misuse of the Media
Ethical rules prohibit all lawyers involved in litigation or investigations from making statements to the
media that would prejudice the matter. Model Rule 3.6(a) provides:
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 be disseminated by means of public communication and
will have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.
Model Rule 3.8(f), which applies specifically to prosecutors and is meant to protect a defendants
Sixth Amendment right to a fair trial, is worded similarly to Model Rule 3.6(a). It also imposes a duty
5
on a prosecutor to take reasonable steps to prevent the entire prosecutorial team from making
prejudicial statements:
[E]xcept for statements that are necessary to inform the public of the nature and
extent of the prosecutors action and that serve a legitimate law enforcement
purpose, [a prosecutor shall] 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 Rule 3.6 or this Rule.
Standard 3-1.4 of the ABA Standards is basically an amalgam of Model Rules 3.6(a) and 3.8(f). The
full text of Standard 3-1.4 follows:
(a) A prosecutor should not make or authorize the making of an extrajudicial
statement that a reasonable person would expect to be disseminated by means of
public communication if the prosecutor knows or reasonably should know that it will
have a substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law
enforcement personnel, employees, or other persons assisting or associated with the
prosecutor from making an extrajudicial statement that the prosecutor would be
prohibited from making under this Standard.
The DOJ has promulgated regulations governing the release of information in criminal cases. 28
C.F.R. 50.2(a)(b). The regulations provide that very general information about the defendant,
charging instrument, investigating agency, and circumstances of arrest may be released. 50.2(b)(3).
Importantly, [d]isclosures should include only incontrovertible, factual matters, and should not
include subjective observations. 50.2(b)(3)(iv). The regulations clearly prohibit dissemination of
any information concerning a defendants prior criminal record, 50.2(b)(4), and also list numerous
types of information or opinions that a prosecutor should refrain from making available.
50.2(b)(6). The United States Attorney Manual (USAM) contains guidelines to implement the
regulations, but cautions that they do not create any rights enforceable in law or otherwise in any
party. USAM 1-7.001.
Improper extra-judicial statements include: releasing grand jury material, commenting on the bad
character of a defendant, referring to the crime as heinous or reprehensible, disclosing a defendants
confession, disclosing a defendants criminal record, discussing trial strategy, opining on the
defendants guilt, claiming that the governments case is strong, and commenting on the defendants
lack of cooperation. See Bennett L. Gershman, Prosecutorial Misconduct 6:3:10 (2d ed. 2007)
[hereinafter Gershman, Misconduct]. But see 28 C.F.R. 50.2(b)(6) (providing that a prosecutor
should refrain from giving an opinion as to the defendants guilt and referring to the defendants
character or confession).
6
The Disciplinary Hearing Commission of the North Carolina State Bar determined that Nifong had
violated Rule 3.6(a) and 3.8(f) of North Carolinas Revised Rules of Professional Conduct on at least
30 different occasions. A small sampling of the statements include:
[O]ne would wonder why one needs an attorney if one was not charged and had not done anything
wrong.
The contempt that was shown for the victim, based on her race was totally abhorrent. It adds
another layer of reprehensibleness to a crime that is already reprehensible.
I would not be surprised if condoms were used. Probably an exotic dancer would not be your first
choice for unprotected sex.
Im not going to let Durhams view in the minds of the world to be a bunch of lacrosse players
from Duke raping a black girl in Durham.
What happened here was one of the worst things thats happened since I have become district
attorney.
They dont want to admit the enormity of what they have done.

Natl Org. of Bar Counsel, Case of the Month (June 2007), http://www.nobc.org/cases/0607.asp.
Nifongs numerous statements inflamed the public, the pool from which the jury would have been
drawn had the case gone to trial.
Misconduct Involving Witnesses
It should go without saying that a prosecutor acts unethically when he or she suborns perjury. Such
conduct undermines the integrity of our adversarial system and, at a minimum, violates Model Rule
3.3(a)(3), which prohibits any lawyer from knowingly offering false evidence. Similar to the Model
Rule, ABA Standard 3-5.6(a) succinctly states: A prosecutor should not knowingly offer false
evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek
withdrawal thereof upon discovery of its falsity.
Beyond the ethics of presenting perjured testimony, the knowing use of such testimony involve[s] a
corruption of the truth-seeking function of the trial process. Agurs, 427 U.S. at 104. [A] conviction
obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if
there is any reasonable likelihood that the false testimony could have affected the judgment of the
jury. Id. at 103 (emphases added) (footnote omitted). This rule equally applies when a prosecutor,
although not soliciting false evidence, allows it to go uncorrected when it appears, even when the
uncorrected testimony goes to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269
(1959).
In addition to the Tulia case discussed above, another well-known case of a prosecutor using perjured
testimony in order to obtain a conviction occurred in the Detroit Sleeper Cell terrorism trial.
Although the case was riddled with various forms of prosecutorial misconduct, perjury played a key
role.
Central to the prosecutions case in United States v. Koubriti, No. 01-80778 (E.D. Mich.), was a sketch
recovered from the defendants apartment containing the words Queen Alia and Hashemite
Kingdom of Jordan written in Arabic. Indictment, United States v. Convertino, No.06-cr-20173, at 3
7
(E.D. Mich. Mar. 29, 2006). The government presented testimony through a Department of State
Special Agent that he had traveled to the Queen Alia Military Hospital in Jordan and concluded that
the sketch was almost an exact representation of the facility. Among the agents assertions was that a
very large dead tree corresponded with a marking on the sketch and provided certainty that the
drawing depicted the hospital. See Bennett L. Gershman, How Juries Get It WrongAnatomy of the
Detroit Terror Case, 44 Washburn L.J. 327, 33233 (2005). Both on direct and on cross, the agent
claimed that he had not taken any photographs of the facility because of security restrictions.
According to the DOJ, however, the truth was that the agent had taken numerous aerial photographs of
the facility at the request of the prosecutor, Richard Convertino. Although it appears Convertino never
received these specific photographs taken, he did obtain photographs of the Queen Alia Military
Hospital taken by the agents replacement. Not only did Convertino elicit perjury from the agent
during his direct testimony (and allow it to stand during cross-examination), Convertino never
disclosed to the defense the photographs he eventually did receive. Indictment, United States v.
Convertino, No.06-cr-20173, at 34. In an unprecedented case, the DOJs Public Integrity Section
charged and tried Smith and Convertino with obstruction of justice, perjury, and conspiracy. Id. Both
were acquitted.
Witness coaching can also be a form of prosecutorial misconduct. See generally Bennett L.
Gershman, Witness Coaching by Prosecutors, 23 Cardozo L. Rev. 829 (2002). Although witness
coaching has received scant attention from courts, a recent case may cause jurists to more closely
scrutinize this issue. A Virginia lawyer, Leslie Smith, represented William Jones, the co-defendant of
Daryl Atkins. Based on Joness testimony, Atkins received the sentence of death for the murder of
Eric Nesbitt. Atkinss case went all the way to the Supreme Court, where the Court ruled that the U.S.
Constitution bars the execution of those with mental retardation. See Atkins v. Virginia, 536 U.S. 304
(2002). As of early 2008, however, Virginia was still trying to put Atkins to death, arguing that Atkins
was not mentally retarded.
Recently, Smith came forward and revealed that in 1997 prosecutors had coached his client, William
Jones, into providing testimony that more closely aligned with their theory that Atkins, and not Jones,
was the triggerman. Soon after the coaching had occurred, Smith went to the Virginia State Bars
ethics counsel, but was told that he could not disclose information about the coaching since it would
be detrimental to his client. Approximately ten years later, Smith finally came forward after getting
the green light from the Virginia State Bar because Joness case is now final. Because of Smiths
account, a court in January 2008 commuted Atkinss death sentence to life imprisonment. See Adam
Liptak, Lawyer Reveals Secret, Toppling Death Sentence, N.Y. Times, Jan. 19, 2008, at A1.
Investigative Misconduct
Pressure to solve a crime might lead a prosecutor to get intimately involved in the pre-trial
investigation of a matter. See ABA Standard 3-3.1 ([T]he prosecutor has an affirmative responsibility
to investigate suspected illegal activity when it is not adequately dealt with by other agencies.).
Although the line between investigating a crime and prosecuting a crime can be fuzzy, suffice it to say
that a prosecutor acts in an investigative capacity when gathering facts such as staging an undercover
operation or engaging in wiretapping. See generally Gershman, Misconduct, supra, 1.
8
Nifong committed investigative misconduct in devising the photo array that led to the arrest of the
three lacrosse players. The accuser in the case, Crystal Mangum, had been shown two photo arrays
one on March 16, 2006 and another on March 21, 2006that did not contain any fillers. Every
single picture, 36 in total, that Mangum looked at was a lacrosse player. Mangum was unable to
identify any of her alleged attackers. Then, on March 31, 2006, Nifong suggested to the police that
Mangum be shown photographs of all 46 white members of the team at the same time. See Mosteller,
supra, at 1398. During this procedure, which occurred on April 4, 2006, Mangum, at the direction of
Nifong, was told that the police had reason to believe that all of the men she was looking at were at
the party where she was allegedly raped. Again, the array contained no fillers. In essence, Mangum
was told that she could not make a wrong choice. It was at this time that Mangum identified the
players who were later charged. The direct consequence of this investigative misconduct was the
indictment of three innocent people.
Trial Misconduct
Prosecutorial misconduct during the course of trial covers a broad spectrum. For example, a
prosecutor may improperly: introduce evidence, assassinate the character of a defendant, refer to the
fact that a defendant did not talk to the police or take the stand in his or her defense, make
inflammatory statements during closing argument, or attempt to bolster the credibility of a prosecution
witness. See generally, Lawless, supra, 910; Gershman, Misconduct, supra, 1011.
ABA Standard 3-5.8 and NDAA Standard 85.1 govern the scope of closing arguments. The NDAA
Standard simply states: Closing arguments should be characterized by fairness, accuracy, rationality,
and a reliance upon the evidence or reasonable inferences drawn therefrom. NDAA Standard 85.1.
The ABA Standard goes further and specifically states that a prosecutor should not express his or her
personal belief as to the veracity of any evidence or guilt of the defendant. The ABA Standard also
provides that a prosecutor should not appeal to the prejudices of the jury. See ABA Standard 3-5.8(b)
(c).
Case law is filled with innumerable instances of improper trial conductmost of which is deemed
harmless. One prosecutor who repeatedly went over the line according to appellate courts is Robert
H. Macy, the former District Attorney of Oklahoma County, Oklahoma. See Ken Armstrong,
Cowboy Bob Ropes WinsBut at Considerable Cost, Chi. Trib., Jan. 10, 1999, at 13. Called a true
patriot by former Attorney General William Barr and honored as Americas prosecutor by the
Oklahoma Senate upon his retirement in 2001, Macy left behind a string of cases commenting
unfavorably on his trial conduct. Paxton v. Ward, 199 F.3d 1197 (10th Cir. 1999); Washington v. State,
989 P.2d 960 (Okla. Crim. App. 1999); Ochoa v. State, 963 P.2d 583 (Okla. Crim. App. 1998); Torres
v. State, 962 P.2d 3 (Okla. Crim. App. 1998); Le v. State, 947 P.2d 535 (Okla. Crim. App. 1997);
Duckett v. State, 919 P.2d 7 (Okla. Crim. App. 1995); Robinson v. State, 900 P.2d 389 (Okla. Crim.
App. 1995); Hawkins v. State, 891 P.2d 586 (Okla. Crim. App. 1995); Hooker v. State, 887 P.2d 1351
(Okla. Crim. App. 1994); Howell v. State, 882 P.2d 1086 (Okla. Crim. App. 1994); McCarty v. State,
765 P.2d 1215 (Okla. Crim. App. 1985); Cantrell v. State, 697 P.2d 968 (Okla. Crim. App. 1985)
(Parks, J., dissenting). The rebukes seem not to have had any effect on his conduct.
The introduction of misleading (or patently false) forensic evidence has been publicized recently. As
Professor Gershman discusses in a law review article, [t]he records of contemporary criminal trials
9
are replete with instances of so-called junk science finding its way into courtrooms, and championed
by prosecutors to win convictions. Bennett L. Gershman, Misuse of Scientific Evidence by
Prosecutors, 28 Okla. City U. L. Rev. 17, 30 (2003). Examples include tendering evidence of sloppy
or outright faulty lab work of otherwise reliable forensic tests, or the presentation of scientific
evidence of dubious quality such as bite-mark and hair analysis. See id. One example of faulty
forensic evidence is the FBIs use of compative-bullet lead analysis. The procedure supposedly
allowed the FBI to match fired bullets found at a crime scene with unfired bullets in the possession of
a suspect. The FBI used the procedure for decades, but stopped doing so in 2005 after finally
acknowledging that the technique is unreliable and misleading. It is estimated that comparative bullet-
lead analysis played a role in convicting over 2,500 people. See John Solomon, FBIs Forensic Test
Full of Holes, Wash. Post, Nov. 18, 2007, at A1.
REMEDIES
To date, prosecutorial misconducteven the most egregioushas largely gone unchecked. See
Gershman, Misconduct, supra, at vi (Relatively few judicial or constitutional sanctions exist to
penalize or deter misconduct; the available sanctions are sparingly used and even when used have not
proved effective.). In January 1999, the Chicago Tribune published a five-part series titled: Trial &
Error: How Prosecutors Sacrifice Justice to Win. Analyzing thousands of cases, the newspaper found
that since 1963 at least 381 defendants had their convictions reversed either because prosecutors
suppressed exculpatory evidence or suborned perjury. Alarmingly, of those 381 cases, not one of
those prosecutors was convicted of a crime. Not one was barred from practicing law. Instead, many
saw their careers advance, becoming judges or district attorneys. One became a congressman. Ken
Armstrong & Maurice Possley, The Verdict: Dishonor, Chi. Trib., Jan. 10, 1999, at 1.
Criminal Prosecutions
The criminal prosecution of a prosecutor is extremely rare. According to the Chicago Tribune series,
[f]ew prosecutors nationally have been indicted, and they were acquitted or, at worst, convicted of a
misdemeanor and fined. Ken Armstrong & Maurice Possley, Break Rules, Be Promoted, Chi. Trib.,
Jan. 14, 1999, at 1 [hereinafter Armstrong & Possley, Break Rules]. This statistic seems not to have
changed in the last nine years. Subsequent to the Tribune series, two separate cases were brought
against prosecutors for acts committed in their official capacity; neither resulted in convictions.
The first occurred in mid-1999a case in which three former Illinois state prosecutors were charged
with conspiring to frame a man by the name of Rolando Cruz for murder. Cruz spent nearly 10 years
on Death Row before it became clear that the prosecution had suppressed evidence that another person
had committed the crime and that prosecutors had conspired with police officers to introduce a dream
statement of Cruzs into evidence at his original trial and two re-trials. A judge dismissed charges
against two of the prosecutors for insufficient evidence. (One later became an Illinois judgethe
other, an AUSA.) A jury acquitted the third after a 28-day trial. See Andrew Bluth, Prosecutor and 4
Sheriff s Deputies Are Acquitted of Wrongfully Accusing a Man of Murder, N.Y. Times, June 5, 1999,
at A9.
10
The second such prosecution of a prosecutor is the Convertino case discussed above. Convertino led
the U.S. governments case in convicting two men on terrorism-related charges in 2003. Then-
Attorney General John Ashcroft asserted that the convictions sent a clear message that the DOJ
would work diligently to detect, disrupt and dismantle the activities of terrorist cells in the United
States and abroad. Danny Hakim, U.S. Asks for Dismissal of Terrorism Convictions, N.Y. Times,
Sept. 1, 2004, at A17. A little over a year later, however, the federal government asked the court to
throw out the convictions due, in part, to prosecutorial misconduct committed by the lead prosecutor,
Richard Convertino.
The DOJs Public Integrity Section eventually charged Richard Convertino with perjury, obstruction
of justice, and conspiracy in what may be the only time that the DOJ has ever charged an AUSA for
acts committed in his or her official capacity. Convertino was acquitted by a jury in October 2007 and
is now seeking reimbursement for attorney fees, alleging that the governments prosecution of him
was vexatious, frivolous or in bad faith. Ironically, Convertino is in essence asserting that the
prosecution against him was itself an act of prosecutorial misconduct.
Disciplinary Actions
Each state bar has a mechanism in place for the discipline of misconduct by attorneys licensed in that
state. Separately, federal courts may discipline attorneys who appear before them, which may result in
the suspension or disbarment of attorneys from that particular court. See, e.g., In re Kramer, 282 F.3d
721 (9th Cir. 2002). Further, the DOJs Office of Professional Responsibility (OPR) has
responsibility for investigating allegations of misconduct committed by AUSAs. It appears that these
procedures are rarely effective in dealing with prosecutorial misconduct.
The disciplinary action against Nifong is unusual in that not only did it result in disbarment, but
because it was initiated while charges against the Duke students were still pending. Recently, the
Center for Public Integrity conducted a study that found only 44 instances of disciplinary actions
against prosecutors since 1970. Of those 44:
in 7, the court dismissed the complaint or did not impose punishment;
in 3, the court remanded the case for further proceedings;
in 24, the court assessed the costs of the proceedings against the prosecutor;
in 20, the court imposed a public or private reprimand or censure;
in 1, the prosecutor was placed on probation;
in 12, the prosecutors license was suspended;
in 2, the prosecutor was disbarred.

Neil Gordon, Misconduct and Punishment: State Disciplinary Authorities Investigate Prosecutors
Accused of Misconduct (2007), http://www.publicintegrity.org/pm/default.aspx?act=sidebarsb&aid
=39; see generally Steve Weinberg et al., Ctr. for Pub. Integrity, Harmful Error: Investigating
Americas Local Prosecutors (2003). A follow-up to the Tulia case discussed above revealed that the
prosecutor, whose subornation of perjury and Brady violations led to the wrongful convictions of
scores of people, received two years of probation. See Disciplinary Actions, 68 Tex. B.J. 753, 758
(2005).
11
The OPR has the authority to determine whether an AUSA committed professional misconduct in the
exercise of his or her authority to investigate, litigate or provide legal advice. U.S. Dept of Justice
Office of Profl Responsibility, Analytical Framework (rev. 2005), available at
http://www.usdoj.gov/opr/framework.pdf. Professional misconduct is defined as the intentional or
reckless disregard of an obligation or standard imposed by law, applicable rule of professional
conduct, or Department regulation or policy. Id. If the OPR determines that an AUSA committed
professional misconduct, it recommends a certain sanction to the attorneys supervisor. Available
sanctions range from a written reprimand to removal. The OPR may also refer the matter to the bar
disciplinary authority in the jurisdiction in which the attorney is licensed. See U.S. Dept of Justice
Office of Profl Responsibility, Policies & Procedures, available at http://www.usdoj.gov/opr/
polandproc.htm.
In 2001, a General Accounting Office report concluded that the OPR was ineffective in dealing with
prosecutorial misconduct. See News Advisory, U.S. House of Representatives, Committee on the
Judiciary, GAO Report Finds Significant Problems with Justice Departments Office of Professional
Responsibility (Feb. 20, 2001), available at http://www.judiciary.house.gov/legacy/news0220.htm. A
recent highly-publicized case illustrates the problem.
Chief Judge Mark Wolf of the U.S. District Court, District of Massachusetts found extraordinary
misconduct by the Department of Justice in its investigation and prosecution of members of the
Patriarca Family of La Cosa Nostra. Ferrara v. United States, 384 F. Supp. 2d 384, 387 (D. Mass.
2005), aff d, 456 F.3d 278 (1st Cir. 2006). Chief Judge Wolf found that AUSA Jeffrey Auerhahn,
violated [his] clearly established constitutional duty to disclose . . . before trial, important exculpatory
information that directly negated [Vincent Ferraras and Pasquale Barones] guilt on murder charges.
Id. The suppression of the evidence was intentional according to Chief Judge Wolf. See id. at 393
98. The First Circuit agreed, stating: [T]he governments actions in this case . . . paint a grim picture
of blatant misconduct. The record virtually compels the conclusion that this feckless course of
conduct . . . constituted a deliberate and serious breach of its promise to provide exculpatory
evidence. Ferrara v. United States, 456 F.3d 278, 293 (1st Cir. 2006) (footnote omitted).
The OPR investigated Auerhahn and concluded that he had acted in reckless disregard of his duty to
disclose exculpatory evidence. The sanction was a private written reprimand. Not satisfied, Chief
Judge Wolf initiated his own disciplinary action against Auerhahn and wrote then-Attorney General
Alberto Gonzales a letter on June 29, 2007 criticizing the OPR. Associate Deputy Attorney General
David Margolis replied by letter to Chief Judge Wolf, asserting that the discipline imposed by the
Department was consistent with, correlated to, and proportional with the findings that resulted from
OPRs investigation. Letter from David Margolis to The Honorable Mark L. Wolf (Oct. 2, 2007).
Still not satisfied, Chief Judge Wolf wrote Attorney General Michael Mukasey. In this letter, Chief
Judge Wolf noted that he assisted in the establishment of OPR, but now has serious questions about
whether judges should continue to rely upon the Department to investigate and sanction misconduct
by federal prosecutors. Letter from The Honorable Mark L. Wolf to The Honorable Michael B.
Mukasey (Jan. 2, 2008). The letters may be found in the court files of Barone v. United States, No.
98-11104 (D. Mass. 1998) and Ferrara v. United States, No. 00-11693 (D. Mass. 2000).
12
Contempt
A court could exercise its contempt powers to curb prosecutorial misconduct that occurs in the
courtroom. However, [a]lthough contempt is frequently used to punish defense counsel for
misconduct, it is rarely used to punish prosecutors. Gershman, Misconduct, supra, 14:9 (footnote
omitted). Even when a trial court imposes contempt on a prosecutor, appellate courts rarely sustain
the charge. See id.; Lawless, supra, 13.35.
Appellate Court Action
If prosecutorial misconduct violates a defendants constitutional rights to a fair trial, the defendants
conviction might be overturned on appeal. Reversals of convictions, however, are limited by the
harmless-error doctrine, which generally precludes relief when the court finds that the defendant was
not fundamentally prejudiced by the prosecutorial misconduct. See Rose v. Clark, 478 U.S. 570
(1986). The Center for Public Integrity looked at 11,452 appellate cases since 1970 where
prosecutorial misconduct was an issue raised by the defendant. The study revealed that in 2,012 cases
the prosecutors misconduct was so serious that a dismissal of the charges, a reversal of conviction, or
a reduction in the imposed sentence was warranted. In thousands of others, prosecutorial misconduct
was found to have occurred, but was deemed to be harmless. Steve Weinberg, Breaking the Rules:
Who Suffers When a Prosecutor Is Cited for Misconduct? (2007), http://www.publicintegrity.org/
pm/default.aspx?act =main; see generally Weinberg et al., supra.
One should ask whether a reversal of a conviction adequately sanctions a prosecutor for misconduct
since the focus is on the defendant, rather than the prosecutor. Moreover, many have questioned
whether prosecutorial misconduct is adequately deterred when the harmless-error doctrine is
consistently applied. For example, one commentator has asserted that application of the rule is
tantamount to saying that if one is obviously guilty as charged, he has no fundamental right to be
tried fairly. Note, Prosecutor Indiscretion: A Result of Political Influence, 34 Ind. L.J. 477, 486
(1959); see also Rose, 478 U.S. at 58889 (Stevens, J., concurring) (An automatic application of
harmless-error review in case after case, and for error after error, can only encourage prosecutors to
subordinate the interest in respecting the Constitution to the ever-present and always powerful interest
in obtaining a conviction in a particular case.).
Another way appellate courts can address prosecutorial misconduct is by public rebuke. In Bank of
Nova Scotia v. United States, the Supreme Court stated that defendants should not be given a
windfall when they are not prejudiced by prosecutorial misconduct. 487 U.S. 250, 263 (1988). One
way to deal with prosecutorial misconduct when the defendants rights are not violated, according to
the Court, is for an appellate court to chastise the prosecutor in a published opinion. Id. The
effectiveness of this remedy has been questioned as well. An article in the Chicago Tribune series
noted that even when the prosecutors actions are criticized in appellate opinions, the courts usually do
not call out the prosecutors by name. According to the article, [t]he granting of anonymity isnt
mandated anywhere, but instead stems from tradition and professional courtesy. Armstrong &
Possley, Break Rules, supra. Moreover, even when prosecutors are named in appellate opinions, there
is little evidence that it adversely impacts that persons career or future conduct. See id.; supra Part
III.E (discussing the chastising of Robert H. Macy).
13
Civil Liability
When being sued under federal civil rights laws, prosecutors often assert they are immune from
liability. The law is nuanced in this area, but prosecutors can be found liable. For example, a man by
the name of John Thompson spent 14 years on Death Row after an assistant district attorney destroyed
exculpatory evidence. A jury in the Eastern District of Louisiana awarded Thompson $14 million after
finding that the district attorney was deliberately indifferent to the need to train, monitor, and
supervise his prosecutors to comply with the constitutional requirements concerning production of
evidence favorable to an accused. Thompson v. Connick, No. 03-2045, 2007 WL 1200826, at *1
(E.D. La. April 23, 2007). The availability for redress under state tort law (e.g., malicious
prosecution) varies from jurisdiction to jurisdiction.
One avenue of relief for those wrongly prosecuted by the federal government is a Hyde Amendment
claim. See Department of Commerce, Justice, and State, the Judiciary and Related Appropriations Act
of 1998, Pub. L. No. 105-119, 617, 111 Stat. 2440 (codified at 18 U.S.C. 3006A Note). This law
provides for the recovery of attorney fees for prosecutions by the U.S. government that were
vexatious, frivolous, or in bad faith. To recover attorney fees, the defendant must be a prevailing
party. To determine whether a defendant is a prevailing party, courts look to the totality of the
circumstances. See, e.g., United States v. Campbell, 134 F. Supp. 2d 1104, 1107 (C.D. Cal. 2001),
aff d, 291 F.3d 1169 (9th Cir. 2002). Generally, a defendant prevails when he or she was completely
exonerated through voluntary dismissal of all charges without sanction, dismissal by way of a motion
of judgment for acquittal or dispositive motion, or through acquittal. Id. at 1108. Moreover, a
defendant is a prevailing party when the government dismisses the case with prejudice, and may or
may not be considered as such when the case is dismissed without prejudice. See United States v.
Gardner, 23 F. Supp. 2d 1283, 1292 (N.D. Okla. 1998).
CONCLUSION
The Nifong / Duke Lacrosse saga brought to the publics awareness the sad and disturbing nature of
prosecutorial overreaching. While Nifongs actions may have been particularly egregious, it is clear
that the problem of prosecutorial misconduct is nothing newit has simply taken place outside of
public view for the most part. It is also clear that, to date, there has not been an effective remedy to
this systemic problem. Hopefully something good can come out of the tragedy of the Duke case
public awareness of the need to hold prosecutors accountable for misconduct, and a newfound
willingness of the courts, bar associations, and the DOJ to impose harsher sanctions on wayward
prosecutors.
Prosecutorial Misconduct 1
PROSECUTORIAL MISCONDUCT
J on Sands Steven Kalar Geoffrey Hansen
Federal Public Defender AFPD Chief Assistant Public Defender
Phoenix, Arizona San Francisco, California San Francisco, California
Chris Miles Peter Davids J onathan Katchen
R&W Attorney, FPD Associate Assistant Attorney General
San Francisco, California J ones Day State of Alaska, Dept. of Law
The United States Attorney is the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not
that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt shall not
escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935)
. . . it is the responsibility of the United States Attorney and his senior staff to create a
culture where win-at-any-cost prosecution is not permitted. Indeed, such a culture must
be mandated from the highest levels of the United States Department of J ustice and the
United States Attorney General. It is equally important that the courts of the United
States must let it be known that, when substantial abuses occur, sanctions will be imposed
to make the risk of non-compliance too costly.
United States v. Shaygan, 661 F.Supp.2d 1289, 1292 (S.D.Fla. 2009)
The Court finds [the governments] explanation wholly incredible.
United States v. Stevens, 593 F.Supp.2d 177, 181 (D.D.Ct. 2009)
Table of Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Policing the Prosecutors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Ethical Immunity Before 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Citizens Protection Act of 1998, 28 U.S.C. 530B . . . . . . . . . . . . . . 5
C. The Hyde Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Criminal Contempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
E. Case Remedies - Mistrial, Dismissal, J ury Instruction . . . . . . . . . . . . . . . 9
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various Phases of a Criminal
Prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Pre-Indictment Investigation and The Grand J ury . . . . . . . . . . . . . . . . . . 10
1. Subpoenas to Defense Counsel . . . . . . . . . . . . . . . . . . . . 10
2. Pre-indictment Contact with Represented Witnesses . . . 11
3. Exculpatory Evidence Before the Grand J ury . . . . . . . . . 12
4. Miscellaneous Prosecutorial Misconduct Within the Grand
J ury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Brady, Due Process, and State Ethical Rules on Discovery . . . . . . . . . . 14
C. Prosecutorial Misconduct During Trial . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Misconduct During J ury Selection . . . . . . . . . . . . . . . . . 19
2. Improper Conduct During Opening Statements . . . . . . . 19
3. Ethical Problems with Government Witnesses and Trial
Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4. Improper Closing Arguments . . . . . . . . . . . . . . . . . . . . . 21
D. Broken Promises: Breached Pleas at Sentencing. . . . . . . . . . . . . . . . . . . 26
III. Normalizing J ustice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
A. The Proposed Expansion of Rule 16 and DOJ s Opposition . . . . . . . . . . 27
B. For the Defense Commentators Opinions and Recommendations . . . 29
Parting Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Appendices
Introduction
Most experienced practitioners would agree that the vast majority of federal prosecutors
behave in an ethical manner, and would further agree that federal prosecutorial misconduct has
been the exception, rather than the rule. As will be described in greater detail below, federal
prosecutorial misconduct is now a local inquiry as well as a constitutional inquiry after 1998,
state ethical rules now also bind federal prosecutors. Therefore, while this outline may be a
useful starting point, counsel should be encouraged to turn to state bar rules of professional
responsibility and, if questions arise, consult an ethics hotline.
I. Policing the Prosecutors
A. Ethical Immunity Before 1998
Before the late1990's, the system of ethical rules and restraints that constrained any other
attorney including defense counsel did not apply to federal prosecutors. As will be discussed
in greater depth below, Congressman McDades 1998 Citizens Protection Act (CPA or
530B) revolutionized the application of state rules to federal prosecutors in ways that have
still not been fully explored. Even before J oseph McDade successfully slipped the CPA into
law, however, national discontent about the special treatment of federal prosecutors had been
brewing.
Before 1998, federal prosecutors could be sanctioned for ethical misconduct by the
federal court in which they practiced, or by the Department of J ustice. Many commentators
including federal judges were (and remain) dubious of the governments ability to self-regulate
its attorneys. See, e.g., Lynn R. Singband, THE HYDE AMENDMENT AND PROSECUTORIAL
INVESTIGATION: THE PROMISE OF PROTECTION FOR CRIMINAL DEFENDANTS, 28
FORDHAM URB. L.J . 1967, 1978 (Aug. 2001) (discussing the creation and limitations of the
DOJ Office of Personal Responsibility (OPR.)). In 1993, Ninth Circuit J udge Kozinski, for
example, openly questioned the failure of the United States Attorney to supervise the ethical
behavior of its AUSAs:
How can it be that a serious claim of prosecutorial misconduct
remains unresolved even unaddressed until oral argument in
the Court of Appeals? Surely when such a claim is raised, we can
expect that someone in the United States Attorneys office will
take an independent, objective look at the issue. The claim here
turned entirely on verifiable facts: A dispassionate comparison
between the transcript of the AUSA's statement to the jury and
Nourian's plea agreement would have disclosed that the defense
was right and the government was wrong. Yet the United States
Attorney allowed the filing of a brief in our court that did not own
up to the problem, a brief that itself skated perilously close to
misrepresentation.
United States v. Kojayan, 8 F.3d 1315, 1320 (9th Cir. 1993).
Despite the shortcomings of self-regulation, it was the common view that a federal
prosecutor was not subject to state or local ethical rules or restraints. This view was based on the
position that the Supremacy Clause of the United States Constitution preempted state regulation
of federal prosecutors, practical arguments about conflicts of local state rules arising in a
national federal practice, and a healthy dose of self-interest from the Department of J ustice.
Two issues helped to sharpen the debate over the propriety of an exemption for federal
prosecutors from state ethical rules. See Fred C. Zacharias, Bruce A. Green, The Uniqueness of
Federal Prosecutors, 88 GEO. L.J . 207, 213 (2000). The first of these issues related to attorney
contact of represented parties. Though such contact was widely prohibited by state local rules,
in 1989 Attorney General Thornburgh distributed an infamous memorandum that purported to
exempt federal prosecutors. This memorandum was controversial both within and outside of the
legal community. See Dick Thornburgh, Ethics and the Attorney General: The Attorney General
Responds, 74 J udicature 290 (April/May 1991) (Given the normally high quality of the articles
in J udicature, I had hoped to see a discussion of the Department of J ustices policy on contacting
representing persons that was free of the near-hysteria that has punctuated articles written by
some members of the defense bar.)
The second debate focused on a prosecutors ability to subpoena witnesses. Zacharias &
Green, supra at 212; see also Stern v. United States District Court, 214 F.3d 4, 7 (1st Cir. 2000)
(The 1980s witnessed a dramatic increase in the number of subpoenas served on defense
attorneys by federal prosecutors. The reasons for this trend are difficult to pinpoint, but some
commentators have linked it with heightened efforts to fight organized crime and drug-
trafficking, new forfeiture laws, and an unprecedented expansion of the Department of J ustice
(DOJ ).)
In the wake of the controversy of the Thornburgh memorandum, in 1994 Attorney
General J anet Reno issued formal regulations which continued the exemption for federal
prosecutors from state ethical violations, but promised voluntary compliance with most
professional rules (the Reno Rule.) Zacharias & Green, supra at 212; see also
Communications With Represented Persons, 59 FR 39910-01 (Aug. 4, 1994) (containing text of
the Reno Rule regarding contact with represented persons).
Also fueling the fire of this ethical debate were a number of developments that sharpened
the adversarial process and directly impacted the criminal defense bar, including federal grand
jury subpoenas to defense attorneys, forfeiture of funds paid by defendants to retained counsel,
and non-discretionary sentencing provisions in the Federal Sentencing Guidelines. See Rory K.
Little, Who Should Regulate the Ethics of Federal Prosecutors?, 65 FORDHAM L. REV. 355, Oct.
1996; see also Note, Federal Prosecutors, State Ethics Regulations, and the McDade
Amendment, 113 HARV. L. REV. 2080, 2083 (2000) (discussing three Model Rules of Ethics that
prompted national debate on state ethical limitations on federal prosecutors).
Outside of the national limelight of this ethical debate, however, a federal criminal
prosecution was brewing a prosecution which led to a further attempt to formally regulate
federal prosecutors.
1
http://www.nytimes.com/1992/05/06/us/top-republican-on-a-house-panel
-is-charged-with-accepting-bribes.html?pagewanted=1 (last visited 4/7/10)
2
Id.
3
The Citizens Protection Act is referred to as the CPA or, more frequently, 530B.
B. The Citizens Protection Act of 1998, 28 U.S.C. 530B
In 1992, Pennsylvania Congressional Representative J oseph McDade was indicted with
five federal counts relating to bribery. While Congressman McDade admitted that errors had
been made, he denied the allegations.
1
He kept his seat in office and four years later was
acquitted by a jury of all of the charges. Zacharias & Green, supra at 212.
McDade complained that federal prosecutors had turned his life into a living nightmare
and had harassed and hounded him.
2
In his role as a criminal defendant, he filed a number of
motions alleging prosecutorial misconduct all of which were denied. See, e.g., United States v.
McDade, No. 92-249, 1992 WL 187036, at *2 (E.D. Pa. J uly 30, 1992) (discussing motion to
dismiss arising from prosecutors alleged conflict of interest).
Stinging from his recent personal experiences with federal prosecutors, McDade
introduced in the House of Representatives a version of the Citizen Protection Act which would
have imposed state and local ethical rules on federal prosecutors (as well as a number of other,
wide-ranging changes). That bill was killed in committee, and a re-introduced bill the following
year also never made it out of committee. Zacharias & Green, supra, at 214-15. Finally, in 1998
the CPA was introduced as a rider to an appropriations bill, and was passed without ever clearing
committee much to the chagrin of (DOJ advocate) Senator Hatch. Id. at 215. The bills unique
road to passage was a source of later criticism from DOJ allies and sparked later efforts at repeal;
efforts that were unsuccessful. See, e.g., NAAUSA Initiatives, Federal Prosecutor Ethics Act,
http://www.naausa/org./ initiatives/ethics.htm (visited Feb. 18, 2003) (discussing congressional
testimony of national AUSA representative against CPA and describing alternative bills
proposed).
The Citizens Protection Act has been codified at 28 U.S.C. 530B.
3

530B. Ethical standards for attorneys for the Government
(a) An attorney for the Government shall be subject to State laws and rules, and local
Federal court rules, governing attorneys in each State where such attorney engages in that
attorney's duties, to the same extent and in the same manner as other attorneys in that State.
(b) The Attorney General shall make and amend rules of the Department of J ustice to
assure compliance with this section.
(c) As used in this section, the term attorney for the Government includes any attorney
described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and
also includes any independent counsel, or employee of such a counsel, appointed under
chapter 40.
28 U.S.C. 530B (West 2003). Section 530B has been worked into the Code of Federal
Regulations (CFR) and integrated into the United States Attorneys Manual. See, e.g., 28 CFR
77.3 (applying 28 U.S.C. 530B to all attorneys for the government involved in, among other
actions, all criminal investigations and proceedings); U.S.A.M. 9-13.200 (2005) (Department
attorneys are governed in criminal and civil law enforcement investigations and proceedings by
the relevant rule of professional conduct that deals with communications with represented
persons.).
As will be discussed in greater depth infra, remedies for violation of the CPA may be
sparse. In one of the few published cases on the new statute and regulations, the Eleventh
Circuit rejected the idea that a violation of a state ethical rule would support suppression of
evidence in federal court. See United States v. Lowery, 166 F.3d 1119, 1124-25 (11th Cir. 1999)
(Assuming for present purposes that the rule is violated when a prosecutor promises a witness
some consideration regarding charges or sentencing in return for testimony, a state rule of
professional conduct cannot provide an adequate basis for a federal court to suppress evidence
that is otherwise admissible.) Similarly, in United States v. Syling, the court held that any state
ethical standards would not override the law governing presentation of [exculpatory] evidence
at grand jury proceedings. 553 F.Supp.2d 1187, 1192 (D.Haw. 2008). Indeed, the CFR itself
provides that 530B should not be construed in any way to alter federal substantive,
procedural, or evidentiary law or to interfere with the Attorney General's authority to send
Department attorneys into any court in the United States. 28 CFR 77.1.
The First Circuit has flatly refused to view the CPA as an inroad for state (or local)
regulation of federal prosecutors in federal court. See Stern, 214 F.3d at 19. In Stern, the First
Circuit rejected a local rule from the District of Massachusetts that required judicial
authorization for grand jury subpoenas of defense attorneys. Id. Despite the clear language of
the CPA, the Court in Stern concluded that Congress did not mean to empower state (or federal
district courts, for that matter) to regulate government attorneys in a manner inconsistent with
federal law. Id.
Nonetheless, other federal courts have conceded that 530B does extend state ethical
rules to federal prosecutors. See J ennifer Blair, The Regulation of Federal Prosecutorial
Misconduct by State Bar Associations, 28 U.S.C. 530B and the Reality of Inaction, 49 UCLA
L. REV. 625, 637 (Dec. 2001) (collecting federal authority acknowledging the extension of state
ethical rules to federal prosecutors after 28 U.S.C. 530B). One of the most thoughtful of these
decisions is United States v. Colorado Supreme Court, 189 F.3d 1281 (10th Cir. 1999). In that
case, the Tenth Circuit held that in light of 530B a Colorado state ethical rule prohibiting
federal prosecutors [from] subpoenaing attorneys to divulge information on past and present
clients in connection with a criminal proceeding other than a grand jury, was not inconsistent
with federal law in violation of the Supremacy Clause of the United States Constitution. Id. at
1288-89.
4
See Boston AUSA Faces J udicial Panel Over Alleged Misconduct,
http://www.mainjustice.com/2010/01/22/boston-ausa-faces-judicial-panel-regarding-alleged-mis
conduct/ (last visited 4/9/10).
5
Id.
The ultimate impact of 530B on federal prosecutors remains an open question one
commentator has discovered that during a year-and-a-half long period only one federal
prosecutor was disciplined out of the 1767 lawyers punished by ten state bar organizations.
Blair, supra, at 641 (If punishment for prosecutors was previously lax, one federal prosecutor
disciplined out of the 1767 lawyers punished by ten state bar associations from April 1999 until
December 2000 does virtually nothing to increase the regulation of unethical behavior by federal
prosecutors.)
Courts appear reluctant to file a complaint with a state bar organization. Currently, at
least one federal prosecutor is in state disciplinary proceedings after allegedly withholding
exculpatory evidence in a case.
4
The district court judge on that case filed the letter of complaint
with state bar counsel after learning that DOJ had only issued a written reprimand to the
prosecutor.
5
Another district court judge has reserved the right to impose any further sanctions
and/or disciplinary measures as may be necessary against [the federal prosecutors] after
reviewing the results of the J ustice Departments investigation. United States v. Shaygan, 661
F.Supp.2d 1289, 1325 (S.D. Fla 2009).
C. The Hyde Amendment
Another champion of ethical restraints on federal prosecutors has been Congressman
Hyde. In 1997, his infamous Hyde Amendment exposed the federal government to civil
liability for criminal lawsuits that are vexatious, frivolous, or in bad faith:
Attorney Fees and Litigation Expenses to Defense
Pub.L. 105-119, Title VI, 617, Nov. 26, 1997, 111 Stat. 2519, provided that: "During
fiscal year 1998 and in any fiscal year thereafter, the court, in any criminal case (other
than a case in which the defendant is represented by assigned counsel paid for by the
public) pending on or after the date of the enactment of this Act [Nov. 26, 1997], may
award to a prevailing party, other than the United States, a reasonable attorney's fee and
other litigation expenses, where the court finds that the position of the United States was
vexatious, frivolous, or in bad faith, unless the court finds that special circumstances
make such an award unjust. Such awards shall be granted pursuant to the procedures and
limitations (but not the burden of proof) provided for an award under section 2412 of title
28, United States Code. To determine whether or not to award fees and costs under this
section, the court, for good cause shown, may receive evidence ex parte and in camera
(which shall include the submission of classified evidence or evidence that reveals or
might reveal the identity of an informant or undercover agent or matters occurring before
a grand jury) and evidence or testimony so received shall be kept under seal. Fees and
6
Larry Breuer, head of DOJ s Criminal Division, speaking at the ABAs white collar
crime conference, called on the defense bar to refrain from terming discovery violations as
endemic stating that nothing could be further from the truth. He criticized those who think it
is acceptable to use motions for sanctions, or threats of OPR referrals, as a way to gain some sort
of strategic litigation advantage. http://www.mainjustice.com/2010/02/25/
breuer-tells-white-collar-bar-to-ease-up-on-prosecutors/ (last visted 4/12/10).
7
This Champion article is an excellent starting point for any Hyde Amendment
litigation, and includes a useful check-list for defense counsel to review before initiating a Hyde
Amendment petition.
other expenses awarded under this provision to a party shall be paid by the agency over
which the party prevails from any funds made available to the agency by appropriation.
No new appropriations shall be made as a result of this provision.
18 U.S.C. 3006A, stat. history (West 2003).
Like 530B, the Hyde Amendment had its origins in the eight-year prosecution of
Congressman McDade. See Singband, supra at 1981-82; see also United States v. Gilbert, 198
F.3d 1293, 198-99 (11th Cir. 1999) (tracing legislative history of the Hyde Amendment). The
Hyde Amendment has had some recent success in federal courts. See id. at 1986-88 (collecting
Hyde Amendment cases). See also United States v. Aisenberg, No. 899-CR-324-T23 MAP, 2003
WL 403071, *39 (M.D. Fla. J an. 31, 2003) (Pursuant to the Hyde Amendment, the Aisenbergs
are entitled to a reasonable attorney's fee in the amount of $2,680,602.22 and other litigation
expenses in the amount of $195,670.32.); United States v. Shaygan, 661 F.Supp.2d 1289, 1324
(S.D.Fla 2009) (attorneys fees and costs in the amount of $601,795.88 awarded to the
defendant); United States v. Claro, 579 F.3d 452, 456 (5th Cir. 2009) (noting the district court
awarded and government paid $391,292.29 in attorneys fees pursuant to Hyde Amendment);
United States v. Adkinson, 247 F.3d 1289 (11th Cir. 2001) (determining that defendants were
entitled to attorneys fees where government included bank fraud in conspiracy indictment with
knowledge that it was precluded by controlling precedent). See also Brown v. United States, SA-
03-CV-0792-WRF (W.D.Tex. 2007)(wherein parties reached settlement agreement and
government agreed to pay plaintiff $1,340,000 to settle plaintiffs complaint filed under the
Federal Tort Claims Act based on nature of governments criminal investigation and prosecution
of plaintiffs).
The Hyde Amendment certainly heightened the sensitivity of the DOJ to charges of
vexatious prosecution. See Elkan Abramowitz, Peter Scher, The Hyde Amendment: Congress
Creates a Toehold for Curbing Wrongful Prosecution, THE CHAMPION (Mar. 1998) (discussing
aggressive DOJ stance against Hyde Amendment before its adoption). The courts recent awards
suggest that the federal defense bar should continue to push for such recourse against the
government for wrongful prosecutions.
6
See also Dick DeGuerin, Neal Davis, If They Holler,
Make Em Pay . . . The Hyde Amendment, THE CHAMPION (Sept./Oct. 1999).
7
8
http://www.mainjustice.com/2009/10/21/welch-to-step-down-as-public-integrity-chief/
(last visited 4/9/10).
9
On appeal, the Ninth Circuit held that the mistrial was supported by a valid
determination of manifest necessity and thus, a retrial of the defendant would not violate the
Double J eopardy Clause. Chapman, 524 F.3d 1073, 1083-84 (9th Cir. 2008)
D. Criminal Contempt
The five DOJ employees who prosecuted Senator Ted Stevens in United States v. Stevens
are currently the subject of criminal contempt proceedings instigated by U.S. District Court
J udge Emmet Sullivan based in part on allegations of Brady and Giglio violations.
8
J udge
Sullivan appointed a special counsel to examine the conduct of the prosecutors after the J ustice
Department moved to dismiss the case with prejudice. The DOJ s Office of Professional
Responsibility is conducting a simultaneous investigation. Both reports are due to be completed
in the near future.

E. Case Remedies - Mistrial, Dismissal, Jury Instruction
Unethical behavior or improper methods by the prosecutor may result in a mistrial or a
reversal of a conviction where the methods so infect the trial with unfairness as to make the
resulting conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986).
In United States v. Ted Stevens, the government itself motioned to set aside the verdict and
dismiss the case with prejudice based on admitted Brady violations. The judge voided the
conviction. In United States v. Chapman, the district court determined that the prosecutor
violated both Brady and Giglio and the district court declared a mistrial. 524 F.3d 1073, 1083-
84 (9th Cir. 2008).
9
Following a hearing on the matter, the district court judge dismissed the
indictment with prejudice. Id. In United States v. W.R. Grace, CR 05-07-M-DWM (D.Mt
2009), based on the governments Brady and Giglio violations, the court explained to the jury
why the government would not be permitted to do any redirect examination of one of the
governments main witnesses and why they should view any proof offered by [that main
witness] with skepticism. See Appendix A W.R. Grace Jury Instruction. The court instructed
the jury, in part, that, the Department of J ustice and the United States Attorneys Office have
violated their constitutional obligation to the defendants and they have violated orders of the
court. Id.
At the appellate level, review of prosecutorial misconduct . . . consists of a two part test:
first, was the prosecutors conduct actually improper; second, did the misconduct, taken in the
context of the trial as a whole, violate the defendants due process rights. Andrew M.
Hetherington, Prosecutorial Misconduct, 90 GEO. L.J . 1679 (May 2002). In evaluating the
seriousness of the misconduct, courts will find harmless error if the misconduct was not severe,
effective curative measures were taken by the trial court, or if the weight of evidence made
conviction certain absent the improper conduct. Id. at 1689 (footnotes omitted). Some courts
will additionally consider whether the misconduct was deliberately or accidentally made [and]
the extent to which the defense was able to counter the improper conduct with rebuttal, or both,
10
Because this state rule is based on rules from ABA Standards of Criminal J ustice
Relating to the Prosecution Function, the conflict between this state ethical rule and federal
action is likely to arise more frequently. A non-exhaustive list of states that have adopted Model
Rule 3.8, Special Responsibilities of a Prosecutor, (or a substantially-similar rule), includes
Arizona, Colorado, Arkansas, Connecticut, Delaware, Indiana, Kansas, Maryland, Michigan,
New J ersey, Massachusetts, Rhode Island, South Carolina, and West Virginia. California is
currently proposing such an adoption. See, e.g., http://calbar.ca.gov/calbar/pdfs/public-comment
/2009/Revision-Rules-Professional-Conduct-11-Rules_11-13-09.pdf (comparing and contrasting
other states adoption and Californias proposed changes) (last visited 4/9/10); Arizona v.
Talmadge, 999 P.2d 192, 197 (Az. S. Ct. 2000) (discussing E.R. 3.8, Arizona Rules of
Professional Conduct); Colorado v. Mucklow, 35 P.3d 527, 534 (Co. S.Ct. 2000) (discussing
Colo. RPC 3.8(d)); Arkansas R. Prof. Conduct 3.8 (West 2002); Connecticut Rule Prof. Conduct
3.8 (West 2002); Del. R. Prof. Conduct 3.8 (West 2002); Indiana R. Prof. Conduct 3.8 (West
2003); Kansas v. Dimaplas, 978 P.2d 891, 894 (Ka. S.Ct. 1999); Md. R. Prof. Conduct 3.8 (West
to their evaluation of the seriousness of misconduct. Id.
The one, universal lesson from all authority regarding remedies for prosecutorial
misconduct is the need to object to preserve the error. Timidity in the face of prosecutorial
misconduct will injure the client on later appellate review, where the (nearly insurmountable)
plain error standard will be applied.
II. Winning-At-All-Costs: Prosecutorial Misconduct During Various Phases of a
Criminal Prosecution
With the McDade and Hyde laws in hand and remedies in mind, we turn to examples of
prosecutorial misconduct as they arise during various stages of a criminal prosecution and
investigation.
A. Pre-Indictment Investigation and The Grand Jury
1. Subpoenas to Defense Counsel
Grand jury misconduct was one of the ethical issues that sparked the McDade revolution,
and yet five years after 530B was enacted, it still remains an unsettled issue. One of the most
controversial aspects of grand jury practice has been the issuance of a grand jury subpoena to
defense counsel, to secure information about a counsels client. The American Bar Association
has promulgated model ethical rules that limit this type of grand jury subpoena. See Appendix B,
ABA Model Rule of Professional Conduct 3.8(e). Because the ABA Model Rules have been
adopted in many states, after 530B the issue is ripe for conflict in federal court. State ethical
rules in Colorado provide a good example of the problem.
Grand jury subpoenas to defense counsel on the subject of their representation are
prohibited by Colorado state ethical rules. See Appendix C, Colorado State Rule of Professional
Conduct 3.8, Special Responsibilities of a Prosecutor.
10
The federal governments policy of
2002); Michigan R. Prof. Conduct 3.8 (West 2003); New Jersey v. Torres, 744 A.2d 699, 708
(N.J . S. Ct. 2000) (discussing R.P.C. 3.8); In re: Grand Jury Investig., 15 Mass. L. Rptr. 354
(Super. Ct. Mass. 2002) (mem.) (discussing Mass. R. Prof. Conduct 3.8(f)); RI Rule Prof.
Conduct 3.8 (West 2002); South Carolina v. Quattlebaum, 338 S.E.2d 105, 109 (S.C. S. Ct.
2000) (discussing South Carolina R. Prof. Conduct 3.8); West Va. R. Prof. Conduct 3.8 (West
2002).
forcing defense counsel to testify regarding their clients thus became an issue for the Tenth
Circuit. See United States v. Colorado Supreme Court, 189 F.3d 1281, 1284 & n.3 (10th Cir.
1999).
The Tenth Circuit noted that before 530B (McDades Citizen Protection Act) was
adopted there had been a circuit split on the issue of federal grand jury subpoenas to defense
counsel, over state ethical prohibitions. See United States v. Colorado Supreme Court, 189 F.3d
1281, 1284 & n.3 (10th Cir. 1999) (discussing contrary authority permitting, and striking, local
rules limiting federal government grand jury subpoenas of defense counsel). In Colorado
Supreme Court, the Tenth Circuit managed to avoid the grand jury issue because that particular
aspect of the Colorado state rule was not appealed. Id. at 1284.
The short, and unsatisfying, answer is that there is now no definitive authority on whether
530B extends state ethical prohibitions on grand jury subpoenas to defense counsel. See
Brenner & Shaw, Federal Grand Jury: A Guide To Law And Practice, FED. GRAND J URY 13.5
(discussing conflicting authority on issue and Department of J ustice Guidelines).
If faced with such a subpoena, the first step should be to turn to state ethical rules to see
whether they prohibit such action (likely to be found in Rule 3.8, adopted from the ABA Model
Rule). Defense counsel will then need to argue that this state ethical rule has been extended to
the federal prosecutor by virtue of 28 U.S.C. 530B, and that this statute trumps any Supremacy
Clause issues.
2. Pre-indictment Contact with Represented Witnesses
Does a federal prosecutor violate state ethical rules when he or she speaks to a
represented witness before indictment? That was the question before the Ninth Circuit in one of
the lead cases on the subject, United States v. Talao, 222 F.3d 1133 (9th Cir. 2000). In Talao, a
federal prosecutor spoke to an employee of a corporation that was represented by counsel
before indictment, and while that corporate counsel was banging on the door of the interview
room. Id. at 1136. The district court held that the prosecutor had violated California ethical rule
2-100, prohibiting contact with represented persons. Id. at 1136. The Ninth Circuit reversed, but
not before articulating several important rules regarding federal prosecutors, ethics, and contact
with represented persons.
As an initial matter, it was by no means clear that pre-indictment contact with
represented persons was prohibited. The Court turned to the Second Circuits decision in United
States v. Hammand, 858 F.2d 834 (2d Cir. 1988), and concluded that there was no bright-line
11
The case had already undergone a civil investigation, a qui tam action, an corporate
counsel had already initiated settlement discussions with the government. Talao, 222 F.3d at
1139.
categorical rule on the issue. Id. at 1139. The Ninth Circuit concluded that in the pre-indictment
procedural context of the Talao case, there were fully defined adversarial roles
11
that triggered
the ethical prohibition. Id.
The Court also was not troubled by the controversy over DOJ s previous position and the
Thornburgh memorandum, which permitted contact with represented witnesses. Id. at 1139-40.
The Ninth Circuit flatly concluded that 28 U.S.C. 530B made state ethical rules applicable to
federal attorneys, which dissipated any previous dispute. Id. at 1140.
The Court in Talao ultimately let the prosecutor off of the ethical hook, however, because
it concluded that in the unique circumstances of a disgruntled employee seeking to distance
herself from corporate counsel an employee who was alleging subornation of perjury by the
lead defendant Rule 2-100 did not preclude contact. Id. at 1140.
The Talao case is notable because it un-hesitantly extends state ethical rules to federal
prosecutors, extends the prohibition of represented-witness contact to the pre-indictment context,
and it suggests that under a less-unique factual setting the disciplinary referral would have stood.
3. Exculpatory Evidence Before the Grand Jury
Consider the following hypothetical: The defendant is charged with being a felon in
possession of a gun, in violation of 18 U.S.C . 922(g)(1). During his arrest, his girlfriend
protests that it was her gun, and that the defendant was unaware that the weapon was in the
house. Need the AUSA present the girlfriends exculpatory statement to the grand jury before
indictment?
The federal rule before 530B has been that a federal prosecutor need not present
exculpatory evidence to the grand jury. See United States v. Williams, 504 U.S. 36, 52 (1992)
(Imposing upon the prosecutor a legal obligation to present exculpatory evidence in his
possession would be incompatible with this [grand jury] system.) Yet, despite the Williams rule,
the United States Attorneys Manual states that when an AUSA is personally aware of
substantial evidence that directly negates the guilt of a subject of the investigation, the
prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an
indictment against such a person. U.S.A.M. 9-11.233 (2008). The Manual also states that an
indictment should not be dismissed for a violation of this policy, but appellate courts may refer
prosecutors to the DOJ Office of Professional Responsibility for review if they violate the
policy. Id.
Since enactment of 530B, a district court has held that any state ethical standards
requiring the presentation of exculpatory evidence would not override the law governing
12
Interestingly, the government did not make an appearance in the appeal.
13
One leading case authorizing a dismissal of an indictment for prosecutorial misconduct
is Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (discussing harmless error
standard for dismissal of an indictment, and contrasting dismissal for errors deemed
fundamental).
presentation of [exculpatory] evidence at grand jury proceedings. United States v. Syling, 553
F.Supp.2d 1187, 1192 (D.Haw. 2008). The district courts opinion did not address any
prosecutorial obligations created by the United States Attorneys Manual.
4. Miscellaneous Prosecutorial Misconduct Within the Grand Jury
If it is true that an experienced prosecutor can get a grand jury to indict a ham sandwich,
then why would an AUSA cut corners to get an indictment? While unethical behavior before a
grand jury seems particularly unnecessary, it nonetheless occurs. A good summary of prohibited
acts can be found in United States v. Samango, 607 F.2d 877 (9th Cir. 1979).
In Samango, an indictment was dismissed by a federal district judge in Hawaii. Id. at
878.
12
Samango was a witness called before the grand jury relating to a cocaine importation case
from Tahiti. Id. The AUSA informed the grand jury of his dissatisfaction with Samangos
performance under a non-pros agreement, chided the witness when he asked to see counsel,
insinuated that the witness was lying and threatened to charge him as a defendant. Id. at 879.
The AUSA later sought a sanitized indictment by dumping 1,000 pages of transcript on the
grand jury, and telling them that he had a deadline for their consideration eight days later. Id.
The Ninth Circuit conceded that an attack against an indictment based on incompetent or
inadequate evidence was not possible. Id. at 880-81 & n.6. The Court observed, however, that
dismissal of an indictment can be appropriate to protect the integrity of the judicial process . . .
particularly the functions of the grand jury, from unfair or improper prosecutorial conduct. Id.
at 877 (internal citations and quotations omitted).
13
This was such a case; Although deliberate
introduction of perjured testimony is perhaps the most flagrant example of misconduct, other
prosecutorial behavior, even if unintentional, can also cause improper influence and usurpation
of the grand jurys role. Id. at 882.
Other prosecutorial misconduct may be grounds to dismiss the indictment. An AUSA
may not ask questions of a grand jury witness solely to discredit the witness. United States v.
DiGrazia, 213 F. Supp. 232, 234 (N.D. Ill. 1963).
While this may seem self-evident, the government may not rely on perjured testimony to
secure an indictment before the grand jury. United States v. Useni, 516 F.3d 634, 656 (7th Cir.
2008); United States v. Basurto, 497 F.2d 781, 785-86 (9th Cir. 1974) (We hold that the Due
Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an
indictment which the government knows is based partially on perjured testimony, when the
perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor
14
Note that there is no per se ban on hearsay evidence before the grand jury. Although
there is no prohibition on the use of hearsay evidence before a grand jury, our decision in United
States v. Estepa, 471 F.2d 1132 (2d Cir. 1972), indicates that extensive reliance on hearsay
testimony is disfavored. More particularly, the government prosecutor, in presenting hearsay
evidence to the grand jury, must not deceive the jurors as to the quality of the testimony they
hear. Hogan, 712 F.2d at 761.
learns of any perjury committed before the grand jury, he is under a duty to immediately inform
the court and opposing counsel and, if the perjury may be material, also the grand jury in
order that appropriate action may be taken.).
Often it is the cumulative impact of grand jury misconduct that will cost the government
an indictment. In United States v. Hogan, 712 F.2d 757 (2d Cir. 1983), the Court upheld
dismissal of an indictment when the AUSA portrayed the defendant as a hoodlum in front of
the grand jury, relied too heavily on hearsay evidence,
14
and presented false DEA testimony. Id.
at 761 (In summary, the incidents related are flagrant and unconscionable. Taking advantage of
his special position of trust, the AUSA impaired the grand jurys integrity as an independent
body.).
Another critical rule is the donut ban: an AUSA shouldnt bond with grand jurors by
bringing them donuts at the beginning of their deliberations. United States v. Breslin, 916 F.
Supp. 438, 442 (E.D. Pa. 1996). It is also improper to rush the grand jurys deliberations by
suggesting that the assigned time was short, to make improper characterizations of the evidence,
to suggest that live witness testimony was unavailable, or to warn that the statute of limitations
was about to run on the charges. Id. at 442.
While the DiGrazia case is a useful laundry list of prosecutorial misconduct before the
grand jury, the opinion is depressingly candid about a defendants chances to prevail on such a
claim. It is rare that defendants have sufficient information from Jencks material to find a basis
for a motion to dismiss. It is unusual that the trial judge would be required to review sufficient
material presented to the grand jury to develop a concern for the cumulative unfairness of the
grand jury proceedings. Id. at 446.
B. Brady, Due Process, and State Ethical Rules on Discovery
Even before state ethical obligations were extended to federal prosecutors, some federal
courts did not hesitate to impose sanctions for prosecutorial misconduct relating to Brady
violations. One inspiring example is found in United States v. Ramming, 915 F. Supp. 854 (S.D.
Texas 1996). In that case, the district court carefully chronicled the various Brady and Giglio
violations of the federal government in a banking prosecution. Id. at 868. The court concluded,
the governments contentions of equal access, neutral evidence, that the defendants were aware
of the information possessed by the Grand J ury, that the testimony was merely impeachment,
and that they acted in good faith, is incredible. Only a person blinded by ambition or ignorance
of the law and ethics would have proceeded down this dangerous path. Id. (emphasis added).
The defendants motion to dismiss because of prosecutorial misconduct was granted. Id.
15
See Gibeaut, J ohn, The Roach Motel, ABA J OURNAL, J uly 2009 (J udges seldom
discipline lawyers who practice before them for professional misconductthough other actions,
such as Rule 11 sanctions, sometimes attempt to curb the same behavior and may go
unrecognized as punishment dealt to individuals), http://www.abajournal.com/magazine/
article/the_roach_motel (last visited 4/13/10); United States v. Shaygan, 661 F.Supp.2d 1289,
1325 (S.D. Fla. 2009) (judge reserved the right to impose any further sanctions and/or
disciplinary measures as may be necessary against [the federal prosecutors] after reviewing the
results of the J ustice Departments investigation.); United States v. Jones, No. CR 07-10289-
MLW, 2010 WL 565478 (D.Mass. 2010) (court determined that imposition of sanctions against
AUSA or government for failure to adequately train AUSA based on failure to disclose plainly
material exculpatory evidence were neither necessary nor appropriate where, since violation
disclosure, AUSA, US Attorneys Office and DOJ officials took actions such as participating in
discovery training programs, which obviated need for sanctions).
16
It appears that state courts are also reluctant to report prosecutorial misconduct to state
bar authorities. In California for instance, it is rare that prosecutorial misconduct is referred to
the California State Bar although required under California law. See Crossing the Line:
Responding to Prosecutorial Misconduct, at http://www.abanet.org/litigation/prog_materials
/2008_sectionannual/016.pdf (last visited 4/9/10).
To date, few federal courts have equated discovery violations with ethical misconduct
requiring bar referral. As stated supra, filing a complaint with the state bar authorities seems to
be considered a last resort by most federal courts
15
even though such a sanction has been
approved of and, in the appropriate case, encouraged by the circuit courts. See United States v.
Wilson, 149 F.3d 1298, 1304 (11th Cir. 1998) ([W]e want to make clear that improper remarks
and conduct in the future, especially if persistent, ought to result in direct sanctions against an
offending prosecutor individually.(emphasis in original)); United States v. Modica, 663 F.2d
1173, 1185 (2d Cir. 1981) (We suspect that the message of a single 30-day suspension from
practice would be far clearer that the disapproving remarks in a score of appellate opinions.).
16

Federal constitutional requirements for disclosure of exculpatory and witness-
impeachment evidence are well-established. The United States Attorneys Manual disclosure
policy exceeds constitutional obligations although the government notes that the expanded
disclosure policy, however, does not create a general right of discovery in criminal cases. Nor
does it provide defendants with any additional rights or remedies. USAM 9-5.001 (2010).
Those state ethical rules modeled after the ABAs Model Rule of Professional Conduct 3.8
impose a still higher duty of discovery than that required by constitutional due process or the
United States Attorneys Manual. Query whether 530B imposes a higher discovery obligation
on federal prosecutors, by virtue of state ethical rules, and whether that is enforceable?
The American Bar Association has promulgated a model ethical rule relating to the
production of discovery by the prosecutor:
Model Rule of Professional Conduct 3.8
The prosecutor in a criminal case shall:
. . . .
(d) make timely disclosure to the defense of all evidence or information known to
the prosecutor that tends to negate the guilt of the accused or mitigates the
offense, and, in connection with sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information known to the prosecutor, except
when the prosecutor is relieved of this responsibility by a protective order of the
tribunal;
Appendix B, Model Rule of Professional Conduct 3.8(d).
This model rule is patterned after ABA Standard 3-3.11, Prosecution/Defense Function:
Disclosure of Evidence by the Prosecutor
(a) A prosecutor should not intentionally fail to make timely disclosure to the defense, at
the earliest feasible opportunity, of the existence of all evidence or information which
tends to negate the guilt of the accused or mitigate the offense charged or which would
tend to reduce the punishment of the accused.
ABA Standard 3-3.11 (emphases added).
The ABA has recently issued an 8-page formal opinion regarding the prosecutorial
ethical duty to disclose evidence and information favorable to the defense which clearly exceeds
constitutional discovery obligations. See Appendix D, Formal Opinion 09-454 (July 8, 2009).
Key excerpts follow:
Rule 3.8(d) is more demanding that the constitutional case law, in that it requires
the disclosure of evidence or information favorable to the defense without regard
to the anticipated impact of the evidence or information on a trials outcome. The
rule thereby requires prosecutors to steer clear of the constitutional line, erring on
the side of caution.
Id. at 4.
Further, this ethical duty of disclosure is not limited to admissible evidence,
such as physical and documentary evidence, and transcripts of favorable
testimony; it also requires disclosure of favorable information. Though possibly
inadmissible itself, favorable information may lead a defendants lawyer to
admissible testimony or other evidence or assist him in other ways, such as in
plea negotiations. In determining whether evidence and information will tend to
negate the guilt of the accused, the prosecutor must consider not only defenses to
the charges that the defendant or defense counsel has expressed an intention to
raise but also any other legally cognizable defenses. Nothing in the rule suggests a
17
Federal courts have long held that the government has a duty under Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny to disclose favorable material evidence to the
defense in time for the material to be of value to the defendant. See, e.g., United States v.
Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). This duty to disclose includes impeachment
evidence (sometimes known as Giglio material) as well as actual innocence evidence. See,
e.g., United States v. Bagley, 473 U.S. 667, 676 (1985). The prosecutor has a duty to obtain this
information from state as well as federal agents who have worked on the case. See Kyles v.
Whitley, 514 U.S. 419, 437-38 (1995).
The Supreme Court has held that impeachment (Giglio) material need not be disclosed to
the defense before a plea of guilt. United States v. Ruiz, 536 U.S. 622, 629 (2002). The Court
reasoned that a defendant can constitutionally misjudge other components of his or her case
de minimis exception to the prosecutors disclosure duty where, for example, the
prosecutor believes that the information has only a minimal tendency to negate
the defendants guilt, or that the favorable evidence is highly unreliable.
Id. at 5.
The Supreme Court has observed that federal due process requirements provide for less-
complete discovery than the ABA standards. See Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Yet, the Court has also noted that, nonetheless, a prosecutor may have an obligation under
applicable ethical or statutory rules to greater disclosure. Cone v. Bell, __ U.S. __, 129 S.Ct.
1769, 1783 n.15 (2009) (As we have often observed, the prudent will err on the side of
transparency, resolving doubtful questions in favor of disclosure.).
There are two primary differences between federal due process requirements and the
ABA model ethical rules. The first relates to scope of disclosure. As noted in Kyles, the ABA
model rule requires disclosure of any evidence tending to exculpate or mitigate. Id. (emphasis
added). Federal due process, by contrast, is primarily a standard forged out of appellate review;
it prohibits the suppression by the prosecution of evidence favorable to the accused upon
request, [which] violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or the bad faith of the prosecution. Brady v.
Maryland, 373 U.S. 83, 87 (1963).
The second distinction relates to the timing of disclosure. When the model rule is read in
conjunction with the ABA standard, the prosecutor is required to disclose discovery at the
earliest feasible opportunity. By contrast, Brady law and timing focuses on prejudice to the
defense viewed in the hindsight of an appeal if there was no prejudice to the defense by failing
to disclose Brady material before trial, no violation lies. See, e.g., United States v. Knight, 867
F.2d 1285, 1289 (11th Cir. 1989) (Appellants received the information during the trial and have
failed to demonstrate that the disclosure came so late that it could not be effectively used; and
thus they cannot show prejudice.) Of even greater concern, federal due process does not require
any disclosure of impeachment information before a defendant pleads guilty so this Giglio
information may never come to the attention of the defense.
17

before a plea; the quality of the States case, the likely penalties, a change in law regarding
punishment, the admissibility of a confession, and potential defenses. There accordingly was no
constitutional problem with a plea if the defendant misjudged the grounds for impeachment of
potential witnesses as a possible future trial. Id. at 2455.
18
States adopting a substantial equivalent of ABA Model Rule 3.8(d) include Colorado,
Idaho, Maryland, and Pennsylvania. See, e.g., People v. Mucklow, 35 P.3d 527 (Co. S. Ct.
Office Discipline 2000) (discussing Colo. RPC 3.8d, based on ABA Model Rule 3.8); Id. R.
Prof. Conduct 3.8(d) (incorporating subsection (d) of ABA model rule relating to discovery); Md
Rule of Prof. Conduct 3.8 (same); Pa Rule. Prof. Conduct 3.8 (same). Other states have adopted
less-specific ethical rules regarding a prosecutors disclosure obligations. California is in the
process of adopting a rule based in large part on ABA Model Rule 3.8(d). See, e.g.,
http://calbar.ca.gov/calbar/pdfs/
public-comment/2009/Revision-Rules-Professional-Conduct-11-Rules_11-13-09.pdf (comparing
and contrasting other states adoption and Californias proposed changes) (last visited 4/9/10).
The tension between the federal due process discovery standards and the ABA model rule
is more than just an academic debate; many states have adopted the ABA model rule or an
analogous provision relating to discovery.
18
Consider another Colorado case as an illustration of
the tension between state ethical rules and federal discovery requirements.
In People v. Mucklow, 35 P.3d 527 (Co. S. Ct. Office Discipline 2000), a district attorney
twice failed to disclose exculpatory statements to the defense before preliminary hearings. Id. at
530-31. The Discipline Office of the Supreme Court emphasized that Colorado had adopted a
version of ABA model rule 3.8, and that this rule meant The prosecutor is required to provide
exculpatory information and materials to the defense as soon as it is practicable or feasible to do
so. Id. at 535. The opinion emphasizes the difference between due process discovery
requirements and (the more rigorous) ethical discovery obligations created by the state ethical
rule. Id. at 535. The D.A. who ignored that distinction did so at her peril; she was publically
censured. Id. at 540.
For the federal practitioner in Colorado or any state that has adopted a version of ABA
model rule 3.8 theMucklow case is intriguing. If Congressman McDades 530B extends
state ethical rules to federal prosecutors, then the Colorado ethical rule requiring early discovery
should apply to an AUSA as well.
C. Prosecutorial Misconduct During Trial
1. Misconduct During Jury Selection
Prosecutorial misconduct cases make for remarkable reading. One such case is Williams
v. Netherland, 181 F.Supp.2d 604 (E.D. Va. 2002). In Williams, petitioner sought relief from a
capital conviction when i) a juror was the ex-wife of a government witness; ii) the prosecutor
was this jurors former divorce attorney (and who therefore obviously knew about the
relationship, and iii) neither the juror nor the prosecutor bothered to reveal these relationships
during voir dire. Id. at 609-12. The court found that the prosecutor acted improperly and
granted the writ. Id.
Less favorable is the Ninth Circuits affirmance in United States v. Steele, 298 F.3d 906
(9th Cir. 2002). In Steele, the AUSA questioned a prospective juror on voir dire who had been
employed as a public defender. Id. at 911-12. She asked, In the course of trying [felony
robbery cases], did you ever make a decision that your client was guilty and youve got to do
whatever you have got to do because thats your job? Id. at 912. The juror answered,
truthfully, I guess so, yeah. You know, it gets the facts might show one way or the other, and
you have to pursue the case if the client wants to or not, its their decision. Id.
Defense counsel sitting next to a client heading into a federal bank robbery trial
understandably objected to a question about defending guilty defendants at trial. Id. The Ninth
Circuit, however, refused to find misconduct. The prosecutors questions in the present case
may not have been the best way to elicit signs of bias, but the circumstances do not support the
conclusion that there was prosecutorial misconduct. Id.
2. Improper Conduct During Opening Statements
In her opening statement, an AUSA states that the armed robbery case before the jury has
rocked the sense of security of an entire Maine community, a community that had been
relatively free from random acts of violence. United States v. Mooney, 315 F.3d 54, 58-59 (1st
Cir. 2002). She continues on to comment that the defendant chose not to speak to the police, and
encouraged the jury to compare that silence with the testimony of his cooperating- co-
defendants. Id. Prosecutorial misconduct?
The government conceded as much in Mooney, choosing not to defend the prosecutors
opening remarks. Id. at 59. Instead, while finding misconduct the First Circuit focused
primarily on the remedy (which it ultimately denied).
In Mooney, the First Circuit acknowledged its dismay that any prosecutor in this circuit
could apprise a jury in an opening statement that a defendant had chosen not to talk to the police.
It is difficult to imagine a more fundamental error. Id. at 61 & n.1. Nonetheless, in light of the
strength of the evidence and immediate curative instructions, the First Circuit upheld the
conviction. Id.
One particularly interesting aspect of the Mooney decision is the Courts analysis of the
timing of the misconduct. The Court observed The context of the prosecutors comments also
weighs against a finding that they likely affected the outcome of the trial. The comments
occurred during opening arguments, not during summation where the last words the jury hears
have significant potential to cause prejudice. Id. at 60. Prosecutorial misconduct during
opening statements thus may be more difficult to remedy on appeal than improper statements
during closing arguments.
3. Ethical Problems with Government Witnesses and Trial Evidence
Government witnesses and evidence at trial present a grab-bag of ethical problems. One
straightforward prohibition precludes eliciting a witness opinion of another witness testimony.
United States v. Geston, 299 F.3d 1130 (9th Cir. 2002), nicely summarizes the due process
concerns behind this rule. Id. at 1136 (collecting cases). In Geston, the Ninth concluded that the
prosecutors improper questioning seriously affected the fairness, integrity, or public reputation
of judicial proceedings, or [] failing to reverse [the] conviction would result in a miscarriage of
justice. Id. (internal quotation and citation omitted). In a case where witness credibility was
paramount, it was plain error for the court to allow the prosecutor to persist in asking witnesses
to make improper comments upon the testimony of other witnesses. Id. at 1137.
Not surprisingly, it is also improper for a prosecutor to intentionally elicit testimony
precluded by a courts in limine ruling. See Thomas v. Hubbard, 273 F.3d 1164, 1175-76 (9th
Cir. 2001), as amend. J an. 22, 2002 (granting petition for writ of habeas from murder conviction
when, among other things, the prosecutor intentionally ignored a court ruling prohibiting
testimony about a defendants previous use of a gun).
It is also unsurprising that it is prosecutorial misconduct for the government to sponsor
perjured testimony, to permit its witnesses to commit perjury, or to fail to reveal a witness lies
to the defense. What is surprising is the vehemence of courts when confronted with this conduct.
Commonwealth v. Bowie, 243 F.3d 1109 (9th Cir. 2001), as amend. Mar. 23, 2001 is a
remarkable example of a courts intolerance for such conduct. In Bowie, the defendant was
implicated in a particularly brutal murder in the Northern Mariana Islands. Id. at 1111. Much of
the governments case involved cooperating co-defendants, one of whom was caught early in the
case, in a jail cell, while trying to discard an incriminating letter handwritten on yellow paper.
Id. at 1112-13. That letter by an unknown author suggested that the author i) was actually
guilty of the murder, ii) was conspiring to frame the defendant, iii) had lied during cooperation
before, and iv) had lied to his lawyer about the murder. Id. The letter may have come from
another cooperating witness.
Despite this dramatic evidence, the prosecutor did not investigate the letter, did not
submit it for handwriting analysis, and never asked any of the cooperating witnesses about it. Id.
at 1114.
The Ninth Circuit (in an opinion written by former federal prosecutor Trott), was to put
it mildly livid in light of the studied decision by the prosecution not to rock the boat, but
instead to press forward with testimony that was possibly false on the apparent premise that all
these accomplices were actually responsible for [the victims] murder. Id. at 1118. The Court
explained that the prosecutors duty was not to merely disclose the letter to the defense, but to
actively investigate the many (potentially exculpatory) ramifications of the evidence. Id. at
1117-18. A prosecutors responsibility and duty to correct what he knows to be false and elicit
the truth . . . requires a prosecutor to act when put on notice of the real possibility of false
testimony. This duty is not discharged by attempting to finesse the problem by pressing ahead
without a diligent and a good faith attempt to resolve it. A prosecutor cannot avoid this
19
Other useful cases on perjured testimony include United States v. Valentine, 820 F.2d
565 (2d Cir. 1987) (reversing conviction when AUSA mischaracterized grand jury testimony
during trial), and United States v. LaPage, 231 F.3d 488 (9th Cir. 2000) (reversing conviction
when AUSA tolerated perjury from central government witness).
obligation by refusing to search for the truth and remaining willfully ignorant of the facts. Id. at
1118.
The Court did not particularly care what the defendant actually did with this letter during
trial. [The defendant] has certain constitutional rights that he could waive or forfeit, but he
could not waive the freestanding ethical and constitutional obligation of the prosecutor as a
representative of the government to protect the integrity of the court and the criminal justice
system . . . . Id. at 1122.
Bowie is a useful place to start when researching prosecutorial misconduct regarding
perjury.
19
First, the tone of the case is welcome righteous indignation in contrast to so many
cases that seem blandly resigned to prosecutorial misconduct. The case also includes a useful
collection of authority regarding prosecutorial misconduct in the presentation in evidence.
Finally, Bowie employs a thoughtful dual analysis using both due process and prosecutorial
misconduct authority in arriving at its ultimate reversal. See id. at 1115-17.
4. Improper Closing Arguments
One of the lead cases on prosecutorial misconduct during closing arguments is the source
for the wonderful quote used at the beginning of this outline - Berger v. United States, 295 U.S.
78 (1935). In Berger, the prosecuting attorney misstated evidence during cross examination, an
argument that was undignified and intemperate, containing improper insinuations and assertions
calculated to mislead the jury. Id. at 86. The Court found pronounced and persistent
misconduct, a case against the defendant that was not strong, and accordingly reversed and
remanded for a new trial. Id. at 89.
What is interesting about the Berger opinion is the lack of analysis as to the Courts
power to reverse in light of prosecutorial misconduct. The Court presumably acted under its
supervisory power a power that it handily distinguished fifty-one years later when presented
with a capital habeas alleging improper closing statements. See Darden v. Wainwright, 477 U.S.
168 (1986). In Darden, the defendant had been convicted of an admittedly horrific murder and
sexual assault. Id. at 172-74. In the closing argument, the prosecutor asserted that the only way
to be sure that the defendant would not return to the public was the death penalty. Id. at 181 &
n.9. The prosecutor argued that the defendant shouldnt be out of his cell unless he has a leash
on him and a prison guard at the other end of that leash. Id. at 181 & n.12. The prosecutor
wished that the homicide victim had had a shotgun in his hand when he walked in the back door
and blown [the defendants] face off. I wish that I could see him sitting here with no face, blown
20
The district court has observed, Anyone attempting a text-book illustration of a
violation of the Code of Professional Responsibility . . . could not possibly improve upon
[prosecutor Whites final statement]. Id. at 189 & n.2 (Blackmun, J ., Brennan, J ., Marshall, J .,
Stevens, J ., dissenting).
away by a shotgun. Id.
20

The Court found that the comments did not deprive the defendant of a fair trial, setting a
test that still haunts federal review: The prosecutors argument did not manipulate or misstate
the evidence, nor did it implicate other specific rights of the accused such as the right to counsel
or the right to remain silent. Id. at 181-82.
A persuasive dissent in Berger quotes a remarkably candid passage on the futility of
condemnations without remedies:
This court has several times used vigorous language in denouncing government counsel
for such conduct as that of the [prosecutor] here. But, each time, it has said that,
nevertheless, it would not reverse. Such an attitude of helpless piety is, I think,
undesirable. It means actual condonation of counsel's alleged offense, coupled with
verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we
should cease to disapprove it. For otherwise it will be as if we declared in effect,
'Government attorneys, without fear of reversal, may say just about what they please in
addressing juries, for our rules on the subject are pretend-rules. If prosecutors win
verdicts as a result of "disapproved" remarks, we will not deprive them of their victories;
we will merely go through the form of expressing displeasure. The deprecatory words we
use in our opinions on such occasions are purely ceremonial.' Government counsel,
employing such tactics, are the kind who, eager to win victories, will gladly pay the small
price of a ritualistic verbal spanking. The practice of this court recalling the bitter tear
shed by the Walrus as he ate the oysters breeds a deplorably cynical attitude towards
the judiciary. I believe this Court must do more than wring its hands when a State uses
improper legal standards to select juries in capital cases and permits prosecutors to
pervert the adversary process. I therefore dissent.
Id. at 206 (Blackmun, J ., Brennan, J ., Marshall, J ., Stevens, J ., dissenting) (internal quotations
and citations omitted).
Recently, the Ninth Circuit signaled an end to the wringing of the hands. In United
States v. Reyes, 577 F.3d 1069, 1076-79 (9th Cir. 2009), the court reversed and remanded for a
new trial based on the prosecutors remarks in closing argument. The Ninth Circuit found that
the government had asserted material facts to the jury that it knew were false or had strong
reason to doubt, based on contradictory evidence that was not presented to the jury. Id. The
Ninth Circuit sternly warned the DOJ that, [w]e do not lightly tolerate such conduct, and that
were was no reason to tolerate such misconduct here. Id. at 1078.
Generally, however, courts routinely condemn prosecutors conduct, but refuse to grant
any relief to the defense. In 1970, for example, the First Circuit resignedly repeated warnings it
had made many times before:
We will recapitulate, we hope for the last time, in the light of the number of occasions it
has been necessary to do so, the basic ground rules. Essentially, the prosecutor is to
argue the case. He may discuss the evidence, the warrantable inferences, the witnesses,
and their credibility. He may talk about the duties of the jury, the importance of the case,
and anything else that is relevant. He is not to interject his personal beliefs. The
prosecutor is neither a witness, a mentor, nor a thirteenth juror . . . . He must not appeal
to the passion or prejudice of the jury directly, or by the introduction of irrelevant matter,
indirectly.
United States v. Cotter, 425 F.2d 450, 452 (1st Cir. 1970). In Cotter, this meant that it was
improper for a prosecutor to argue that a defendants who failed to pay his taxes was
jeopardizing future moon landings the first landing was taking place during the trial. Id.
Absent a timely objection, however, the Court declined to reverse. Id.
Forced to deal with repeated allegations of prosecutorial misconduct during closing
arguments, federal appellate courts gradually developed stringent hurdles to overcome before a
defendant would be entitled to any relief. The Second Circuit, for example, developed a three-
part test to determine whether a prosecutors statements during closing amounted to misconduct:
The district court correctly identified the three-pronged analysis employed by this Court
to determine whether the statements or actions of a prosecutor amount to misconduct.
That analysis focuses on: the severity of the misconduct, the curative measures taken, and
the certainty of conviction absent the misconduct.
United States v. Burns, 104 F.3d 529, 537 (2d Cir. 1997). In Burns, a prosecutor clapped
(sarcastically) after defense counsel finished their closing in tears. Id. & n.3. The government
conceded on appeal that this was inappropriate, but the court refused to reverse the denial of a
new trial motion. Id.
At times, a courts tolerance of misconduct during closing argument is breathtaking. For
example, in a habeas case arising from a murder conviction, the Ninth Circuit was confronted
with a prosecutor who had actually taken the witness stand during closing argument, testified
in the voice of the murdered, gay, victim, and who during this soliloquy characterized the victim
as a peaceful, gentle man who did nothing to deserve his dismal fate. Drayden v. White, 232
F.3d 704, 712-13 (9th Cir. 2000). While the Ninth Circuit agreed that the prosecutor had
committed misconduct, it refused to hold that this misconduct had violated petitioners due
process rights. Id.
Faced with what J ustice Blackmun characterized as an attitude of helpless piety from
most federal courts reviewing allegations of prosecutorial misconduct, 530B may provide some
support. There are no shortage of state and local ethical rules directed towards prosecutorial
misconduct in closing arguments. An ABA Model Rule of Professional Conduct, for example,
prohibits an attorney from stating a personal opinion as to the credibility of a witness:
21
A non-exhaustive list of states that have adopted Model Rule 3-4 includes
Connecticut, Kansas, Louisiana, Maryland, Montana, New Hampshire, North Carolina, Utah,
West Virginia. See, e.g., State v. Floyd, 523 A.2d 1323 (Conn. App. 1987) (applying Rule of
Professional Conduct 3.4 to alleged ethical violation); State v. Pabst, 996 P.2d 321, 326 (Kan.
S.Ct. 2000)(same); Merritt v. Karcioglu, 668 So.2d 469, 475-76 (La. App. 4th Cir. 1996) (same);
Attorney Grievance Com'n v. Alison, 709 A.2d 1212, 1215 (Md. Ct. App. 1998) (same); State v.
Stewart, 833 P.2d 1085, 1089-90 (Mont. S. Ct. 1992) (same); State v. Jones, 558 S.E.2d 97, 127-
28 (N.C. S. Ct. 2002); State v. Bujnowski, 532 A.2d 1385, 1387 (N.H. S. Ct. 1987) (same); State
v. Dibello, 780 P.2d 1221 (Utah S. Ct. 1989) (same); State v. Stephens, 525 S.E.2d 301, 424 (W.
Va. S. Ct. 1999)
22
The Court in Carter articulated the Sixth Circuits two-part test to determine whether
prosecutorial misconduct has taken place:
The Sixth Circuit has adopted a two-step approach for determining when
prosecutorial misconduct warrants a new trial. See United States v. Carroll, 26 F.3d
1380, 1385-87 (6th Cir.1994). Under this approach, a court must first consider whether
the prosecutor's conduct and remarks were improper. Id. at 1387; see also Boyle v.
Million, 201 F.3d 711, 717 (6th Cir.2000). If the remarks were improper, the court must
RULE 3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
. . . .
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or
that will not be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to the justness of
a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused; or
Appendix E, ABA Model Rule of Professional Conduct 3.4 (2002) (emphasis added).
In states that have adopted this model rule
21
or that have analogous limitations on
closing arguments such behavior during a federal closing should earn the prosecutor a referral
to the state bar disciplinary committee in this post- 530B world. Even if the misconduct is not
sufficiently prejudicial to entitle a defendant to relief, the specter of a public censure by the state
bar should help to put some teeth into the judicial hand wringing that J ustice Blackmun
warned against in Berger.
Notably, even when courts do not directly censure AUSAs based on local ethical rules,
the moral weight of these rules is gradually making its way into federal case law. For example,
the Sixth Circuit reversed and remanded for a new trial a federal bank robbery case where the
prosecutor misstated central eyewitness testimony during closing. See United States v. Carter,
236 F.3d 777, 793 (6th Cir. 2001). In its analysis of the threshold question
22
of whether the
then consider and weigh four factors in determining whether the impropriety was flagrant
and thus warrants reversal. These four factors are as follows: (1) whether the conduct and
remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2)
whether the conduct or remarks were isolated or extensive; (3) whether the remarks were
deliberately or accidentally made; and (4) whether the evidence against the defendant
was strong. Carroll, 26 F.3d at 1385; see also Boyle, 201 F.3d at 717; United States v.
Collins, 78 F.3d 1021, 1039 (6th Cir.), cert. denied, 519 U.S. 872, 117 S.Ct. 189, 136
L.Ed.2d 127 (1996).
When reviewing challenges to a prosecutor's remarks at trial, we examine the
prosecutor's comments within the context of the trial to determine whether such
comments amounted to prejudicial error. United States v. Young, 470 U.S. 1, 11-12, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985); Collins, 78 F.3d at 1040. In so doing, we consider
whether, and to what extent, the prosecutor's improper remarks were invited by defense
counsel's argument. Young, 470 U.S. at 12, 105 S.Ct. 1038; Collins, 78 F.3d at 1040.
Carter, 236 F.3d at 783.
AUSAs closing was improper, the Sixth Circuit quoted with favor the ABA Standard stating
that the prosecutor should not intentionally misstate the evidence or mislead the jury as to the
inferences it may draw. Id. at 785 (quoting ABA Standards for Criminal J ustice Prosecution
Function and Defense Function 3-5.8(a) (3d ed. 1993)).
Our personal experience in this field also reveals that the specter of ethical sanction is a
powerful weapon in combating unethical behavior. A prime example is United States v.
Blueford, 312 F.3d 962 (9th Cir. 2002), as amend. & further amend., Nov. 22, 2002. Northern
District Assistant Federal Public Defender J oyce Leavitt ably litigated this felon in possession
case. The defense who had provided notice of an alibi defense was presented with a huge
stack of the clients taped conversations from the jail; and was first presented with these tapes in
the midst of trial. Id. at 966. The AUSA suggested that he was going to use these tapes as
impeachment material relating to the testimony of defense alibi witnesses implying that the
tapes revealed a defendant who was suborning perjury. Id. at 965. During the trial the AUSA
elicited in his cross of defense alibi witnesses that they had spoken much more frequently to the
defendant just before the trial. Id. at 966. In his closing, the AUSA asked the jury to infer that
the defendant and the alibi witness fabricated the alibi defense just before trial. Id. at 967.
In reality, however, when the thirty hours of tapes were reviewed by the defense (after
trial), they revealed the defendant telling an alibi witness, [A]ll you got to do is tell the truth.
Id. The district court judge was surprised to learn the tapes did not, in fact, reveal a defendant
who was coaching alibi witnesses. Id.
The Ninth Circuit reversed; It is decidedly improper for the government to propound
inferences that it knows to be false, or has very strong reason to doubt, particularly when it
refuses to acknowledge the error afterwards to either the trial court or this court and instead
offers far-fetched explanations of its actions. Id. at 968.
What is not clear from the opinion is the enormous publicity and controversy that this
case generated in the Northern District of California. The government and the AUSA himself
devoted enormous resources to seeking rehearing and (later, successful amendment) of the
opinion alleging prosecutorial misconduct. Notably, the opinion does not clearly specify the
AUSA involved in trial. Id. Nonetheless, the Blueford case and this AUSAs involvement are
well-known by every federal practitioner and district judge in the Northern District. In short, the
combination of a remedy for the defendant (reversal and new trial), and even an oblique moral
sanction may have some impact.
D. Broken Promises: Breached Pleas at Sentencing
Is a broken plea agreement at sentencing best analyzed using contract law, or when
framed as prosecutorial misconduct? More importantly, does it matter to the client as long as a
remedy is secured?
The lead case on breached plea agreements is Santobello v. New York, 404 U.S. 257
(1971). In that opinion, the Supreme Court reversed and remanded after (the second) prosecutor
in the case refused to make a sentencing recommendation agreed upon before the plea. Id. at
260. Despite the fact that the judge disclaimed any reliance on the D.A.s recommendation, the
Court found that when a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such promise
must be fulfilled. Id. at 262. While the Court did not engage in much analysis of the ethics of a
breached plea, it made no mention of any principles of contract law. J ustice Douglas
concurrence, however, emphasized that outright vacation is often appropriate after a breached
plea promise, in light of an outraged sense of fairness. Id. at 266 (Douglas, J ., concurring)
(internal quotations and citation omitted).
While deferring to Santobello, federal appellate courts have routinely avoided the ethical
issues by analyzing plea agreement breach under contract law. In United States v. Grimm, 170
F.3d 760 (7th Cir. 1999), for example, the Seventh Circuit employed contract principles when an
AUSA failed to recommend acceptance of responsibility and did not dispute a gun possession, in
violation of the plea agreement. Id. at 764-66. Without engaging in any ethical finger-pointing,
the Court vacated the sentence and remanded for resentencing. Id. at 765.
Ethical overtones in plea-breach cases are becoming more common, however. For
example, in Gunn v. Ignacio, 263 F.3d 965 (9th Cir. 2001), the Ninth Circuit granted a petition
for a writ of habeas corpus when a district attorney breached a plea agreement regarding
concurrent time. Id. at 969. Because the Court granted relief, it did not get to the second issue
raised by the Petitioner a claim of ineffective assistance of counsel for failing to object to the
prosecutorial misconduct arising from this breach! Id. at 968. Although Gunn did not consider
the issue, Petitioners claim is sobering: defense counsel too timid to raise prosecutorial
misconduct challenges may regret their decision when faced with a later I.A.C. claim.
If sufficiently dramatic, a prosecutors breach of a plea agreement may even prompt a
Court to enforce promises that were actually unfulfillable! Such was the case in Palermo v.
Warden, Green Haven State Prison, 545 F.2d 286 (2d Cir. 1976). In Palermo, the Petitioner had
been promised that state district attorneys would aggressively lobby the parole board for a
reduced sentence, in return for him leading them to $4 million worth of stolen jewelry. Id. at
289-90. The jewels were recovered, sympathetic letters were written by the DAs to the parole
commission but at the same time, prosecutors sandbagged the defendant by calling a parole
investigator and analogizing the defendant to another parolee who had received a lenient
sentence and then committed a violent crime. Id. at 291. The states case was not helped by
contractions in the prosecutors testimony, inconsistencies too numerous to mention that
undermined their credibility. Id. at 294.
While contesting the habeas petition, the state argued that the prosecutors never had the
authority to offer a bargain from another jurisdiction the state parole commission. The Court
was unimpressed. The Second Circuit proclaimed fundamental fairness and public confidence
in government officials require that prosecutors be held to meticulous standards of both promise
and performance. Id. at 296. The Court accordingly held, where a defendant pleads guilty
because he reasonably relies on promises by the prosecutors which are in fact unfulfillable, he
has a right to have those promises fulfilled. Id. The district courts unconditional release order
was affirmed. Id.
To answer the question posed at the outset of this section regarding contract law versus
ethical analysis, the scope of remedy may depend on whether a prosecutors action in breaching
a plea agreement was egregious or intentional. United States v. Brye, 146 F.3d 1207, 1213.
(10th Cir. 1998). In Brye, the Tenth Circuit analyzed a breach where the AUSA promised to
defer on a motion for a downward departure, then undermined (albeit subtly) the defendants
motion at sentencing. Id. at 1212. While the Court found the breach, it observed that it would
only permit the defendant to withdraw his plea when the breach was egregious or intentional.
Id. at 1213. Because the governments breach was based on a misunderstanding of the plea
agreement, the case was only remanded for resentencing. Id. The lesson from Brye is clear
when faced with a breach, defense counsel should argue contract law but should also emphasize
the ethical violation, to secure better remedies for their client.
III. Normalizing Justice
A. The Proposed Expansion of Rule 16 and DOJs Opposition
On April 28, 2009, J udge Emmet Sullivan, following the conclusion of United States v.
Stevens case, wrote the J udicial Conference Advisory Committee and urged its members to
consider an amendment to Rule 16 of the Federal Rules of Criminal Procedure. See Appendix F
(Sullivan, J. Letter, April 28, 2009). J udge Sullivan wrote, A federal rule of criminal procedure
requiring all exculpatory evidence to be produced to the defense would eliminate the need to rely
on a prudent prosecutor deciding to err on the side of transparency, . . . and would go a long
way towards furthering the search for the truth in criminal trialsand ensuring that justice shall
be done. Id. He noted that it has now been nearly three years since the United States
Attorneys Manual was modified to establish[] guidelines for the exercise of judgment and
discretion by attorneys for the government in determining what information to disclose to a
criminal defendant pursuant to the governments discovery obligations as set out in Brady v.
Maryland and Giglio v. United States and its obligation to seek justice in every case. Id. J udge
23
At an April, 2010 panel session at the D.C. J udicial and Bar Conference, the director
of the Criminal Divisions Policy and Legislation, J onathan Wroblewski, stated that DOJ
officials who have reviewed available data conclude there is no widespread misconduct when it
comes to prosecutors turning over favorable material to defense lawyers . . . .
http://www.mainjustice.com/2010/04/13/doj-defends-against-critics-of-prosecutors-discovery-pr
oduction/ (last visited 4/14/10)
Sullivan also reiterated the serious Brady violations in the Stevens case.
Rule 16 currently requires that the government produce, upon a defendants request,
those documents and objects and the results of examinations and tests that are material to
preparing the defense. Spivack, Roth and Golden, Troubling the Heavens, 34 CHAMPION 24 at
2. In contrast to the governments obligations under Brady, the governments Rule 16 obligation
to produce items material to preparing the defense extends only to items material to the
defendants response to the govenrments case in chief. Id.
In October 2009, Assistant Attorney General for the Criminal Division Lanny Breuer,
addressed the committee and described steps that the Department had taken in the aftermath of
the Stevens trial, including forming a working group to study discovery in criminal proceedings
and to suggest improvements. He said that while the Department took its obligations seriously,
an Office of Professional Responsibility report of alleged Brady violations over the past nine
years did not reveal evidence of a widespread problem. See October 13, 2009, Draft Minutes,
Advisory Committee on Criminal Rules, http://www.uscourts.gov/rules/Agenda%20Books
/Criminal/CR2010-04.pdf (last visited 4/9/10).
23

He indicated that the DOJ would not object to amending Rule 16 to codify Brady
disclosure requirements but would object to any proposed amendment beyond Brady obligations.
Id. Presumably, the DOJ opposition to an expansion of Rule 16, even if only to the extent to
which the United States Atorneys Manual now provides, is based on a concern that such an
expansion would provide defendants with an enforceable right to the governments disclosure
of any and all exculpatory material, not just the information that the government deems to be
material. See Spivack, Roth and Golden, Troubling the Heavens, 34 CHAMPION 24 at 10.
According to the draft minutes of the October 2009 meeting, [a] participant suggested
that the training of federal prosecutors should include presentations by members of the defense
bar who could offer their perspective on discovery issues. Id. There was some discussion of an
open-file policy that has been adopted by some U.S. Attorney Offices. One member thought
that the policy had been successfully used in the Northern District of California. However,
J udge Tallman noted that as an appellate judge, he sees Brady issues arising in many cases from
California, including that district. Id.
In a later March 2010 meeting, materials distributed to the members included the Ogden
Memoranda outlining the DOJ s efforts to improve discovery practices by federal prosecutors, a
letter from J udge Mark Wolf also advocating for an amendment to Rule 16 (see Appendix G,
Wolf, J. Letter, June 23, 2009), a proposed draft survey of all federal judges designed by the
24
http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923
/e11dccac91ec12b9852576fc0073bc75?OpenDocument, (footnotes omitted) (last visited
4/12/10).
25
http://blog.simplejustice.us/2009/07/09/brady-violations-not-just-a-rules-issue.aspx
(last visited 4/12/10).
Federal J udicial Center regarding discovery practices and judicial experience with Brady and
Giglio violations, and the ABAs Formal Ethics Opinion 09-454.
Further discussion of the proposed amendment of Rule 16 will be held at the next
meeting of the Advisory Committee on Criminal Rules in April, 2010.
B. For the Defense Commentators Opinions and Recommendations
From Pivack, Stephen R., Troubling the Heavens: Production of Evidence Favorable to
Defendants by the United States, THE CHAMPION, J anuary/February 2010:
24
One major remedy for these problems is an amendment to FRCrP 16, in line with
that proposed by the Advisory Committee, that provides defendants an
enforceable right to the governments disclosure of any and all exculpatory
material, not just the information that the government deems to be material.
Such an amendment was endorsed by J udge Sullivan himself in the aftermath of
the Stevens case, and would represent an important step towards safeguarding the
rights of criminal defendants. It would codify the governments obligation to
provide exculpatory and impeaching information regardless of its perceived
materiality and would grant defendants a right that is enforceable in court and is
not currently recognized by most courts absent a showing of materiality. In
addition, it would help to ensure that federal prosecutors do not make decisions
with respect to what information to provide to defendants based on an inherently
subjective assessment of whether its use at trial would impact the outcome of the
prosecution. Perhaps most importantly, amending FRCrP 16 would insulate
defendants against future changes in J ustice Department policy that might de-
emphasize as a goal the full production of all exculpatory and impeaching
information to criminal defendants. For all of those reasons, amending FRCrP 16
is an important and necessary step.
. . . .
Along with the adoption of specific new procedures and the retraining of
prosecutors relative to existing requirements, the Department of J ustice also
should make clear that the failure of prosecutors to comply with the Departments
internal guidelines will result in real and significant consequences.
From the blog of Scott H. Greenfield, Criminal Defense Attorney
25
:
The solutions to the Brady problem fall into two categories. Trust the DOJ or
create a new rule that requires courts to trust the DOJ . While the new Rule 16
proposal has certain virtue, foremost of which is that it resolves the long-standing
problem of when the government must disclose Brady, which it now holds to the
very last second if it's to be disclosed at all, rendering the defense incapable of
investigating or making good use of the information. But it still doesn't address
the core issue: The determination of what is Brady is left to the discretion of the
prosecution, and the duty to disclose it at all remains the decision of the prosecutor.
The proposed solutions are thus dependent on the answer to this question: Do
you trust the prosecutor?
If we cant trust the prosecutor, each and every prosecutor in every district
throughout the country, to disclose Brady, to err on the side of disclosure, to
disclose timely, then neither new rules nor procedures that continue to rely on the
discretion of prosecutors will solve the problem. Clearly, former prosecutors and
even judges who've been burned still seem to put their faith in the integrity of the
government. Somehow, I don't find this satisfying, but then nobody engaged in
this discussion seems to think that the defense side of the courtroom should have
any say in the matter.
From Irwin H. Schwartz, Beyond Brady: Using Model Rule 3.8(d) in Federal Court for
Discovery of Exculpatory Information, THE CHAMPION, March, 2010:
In the aftermath of the scandals of 2009, Attorney General Holder and Assistant
Attorney General Breuer spoke about the Department's failures. Breuer said, The
Department of J ustice is committed to the very highest ethical standards. Yet,
when the Department issued its 2010 guidance on discovery, it made no mention
of prosecutors duty under Rule 3.8(d). It listed Rules 16 and 26.2, the J encks
Act, and Brady as sources generally establish[ing] its discovery obligations.
How can the Department achieve the very highest ethical standards when it does
not acknowledge that Rule 3.8(d) establishes a duty of disclosure and a broader
duty than the sources it listed? Worse, the guidance is inconsistent with Rule
3.8(d) on the critical matter of disclosure timing. The ABA Opinion requires
disclosure of exculpatory information as soon as reasonably practicable. The
Departments guidance permits prosecutors to delay production of exculpatory
information.
Although acknowledging that Brady practices vary from office to office and even
within offices, the guidance does not assure uniform practices within the
Department. One way in which uniformity could be accomplished is by moving
Brady discovery to Rule 16. J udge Emmet Sullivan, who tried the Ted Stevens
case, asked the Supreme Court Advisory Committee on Criminal Rules to
consider this idea. The Department opposed the suggestion, as it did in 2006.
Recent cases show its efforts were not sufficient. Today, the Department clings to
a narrow view of its disclosure obligations and continues to oppose rules reform.
NACDL led the way to passage of 28 U.S.C. 530B and passage of the Hyde
Amendment. Recent events show that defense attorneys need to roll up their
sleeves again -- in court and Congress. If the Department of J ustice is unwilling
or unable to mandate compliance with Rule 3.8(d), and if it is unwilling or unable
to assure compliance with the rule, then courts or Congress must step in to
mandate compliance. Now.
From Professor Ellen Podgors White Collar Crime Prof Blog:
In the wake of recent events that demonstrate discovery violations, DOJ has
issued three new policies. It is wonderful to see that DOJ is beefing up its
discovery practices and taking a hard look at what should happen in the future. It
also sounds like a better management system is being considered. But that said,
looking at the actual guidance memo, here are a few preliminary comments -
After telling prosecutors that they need to familiarize themselves with Brady,
Giglio and other discovery rules and statutes, the paragraph ends with a statement
that this new memo provides prospective guidance only and is not intended to
have the force of law or to create or confer any rights, privileges, or benefits.
Yes, this is the standard language one finds throughout the DOJ manual. But wait
a minute -- although DOJ guidelines can be guidelines, these mandates are
constitutional, statutory, and rules - they often do have the force of law. This fact
should be emphasized to prosecutors.
The memo states - Prosecutors should never describe the discovery being
provided as open file. The memo explains the fears of missing something. It
seems odd that the DOJ doesnt want prosecutors to accept credit when they do
the right thing and provide all discovery. Saying not to call it open, for fear of
missing something, implies that this is not a policy that recognizes the value of an
open file system that can work well and provide efficiency. And taking this one
step further -- if it is not acknowledged as an open discovery practice, and
something is missed - will it sound any better to the accused who failed to receive
their discovery material?
The memo gives no real guidance as to when a prosecutor has to turn over Jencks
material, and leaves it to the individual offices to create their individual rules. It is
ironic that DOJ wants sentencing consistency, but doesnt want discovery
consistency. Should a defendant in Wyoming have different rights to witness
statements than the defendant in New York?
It is good to see memorialization of witness statements is important. But only
turning over material variances in a witness's statements? Shouldnt all
variances be turned over?
It is interesting how the memo provides an extensive review process of discovery
material - will this hold up getting the materials to defense counsel? Also will
defense counsel be given an equal amount of time to review these materials and
26
New DOJ Discovery Policies Fall Short, http://lawprofessors.typepad.com/
whitecollarcrime_blog/2010/01/new-doj-discovery-policies.html (last visited 4/14/10).
time to conduct additional investigation that may be warranted as a result of the
materials provided?
And yes, it is important to protect witnesses and national security - but should
DOJ be the one deciding when they think they can withhold evidence? Shouldnt
that be for neutral parties like the judiciary?
It is good to see DOJ trying to do a better job than past administrations, but what
really needs to be done is setting forth clearer rules and statutes by independent
parties, as opposed to a working group made up of senior prosecutors from
throughout the Department and from United States Attorney Offices, law
enforcement representatives, and information technology professionals, so that
our system does do justice as desired by AG Holder.
26
Parting Thoughts
It is the easiest thing in the world for people trained in the adversarial ethic to
think a prosecutors job is simply to win . . . . It is not.
United States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002) as amend. & further amend., Nov.
22, 2002 (internal quotations and citations omitted).
Law enforcement officers have the obligation to convict the guilty and to make
sure they do not convict the innocent. They must be dedicated to making the
criminal trial a procedure for the ascertainment of the true facts surrounding the
commission of the crime. To this extent, our so-called adversary system is not
adversary at all; nor should it be.
United States v. Wade, 388 U.S. 218, 256 (1967) (White, J ., concurring and dissenting) (footnote
omitted).
The greatest dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding.
Olmstead v. United States, 277 U.S. 438, 479 (Brandeis, J ., dissenting).
[T]he Constitution prescribes a floor below which protections may not fall, rather
than a ceiling beyond which they may not rise. The Model Code of Professional
Responsibility, on the other hand, encompasses the attorneys duty to maintain
the highest standards of ethical conduct. Preamble, Model Code of Professional
Responsibility (1981). The Code is designed to safeguard the integrity of the
profession and preserve public confidence in our system of justice.
United States v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988).

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