Prosecutorial misconduct

INTRODUCTION

This Note seeks to identify and outline the recent case law surrounding Rule 3.8 of the ABA's Model Rules of Professional Conduct (and state analogues).1 Model Rule 3.8 addresses the "Special Responsibilities of a Prosecutor" and is an important espousal of ethical rules regarding prosecutorial discretion, behavior, and obligations vis-a-vis the accused and opposing counsel in criminal matters. This Note will summarize the factual context and legal rules of recent cases relating to Model Rule 3.8. The factual context is necessary to this discussion because the rule is illuminated by the conduct invoking its application. Therefore, a recitation of case holdings alone is of little value, as they often restate settled principles of law, but the law and facts analyzed together provide a basis for understanding these recent decisions. Unfortunately, case law surrounding Rule 3.8 is sparse, probably because of alternative remedies for attorney misconduct, but salient case law nevertheless exists.

Model Rule 3.8's scope draws in various and sundry forms of prosecutorial behavior. Model Rule 3.8 covers seven distinct categories of prosecutorial behavior in criminal cases.2 Unlike the more general provisions of the Model Rules of Professional Conduct, Model Rule 3.8 is aimed solely at the criminal prosecutor.3 The unique spirit behind the rule is best captured in the comment that contends, "[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate."4 To ensure that a prosecutor is a minister of justice, Model Rule 3.8's encompassing language mandates that a criminal prosecutor shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining counsel, and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(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; and

(e) 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.

(f) not subpoena a lawyer in a grand jury or other criminal procedure to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution;

(3) there is no other feasible alternative to obtain the information.

(g) except for statements that are necessary to inform the public of the nature of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.5

This Note seeks to illuminate the state of Model Rule 3.8 by illustrating its application through case law in various jurisdictions.

1. MAKE REASONABLE EFFORTS TO ASSURE THAT THE ACCUSED HAS BEEN INFORMED OF HIS RIGHT TO COUNSEL6

Model Rule 3.8(b) imposes a duty on the prosecutor to make "reasonable efforts" to ensure that the accused is cognizant of his constitutional right to counsel.7 The United States District Court for the Eastern District of Wisconsin recently visited this issue in United States v. Acosta.8 The main issue involved the statements that two defendants, Pedro Martinez and Andrew Acosta, made to an FBI agent and other law enforcement officers.9 This case hinges on the relationship that the prosecutor and law enforcement officials have with the

criminal defendant and their duty to the same. Defendant Martinez was incarcerated and serving a "157-month sentence imposed by the Northern District of Indiana."10 Agent Craft, of the Federal Bureau of Investigation, claimed that Pedro Martinez wanted to speak with him, and that Martinez made these wishes known to his sister, Andrea Martinez, who in turn informed Craft.11 Martinez denied making any such requests. Martinez, for his part, claimed that Agent Craft spoke to him at an April 28, 1998 meeting concerning leniency for cooperating witnesses.12 Martinez testified that Craft "described Sammy the Bull Gravano... as a mobster who confessed to nineteen homicides but served only five years because he cooperated with John Gotti."13 Martinez also testified that Craft "stressed that he might be able to get him [Martinez] a ten-year deal, that he would testify at Martinez's sentencing hearing.... and predicted that Martinez would not serve more than seven years."14 After the first meeting with Pedro Martinez, prosecutors "learned that Martinez's lawyers were representing him only on the appeal of his conviction in the Northern District of Indiana, but not regarding potential charges in this district."15 Subsequently, an Assistant United States Attorney met with Martinez to " `explore his ... potential cooperation.' "16 Agent Craft testified that the prosecutors came to the subsequent meeting "in hope that Martinez might offer to confess and incriminate others in exchange for a 'promise' or 'deal' that only a prosecutor could offer."17

The government argued that Rule 3.8 was inapplicable "[b]ecause there were no criminal charges yet pending against Martinez" at the time he gave his statement and that "Martinez was not yet an 'accused' under Rule 3.8(b)."18 The court began its analysis by noting that Rule 3.8 does not provide a model of clarity to when it is applicable:

[T]he rule's reference to "the right to counsel" is ambiguous because there are two different rights to counsel: one under the Fifth Amendment and Miranda, which arises in the context of custodial interrogations (no matter whether before or after the initiation of formal proceedings), and a separate one under the Sixth Amendment, which arises only after the initiation of adversary proceedings. The question is to which of these rights to counsel Rule 3.8(b) refers to and requires prosecutors to advise suspects of.19

The court dismissed the government's argument that Rule 3.8 is only applicable

once criminal proceedings have begun because such an interpretation of the rule "would allow a prosecutor ethically to seek an indictment for which he or she knows there is no probable cause, so long as he or she abandons the prosecution as soon as the indictment is issued, on the ground that there is a `criminal case' only after a formal charge is made."20 The court reasoned that such a result "is utterly inconsistent with the commentary to Rule 3.8, the first sentence of which states that '[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.' "21 Because of the purpose of Rule 3.8, Judge Adelman reasoned, "I do not believe that Rule 3.8(b) is limited to the Sixth Amendment right to counsel, and it therefore appears to require prosecutors to assure that `in-custody suspects who have not yet been formally charged are advised of their right to counsel.' "22 In summary, Judge Adelman wrote, "I therefore find that all three of a prosecutor's special responsibilities under Wis. Sup. Ct. R. 20:3.8(b) arise before a suspect is formally indicted."23 In interpreting Wisconsin's analogue to Model Rule 3.8, this court added a clarification finding that the prosecutor's special duties are not only to those who have been formally accused, but also to suspects who have yet to be formally charged or indicted.24

In applying this rule to the facts surrounding the questioning of Pedro Martinez, the court noted that while the prosecutors called the meeting to "explore Martinez's 'potential cooperation,' " and did inform Martinez of many of his rights, according to the court, they "made no effort to advise him of the procedure for obtaining counsel, and did not give him an opportunity to do so, contrary to Rule 3.8(b)'s requirements."25 Thus, the district court went beyond a formal analysis (i.e., whether the prosecutors read Martinez his Miranda rights), and engaged in a functional analysis of whether the prosecutors made "reasonable efforts" to advise Martinez of the "procedure" to obtain counsel.26

Having found that the prosecutors violated the provisions of Rule 3.8(b), the court then turned to the issue of remedy. The court framed the issue as whether, despite the fact that Martinez's constitutional rights were not violated, the evidence should be suppressed as a result of the violation of Rule 3.8(b).27 The court relied on a standard weighing "the deterrent and remedial effects of suppression. . . against suppression's interference with the truth-seeking function of a criminal trial by barring relevant and trustworthy evidence."28 The court

ultimately found that the evidence gathered from the interview was admissible, though it did not reach the issue of whether, or to what extent, the government lawyers should be sanctioned. Under the court's balancing analysis, the fact that Martinez was "advised of the right to counsel; knew that he could request counsel; told prosecutors that he was smart enough to decide what to do on his own; and was possibly asked if he wanted counsel" outweighed the remedial effect of suppression for the prosecutors' failure to "advise Martinez of the procedure for obtaining counsel" and allowing him "a reasonable opportunity to obtain counsel ......"29 In the end, the court expanded the scope and reach of Rule ob), but limited its remedial effect in counsel .... I h n,terms of suppressing the ill-gotten ec fRl evidence. In its remedial effect in terms of suppressing of why the infraction of Rule 3.8(b) in Wisconsin did not justify the exclusion of evidence. In its reasoning of why the court stressed that "the rules of Rule 3.8(b) in Wisconsin did professional conduct are not justify the exclusion of evidence, the court stressed to create substantive rights Thus, by the court's rational conduct are not intended to create substantive rights."30 Thus, by the prosecutors at issue might be worthy of some discipline, but the exclusion of evidence was not the prosecutors at issue might be form of some discipline, as it would not the exclusion of evidence been in the best interests of discipline, as it would notice. have been in the best EXTRAJUDICIAL STATEMENTS & TRIAL PUBLICITY

II. EXTRAJUDICIAL STATEMENTS & TRIAL PUBLICITY

Model Rule 3.8(g) prohibits prosecutors from making extrajudicial statements "except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose," and exhorts prosecutors to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused."31 Bennett L. Gershman frames the difficulty with which prosecutors maintain the Aristotelian mean between informing the public and assuring fairness for the criminal defendant:

A prosecutor has a dual obligation in dealing with the media. As an elected law official, he has a duty to inform the public about cases that are pending in his office. However, his duty to do justice requires that he make no extra-judicial statement that might impair a defendant's right to a fair trial, or manipulate the media in order to advance his own interests.32

Gershman captures the tension between the need to inform and self-serving pandering that taints the public against the criminal defendant. Moreover, the prosecutor's burden in maintaining a balance between acting as a conduit for information and ensuring that the defendant receives a fair trial is substantially

increased by Model Rule 3.8(e), which makes the prosecutor responsible for the extrajudicial statements of those under his influence.

According to Rule 3.8(e), the prosecutor must "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."33 The commentary to Model Rule 3.8 states that "[p]aragraph (g) supplements rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor's extrajudicial statement can create the additional problem of increasing public condemnation of the accused."34 The comment seems to extend provisions of Rule 3.6 as a safe-harbor for prosecutors: "Nothing in this Comment is intended to restrict the statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c)."35 For its part, rule 3.6 provides the general guidelines for all attorneys, concerning trial publicity.36 Model Rule 3.6 provides that a lawyer may state:

(1) the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved; (2) the information contained in a public record; (3) that an investigation of the matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in the apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation.37

Generally, Model Rule 3.6 prohibits a lawyer from making harmful extrajudicial statements:

(a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.38

The prosecutor's role is also informed by the Model Code of Professional Responsibility, which is substantially the same as Model Rules 3.6 and 3.8, but further elaborates instances and circumstances in which the prosecutor can release information.39

Any discussion of trial publicity or extrajudicial statements must begin with Gentile v. State Bar of Nevada.40 The United States Supreme Court inquired into the validity of Nevada Supreme Court Rule 177, "a rule governing pretrial publicity almost identical to ABA Model Rule of Professional Conduct 3.6."41 The court held that Model Rule 3.6 and its "substantial likelihood of material prejudice" standard, as interpreted by Nevada's Rule 177, was "a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's interest in fair trials."42 The court reasoned, "[a]n attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client."43 While the case was concerned with a defense attorney, the court established principles applicable to all attorneys, and especially to the prosecutor since 3.8 incorporates Rule 3.6.

In Devine v. Robinson, the United States District Court for the Northern District of Illinois directly considered the constitutionality of Model Rules 3.6 and 3.8's applicability to state prosecutors.44 The plaintiffs, ten state prosecutors, argued that Rules 3.6 and 3.8 of the Illinois Rules of Professional Conduct "unconstitutionally infringe the First Amendment because they chill speech and are vague and overbroad."45 The court noted that the plaintiffs claimed that the Model Rules were "vague" and fostered a "chilling effect."46 The plaintiffs contended that Rule 3.6(b) "prohibits speech without regard to timing or any threat of prejudicing an adjudication."47 The plaintiffs further contended that Rule 3.8 "is unconstitutional because it imposes a duty on prosecutors to prevent conduct by persons over whom they have no legal or factual control and it extends restrictions in Rule 3.6 to non-attorney third parties who are not subject to the ethical rules."48 Plaintiffs argued that Rule 3.8 "is also vague because prosecutors must guess at the means and manner of instructing third parties to refrain from prohibited communications."49 In essence, the plaintiffs contended that the Model Rules were vague and provided for a lack of notice, and, therefore,

constrained the prosecutors' ability to exercise free speech.50

In its analysis the court noted, "as an initial matter, it is quite unclear whether the plaintiffs' intended conduct is proscribed by the amended rules."51 The court said that its "review of the challenged portions of rules 3.6 and 3.8 leads us to agree with the defendant that they may be fairly interpreted in a manner that complies with the First Amendment."52 The court framed the plaintiffs' arguments as construing "Rule 3.6(b) as imposing prohibitions on speech independent of those articulated in subparagraph (a)."53 The court answered this concern, finding that when "read in the context of the entire rule, subparagraph (b) is easily understood as relating back to subparagraph (a)."54 Thus, the court interpreted the overall provisions of Rule 3.6(a), and its "substantial likelihood of material prejudicing" standard, to be consistent with the safe-harbor provisions of 3.6(b).55

Turning to Rule 3.8 and its application to prosecutors specifically, the plaintiffs noted that 3.8(c), "which imposes a duty on prosecutors to exercise `reasonable care' to prevent `investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making extrajudicial statements that the prosecutor himself or herself, would be prohibited from making under the ethical rules."56 The plaintiffs complained that the rule caused "an inability to discern what they were required to do under this rule."57 The court addressed this argument, noting, "We think the argument is specious... the ethical rules need not spell out a prosecutor's obligations to every conceivable person in every conceivable situation in order to avoid a vagueness challenge."58 The court held that the "rule enumerates specific categories of persons to whom the prosecutor must direct his efforts to prevent extrajudicial statements. The permitted and prohibited categories of statements are also spelled out specifically in Rule 3.6."59 The court, in finding the restrictions reasonable, gave little credence to the idea that the rule unduly burdened or prejudiced prosecutors:

Even though prosecutors must identify persons fitting into the broader category of "others assisting or associated with the prosecutor in the criminal case," this

would rarely present a problem. For example, other professional rules impose obligations on attorneys to take measures to ensure that others, such as associates, other supervised attorneys, and nonlawyer assistants, comply with the ethical rules. We cannot say the rule is vague simply because it requires professionals to make the necessary effort to determine who these individuals are.60

The court was clearly not persuaded by the plaintiffs' reasoning that the provisions of Rule 3.8 were self-contradictory to such an extent that they failed to give notice or direction. The court further dismissed all of the plaintiffs' claims of constitutional violations, noting that the appropriate standard was to "balance the State's interest in regulating the legal profession against the lawyer's interest in the speech at issue."61 The court noted that the plaintiffs only complained about generalized, non-specific infringements on their First Amendment rights, and that they "do not explain why they believe the First Amendment guarantees a prosecutor the right to speech that heightens condemnation of the accused, but neither serves any law enforcement function nor informs the public of the prosecutor's action."62

Nevertheless, the court constrained its holding, not wanting to rule on the constitutionality of the rules:

We note that we are not holding that amended Rules 3.6 and 3.8 are constitutional. Our holding is simply that the rules are fairly susceptible to an interpretation that would render them constitutional, so that we "cannot discount the possibility that the purported controversy" concerning the constitutionality of these ethical rules "may prove to be non-existent... Here, the "possibility" of a constitutional reading exists with extra force, where the rules were revised by the ABA and the Supreme Court of Illinois specifically to meet constitutional concerns of the United States Supreme Court articulated in Gentile. Because the supposed injury may never materialize, we conclude that the plaintiffs have failed to present a justiciable case.63

In sum, the court spoke to the validity of the rules and gave strong indications that they felt the plaintiff prosecutors could not show that they would be substantially harmed. Furthermore, while the court did not ultimately deem Rules 3.6 and 3.8 constitutional, they did, however, find a likely "constitutional reading" of the rules in light of their adherence to the standard announced in Gentile v. Nevada State Bar.64 The court found wholly unacceptable the unsubstantiated fears of the plaintiffs and were not swayed by generalized arguments concerning infringement on speech and "chilling effect" as claimed by the plaintiffs. To the contrary,

the court seemed to indicate that Rules 3.6 and 3.8 embodied the "balance in regulating the legal profession against the lawyer's interest in the speech at issue."65 Finding that the rules sufficiently maintained a balance between fairness to the accused and the prosecutors' ability to speak to trial issues, the court dismissed the plaintiffs' claims.

III. THE GRowiNG DEBATE CONCERNING THE APPLICABILITY OF STATE RULES OF ETHICS To FEDERAL PROSECUTORS-- ETHICAL RULES AND THE McDADE ACT

The McDade Act mandates that federal prosecutors comply with local rules of ethics:

(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.66

The McDade Act recently prompted conflict between the Executive Branch and the American Bar Association. Janet Reno, then Attorney General, criticized McDade:

Federal prosecutors follow ethical rules, but determining what code of ethics applies to particular conduct is difficult. The McDade law significantly increases the complexity by requiring compliance with multiple, sometimes inconsistent, sets of rules. That is because this provision, which requires federal attorneys to comply with the "state laws and rules and local federal court rules" in each state in which the Department of Justice attorney "engages in that attorney's duties" is more complicated than it might sound. Subjecting federal prosecutors to differing state rules creates conflicts between federal and state law rules, as well as among the laws and rules of different states that might be affected by a particular investigation. These conflicts have had a detrimental impact on the ability of federal law enforcement to investigate and prosecute criminal activity.67

Reno essentially argued that interstate complexity bars the application of one set of rules to federal prosecutors because their work is commingled among various jurisdictions, without an efficient way to determine which ethical rules should apply. Presumably, Reno would leave the business of ethical rules for federal prosecutors as an internal matter. Model Rule 3.8 is central to the issue of the McDade law, for if McDade is valid, then the full force of Rule 3.8 applies to all federal prosecutors. Furthermore, Rule 3.8 would apply on a state-by-state basis

under McDade, so whenever a federal prosecutor worked on elements of a case in a different jurisdiction, he would have to follow the rules of that jurisdiction. If this reading is correct, then Reno's argument that the McDade Act makes for prosecutorial confusion is well grounded. In any event, McDade forces federal prosecutors to comply with state ethical rules.68

Martha W. Barnett, then president of the American Bar Association, not surprisingly took a tack opposite to Reno:

The McDade law provides that federal prosecutors-like all other lawyers in the United States-must comply with rules of ethics adopted by the state supreme courts (not the "state bars") that give them their law license, and by the federal courts in which they practice... The American Bar Association would be troubled by any law that impaired appropriate law enforcement, but the McDade law does not do so. The Justice Department has been unable to point to a single instance since the McDade law was enacted in which a federal prosecutor has been disciplined for any conduct thought to be appropriate.69

These two opinions set forth generally the issues surrounding the McDade Act and the scope of state ethical rules concerning federal prosecutors. Although the debate could be further refined, the more salient point is how or if the McDade Act has brought the full force of Rule 3.8, as ratified by individual jurisdictions, onto federal prosecutors. The question becomes whether federal prosecutors must now follow Rule 3.8.

At least one answer to this question was addressed by the U.S. Court of Appeals for the Tenth Circuit in United States v. Colorado Supreme Court.70 At issue before the court was whether "Colorado Rule of Professional Conduct 3.8(f) as adopted by the District Court of Colorado may be enforced against federal prosecutors in Colorado."71 The court framed the issue as whether Colorado Rule 3.8 was an ethical rule for the purposes of the McDade Act.72 The federal government claimed that Colorado Rule 3.8 (and its provision requiring

judicial approval to subpoena an attorney in a criminal proceeding) conflicted with Federal Rule of Criminal Procedure P. 17-regarding the issuance of federal subpoenas; the government contended that Rule 3.8 should not apply because of the Supremacy Clause.73 If the court found that Rule 3.8 was a rule of legal ethics, then the court would apply it to federal prosecutors via the McDade Act-and presumably, if the court found otherwise, the rule would not apply. The court looked to the "public policy value of Rule 3.8" to determine that its purpose was to "protect the attorney-client relationship,74 which outweighed any incidental effect on the grand jury." The court then analyzed the rule to determine if it was a rule of professional conduct:

We look at several factors to help us determine whether a rule really is one of professional conduct. First, a proposed rule of professional conduct would bar conduct recognized by consensus within the profession as inappropriate .... Second, a rule of professional conduct is like a commandment dealing with morals and principals. As Judge Campbell in the First Circuit wrote in grappling with a local equivalent to an earlier version of rule 3.8, a rule of professional conduct often comes in commandment form and becomes suspicious when it "deviates from this `thou shalt not' structure." United States v. Klubock, 832 F. 2d 664, 669 (1 Cir. 1987) (en banc) (Campbell, CT, dissenting).75

The first two prongs of the test announced by the court focus on whether the rule is generally accepted as a professional rule and if the rule's language indicates that it is an ethical canon. The court, however, went further in its test to determine whether a rule truly is an ethical/professional canon of conduct:

Moreover, [a characteristic of an ethical, as opposed to a procedural or substantive, rule is that] a rule of ethics can often be quite vague in its nature, while by contrast the procedural or substantive law, the purposes of which are to direct a cause of action through the courts, cannot afford such vagueness .... Finally, a rule of ethics is directed at the attorney herself .... Accordingly, when a rule of professional conduct is violated, members of the profession would agree that the violating attorney ought to be held personally accountable; whereas when a procedural or substantive rule is violated, any negative effect would be directed primarily at the progress of the claim itself.76

Thus, the court's final gaze is set upon the party or person at which the rule's penalty is directed. If the rule seeks to penalize the attorney personally, then it is conduct regulating and an ethical rule; but, if the rule were to only apply its

penalty to the claim, then it would be a matter of procedural or substantive law, not one of professional conduct.

The court applied its test and held, "we easily conclude that the rule is an ethical one. Most significantly, the attorney-client relationship is by general consensus of our profession worthy of protection . . . ."77 The court reasoned that the attorney-client privilege would likely be damaged in the absence of Rule 3.8(f) because (1) the defendant would not know whether his attorney would have to testify against him, leaving the defendant unsure of the state of his representation, and (2) it would take a toll on the attorney and militate against him providing adequate representation to the criminal defendant.78 Lastly, the court noted that the rule applied to federal prosecutors under the McDade Act, because:

[T]he rule is clearly directed at the prosecutor, not at the cause of action. The rule attempts to regulate her behavior when seeking evidence in this privileged area of law, with the consequences of personal sanction. In sum, a prosecutor violating Rule 3.8 has violated the generally accepted principle that the attorney-client relationship should not be disturbed without cause.79

Regarding the application of Colorado Rule 3.8 to federal prosecutors, the court held that:

Because of the characteristics of Rule 3.8, we conclude that the rule in its current incarnation is a rule of ethics applicable to federal prosecutors by the McDade Act. Furthermore, we hold that Rule 3.8, in its mandate that a federal prosecutor ought not to disturb an attorney-client relationship without a showing of cause, does not conflict with Federal Rule of Criminal Procedure P. 17, which details only the procedures for issuing a proper subpoena.80

Thus, the court, by interpreting the McDade Act's provision of "ethical rule" in concert with Rule 3.8, held that the rule fell within the Act's scope, thereby requiring federal prosecutors to follow it in the jurisdiction where that attorney 14 engages" in his duties.81

The United State Court of Appeals for the First Circuit has also taken up the issue of Model Rule 3.8 and the McDade Act in Stem v. U.S. District Court.82 The First Circuit faced a slightly different problem than the Court in U.S. v. Colorado Supreme Court, as the issue was whether the United States District Court for the District of Massachusetts had the ability to incorporate local rules of ethics. The court held that, unrelated to whether McDade applied, the district

court had overstepped its rulemaking authority.83 The court reasoned that the rule as written by the district court added a substantive provision (namely that it required that "the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding" before a prosecutor could subpoena a lawyer in a grand jury or criminal proceeding).84 The court held that the "novel procedural step" that the rule added exceeded the court's authority. It is noteworthy that neither the Colorado statute at issue in U.S. v. Colorado Supreme Court, nor the Model Rules contain any such hearing provision. The court ultimately held that 3.8(f), and its adversarial hearing provision, "was without force or effect."85

IV. THE PROSECUTOR'S DUTY TO MAKE TIMELY DISCLOSURE OF EXCULPATORY EVIDENCE UNDER RULE 3.8(D)

A discussion of the trends in Rule 3.8 would be incomplete if it did not touch on the duty placed on the prosecutor by 3.8(d), which requires the prosecutor in a criminal case to:

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.86

This area of prosecutorial conduct can be traced back to Brady v. Maryland, which established that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to the guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."87 The plain language of Rule 3.8 suggests that it goes beyond the Brady rule and requires the prosecutor to act affirmatively in releasing exculpatory evidence. Without discussing the merits of the Brady rule and how it and Rule 3.8(d) combine, this section focuses on how courts have recently applied 3.8(d)'s standard.88

The District of Columbia Court of Appeals applied DC Rule 3.8(d) in Keys v. United States.89 Breond Keys was charged with first degree burglary and assault

for breaking into the apartment of Euell Washington, a woman whom Keys had dated until Washington broke up with him.90 On the night in question, Keys allegedly broke into Washington's home, where "an altercation ensued, during which Keys beat Washington and knocked her unconscious."91 The main disputed factual issue was "whether Keys used a gun during the break-in."92 Keys denied using or having a gun.93 Newman, a friend of Washington who was also at Washington's home at the time of the break in, was called as a defense witness. He testified, "he was present during the whole episode, tried unsuccessfully to protect Washington from Keys, but did not see Keys with a gun or hear Keys threaten to kill Washington."94 The jury "resolved the factual dispute in Keys's favor," and found Keys guilty of burglary but not of the greater charge of armed burglary.95 The issue central to this appeal was that Washington confessed to the prosecutor during a recess in the trial that she "had lied about Keys having a gun so that the police would respond more quickly than they had in the past to her calls for help. . . she continued to lie about the gun in her testimony before the grand jury and up to trial for fear that she would get in trouble if she admitted the truth."96 The prosecutor immediately consulted a supervisor and told the judge of Washington's confession.97 The prosecutor also said that Washington should not be allowed to continue her testimony until she could obtain counsel, "since she might have a Fifth Amendment privilege against self-incrimination if her grand jury testimony was false."98 After consulting an attorney, Washington withdrew her recantation and asserted that her grand jury testimony was accurate.99 When Washington again testified that Keys had a gun, Keys' defense lawyer impeached her testimony with her prior inconsistent out-of-court statements.100 Keys claimed that the prosecutor "improperly presented perjurious testimony from Washington about his use of a gun ......"101 The court held that there was no misconduct by the prosecutor.102 The court noted, "the record establishes affirmatively that the prosecutor acted with caution and rectitude, with candor towards the court and fairness towards Keys and his

counsel."103 The court invoked Rule 3.8 and stated that the prosecutor had surpassed the requirements of the rule:

[The] prosecutor fulfilled her ethical responsibilities and did not knowingly or recklessly present false testimony. The prosecutor promptly brought Washington's statement to the attention of the court and the defense. She gave serious consideration to dismissing the charges against Keys in light of the apparent change in Washington's story. She used the recess in the trial to meet with Washington and her attorney in order to probe Washington's truthfulness and evaluate her credibility. The prosecutor received Washington's explanation that Keys's family pressured her into saying there was no gun even though there really was one, as Washington had said all along. That explanation was not incredible, and the prosecutor could reasonably believe that Washington was telling the truth when she consistently said from her first reports up until the eve of the trial that Keys threatened her with a gun .... The prosecutor fulfilled her duties to investigate Washington's credibility and to refrain from presenting testimony known by the government to be false. The prosecutor also fulfilled her duty under Brady v. Maryland... to disclose Washington's recantation to Keys in a timely manner do that his counsel could use it to impeach her at trial.104

The court focused on the diligence of the prosecutor's approach to the possible exculpatory evidence. Both Rule 3.8 and Brady required its disclosure, and, since the prosecutor did so disclose, the defendant was not prejudiced, as shown by the fact that he was able to use the inconsistent out of court statements against Washington. Had the prosecutor buried the inconsistent admission, then Keys would have a basis for a claim of misconduct. Here, the prosecutor not only informed, but also investigated the claim, which militated in her favor in establishing diligence.

The United States District Court for the District of Rhode Island has also recently interpreted Rule 3.8 as well as Brady materials in Mastracchio v. Vose.105 In that case, the defendant Mastracchio was tried and convicted of a murder he had allegedly committed some five or more years earlier.106 Mastracchio was convicted largely on the testimony of Peter Gilbert, a government witness.107 Gilbert and Mastracchio sold drugs together, and the police arrested Gilbert pursuant to a tip that he was an escaped felon engaged in ongoing criminal activities. Gilbert believed that Mastracchio had given him up to the police, so he told the police that Mastracchio had been involved in the Valente

murder some years earlier.108 Mastracchio brought a petition for habeas corpus, arguing, inter alia, prosecutorial misconduct.109 At issue was the existence of possible impeachment evidence not turned over to the defense. Specifically, Mastracchio argued that the prosecution failed to disclose:

evidence that Mastracchio deems to constitute rewards or inducements: family visits, custodial recreation, financial arrangements, possession of a gun, access to or use of controlled substances while in custody, the consumption of alcoholic beverages, and freedom to leave the police station without a police escort.110

This evidence would have been used by the defense to attack the credibility and possible bias of Gilbert, the main witness against Mastracchio. The court addressed the issue of prosecutorial misconduct, noting that Rule 3.8 required "[t]he prosecutor in a criminal case [to] ... 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...."111 The court reasoned that there was "no evidence that the prosecution intentionally failed to disclose evidence regarding Gilbert's custodial confinement. While the prosecutor may not have known all of the evidence or information regarding Gilbert's confinement, the police certainly had such knowledge, and the prosecutor had a duty to discover it."112 The Mastracchio court intimated that while the prosecution may not have engaged in affirmative misconduct, its negligent discovery may have come very close to misconduct. Nevertheless, the court did not find that the prosecutor had not engaged in misconduct.

The court elaborated on the fine line that the prosecution had nearly crossed, stating that:

The prosecutor's failure to disclose information about Gilbert's custodial confinement comes exceedingly close to violating Rhode Island Rule 3.8 of the Professional code of conduct and the ABA Standards for Criminal Justice .... The prosecutor's failure to disclose flies in the face of the spirit of these ethical mandates. The court does not look favorably upon the prosecutor's failure to investigate and disclose information about Gilbert's custodial conditions to the defense.113

The court stopped short of calling the prosecution's failure to investigate wonton. Here, unlike Keys, the prosecutor did not act diligently under the circumstances. The court seems to reason that the nature of the custodial conditions of a

cooperating witness is an element into which any prosecutor would inquire. The court did not find a violation of Rule 3.8, presumably because there was no willful or knowing withholding on the part of the prosecution. Also, the court did not find prejudice to the defense under Brady, which highlights the interesting nature of Rule 3.8 and the Brady rule: namely, the fact that the prosecution could almost violate Rule 3.8's disclosure requirements, but seemingly clearly comply with Brady.114 Here, as in Keys, the actions of the prosecutor were central, but unlike Keys, the prosecutor here did nothing to affirmatively establish that he complied with the disclosure requirements. The prosecutor failed to comply with Rule 3.8's requirements but was not found to have committed prosecutorial misconduct due to a lack of intent.

CONCLUSION

Model Rule 3.8 is a wide-ranging rule covering many aspects of the prosecutor's conduct. The provisions of the rule require prosecutors, and those working for them, to safeguard basic procedural and substantive rights of the criminal defendant. This duty may seemingly put prosecutors in an odd situation since they may view the defendant as the opposition. But central to our notion of fairness are the ideals of representation, disclosure of evidence, and unbiased trials. The rule, to some extent, covers all of these elements. Rule 3.8 is not exclusive, so other ethical rules and principles may apply. An excellent example of this overlap, or lack thereof, is the extent to which both Rule 3.8 and the rule of Brady v. Maryland guide the prosecution's disclosure of exculpatory evidence. The two rules are not co-extensive, but certainly may cover the same issues (though as shown above, seemingly not in all cases).

As discussed, questions of the applicability of the rule to federal prosecutors have largely been resolved in favor of the rules applied under the McDade Act. But this resolution has created a federalist tension between state and federal authority over advocates. While the issue of the McDade Act's applicability seems currently settled, there is no indication of whether the new administration will openly oppose it as did the previous U.S. Attorney General.

Also of interest are cases in which the prosecution committed some form of misconduct, but the misconduct does not give rise to any sort of relief to the defendant. It may seem illogical for the rules to protect the defendant without actually giving the defendant redress. Yet, we are certainly in a better position with the rules to guide prosecutors than without any pattern for their behavior. Rule 3.8 serves, if nothing else, to constantly remind the prosecutor that his is a role of truth seeking, not one of winning at all costs - a noble aspiration.

CASEY P. McFADEN*

* J.D. Georgetown University Law Center, May 2002 (expected).

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