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In the last few weeks we have come across two instances of state bar disciplinary committees handing down public sanctions for prosecutors in response their misconduct.

The first involves Caroline Country Commonwealth’s Attorney Tony Spencer who was reprimanded by the Virginia State Bar for sending a paralegal to pretend she was a student in order to ask questions of a local defense attorney. The Free Lance-Star reports that Spencer and the defense attorney were at odds in and out of court, and when the defense attorney told a jury that Spencer’s office had far more resources (including staff) than his, Spencer sent his paralegal to pose as a college student doing a survey in order to find out what staff the attorney actually had in his office. The defense attorney had filed a bar complaint against Spencer for misrepresenting to the jury (in a case in which they were opposing counsel) what kind of staffing was available to help him on the case. Spencer sent his paralegal under the auspices of determining whether the attorney had “made a false statement” in his bar complaint.

The Free Lance-Star says that in reprimanding Spencer, the Virginia State Bar found that he violated three rules of professional conduct including responsibilities regarding non-lawyer assistants, bar admission and disciplinary matters and misconduct. His public reprimand (which involved no sanctions or limitations on his ability to continue practicing) was imposed on February 28, 2013.

In responding to the reprimand, Spencer tried to mitigate his conduct by saying that his intentions were good and no harm was done:

Fortunately, with this mistake, there is nothing to fix. No one was harmed even slightly by the mistake I made. I will not make this mistake again.

It is a shame that Spencer misses the point that any time an attorney in his position, presiding over the prosecuting office of his county, commits misconduct, the integrity of that office is undermined. The resulting loss of public confidence may actually result in great harm.

In more recent news, a Tennessee prosecutor who had submitted a conditional guilty plea acknowledging her misconduct has received a public reprimand, also without sanctions, from the Tennessee Supreme Court on April 18.  The Knoxville News Sentinel reports that Assistant District Attorney General TaKisha Fitzgerald failed to timely notify the defense team for Micah Johnson that the state had in its possession letters penned by Johnson and phone calls made from jail by Johnson that went to the defendant’s claim of insanity at the time of the crime.

Fitzgerald had argued in a pre-trial hearing that she had no obligation to turn over the evidence under Brady. The Board of Professional Responsibility issued a disciplinary complaint against her and the Supreme Court issued a pubic censure in response.



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