The American Bar Association published a formal ethics opinion last week advising prosecutors of their duties in plea bargaining with defendants charged with misdemeanor offenses. The opinion is one part scathing indictment of the process for prosecuting petty offenses across the country and one part ethical advice for prosecutors.
Tag Archives: prosecutors
Suppose you are a prosecutor and you want to subpoena a witness from another state to testify at an upcoming trial. How might you go about doing that? What forms do you use? Do you need some sort of certificate from a judge? Is the witness entitled to compensation? If so, how much? Can you pay in advance?
If you are getting ready for trial, all of these questions might occur to you, and you might wish there was a one-stop shop for an answer, given all the other items on your trial prep list. Guess what? There is! It’s a new application called NC Prosecutors’ Resource Online (NC PRO) and you can find it here. Just type “out of state witness” into the search box, and click on the entry titled “Securing Attendance of Witnesses.” There you will find the answers to every question posed above and links to the relevant forms. Continue reading →
Category: Uncategorized | Tags: criminal procedure, Holbrook, knowledge base, NC PRO, NC Prosecutors' Resource Online, prosecutors
[Editor’s note: This post originally ran last week on the School’s civil law blog, On the Civil Side. Because it concerns prosecutors’ roles in abuse, neglect, and dependency cases, it is cross-posted here.]
Like every other state, North Carolina has a mandated reporting law for child abuse and neglect. North Carolina’s law requires any person or institution with cause to suspect a child is abused, neglected, or dependent by a parent, guardian, custodian, or caretaker to make a report to the county child welfare department (in most counties, DSS) where the child resides or is found. G.S. 7B-301. What is in a report? Are there protections for the reporter? What are the rights of the reporter? If DSS decides not to initiate a court action, can the reporter challenge that decision?
Prosecutors have wide discretion to decide how to charge defendants. In exercising that discretion, a prosecutor certainly may consider the sentence associated with each possible charge, and may choose to pursue the charge or charges that is most likely to result in the outcome that the prosecutor sees as just. But the criminal sentence may not be the only outcome of a criminal case. A variety of collateral consequences may be imposed by law, such a change in immigration status, a requirement to register as a sex offender, or loss of professional licensure. Other consequences may also follow certain convictions, such as loss of employment or housing. May prosecutors consider collateral consequences when making charging decisions and when evaluating possible plea bargains? Should they do so? Must they? Continue reading →
Category: Procedure, Uncategorized | Tags: collateral consequences, discretion, immigration, prosecutors, sessions
I was on a panel about criminal case calendaring yesterday at the Courts Commission. While talking to people in preparation for the event, I kept hearing one thing: that North Carolina is the only state in which the prosecutor controls the calendar. After conducting some research, I don’t think that’s quite right. Continue reading →
I was walking my dog this weekend when a neighbor stopped me for one of those “hey, you’re a lawyer” conversations that always seems to involve an area of law about which I know nothing. Except this time, the question was about criminal law. The specific question was this: John Edwards claims that the money that he used to hide his affair was a gift, not a campaign contribution. So why isn’t he charged with failing to pay taxes on the gift? (Gifts are generally taxable, with some exceptions, as described in this IRS publication.)
There are lots of possible answers, and I don’t know enough about the case even to speculate about which ones might have factored into the government’s decision not to charge a tax crime. Maybe Edwards did pay taxes on the money, or maybe the money was paid directly to someone else, so the taxes weren’t his responsibility, or maybe there’s some applicable exception to the gift tax rules. Or perhaps the government is simply quite confident that its characterization of the money as a campaign contribution is correct. Again, I don’t know, and I don’t want to dwell too much on this particular case. [Update: A helpful correspondent emailed me to point out that gift taxes are normally the responsibility of the donor, not the donee, and it appears that at least one of Edwards’ donors paid the gift tax, according to this report.]
Instead, I want to address the general issue of whether it is permissible for a prosecutor to charge a single defendant with two offenses that are mutually exclusive. As applied to a political candidate, may a prosecutor charge him both with failing to report a donation as a campaign contribution and with failing to pay gift tax on the donation, on the theory that the money had to be one or the other, and either way, the candidate committed a crime? Or, as applied to an employee who is alleged to have misappropriated her employer’s property, may a prosecutor charge her both with larceny and with embezzlement, so that the employee could be convicted whether the jury concluded that she had been entrusted with the property or not? Or is there a legal or ethical prohibition against charging inconsistent offenses?
There is no such prohibition. The key North Carolina case is State v. Speckman, 326 N.C. 576 (1990). The defendant in that case was charged both with obtaining property by false pretenses and with embezzlement, based on the same transaction. He was convicted of both charges, and appealed. The state supreme court noted that “to constitute embezzlement, the property in question initially must be acquired lawfully, pursuant to a trust relationship,” while “to constitute false pretenses the property must be acquired unlawfully at the outset, pursuant to a false representation,” rendering the two offenses mutually exclusive. The Speckman court stated that while a defendant may not be convicted of two mutually exclusive offenses, he may be charged with both, and the state need not choose, or “elect,” between them. “[I]f the evidence at trial conflicts, and some of it tends to show false pretenses but other evidence tends to show . . . embezzlement, the trial court should submit both charges . . . . In doing so, however, the trial court must instruct the jury that it may convict the defendant only of one of the offenses or the other, but not of both.”
The principle that the state may charge mutually exclusive offenses remains the law today. See, e.g., State v. Melvin, __ N.C. __, 707 S.E.2d 629 (2010) (the defendant was convicted of murder and accessory after the fact to murder, and the trial judge arrested judgment on the latter conviction; the court stated that the two are mutually exclusive offenses; noted the propriety of charging both; reiterated that the trial judge should have instructed the jury that the defendant could not be convicted of both; but found no plain error given the defendant’s lack of request for the instruction). Federal law is consistent with the state precedents. See United States v. Gaddis, 424 U.S. 544 (1976) (vacating one of two mutually exclusive convictions, but noting that when “there is evidence before a grand jury or prosecutor that a certain person” committed both of two mutually exclusive crimes, “there can be no impropriety for a grand jury to return an indictment or for a prosecutor to file an information” charging both offenses).
Of course, this issue doesn’t arise often. Ethically and legally, a prosecutor needs probable cause to pursue a charge. It is rarely the case that a prosecutor will have probable cause to believe that a single defendant committed both of two mutually exclusive offenses. But, as illustrated by the cases cited above, it can happen, and when it does, the law permits the prosecutor to charge both and let the fact-finder sort things out. I’ll have to remember to tell my neighbor.
The United States Supreme Court decided Connick v. Thompson yesterday. In a nutshell, the plaintiff, John Thompson, spent 18 years in prison as a result of a Brady violation. After he was exonerated, he sued the district attorney’s office, claiming that the office failed to train prosecutors adequately about their Brady obligations. A jury agreed and awarded him $14 million. The Supreme Court reversed, holding that district attorneys don’t have an obligation to train their employees about Brady unless they are aware of a pattern of Brady violations. The case is interesting in its own right, and it may have some bearing on the discovery reforms currently under consideration at the General Assembly.
From the Court’s syllabus, here are the facts:
[T]he Orleans Parish District Attorney’s Office concedes that, in prosecuting . . . Thompson for attempted armed robbery, prosecutors violated Brady . . . by failing to disclose a crime lab report. [The perpetrator left blood on one of the victims’ pants. The report stated that the blood was type B. Thompson is a different blood type, though the trial prosecutor may not have known that, at least initially.] Because of his robbery conviction, Thompson elected not to testify at his later murder trial and was convicted. A month before his scheduled execution, the lab report was discovered. A reviewing court vacated both convictions, and Thompson was found not guilty in a retrial on the murder charge. He then filed suit against the district attorney’s office under 42 U.S.C. § 1983, alleging, inter alia, that the Brady violation was caused by the office’s deliberate indifference to an obvious need to train prosecutors to avoid such constitutional violations. The district court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady violations when he could demonstrate that the need for training was obvious. The jury found the district attorney’s office liable for failure to train and awarded Thompson damages.
The evidence at trial appears to have included the following.
- The office did no formal training regarding Brady.
- Prosecutors in the office were nonetheless generally aware of Brady.
- Office policy was to turn crime lab reports over to the defense.
- Prosecutors in the office disagreed after the fact about whether the crime lab report in this case was Brady material absent knowledge of Thompson’s blood type.
The jury determined that the office had no official policy endorsing Brady violations, but that the district attorney was liable for failing to train prosecutors about Brady. The district court upheld the verdict over the district attorney’s objection that “he could not have been deliberately indifferent to an obvious need for . . . Brady training because there was no evidence that he was aware of a pattern of similar Brady violations.” The trial court ruled that the need for training was so obvious that Thompson wasn’t required to show a pattern of violations. The Fifth Circuit, en banc, affirmed en by an evenly divided court. The judges split over the crucial question of whether a pattern of violations must be shown before training is a constitutional imperative.
The Supreme Court likewise divided on the issue – but not evenly. Justice Thomas wrote the Court’s opinion, joined by the Chief Justice and Justices Scalia, Kennedy, and Alito. Justice Ginsburg dissented from the bench, joined by the remaining three Justices.
Justice Thomas noted that liability under section 1983 occurs only when constitutional rights are violated by the “official policy” of a government entity, and that a failure to train employees can amount to such a policy only when the failure shows a “deliberate indifference” to the rights of the people with whom the employees may come into contact. Ordinarily, a showing of deliberate indifference requires a showing of a pattern of rights violations. Though Thompson pointed to at least four other Brady violations in the ten years preceding his robbery trial, he did not contend that this showed a pattern, and the Court stated that the other violations were not similar to the one in Thompson’s case because they did not involve scientific evidence.
Instead, Thompson contended that the need for training was so obvious that no showing of a pattern of violations was necessary. The Court disagreed, noting that all attorneys are trained, licensed, and subject to continuing education requirements, and that young prosecutors in the office in question were mentored and supervised by more senior lawyers. In short, “[p]rosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain,” so the district attorney had no reason to suspect that Brady violations would be widespread without training. Thus, civil liability was foreclosed.
The majority opinion and the concurrence suggest that Thompson may also have failed to establish causation. That is, they intimate that more training wouldn’t have prevented the Brady violation in this case. (Justices Scalia and Alito actually believe that “[t]here was probably no Brady violation at all” when the prosecutor initially failed to disclose the report, from which it follows that more training about Brady wouldn’t have changed anything.) That’s an interesting issue, but it isn’t at the heart of the opinion so I won’t dig into it.
The dissent argues that the facts of Thompson’s case are so egregious that, in effect, they establish a pattern of misconduct by themselves: “Based on the prosecutors’ conduct relating to Thompson’s trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure.” It also contends that section 1983 liability is essential to motivate compliance with Brady.
To sum up, the case is good news for district attorneys, who can’t be held liable for failure to train their assistants about Brady absent a pattern of violations.
I mentioned at the outset that there may be a connection to H408, the proposed legislation that would limit prosecutors’ statutory discovery obligations to the contents of their own files, as opposed to the files of “all law enforcement and prosecutorial agencies” involved in the case, as G.S. 15A-903 currently requires. An AP article about the bill is here. Proponents argue that under current law, prosecutors may unfairly be held responsible for discovery violations when officers fail to provide prosecutors with their complete files. So perhaps one could argue that Connick, by setting a high threshold for civil suits against district attorneys, removes some of the motivation for H408. But my sense is that the point of H408 isn’t to limit civil liability – section 1983 claims must be predicated on constitutional violations, after all, and H408 doesn’t change prosecutors’ constitutional obligations – but rather is to limit the exposure of line prosecutors to judicial sanctions and State Bar discipline. And Connick doesn’t bear on these concerns. (None of the foregoing should be read as support for, or opposition to, H408. As with other policy proposals, the School of Government takes no position on H408.)
As always, if you have thoughts about the case or about the connection between the case and the pending legislation, please post a comment.
I blogged about judges’ salaries here. An article in the USA Today this morning prompted me to think a little bit about prosecutors’ pay. The article, available here, reports on several state and federal prosecutors’ offices that have “hired” lawyers to work for free. All the offices in question are fully staffed with paid lawyers, but saw an opportunity to get extra help at no cost, and simultaneously to provide experience to lawyers who might otherwise be out of work.
I haven’t heard of volunteer prosecutors in North Carolina, though perhaps there are some out there. Pursuant to G.S. 7A-65, elected district attorneys are paid “as provided in the Current Operations Appropriations Act,” i.e., as provided in the state budget. As far as I can tell, the last budget to alter their salaries was the 2008 budget, which raised them from $116,112 to $119,305. Elected district attorneys are also eligible for longevity pay under G.S. 7A-65, which effectively provides a 4.8% salary supplement for every five years of state service. Thus, an elected district attorney with more than fifteen but less than twenty years of state service would receive a $17,178 supplement.
Assistant district attorneys are likewise paid as provided in the budget. Again, the 2008 budget appears to contain the last salary alteration for assistant district attorneys. It provides as follows:
The district attorney . . . of a judicial district, with the approval of the Administrative Officer of the Courts . . . shall set the salaries of assistant district attorneys . . . in that district such that the average salaries of assistant district attorneys . . . in that district do not exceed seventy thousand nine hundred forty‑six dollars ($70,946), and the minimum salary of any assistant district attorney . . . is at least thirty‑seven thousand one hundred eighty‑two dollars ($37,182).
My understanding is that the Administrative Office of the Courts generally defers to the elected district attorneys’ salary decisions. Assistant district attorneys are also eligible for longevity pay as described above. So an assistant district attorney with more than five but less than ten years of experience who is making $65,000 would receive a salary supplement of $6,240.
How does all this stack up in context? As I noted in my post about judges’ salaries, the average North Carolina lawyer makes $113,000 per year. Every elected district attorney makes more than that, though relatively few assistant district attorneys probably do, even with longevity pay. Nationally, I had trouble finding appropriate comparison data. The Bureau of Justice Statistics reported in 2005 that the median salary for chief prosecutors nationwide was $85,000, but that appears to have included some “part-time offices,” so it may not be a very useful benchmark. I couldn’t find anything more than anecdotal reports about assistant prosecutors’ salaries. If anyone else knows of good data, please post a comment or let me know.
