Ethics and the Media

QUESTION: What would happen if a prosecutor made this statement during his opening?

"Ladies and Gentleman of the jury, this case is about punishment of the Defendant, because there is no question of his guilt. How do I know that? Well, I know that because he offered to plead guilty if I would offer him ten years in prison. However, during plea negotiations, I decided that 10 years was too low, and I want at least 40."

ANSWER: There would be an immediate mistrial. The prosecutor would most definitely be fired. The prosecutor would be grieved.

For those of you who don't practice criminal law, the plea negotiations that occur before any trial are absolutely forbidden from being brought up during a trial. The jury should absolutely have no knowledge of the plea bargain offers and counter-offers, because they aren't relevant.

That being said, I found it interesting when I read Brian Rogers' article on Sunday that noted that accused cop-killer Juan Leonardo Quintero's attorney, Danalynn Recer, had sent an e-mail to local media announcing that Quintero wanted to plead guilty in exchange for a life sentence.

I also found it to be quite suspect that this article ran on the eve of the trial over Houston Police Officer Rodney Johnson's murder.

So, my question (and I throw it open to debate) is: was Ms. Recer's e-mail to the media a blatant attempt to publicize the plea bargaining process to those (already selected) jurors who read the Chronicle?

If so, was there anything wrong with that (assuming there was no gag order)?

Discuss amongst yourselves.


jigmeister said…

Your post led me to the Code of Professional Responsibility and in the comments of Rule 3.6 was the following proscripted release to the media:

"information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial"

You could argue that substantial risk is ambiguous, but lawyers should always be cautious of these kinds of statements.

I often thought the rules were more relaxed for the defense because of their belief that they have to overcome the bad pub the bad case already generated and the fact that there has never been any effort to enforce consequences to violate the rules.
Thomas Hobbes said…
Was Recer trying to sway things? Probably. Was there a substantial risk of prejudicing an impartial trial (ala jigmeister)? Under the circumstances (i.e., defendant confined in the crime scene until police arrived, video of his removal), I don't think so. All she really could sway is the punishment phase, and her best shot was an indirect "blood lust" pitch. In essence, the State refused an opportunity for an easy win, and opted to spend many more tax dollars to satiate the public's need for retribution.

Given that she is playing out a crappy hand, I think Recer took her best shot, and it's hard to fault her for it.
Anonymous said…
So, let me get this straight. Quintero is "not guilty by reason of insanity" if he is facing the needle, but would have been happy to plead good old-fashioned "guilty" if he got what HE wanted, a life sentence.

I can totally see how the STATE is the one playing fast and loose with the system here.

This is a perfect example of why this job makes me nuts.

There is no constitutional right to a plea bargain, folks. And there is nothing wrong with letting the community decide what punishment fits this crime. If the State were calling all of the shots, you'd just be bitching about that.
Thomas Hobbes said…
Anon 12:33 - Don't know where you're coming from. Nobody's bitching . . . just kicking the topic around.
Anonymous said…

Congratulations for identifying this issue and bringing it up. I, too, wondered what Recer was up to.

But it is definitely worth discussing.
Unknown said…
Just points out the double standard that exists in criminal practice. The defense can violate ethical rules with impunity, but if the state engages in the same conduct the prosecutor's looking at a grievance and the violation becomes a point of error on appeal. I recall that during the Slade trial a prosecutor made an off-hand comment that she didn't think would be heard by the press and got villified for it. Recer goes out of her way to reveal plea bargain negotiations on the eve of trial knowing it will get reported and she's merely "taking her best shot."
Murray Newman said…
You bring up a fantastic point. There was a big to do about a comment that prosecutor Donna Goode made during a private conversation during the Slade trial that Mike DeGuerin made a big issue over. Anyone who knows Donna knows that she would never try to do something improper, and yet we have Danalynn doing something blatant.

I think the difference here is that prosecutors know that the consequences for their improper actions can be dire for not just them, personally, but also the entire case. If a case is granted a mistrial based on deliberate prosecutorial misconduct, it can't be tried again. Not only will the prosecutor be held in contempt, most likely fired, and possibly even disbarred, the case becomes null and void. Even a victim's family would suffer the consequences of the prosecutor's misdeeds.

If a defense attorney commits a "bad court thingy" (to quote the immortal Lionel Hutz, the actions are personal, and (unless you are Adam Reposa), probably not very severe. If a defense attorney does what Danalynn did, he or she won't automatically have a directed verdict of guilt. Danalynn is no dummy, either. She is a true anti-death penalty advocate, and I'm certain she knew exactly what she was doing when she e-mailed the media. It won't legally affect the case against Quintero, and she wouldn't mind being held in contempt over actions she thought would spare Quintero from lethal injection.

The more interesting question from a prosecutor's perspective is how do you combat a defense attack that doesn't give a rat's ass about the personal consequence? That type of rationale from Recer would be the same if she elected to "admit ineffectiveness" in an effort to get her client a new trial. Technically, it would bar her from being appointed on a death penalty case, but it wouldn't stop her from being retained. There's no downside to her doing what she did.

What's a prosecutor to do?
jigmeister said…
Simple, ignor it and play by the rules and do the fighting in the courtroom. But never forget to exercise much greater caution when dealing with lawyers who don't obey the rules. The rep you gain carries over to all relationships with everyone at the courthouse.
Anonymous said…
I’m probably being dense, and I don’t know any of the facts. But I’m gathering from the post and the comments that this is a slam-dunk-he-did-it case, where the defense is going to present an insanity defense.

Also, that the theory here is that the defense lawyer is putting this out in the media because she wants folks (i.e. potential jurors) to know that her client was willing to plead guilty, and therefore deserves to not get the needle during the punishment phase?

Off the top of my head, other than the extremely slight and possibly non-existent advantage proposed in my second paragraph, I don’t understand how the defense gains the upper hand with this disclosure.

When the prosecutor tells the jurors that the defendant wanted to plead guilty for lower punishment, she is inherently arguing (during the guilt phase) that the relevance is actually innocent people don’t ever engage in plea negotiations. (See Richard Danziger, among others, to prove this is false.)

When the defense attorney lets the cat out of the bag that the D wanted to plead guilty, the advantage – other than what I mentioned – is?

Did I already cover the known fact that I’m generally dense? Please explain…
Murray Newman said…
I don't think you are dense at all. The way you phrased the questions actually made me rethink for a second.

You are pretty much correct in your assessment of the case, because there is no doubt of who did the crime. The defense is asserting an insanity defense at trial.

The problem with what Danalynn did is that the jurors were already selected and just sworn to return on Monday. She went to the media to get a message out to those already selected. Her message was simply "don't be upset with him for going to trial, be angry with the blood-thirsty State".

I think you are correct that the damage it did (especially if you read the comments in the Chronicle) was minimal. However, it is very aggravating on princple if one side follows the rules and the other side feels that it doesn't have to.
Kese said…
Okay, my turn to be dense. If the defense attorney failed to follow the rules who's job is it to take action? The judge? Or does it require the prosecutor in the case to make a complaint to the judge before he/she can take action? Or is up to the state bar? Again, does it require a formal complaint from the prosecutor? If so, why wasn't anything done? Or am I just being naive?

When I read the story Monday (I was out of town Sunday) I took it to mean the defense attorney had nothing to work with so was offering this plea bargain as a last ditch effort. If I was sitting on the jury (well, one I wouldn't have read the article as I tend to take those jury instructions pretty seriously) it would have led me to believe that this was a guy who:

a) was as guilty as sin and
b) was probably worthy of the death penalty and
c) was offering to throw away 40 years of his life in a last ditch effort to avoid being killed and finally
d) can't be that insane if he was mentally capable of reaching such a plea bargain.

All of this would have left me predisposed to vote death. But then I covered the story at the time it happened, and don't have a problem with the death penalty judiciously applied.

On a separate, but related note, does it bother anyone else that the publisher's wife, a huge anti-death penalty opponent (and attorney if I'm not mistaken), has such a prominent role in the paper's death penalty coverage?
Mark Bennett said…
The rule is TDRPC 3.07.

The defense bar sometimes isn't as careful about avoiding violations of 3.07 as it should be.
Jason said…
It's my understanding that while defense attornies are supposed to be held to the same standards as a prosecuting attorney, the generally are not. I've seen them given so much leeway it's silly.
Ron in Houston said…
My honest thoughts on this is that depending on our views of the death penalty, the ends may justify the means.

I can only think what I'd do to avoid my client being put to death.
Unknown said…
The problem with rule 3.07 is that it's completely unenforceable - for several reasons. It's probably unconstitutional as applied in this context because she's engaging in political speech.

Not that I agree, but -just look at the opinion in Ashley Benton's mandamus:
Unknown said…
Ron in Houston--just my point. Because the end justifies the means, defense attorneys can do just about anything to win and suffer little or no consequence. Prosecutors get accused of prosecutorial misconduct, and risk having the case reversed and a grievance filed.

Mark Bennett--I love the understated rhetoric you and Leviathan use: an overmatched defense attorney is just taking her "best shot" while "playing out a crappy hand"; Recer and others like her are simply "not as careful" as they should be. If the prosecutor engaged in the objectionable conduct you'd both be screaming bloody murder.

Geenie--I haven't read the Benton opinion, but how can revealing plea bargain negotiations be political speech? If you're philosophically opposed to the death penalty then you can tell the world your client offered to plead to life but the DA turned it down?
Mark Bennett said…

First, of course there's a double standard in criminal practice. Prosecutors have a duty to see that "justice" is done; we don't. We can appeal; the government generally can't. No matter how much the government fans whine about it, it's not going to change; nor (for reasons enshrined in the U.S. Constitution and the philosophy on which it was based) should it.

Second, the chances of a grievance committee upholding a grievance against a prosecutor in Texas are pretty close to nil. They can almost certainly beat that rap. They can't beat the ride, but criminal lawyers very rarely go around filing grievances against each other. I know of as many grievances filed against defense counsel by prosecutors as against prosecutors by defense counsel. In each of those cases with which I'm familiar, the conduct complained of appeared grossly offensive to the one filing the grievance. In each of those cases, the lawyer was not disciplined. (Defense counsel are more likely to be successfully grieved because we deal with actual human clients, and most of the things that seriously piss the grievance committees off involve communicating poorly with clients.)

Third, my understatement was generous to the prosecutorial bar, which also sometimes isn't as careful about avoiding violations as 3.07 as it should be. When prosecutors have blatantly violated TDRPC 3.07 I haven't screamed bloody murder, bur have instead visited quietly with Scott Durfee about it. Too diplomatic?

Fourth, people of conscience sometimes have to choose between following the law (and 3.07 is the law) or following their consciences. Did Danalyn violate 3.07? Probably not, as Muck articulates. But she's free to follow her conscience rather than the law as long as she's prepared to accept the law's sanction. If a prosecutor gets upset enough about Danalyn's conduct, he's free to grieve her. Or bitch about it in anonymous blog comments.

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