Ethics

Here's a question for readers:  How far do you get through the Tennessee Court of Appeals' opinion in State v. Dawson before your jaw drops and you say, "they did WHAT?"  To briefly summarize, a sheriff's department officer posed as an attorney, created fake letterhead to get correspondence past jail security, told the defendant that he was a "federal defender" and instructed the defendant to stop cooperating with his appointed counsel, and pretended to help the defendant with his case (by helping him get his truck released).  The officer had already been using the phony identity to communicate with the defendant's cellmate, and the defendant had seen five or six letters to the cellmate on the letterhead of an attorney named Paul Harris.  The letters from "Paul Harris" to the cellmate were used to gain the trust of the defendant, thus permitting the cellmate to surreptitiously record conversations with the defendant.  The detective might have had other communications with the defendant while posing as "Paul Harris" but the detective subsequently claimed the Fifth Amendment privilege against self-incrimination, making it impossible for the defendant to establish the extent of these communications.

It is a bit unclear exactly how much detail was known by supervising lawyers, but at one point a Tennessee Bureau of Investigation officer talked to the District Attorney General about the use of the cellmate to gather information from the defendant.  Moreover, the prosecutor obtained an indictment against the defendant, probably based in part on information obtained through the "Paul Harris" ruse, and obtained a guilty plea.  So it would be disingenuous for the prosecutors to claim they had no knowledge of the deception.

The Tennessee Court of Appeals dismissed the indictment as a sanction for this misconduct, but had little to say about the conduct of lawyers involved.  Needless to say, this case presents a laundry list of violations of ethical rules for prosecutors.  The court does a good job reviewing the Sixth Amendment law on interference with the right to counsel, but it would have been helpful for the court to address prosecutorial misconduct.  Many legal ethics scholars have noted the rarity of disciplinary actions against prosecutors (the Mike Nifong/Duke lacrosse case being the exception that proves the rule).  Perhaps this opinion will result in a referral to the Tennessee bar and an investigation of the conduct of the lawyers. 

[h/t Radley Balko and my alert colleague Kevin Clermont.]