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23. PROSECUTORIAL MISCONDUCT

 

In the Matter of Charles O. Bonet, 144 Wash.2d 502, 29 P.3d 1242 (2001).  Bonet, a county deputy prosecuting attorney, was publicly censured as a result of his dealings with Yoder, who was a witness and potential co-conspirator on charges of conspiracy to distribute methamphetamine. Bonet offered to dismiss charges against Yoder if he would agree to take the Fifth Amendment and not testify against his co-conspirator.  The Court concluded that neither a public nor private attorney may offer an inducement to a witness to induce the witness not to testify at trial.  Doing so violates Rules 3.4(b), 8.4(b), and 8.4(d), regardless of whether the witness's decision to testify or not testify is influenced by the offer.

 

People v. Donaldson, 93 Cal.App.4th 916, 113 Cal.Rpt.2d 548 (2001). The defendant's conviction for child endangerment was reversed and remanded for a new trial on the basis of ineffective assistance of counsel. The credibility of the key prosecution witness was critical because she was the only one who had given inculpatory information to law enforcement. After previously telling police and the prosecutor that she had seen the defendant try to smother her baby, the witness testified she did not personally see the incident. The prosecutor then called herself to the stand to testify that the witness had told her before trial that she had seen the incident.  Not only did defense counsel not object to the prosecutor testifying, but also he asked questions on cross that allowed the prosecutor to testify that she believed the witness was telling the truth when she gave inculpatory information. In closing, the prosecutor told the jury that she believed that the defendant had tried to smother her baby; again, defense counsel did not object.  Noting that the rule against a prosecutor acting as advocate and witness addresses the concern that jurors will be unduly influenced and will base their decision on improper factors, the Court found that the defendant had received ineffective assistance because defense counsel failed to object to the testimony and closing argument of the prosecutor. 

 

Office of Disciplinary Counsel v. Stephen A. Levine, Hawai'i S. Ct. No. 23895 (Order of Suspension filed November 14, 2001). Levine, while a Maui County deputy prosecutor, appeared in a circuit court on behalf of a criminal defendant and misrepresented to the circuit court that he had the permission of the Office of Disciplinary Counsel to represent the defendant. His false statement violated HRPC 3.3(a)(1) AND 8.4(c).  ODC recommended a three-year suspension, the hearing committee a six-month suspension, and the Disciplinary Board a 30-day suspension.  After considering in mitigation Levine's exemplary record and reputation, the absence of prior discipline, that Levine acted without a dishonest motive (!?!), and the lengthy passage of time from the incident until completion of the disciplinary proceedings, the Court imposed a 30-day suspension.

 

 Matter of Swarts, ___ Kan. ___ (Kansas 2001).  Welcome to justice, Kansas style. John Lloyd Swarts was the Bourbon County attorney.  He has a colorful prosecutorial style that got him into trouble. In the first matter, a criminal conviction was overturned due to his prosecutorial misconduct.  He made improper comments regarding his own personal beliefs regarding the defendant's guilt, implied to the jury that the defendant was HIV positive, and offered evidence from a preliminary hearing at trial that was not admissible. While he was cross-examining the drug defendant the following took place ( in the context of syringe use):

    Let me see your arms.  Would you show me your arms.

    See anything in there?

    Sure saw a lot more on the day we arrested you?

In another case the defendant was charged with lewd and lascivious behavior for allegedly masturbating in front of an employee and ejaculating into a handkerchief.  The handkerchief was collected as evidence and placed into a brown paper bag, and subsequently the evidence was lost. On the date scheduled for the plea, Swarts placed his own handkerchief in a brown paper bag and instructed a police officer to carry it into the hearing and not to "volunteer anything" about the bag. The officer refused, Swarts brought the bag in and left it on counsel table. His stated reasons for doing so was that he did not want the defendant to know the evidence was missing, and he also wanted to embarrass him in front of his wife.

In a third case he was the victim of a theft, and had personal contact with the defendant, telling him he could have the charges reduced if his property was returned.  He went to see the defendant, in the absence of his counsel, and the defendant made incriminating statements. (Another attorney had already been appointed to prosecute the case.) In another case Swarts went to the jail and interviewed a suspect charged with aiding and abetting, first degree murder, possession of narcotics, and conspiracy to possess.  He did not advise the suspect of his Miranda rights, and the suspect made incriminating statements.

In another case, he made offensive comments to an African American teenage girl, shouting at her "Do you think slavery is over? Damn it young lady answer me, do you think slavery is over?  I'm here to tell you its not, you mother owns you until you are 18."

In a case involving a juvenile, he advised the parents to chain him to his bed at night so he wouldn't get out of the house. The father took his advice.  As a result, the state took custody of the child who later died in state custody.

In another case social workers contacted Swarts about a suicidal teenager with the request he bring a "child in need of care case."  Swarts refused, stating everyone would be better off if the child committed suicide. He also told the social workers to bring the child to his office and he would show him how to commit suicide.

Swarts is in favor of corporal punishment for children.  He keeps a large wooden paddle in his office labeled "Board of Education." He invites parents to bring the kids to his office for public paddlings, and some have taken him up on the offer.

At a preliminary hearing regarding several serious charges brought against a defendant, one of the charges was dismissed as lacking probable cause. Defense counsel approached after the hearing requesting access to evidence in this case.  Swarts told him to "fuck off."  He also threatened defense counsel, stating he did not want to be "fucking messing" with me.  These comments were overheard by everyone in the court room. Two hours later, he refilled the charge that was dismissed at the preliminary hearing.

For this display of frontier justice, the court accepted his resignation as county prosecutor, effective January 1, 2001. That way he can collect his pension. He must also retire from the practice of law.

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